CIVIL PROCEDURE — strike-out application — UCPR r 14.28 — whether pleading discloses reasonable cause of action — whether pleading is prolix — no order to strike out pleading EQUITY — trusts and trustees — family trusts — dispute between two sets of siblings — where trust funds have been used to fund the proceedings — application to restrain defendant siblings from funding litigation out of family trusts — application that such funds already used be paid into Court pending determination of proceedings — consideration of the interests of the family trusts — balance of convenience — relief granted — not necessary to give usual undertaking as to damages
PROCEDURE — Final orders — Where parties ordered to confer on appropriate orders to give effect to reasons in principal judgment — Where parties could not reach agreement on all orders — Where principal judgment contemplated orders for $850,000 portable life estate — Whether portable life estate not used for accommodation should be invested by plaintiff or defendants — Whether any property acquired should be in the name of the plaintiff or defendants — Final orders made.
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 and ancillary orders
LIMITATION OF ACTIONS — application for extension under s 62A of the Limitation Act 1969 (NSW) — medical negligence — where 4 of the 6 relevant surgeries occurred more than 12 years before proceedings were commenced — whether plaintiff ought to have known that the injuries she now claims to have suffered were caused by the fault of the defendant in a sense contemplated by s 50D(1)(b) of the Limitation Act 1969 (NSW)
COSTS — gross sum costs orders — where plaintiff’s claim an abuse of court process — many repeated proceedings by plaintiff — no issue of principle — gross sum costs orders made
ADMINISTRATIVE LAW – reviewability – justiciability – subject matter of power or decision – where Stolen Generations Reparations Scheme established in exercise of non-statutory executive power – where scheme empowers Minister to make ex gratia payments to persons removed by, committed to, or who otherwise came into the care of the Aborigines Protection Board or the Aborigines Welfare Board – where parties agreed that Court should proceed on the basis that review was available – whether decision amenable to judicial review – not decided ADMINISTRATIVE LAW – hearing rule – notice – particulars of case against applicant – where claim for ex gratia payment under non-statutory reparations scheme refused – where refusal letter identified the eligibility criteria and the deficiency in the applicant’s evidence – whether decision-maker obliged to disclose the path of reasoning proposed to be adopted ADMINISTRATIVE LAW – ground of review other than procedural fairness – unreasonableness – where scheme non-statutory and guidelines not binding – where Minister purported to apply the guidelines – whether misconstruction of non-binding guidelines is reviewable absent unreasonableness – whether the intent of the scheme admits of only one correct interpretation – construction of the phrase “otherwise came to be in the care of the Board” EVIDENCE – privileges – parliamentary privilege – where committee report and Government’s response were tabled in Legislative Council – where copy of the response in evidence was obtained from executive government website – whether Art 9 of the Bill of Rights precludes reliance on the report to identify the purpose and scope of a non-statutory scheme – whether the response so published attracts the protection of Art 9
CIVIL PROCEDURE – where matter undefended – post-judgment interest – s 101 of the Civil Procedure Act 2005 (NSW) – interest to accrue from the day after the original judgments – objection to instalment order – order rescinded COSTS – whether costs should follow the event – where complete victory for plaintiffs – costs to follow the event
CIVIL PROCEDURE — representative proceedings — Court approval — representative proceedings concerning alleged defective work in the construction of dwellings in a development — funding group members and unfunding group members — whether settlement is fair and reasonable — deductions from settlement sum for administrator and legal costs — settlement approved
CHILD WELFARE — Adoption — statement of principles — observations about the importance of the “voice of the child” in adoption proceedings CHILD WELFARE — Adoption — whether a declaration of parentage should be made for the birth father of the child — HELD — declaration of parentage should be made for the birth father of the child CHILD WELFARE — Adoption — whether the Secretary has made reasonable inquiries as to whether the child to be placed for adoption is an Aboriginal child in accordance with s 34 of the Adoption Act 2000 (NSW) — HELD — reasonable inquiries made CHILD WELFARE — Adoption — whether the child is an Aboriginal child for the purposes of the Adoption Act 2000 (NSW) — HELD — child is an Aboriginal child by reason of lineal descent from a Tasmanian Aboriginal man CHILD WELFARE — Adoption — Aboriginal child placement principles — whether an Aboriginal child has been placed for adoption — relationship between ss 33 to 35 of the Adoption Act 2000 (NSW) — where the Aboriginal child has one Aboriginal parent and one non-Aboriginal parent — where child placed in care with non-Aboriginal prospective adoptive parents 10 years ago — where child now 16 years of age — HELD — not practicable or in the best interests of the child for the child to be placed with prospective adoptive parents belonging to any Aboriginal community CHILD WELFARE — Adoption — Aboriginal child placement principles — whether placement of child has satisfied the consultation requirements under s 33 of the Adoption Act 2000 (NSW) — HELD — consultation requirements satisfied CHILD WELFARE — Adoption — Aboriginal child placement principles — whether the adoption plan satisfied the requirements under s 35(5) of the Adoption Act 2000 (NSW) to provide for the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs — HELD — adoption plan requirements satisfied
APPEALS — Procedural fairness — Hearing rule — Whether Appeal Panel of NSW Civil and Administrative Tribunal erred in law in holding that the Tribunal at first instance was entitled to disregard, without consideration, the plaintiff’s evidence because he did not attend the hearing to tender that material or make himself available for cross-examination — Whether Appeal Panel erred in law in holding that the Tribunal was justified in disregarding the plaintiff’s written submissions — Whether Appeal Panel erred in determining that the failure to consider the plaintiff’s evidence and submissions was immaterial — Leave to appeal granted and appeal allowed
COSTS — Party/Party — Whether it is “in the interests of justice” to make an order for costs, departing from the general rule in s 247(7) of the Legal Profession Uniform Law 2014 (NSW) that no order as to costs be made on appeal under that section — Where plaintiff’s cause of action lacks reasonable prospects of success — Where plaintiff’s claim involves unsubstantiated allegations of fraud and dishonesty — Where the serious legal and evidentiary deficiencies of the plaintiff’s claim were made clear to the plaintiff by the Fidelity Fund Management Committee prior to the proceedings — Where plaintiff’s conduct during the course of the proceeding was unreasonable — Interests of justice favour the plaintiff paying the defendant’s costs on ordinary basis
CIVIL PROCEDURE – default judgment – where the third defendant foreshadows filing a defence and cross-claim – whether the delay has been adequately explained
COSTS — interlocutory application — motion seeking to restrain defendant’s solicitor from acting — application to restrain solicitor dismissed — where restraint application was the primary and only contested substantive issue — where other components of motion resolved without contested determination
CORPORATIONS — management and administration — where very complex and large voluntary administration — orders sought to limit voluntary administrators’ personal liability in respect of notices under s 443B of the Corporations Act 2001 (Cth) and pre-appointment payroll practices — further orders sought for email notification to creditors, establishment of single committee of inspection and preparation of combined remuneration report — orders sought granted
CRIME — manslaughter — unlawful and dangerous act — intoxication SENTENCING — manslaughter — findings of fact — where Bugmy factors are accepted to reduce moral culpability — where offender had made early offer to plead guilty
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 and ancillary orders
CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action — whether statement of claim discloses a cause of action — whether pleading articulates causes of action alleged against each respective defendant — whether asserted causes of action are tenable — whether properly pleaded — whether there is any reasonable prospect of the Court granting the remedy sought by the plaintiff CIVIL PROCEDURE — Pleadings — Amendment — where plaintiff seeks leave to replead — where plaintiff has advanced four iterations of pleading in relation to the same underlying factual substratum — consideration of ss 56 to 60 of the Civil Procedure Act 2005 (NSW) — whether it is in the interests of justice, and consistent with the guiding principles of civil litigation to grant leave — whether any grant of leave should be limited by reference to particular causes of action — proposal to order timetable for service of a further draft pleading, and provision to the defendants of an opportunity to consider and be heard on further draft before leave to file is granted
ARBITRATION – Public policy – Whether enforcement of partial arbitral awards is contrary to domestic public policy pursuant to s 36(1)(b)(ii) Commercial Arbitration Act 2010 (NSW) – Whether difference between international and domestic principles concerning public policy in refusing to enforce arbitral awards BUILDING AND CONSTRUCTION – Policy under Building and Construction Industry Security of Payment Act 1999 (NSW) which allows contractors to receive progress payments pending final resolution of dispute – Whether SOPA policy is a public policy for the purposes of s 36(1)(b)(ii) COSTS – Whether plaintiff entitled to its costs – Where defendant may be entitled to further monies following finalisation of arbitration – Where partial arbitral awards final – Whether post-judgment interest rate under Civil Procedure Act 2005 (NSW) is applicable
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
CONTRACTS — breach of contract — claim in debt — telephone betting on credit — plaintiff a licensed bookmaker — defendant a customer of the plaintiff — defendant refused to pay amounts lost — approximately 6,250 bets — whether wagering contract was unlawful and unenforceable — onus of proving unlawful conduct — whether bookmaker must prove compliance with regulatory requirements to enforce debt
EVIDENCE — admissibility of evidence — expert evidence — whether expert report is inadmissible on the basis that it does not disclose the identity of each and every person employed at or engaged by the firm of the principal in whose name the report is authored EVIDENCE — prejudicial evidence — whether documents exhibited to expert report should be subject to limitation pursuant to s 136 of the Evidence Act 1995 (NSW)
EVIDENCE — admissibility of evidence — exceptions to the hearsay rule — whether a client statement of account produced by a bookmaker is a business record within the meaning of s 69 of the Evidence Act 1995 (NSW)
CIVIL PROCEDURE — application to amend pleadings — where proposed amendments served on defendant on last day of liability evidence — plaintiff did not act with expedition — proposed amended pleadings involving significant recasting of scope and content of duty of care owed by defendant and new case against individuals who were defendant witnesses and who had already ceased giving evidence — ss 56, 58 and 64 of Civil Procedure Act 2005 (NSW) — interaction between common law principles governing amendment of pleadings and Civil Procedure Act
CIVIL PROCEDURE – Representative proceedings – Court approval of settlement sum – Where the funds available for distribution from the proposed settlement are significantly eroded by deductions in favour of the litigation funder and for legal costs – Whether a contradictor should be appointed
CHILD WELFARE – adoption whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether consent of mother should be dispensed with – whether change of name should be approved
CIVIL PROCEDURE – urgent ex parte asset preservation application – where defendants generally on notice of criminal investigations and civil proceedings – where risk of dissipation of funds CIVIL PROCEDURE – joinder of defendants – Uniform Civil Procedure Rules (NSW), r 6.24(1) – whether joinder necessary to determine all matters in dispute – proposed defendants suspected of participating in the same money laundering scheme as existing defendants – joinder necessary CRIME – confiscations – restraining orders and custody and control orders – Proceeds of Crime Act 2002 (Cth), ss 18, 19, 38 – where proposed additional defendant alleged to have effective control of corporate accounts – Commonwealth money laundering offences – where authorised officer held reasonable grounds for suspecting money or other property is proceeds of crime
CIVIL PROCEDURE – urgent ex parte asset preservation application – where defendants generally on notice of criminal investigations and civil proceedings – where risk of dissipation of funds CRIME – confiscations – restraining orders and custody and control orders – Proceeds of Crime Act 2002 (Cth), ss 18, 19, 38 – where alleged effective control of corporate accounts – Commonwealth money laundering offences – where authorised officer held reasonable grounds for suspecting money or other property is proceeds of crime – statutory prerequisites satisfied
CIVIL PROCEDURE – cross-vesting – application to transfer to Supreme Court of Victoria – where proceedings nascent – more appropriate forum – where tort occurred in Victoria – where plaintiff resides in Victoria – where defendant is State of Victoria – transfer to Supreme Court of Victoria granted
CHILD WELFARE — Adoption — where the proposed adoptive parents are the child’s current foster parents — whether adoption order is in the child’s best interests — whether a declaration of parentage should be made for the birth father — whether the child’s birth certificates should be amended to include the birth father’s name — whether the child’s change of name should be approved — whether paternal and maternal adoption plans are in the best interests of the child and proper in the circumstances — HELD — adoption order is clearly preferable in the child’s best interests — declaration of parentage should be made for the birth father — the child’s birth certificates should be amended to include the birth father’s name — order dispensing with consent is in the best interests of the child — change of name approved — maternal and paternal adoption plans are in the best interests of the child and proper in the circumstances — maternal and paternal adoption plans should be registered
CORPORATIONS – shares – transfer – application by Plaintiff for orders compelling First Defendant to register transfer of shares – where shares formed part of a parcel of shares in First Defendant owned by a third party – where third party granted Second Defendant a fixed charge over all of the shares – where third party subsequently pledged around 30% of the shares as security for borrower’s obligations under a loan agreement with Plaintiff – where Plaintiff, following default under loan agreement, completed transfer form in respect of shares and lodged transfer with First Defendant for registration – where First Defendant refused to register transfer due to Second Defendant’s competing claim in respect of shares – whether First Defendant’s refusal was without just cause
APPEALS — Leave to appeal from decision of a District Court Judicial Registrar — No appearance by applicant — No issue of principle — No question of public importance — No reasonably clear injustice going beyond something that is merely arguable — Summons seeking leave to appeal dismissed
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied
CHILD WELFARE — Adoption — where the proposed adoptive parents are the children’s current foster parents — whether adoption order is in the children’s best interests — whether a declaration of parentage should be made for the birth father — whether the children’s birth certificates should be amended to include the birth father’s name — whether the requirement to serve notice on the birth father should be dispensed with — whether birth parents’ consent should be dispensed with — whether the children’s change of name should be approved — whether paternal and maternal adoption plans are in the best interests of the children and proper in the circumstances — HELD — adoption order is clearly preferable in the children’s best interests — declaration of parentage should be made for the birth father — the children’s birth certificates should be amended to include the birth father’s name — requirement to serve notice on the birth father dispensed with — order dispensing with consent is in the best interests of the children — change of name approved — maternal and paternal adoption plans are in the best interests of the children and proper in the circumstances — maternal and paternal adoption plans should be registered
PROCEEDS OF CRIME — whether there are reasonable grounds for suspicions — threshold for suspicion to be held on reasonable grounds is not particularly high — orders granted
CONTRACTS — consent orders signed on behalf of the defendant — plaintiff seeks to enforce under s 73 of the Civil Procedure Act 2005 (NSW) — whether the consent orders, as signed by the parties, constitute an immediately enforceable contract — whether parties intended the consent orders to be binding is to be determined objectively having regard to the language in the document — found that defendant did consent to immediate enforcement — motion granted — defendant pay the plaintiff's costs of the motion
CIVIL PROCEDURE — application for leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) — claim for damages following alleged sexual assault by officer whilst in juvenile detention — leave granted nunc pro tunc
CIVIL PROCEDURE — application for leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) — claim for damages following alleged abuse — leave granted
LAND LAW — Conveyancing — transfer of title — where plaintiff transferred property to defendants having expressed an earlier intention that they inherit the property — whether the transfer was a gift or a sale EQUITY — Unconscionable conduct — where plaintiff claims the transfer of property to the defendants was the result of unconscionable conduct on the part of the defendants — whether plaintiff had a special disability or disadvantage — whether defendants took unconscientious advantage
COSTS — general discretion as to costs — whether the Court should order otherwise — application of r 42.14 Uniform Civil Procedure Rules 2005 (NSW) — whether offer of compromise/Calderbank offer was capable of acceptance by first defendant alone — whether judgment is no less favourable to plaintiff
NEGLIGENCE – Personal injury – Employer and employee – Claim for work injury damages under the Workers Compensation Act – Where plaintiff injured by falling steel beam crushing his foot – Where plaintiff reasonably understood that he was instructed to approach the steel beams – Breach of duty – Causation – No finding of contributory negligence – Assessment of damages – Employment history – Total loss of earning capacity.
CRIMINAL LAW – murder – hearing under s 31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – where psychiatrists agree accused was suffering from schizophrenia at time of killing – Professor Greenberg considered accused also suffering chronic substance use disorder and so possibility of drug-induced psychosis cannot be excluded – exception under s 4(3) to mental health impairment does not apply because impairment not caused solely by substance use disorder or intoxication – accused unable to reason with a moderate degree of sense and composure – did not know her act was wrong – special verdict entered CRIMINAL LAW – victim impact statements – complexity of grief – remarkable courage in preparing and presenting these intensely private and difficult responses
HIGH RISK OFFENDER – Application for extended supervision order – Final hearing – Terrorism (High Risk Offenders) Act 2017 – Whether the defendant “poses an unacceptable risk of committing a serious terrorism offence” – Whether defendant was recruited to commit offences of damaging property for reward – Where defendant spray-painted slogans including “PKK”, “PKK coming” and “Fuk Israel” – Whether offences were committed with antisemitic intent – Whether the curse “Fuk Israel” is antisemitic – Whether defendant adopted an ideology associated with Hezbollah – No significant risk of defendant committing a serious terrorism offence – Summons dismissed.
TORTS — Miscellaneous torts — Deceit — Damages - CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters — Evidential burden – the first plaintiff claims he or the corporate second plaintiff invested funds in contracts for export to the PRC of Australian-made infant formula – the plaintiffs contend these investments were induced by false, misleading and deceptive representations made by the defendants – the plaintiffs’ investments in these contracts were lost – the plaintiffs seek to recover damages from the defendants measured by these allegedly lost investments – whether the defendants engaged in false, misleading or deceptive conduct in making representations to the plaintiffs about the terms of the export arrangements for the infant formula – whether any such representations were contrary to Australian Consumer Law ss 18 and 21 – whether the defendants knew that any representations they made were false, or that they were reckless as to their truth – whether any such representations induced the plaintiffs, to make the investments in the export contracts – whether the plaintiffs are entitled to damages under the Australian Consumer Law or for the tort of deceit.
CRIMINAL LAW — sentencing — convicted by jury — murder — circumstantial case — love triangle — intent to kill — use of a knife — disposal of body — flight to Indonesia for several years — long delay between commission of offence and sentence — no remorse and continuing denial of culpability
TORT – Negligence – duty of care – statutory authority – Murray-Darling Basin Authority established under the Water Act 2007 (Cth) – river system to be operated in the public interest – Authority’s functions include executing the agreement between States for sharing the water between the States – Authority required to operate in the face of conflicts – duty alleged to be owed to private irrigators – statutory framework does not erect or facilitate a sufficient relationship between the Authority and private irrigators – duty of care to some private irrigators would distort the focus of the statutory framework – alleged duty would be incongruous with the statutory framework TORT – Negligence – duty of care – pure economic loss – novel case – assumption of responsibility – salient features – reasonable foreseeability – actual foresight – identification of the risks of harm – control over the risks of harm and vulnerability – no specific reliance – no indeterminacy – equivalent duties of care would be owed to others – no assumption of responsibility – salient features do not warrant imposition of duty of care to avoid pure economic loss TORT – Negligence – alleged breach of duty in the conduct of river operations – whether failure to take precautions which a reasonable person in the Authority’s position would have taken – no breach of duty TORT – Negligence – alleged breach of duty in the conduct of commercial negotiations for access to privately-owned infrastructure – no breach of duty TORT – Negligence – causation of loss – factual causation – identification of counterfactual river operations – expert evidence TORT – Negligence – causation of loss – factual causation – determination of what the person who suffered harm would have done – admissibility of evidence – s 5D(3)(b) of the Civil Liability Act 2002 (NSW) – “statement made by the person suffering the harm” – farming business conducted through corporate trustee of family trust – family member involved in the management of business authorised to swear affidavit on behalf of corporate trustee – evidence inadmissible under s 5D(3)(b) TORT – Negligence – quantum of loss – price elasticity of demand for water – expert evidence – the price of hay PRIVATE INTERNATIONAL LAW – Choice of law – tort – Authority established to operate independently of the States – Authority’s place of work in the Australian Capital Territory – negligence alleged to arise from exercise of power to “give directions for the release of water” – directions variously received and acted upon in New South Wales and Victoria – negligence committed in the Australian Capital Territory – substantive issues in the case to be determined in accordance with the law of the Australian Capital Territory PRIVATE INTERNATIONAL LAW – Civil Law (Wrongs) Act 2002 (ACT) – Chapter 4 Negligence – does not apply of its own force to claim against the Authority – applies by virtue of s 64 of the Judiciary Act 1903 (Cth) PRIVATE INTERNATIONAL LAW – Choice of law – procedural issues governed by law of the forum – Court exercising federal jurisdiction – s 79 of the Judiciary Act 1903 (Cth) – whether s 5D(3)(b) of the Civil Liability Act 2002 (NSW) applicable to a case governed by Chapter 4 of the Civil Law (Wrongs) Act 2002 (ACT) – “the determination of factual causation” – whether s 5D(3)(b) applies to the determination of “factual causation” for the purposes of s 45(1)(a) of the Civil Law (Wrongs) Act 2002 (ACT) – s 5D(3)(b) applicable for the purposes of s 79 of the Judiciary Act 1903 (Cth) WORDS AND PHRASES – “statement made by the person suffering the harm” – “the determination of factual causation”
CORPORATIONS — judicial advice — where deed administrators seek judicial advice under s 90-15 of the Insolvency Practice Schedule (Corporations) as to the disposition of original bank guarantees
STATUTORY INTERPRETATION – Construction – Private Health Insurance (Benefit Requirements) Rules 2011 (Cth) sch 5 cl 3 – Proper construction of cl 3(6) – Where a private health insurer had no negotiated agreement with plaintiff second tier private hospitals – Where private hospitals provided insured patients with episodes of hospital treatment and sought minimum benefits from insurer calculated under the Rules – Where insurer required to calculate minimum benefit
DAMAGES – apportionment – where Second Defendant was a director and the Chief Executive Officer of Third Defendant – whether loss should be apportioned as between Second and Third Defendants – the extent of each Defendant’s responsibility for Plaintiffs’ loss COSTS – whether Defendants should be jointly and severally liable for Plaintiffs’ costs or whether costs should be apportioned
MENTAL HEALTH – forensic patient – extension of status as forensic patient – preliminary hearing – whether unacceptable risk of causing serious harm to others – demonstrated risk of violence and sexual violence offending which may be increased by schizophrenia – history of reoffending upon release absent appropriate support systems – whether risk can be adequately managed by less restrictive means – no less restrictive means given ongoing treatment needs, past non-compliance, little time spent in the community, lack of motivation and insights and risk posed – interim extension of status as forensic patient ordered
DEFAULT JUDGMENT – monies lent to borrower pursuant to loan agreement – first defendant guaranteed obligations of the borrower – borrower defaulted in payment of the loan – no appearance or defence filed by first defendant – plaintiff entitled to judgment by default
REMEDIES – account of profits – determination of the extent of the benefits obtained by Third and Fourth Defendants as a result of the Third Defendant’s breach of his fiduciary obligations in which the Fourth Defendant knowingly participated – whether amounts payable by way of interest on a bank facility should be treated as a project expense in determining the extent of the benefits received – whether the amount of the award should be grossed-up for tax – whether interest on the benefits received in individual financial years should run from the end of the relevant financial year or from the end of the project
PRACTICE & PROCEDURE – summons – dismissal – events overtaken relief sought – proceedings now pointless – UCPR r 13.4 – no reasonable cause of action disclosed against fourth defendant – to continue proceedings is now an abuse of process – deliberate delays – failure to file and serve affidavits – failure to comply with Court orders AMENDMENT – attempt to convert proceedings commenced on summons into a different cause of action by statement of claim – abuse of process – UCPR r 6.3 – causes of action to be commenced by statement of claim – these proceedings were commenced by summons – amendment refused COSTS – application for gross sum indemnity costs granted – fourth defendant wrote to the first plaintiff upon receipt of summons requesting discontinuance and warning indemnity costs would be sought COSTS – costs assessment – cost assessor’s obligations – interaction between Legal Profession Uniform Law Application Act 2014 (NSW) ss 70 and 71 and Legal Profession Uniform Law Application Regulation 2025 (NSW) reg 44 – certificate of costs assessor’s determination only released when costs of assessment are paid (reg 44(2)(ii)) – possible interpretation of s 71 for Assessor or Manager to file Certificate of Determination of fees of assessment if not paid by party determined to be liable to pay – s 71 ambiguous in this respect
CIVIL PROCEDURE — application to join insurance company as a defendant to the proceedings — whether there is an arguable case that the policy responds to liability — held that it is arguable that the bodily injury through the plaintiff's psychiatric condition arises from that negligence — leave granted to join the insurance company as second defendant CONTRACTS — construction of terms of the insurance policy — where insurance company says it is not arguable that any liability of the defendant to the plaintiff falls within the scope of the insuring clause — where insurance company seeks to rely on a condition precedent to exclude coverage — held that it is not possible or appropriate to determine at this interlocutory stage whether the condition precedent applies
TORTS – intentional torts – where 18-year-old plaintiff became intoxicated after her Year 12 school formal and found herself isolated and alone in the street late at night – where she was picked up by a stranger and taken to a house where she was detained, drugged and repeatedly and violently sexually assaulted by three men – where plaintiff did not consent and was incapable of consenting due to heavy intoxication – where objective evidence corroborates plaintiff’s account including expert pharmacological evidence, medical examination evidence and a video recording taken during part of the sexual assaults – plaintiff established that the first and second defendants were two of the three men who detained, drugged and sexually assaulted her in the manner alleged – physical, psychological and psychiatric injuries and economic loss TORTS – intentional torts – where the first defendant, whilst held on remand following his arrest for the sexual assaults, conspired with his brother, the third defendant, to locate the plaintiff and coerce her to change her evidence to falsely assert she had consented to the sexual activity – where conspiracy with others, including a person who unbeknownst to them was an undercover police officer – where the first and third defendants were convicted of attempting to pervert the course of justice – where objective evidence corroborates the plaintiff’s account including intercepted telephone calls between the conspirators and agreed facts on which the third defendant was sentenced – irrelevant that the conspiracy involved an undercover police officer – conspiracy to injure by unlawful means – where plaintiff changed her identity, moved her residence and severed contact with family and friends due to threats – where plaintiff continues to live under an assumed identity – plaintiff established the first and third defendants conspired to injure her by causing her psychological harm and that she suffered psychological injuries and economic loss TORTS – joint and successive tortfeasors – plaintiff’s submission that “you can’t unscramble the egg” categorising all three defendants as joint tortfeasors whose joint acts contributed to the same damage not accepted – first and second defendants liable as joint tortfeasors for the sexual assaults – first and third defendants liable as joint tortfeasors for the conspiracy TORTS – common law damages – apportionment between multiple joint tortfeasors across multiple torts – Court to do the best it can to determine the extent of the damage referable to different torts – third defendant not liable for damages solely attributable to the sexual assaults – aggravated damages – economic loss attributed equally
GUARANTEE AND INDEMNITY — action to enforce guarantee — guarantor’s liability — whether defendants bound by an irrevocable authority — whether claimed term can be implied into the authority — what must be paid CIVIL PROCEDURE — hearing — procedural fairness — where defendants are self-represented — adjournment refused — where defendants given fair opportunity to be heard EVIDENCE — motion — application to re-open case — defendant seeking to replead and lead further evidence after hearing concluded — motion dismissed
BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 25, 32 — where plaintiff seeks to enforce a judgment entered after an adjudication — where defendant seeks orders for payment by monthly instalments — whether evidence established a just basis for making such an order — where defendant relies on case sought to be established in other proceedings in which it challenges the result of the adjudication CIVIL PROCEDURE — subpoena and notice to produce — motion — where defendant seeks production of financial records by subpoena and notice to produce — where relevance disputed — relevance not established
CIVIL PROCEDURE – parens patriae jurisdiction – administration of estates – where plaintiff suffered a brain injury – where plaintiff received a significant sum of money in settlement – where defendant has been appointed as the manager of the plaintiff’s estate – application for declaration that plaintiff is capable of managing their own affairs – application granted
LEASES AND TENANCIES — Default and termination — Repudiation — Where short-term closure order under s 50B(1) of the Public Health (Tobacco) Act 2008 (NSW) issued to premises for unlawful trading in illicit tobacco products — Where variation to order under s 50B(4) to permit premises to re-open and sell goods except tobacco, smoking and vaping products and smoking accessories — Where lessor gave notice to terminate lease under s 50J(1)
HIGH RISK OFFENDERS — extended supervision orders — term of — consideration of appropriate length having regard to neurocognitive decline HIGH RISK OFFENDERS — extended supervision orders — conditions — appropriate conditions — no issue of principle
CONTRACT — construction — shareholders agreement — whether a loan default notice has been served in accordance with the shareholders agreement — whether there is a requirement for a further notice of default after a failure to remedy the breach within ten days — HELD — no requirement for a further notice of default — loan default notice was served in accordance with the shareholders agreement CONTRACT — construction — shareholders agreement — where a security default notice was served in respect of shares provided as security to a third party in breach of the shareholders agreement — whether a deed poll purporting to remedy that breach extinguished the right to acquire shares under the shareholder agreement as a consequence of the security default notice — HELD — the right to acquire shares as a consequence of the security default notice arose immediately upon the breach and did not provide a period within which it may be remedied before the default arose CONTRACT — construction — shareholders agreement — where the shareholders agreement provided that it would be automatically terminated upon the commencement of certain proceedings against the company — whether proceedings commenced against the company caused the shareholders agreement to be automatically terminated — HELD — on its proper construction, the proceedings commenced against the company were not proceedings that triggered the automatic termination of the shareholders agreement EQUITY — equitable remedies — specific performance — the right of one shareholder to purchase shares of another shareholder under shareholders agreement to obtain controlling interest — where the shares are not freely or readily available on the open market — whether damages an adequate remedy — HELD — specific performance of right to acquire shares granted
CIVIL PROCEDURE — summary dismissal — application to summarily dismiss proceedings — allegation of bias against ninth defendant — allegation of improper purpose against ninth defendant — whether a reasonable cause of action disclosed
CORPORATIONS – where administrators appointed over defendant companies shortly before delivery of judgment on plaintiff’s application for the appointment of provisional liquidators – where director of defendant companies made an application prior to the delivery of judgment to adjourn the plaintiff’s application – where administrators did not appear on the adjournment application – where defendant indicated an intention to propose a deed of company arrangement but no details of such proposal were provided to the Court – where there were public interest grounds in favour of the plaintiff’s application for the appointment of provisional liquidators – whether there was a basis for the Court to be satisfied that it was in the interests of the defendant companies’ creditors for those companies to continue under administration rather than have provisional liquidators appointed – adjournment application refused
HIGH RISK OFFENDER – interim supervision order – what conditions likely to be effective – recent alleged offending potentially relevant to risk – defendant in custody bail refused for recent alleged offending – suspension of examinations while awaiting hearing of recent charges – conditions of ISO – conditions should not criminalise minor behavioural issues – unjustifiable conditions should not be imposed
COSTS — party/party — exceptions to general rule that costs follow the event — plaintiff seeking indulgence — where plaintiff unsuccessfully pursued litigation, is dissatisfied with legal representation and claims financial hardship — usual costs order cannot justly be refused
CIVIL PROCEDURE — Subpoenas — Application to set aside — Where subpoena seeking transcript of public examination by liquidator in Federal Court proceeding — Where application in Federal Court proceeding to restrict use of transcript
SUCCESSION — Family provision — Sexual abuse and physical abuse allegations — Where plaintiff adult daughter of deceased from his first marriage — Where plaintiff was removed from her mother’s care at about age 9 and custody awarded to deceased — Where plaintiff lived with deceased, step-mother and two half siblings until aged 18 — Where plaintiff alleges deceased sexually and physically assaulted her between ages 4 to 18 — Where plaintiff left home at 18 following alleged abuse incident —Where plaintiff had no contact with deceased for approximately 34 years before his death following leaving home — Where deceased denied allegations of abuse — Where family did not believe plaintiff — Whether it is proper and appropriate to make findings regarding alleged abuse — Whether the alleged abuse is important and relevant to the facts in dispute SUCCESSION — Family provision — Claim by adult daughter — Modest estate — Plaintiff received no provision in the will — Where estate was left entirely to defendant, second daughter of the deceased — Where plaintiff has significant health issues allegedly caused by deceased — Where plaintiff has limited savings but owns property — Where defendant provided care for deceased — Where defendant has limited savings and assets — Whether the deceased fulfilled his moral obligations towards the plaintiff — Whether adequate provision for proper maintenance, education or advancement in life made for plaintiff — Whether an order for further provision ought be made given competing circumstances of defendant — Whether a condition should be imposed on order for provision
ADMINISTRATIVE LAW — review of medical assessment by Review Panel — judicial review of Review Panel decision — where medical assessment certificate revoked and replaced by Review Panel — whether Review Panel’s decision affected by reviewable error due to making of findings beyond scope of medical dispute — whether Review Panel failed to afford procedural fairness
CIVIL PROCEDURE — Discovery — Whether necessary for resolution of real issues in dispute — Where family dispute over significant commercial property development — No issue of principle CIVIL PROCEDURE — Notices to produce — Application to set aside — Where 64 categories of document called for under notice to produce issued at the same time as motion seeking discovery of 87 categories of document — Whether entire notice to produce is abuse of process — Whether documents called for are specific and relevant — No issue of principle
CIVIL PROCEDURE — separate determination of questions — whether appropriate— where one party seeks determination of a separate question by a referee — where substantive proceedings concern disputed validity of association meetings, members and office bearers — where AGM cannot be held — where separate question aimed at regularising an association— where there is a commonality of factual issues — where there is a commonality of witnesses — where issues of witness credit may arise in primary and separate proceedings — whether determination of a separate question would facilitate the just, quick, and cheap resolution of issues CIVIL PROCEDURE — alternative dispute resolution — court referral to referee — whether appropriate — where one party suspects financial and other mismanagement — where parties said to be unlikely to cooperate — where further litigation said to be extremely likely
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 and ancillary orders
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of member to consider and, if thought fit, to agree to proposed scheme of arrangement to implement corporate restructuring – whether requirements to order scheme meeting are satisfied
CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement and ancillary orders
PLEADINGS – amendment of pleadings – application by defendants for costs thrown away or occasioned by reason of the amendment – application for forthwith costs order – no reason to depart from usual rule that costs of interlocutory hearing be payable at the conclusion of the proceedings
CIVIL PROCEDURE – proceedings commenced by tutor on behalf of person under legal incapacity – application for approval of proposed settlement – whether proposed settlement beneficial to plaintiff’s interests – settlement approved
CIVIL PROCEDURE - amendment of pleadings - where Originating Process and Points of Claim allege that a particular transaction was an uncommercial transaction and seek relief pursuant to s 588FF of the Corporations Act 2001 (Cth) – where the plaintiffs sought leave to amend the Originating Process to add a claim for relief pursuant to s 588FF(1)(g) and sought leave to amend the Points of Claim to reflect matters raised by the First Defendant’s evidence and the Plaintiffs’ evidence in reply – whether there is an explanation for any delay in making the amendments – whether the Defendants will be prejudiced by the amendments CIVIL PROCEDURE – discovery – whether the Plaintiffs have explained the relevance of the categories – whether the Plaintiffs have complied with Practice Notice SC Eq 11 – whether the scope of various categories should be narrowed – whether a “Sabre order” should be made
CRIME – murder – defence of mental health impairment – where parties agree defence is available – hearing pursuant to of the s 31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Court satisfied defence is available – special verdict entered – act proven but accused not criminally responsible – victim impact statements
CORPORATIONS – appointment of provisional liquidators – where group of companies under control of the same director – where companies raised funds from investors – where companies repeatedly failed to comply with statutory obligations to provide financial reports to ASIC – where director has been subject of serious adverse findings by various regulatory bodies – where there are deficiencies in the companies’ financial records – where companies have been meeting obligations to investors by raising money from new investors and from borrowings – whether there is a reasonable prospect that a winding-up order will be made on the just and equitable ground – whether there is a good reason for the appointment of provisional liquidators pending the determination of the winding up application – whether the undertakings offered by the companies and the director are sufficient to address the concerns raised by ASIC
CIVIL PROCEDURE — case management — first defendant previously served by way of substituted service — where first defendant seeks short adjournment in order to obtain legal representation — no issue of principle CIVIL PROCEDURE — application of second defendant to strike out statement of claim — whether statement of claim discloses a reasonable cause of action — no issue of principle
CRIMINAL LAW – murder – hearing under s 31 Mental Health and Cognitive Impairment Forensic Provisions Act – where psychiatrists agree accused suffering from delusional disorder and/or schizophrenia at time of killing – accused thoughts disordered and delusional – delusional belief in partner’s infidelity – accused unable to reason with a moderate degree of sense and composure – did not know his act was wrong – special verdict entered CRIMINAL LAW – victim impact statements – where family members travelled hundreds of miles to attend hearing – bewildered at outcome and finding of “not criminally responsible” – language described by family member as “bullshit” – understandable approach to language of statute – dignified and respectful vigil over proceedings – courageous reading of victim impact statements – statements to remain in Court’s archives as enduring testament to a remarkable woman
ASSOCIATIONS AND CLUBS – incorporated associations – where governance dispute within incorporated association as to duly appointed committee – whether purported adoption of replacement constitution valid – whether requisition for special general meeting valid – whether special and annual general meetings valid – where orders to be made for a mechanism to be put into place for the election of committee members
CRIMINAL LAW – application for trial by judge alone – where first trial ended in hung jury – jury unable to agree – where four-year delay between alleged offence and trial – desirability for finality – no issues raising community standards – some prejudicial publicity – finely balanced – where Court able to facilitate immediate listing – no suggestion of judge shopping – application granted
HIGH RISK OFFENDER — serious sex offender — application for extended supervision order — whether Court satisfied to high degree of probability that the defendant poses an unacceptable risk of committing another serious offence — order made — dispute as to conditions — requirement that conditions be appropriate
PRACTICE AND PROCEDURE – application to vary or substitute orders pursuant to “slip rule” or inherent jurisdiction – where previous orders recognised existence of constructive trust – where declaration expressed in present tense – whether present tense necessitated that constructive trust commenced prospectively from the date of orders – no occasion to apply the slip rule or exercise the inherent jurisdiction – where application to the Australian Taxation Office for a private binding ruling misstated effect of earlier reasons and orders – where defendant ordered to correct misstatement
OCCUPATIONS — Legal practitioners — Legal Practitioners Fidelity Fund — Claims against fund — Where no “trust property” — Where no “pecuniary loss” — Where no “fraudulent dealings” — Where no “default” by legal practitioners — Claims dismissed COURTS AND JUDGES — Bias — Actual bias — Applications for recusal — Where no matter raised by the plaintiff that established actual bias — Where plaintiff unable to point to any evidence of prejudgment — First and second recusal applications rejected CIVIL PROCEDURE — Summary disposal — Summary judgment — Defendant not required to file a defence or response to summons — Defendant had at least arguable answers to relief sought
COSTS – Party/Party – Bases of quantification – responsibility for the costs of contested estate proceedings - whether a specified gross sum should be fixed instead of assessed costs under Civil Procedure Act, s 98(4)(c) – no question of principle.
ADMINISTRATIVE LAW — Particular administrative bodies — police — revocation of firearms licence — where plaintiff sentenced to conditional release order for firearms-related offences — where delegate gave weight to requirement to refuse a new licence application for a person serving a conditional release order — where delegate determined not in public interest for plaintiff to possess or use firearms by way of a licence ADMINISTRATIVE LAW — Hearing rule — disclosure — adverse allegations — whether delegate erred in taking into account certain police computer system entries ADMINISTRATIVE LAW —Irrelevant and relevant considerations — whether delegate erred in taking into account the requirement to refuse a new licence application for a person serving a conditional release order — whether delegate failed to take into account low objective seriousness of offending and prior behaviour and primary producer status of the plaintiff ADMINISTRATIVE LAW — Ground of review other than procedural fairness — unreasonableness — whether unreasonableness in delegate’s decision due to plaintiff’s lengthy period of prior compliance with firearms legislation
SUCCESSION — Administration of estate — Application for family provision order by plaintiff — Application for interim distribution of plaintiff’s share of residue or interim provision under Succession Act 2006 s 62 — Relevant considerations — Application refused on both bases
CRIME — murder — defences — self-defence — where deceased harboured a grievance with the accused over the purchase of drugs — where deceased went to premises at which the accused was present to ventilate said grievance — where accused stabbed the deceased twice and quit the scene — no direct evidence of altercation absent the account of the accused — Liberato applicable — largely uncooperative and unsatisfactory civilian witnesses — where Crown case reliant on inferences
MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Application for interim extension order — History of sexual offending including against children — No subsequent offending following conviction, while under supervision
PRACTICE AND PROCEDURE — application for adjournment — representative proceedings — substitution application — substitution applicant retaining new solicitors — new solicitors requiring additional time to assess evidential and legal matters and put on further evidence — whether matter should be dealt with on the material already filed without an additional adjournment — interests of all group members of representative proceedings — adjournment granted — motion dismissed PRACTICE AND PROCEDURE — substitution application withdrawn — submissions made seeking time to put further submissions regarding costs orders — the Funder did not appear — costs to be dealt with on the papers
APPEALS — from a decision of the Children’s Court — notice of motion seeking appeal for leave out of time and appeal of the decision made in the Children's Court — notice of motion dismissed JURISDICTION — care proceedings and order from Children's Court — appeal under s 91 of Children and Young Persons (Care and Protection) Act 1998 (NSW) — this Court does not have statutory jurisdiction to determine an appeal from orders of the Children’s Court — considered as an application for judicial review JUDICIAL REVIEW — plaintiff states there was a denial of procedural fairness as she claims the orders were made in her absence or that she had no opportunity to participate as she was overseas — guardian ad litem had been appointed to represent plaintiff's interests in the Children's Court — not satisfied that there was a realistic possibility that the orders would have been different if plaintiff was present — no procedural fairness — no basis for relief established APPLICATION FOR SUMMARY DISMISSAL — defendant seeks summary dismissal pursuant to UCPR r 13.4 — no statutory basis for the plaintiff to have commenced proceedings by appeal in this Court — no jurisdictional error or an error of law on the face of the record to support a judicial review — proceedings are bound to fail and are thus frivolous, vexatious and an abuse of process — summary dismissal granted
CONTRACT — informal agreements — loan agreement — where agreed that there existed a contract that was partly-oral and partly referred to in text messages — dispute as to parties to the contract — whether borrower was corporation or director personally — where loan monies applied to purchase of property by corporation — no evidence that any corporate borrower mentioned during loan negotiations — use of post-contractual conduct to determine parties to the contract
CONTEMPT – criminal contempt – contumacious breach of orders – disobedience to subpoenas – where contemnor refused to testify in attempted murder trial – where contemnor pleaded guilty – appropriate penalty – whether imprisonment warranted – whether order should be suspended
CRIMINAL LAW – contested application for accused to appear by audio visual link – whether hearing under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) is a “physical appearance proceeding” – legislation unclear – Court proceeds on basis that it is – wishes of victim’s family – desire to read Victim Impact Statements in physical presence of the accused – where accused on South Coast and inquiry in Central NSW – where accused mentally unwell – opinion of psychiatrist – difficult decision – AVL order made – matters relevant to interests of the administration of justice
CRIMINAL LAW – Crime Commission – where provisional indication provided that transcript would be made available to parties – where interested person provided opportunity to be heard – provisional view confirmed in one case – provisional view changed upon submissions from one of the interested parties – matter may be re-evaluated during trial
CRIMINAL LAW – application to release confidential material notified by Crime Commission – where evidence given under compulsion and with assurances that it would not be published should be available to parties – relevant considerations – provisional indication material should be released – interested parties to have opportunity to be heard
CORPORATIONS – application for approval of provisional liquidators’ remuneration – where provisional liquidators allege that work conducted is out of the ordinary and complex due to corporate structure – where plaintiffs oppose the remuneration amount sought – where plaintiffs allege the remuneration amount is not reasonable – where remuneration claimed is substantial – where remuneration claimed by provisional liquidators is reasonable and proportionate
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) – Stay of execution of judgment obtained under SOPA pending determination of plaintiff’s substantive claims in related proceedings – Balance of convenience – Where not demonstrated there would be “catastrophic” consequences if stay not ordered – Where not possible to determine substantive case strong – Where no risk of defendant’s insolvency – Where delay in bringing stay application
SUCCESSION — Wills, probate and administration — Whether deceased knew and approved contents and effect of codicil — Construction of will and codicil where ambiguity — Whether codicil carried out the intentions of the deceased — No question of principle
CORPORATIONS – statutory demand – plaintiff brought three applications under s 459G of the Corporations Act 2001 (Cth) for orders setting aside statutory demands issued by the respective defendants – where defendants had invested in a fund managed by plaintiff – where plaintiff and defendants entered into a settlement deed – where settlement deed provided for plaintiff to make redemption payments to defendants in specified amounts by specified dates – where plaintiff failed to make payments in accordance with settlement deed – where defendants issued statutory demands claiming payments due to each of them under settlement deed – where plaintiff claimed that defendants were estopped from suing on the settlement deed or had waived their right to insist on compliance with the payment obligations in the deed – whether there existed a genuine dispute in relation to the debts claimed CORPORATIONS – service of application to set aside statutory demand under s 459G of the Corporations Act 2001 (Cth) – where statutory demand served by one set of defendants specified the interstate office and email address of the defendants’ solicitor as the address for service - where plaintiff’s solicitor purported to serve s 459G application and supporting affidavit by emailing documents to defendants’ solicitor on the last day of the 21-day statutory period – whether email constituted effect service of statutory demand – whether ss 110C-110D of the Corporations Act 2001 (Cth) applied to service of applications under s 459G of the Corporations Act 2001 (Cth) in place of s 15 of the Service and Execution of Process Act 1992 (Cth) CORPORATIONS – where statutory demand issued by one set of defendants failed to comply with the requirements of Form 509H by reason of specifying an interstate address for service – where plaintiff sought declaration that statutory demand was null and void – whether Court should grant declaratory relief – whether plaintiff suffered substantial injustice due to defect
LOCAL GOVERNMENT – orders – s 124 Local Government Act 1993 (NSW) – asbestos contamination after fire to property – orders requiring premises in safe condition – whether orders valid – whether the defendant complied with orders – Council entry and remediation under s 678 – debt recovery – judgment for the plaintiff TORTS – trespass – cross-claim – Council entry onto private property – demolition of fire-damaged property – asbestos contamination – whether Council authorised to enter – whether procedural fairness denied – s 43A Civil Liability Act 2002 (NSW) – whether bars cross-claim – cross-claim is dismissed DAMAGES – post-fire demolition – betterment principle – whether deduction for betterment applicable – method of calculation
CIVIL PROCEDURE – notice of motion – self-represented litigant – ambiguity as to whether summons seeks judicial review or appeal – motion to amend summons previously dismissed with costs – where additional summons filed to ventilate constitutional validity argument – where argument needs to be raised on present summons – leave granted to file amended summons CIVIL PROCEDURE – summons – hearing vacated to allow plaintiff to file amended summons – costs
NEGLIGENCE—Stevedoring—Co-tortfeasors: stevedoring firm employer and third-party shipowner—Compensation paid under Workers Compensation Act 1987 (NSW)—Failure to provide safe working conditions—Failure of stowage equipment resulting in physical and psychiatric injury—Apportionment of liability DAMAGES—Pre-existing psychiatric injuries—Pre-existing asymptomatic spinal condition—Non-economic loss—Economic loss—Fox v Wood
PROCEDURE – default judgment – application to set aside – whether arguable defence that contract unjust – no adequate explanation for failure to participate in the proceedings – application 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 – judicial advice application by liquidator and receiver – where novel and complex insolvency issue concerning application of set-off to insolvent corporate trustee under s 553C of the Corporations Act 2001 (Cth) – where costs should follow the event – whether costs payable from funds held in Court – where contradictor assisted the Court in determining novel and complex insolvency issue – whether costs should be borne out of partnership assets or by a partner personally – costs fixed on gross sum basis
ADMINISTRATIVE LAW – Where judicial review is sought – Where appeal proceedings before NSW Civil and Administrative Tribunal Appeal Panel have been heard but not determined – Whether the plaintiff’s summons is futile and premature
CONTRACTS — Home Building Act 1989 (NSW) (the Act) ss 4, 5 and 10 and Sch 1 — claim for damages for breach of an oral agreement for the acquisition and development of a house in Mosman funded by Defendant and supervised by Plaintiff with Plaintiff to receive the net profit — net profit made but Defendant did not pay it to Plaintiff — Illegality — Defendant pleads that the contract is illegal because it involves Plaintiff doing residential building work without a licence as required by the Act — EQUITY/TRUSTS — Defendant claims that the parties agreed alternatively on the common assumption that the profit would be held on trust to be used to pay school fees for the children of the director of Plaintiff and his then wife (the daughter of the directors of Defendant) — HELD — contract not illegal — Plaintiff has the benefit of the exception in s 2(3)(i)(iii) of Sch 1 of the Act — HELD — parties agreed that profit would be used for school fees but did not intend the agreement to be legally binding and no trust created — judgment for Plaintiff
CRIME — manslaughter — offender unfit to be tried and found at a special hearing to have committed the offence of manslaughter — offender subsequently became fit to be tried — plea of guilty to manslaughter owing to substantial impairment SENTENCING — violent offending — substantial impairment — Bugmy factors — victim impact statements — remorse — prospects of rehabilitation — where previous non-compliance with release conditions affected by external stressors — ceiling principle not applied
CORPORATIONS – Australian Securities and Investments Commission – civil penalty proceeding – where the Defendant operated a managed investment fund that was promoted as focussed on environmental, social and governance (ESG) objectives – where the underlying investments of the fund included investments in companies with substantial revenue from fossil fuels – where senior management were aware of issues being raised regarding misalignment between the investment objectives and the underlying investments – the Defendant admitted making misleading statements about the fund and failing to exercise care and diligence in relation to the fund – the parties prepared a statement of agreed facts and jointly proposed declarations of contravention and a pecuniary penalty – whether declaratory relief should be granted – whether proposed pecuniary penalty is an appropriate penalty
ADMINISTRATIVE LAW — judicial review — where proceedings brought out of time — matters to be considered when exercising discretion to extend time — available appeal avenue not pursued — successful challenge would have no practical utility — no issue of principle
CRIME — murder — defences — mental illness — procedure where Crown and accused agree on availability of mental health impairment defence — consideration of whether evidence establishes defence — no issue of principle
SUCCESSION — Contested probate — Testamentary capacity — Where will executed by the deceased in 2023 gave the deceased’s entire estate to the plaintiff — Where the deceased’s previous wills had made no gift to the plaintiff and had given all or most of her estate to charities — Where the terms of the 2023 will were inconsistent with the deceased’s intention expressed to the plaintiff that she would leave him her house — Whether the 2023 will was rational on its face — Whether the deceased had testamentary capacity to make the 2023 will, which was in simple terms — Held: The deceased had testamentary capacity to make the 2023 will. SUCCESSION — Contested probate — Knowledge and approval — Where the plaintiff was instrumental in the preparation and execution of the 2023 will — Where the plaintiff took the entirety of the deceased’s estate under the 2023 will, but had never been a named beneficiary of the deceased’s estate in her previous wills — Where the solicitor who prepared the 2023 will took instructions from the plaintiff and had no communication with the deceased — Where the 2023 will departed from the deceased’s previous wills which had given all or most or her estate to charities — Where the deceased was physically frail and legally blind — Where the solicitor who prepared the 2023 will left it to the plaintiff to make arrangements for the deceased to execute the will — Where the deceased executed the will in the presence of two associates of the plaintiff who were not previously known to her in a very short meeting during which they read the will the aloud to her and she signed it immediately afterwards — Where the terms of the will read to and signed by the deceased were inconsistent with the intention she had expressed to the plaintiff to leave him her house — Whether there were suspicious circumstances — Whether the suspicion was dispelled — Held: The will was signed in suspicious circumstances and the plaintiff failed to discharge his onus of proving that the deceased knew and approved the contents of the will.
COSTS – discretion – whether parties seeking adjournment should pay costs – where parties given late notice of consent judgment – where parties granted time to consider consent and potential cross-claim – where parties made good use of time – no order as to costs
EVIDENCE – Application of s 131(2)(j) of the Evidence Act 1995 (NSW) to a “without prejudice” letter – Whether there are reasonable grounds for finding that sending the letter constituted a contempt of court CONTEMPT – Whether improper pressure was applied to a party to settle the proceedings – Distinction between proper and improper pressure – Whether the letter contained improper threats against the plaintiff
COSTS — Party/Party — specified gross sum order sought instead of assessed costs – Civil Procedure Act 2005, s 98(4)(c) – probate proceeding – defendant/cross-claimant succeeds on motion to strike out Summons due to plaintiff’s repeated default in complying with the Court’s orders and the plaintiff’s failure to prosecute the proceedings with due dispatch – indemnity costs order made against the plaintiff – the plaintiff is also a cross-defendant on an unresolved cross-claim – defendant/cross-claimant seeks a specified gross sum costs order – whether a specified gross sum costs order should be made – whether fixing a specified gross sum costs order should be referred to a referee – whether the available costs material is sufficient for the Court to be confident in making a specified gross sum costs order – whether a specified gross sum costs order should not be made because of the potential for a costs overlap with the unresolved balance of proceedings – whether expert evidence or a referee’s report is required to reach a specified gross sum costs order. CIVIL PROCEDURE — Pleadings — Amendment – cross-defendant seeks to amend defence to cross-claim – cross-defendant is also a plaintiff whose Summons has been struck out – whether the amendment to the defence to cross-claim should be allowed but subject to terms, including terms that the cross-defendant may not (a) seek to re-agitate issues the subject of the struck-out Summons, and (b) will strictly comply with the Court’s orders and provide security for such compliance.
EQUITY — Equitable remedies — Injunctions — Interlocutory injunction — Where plaintiff seeks interlocutory injunction against defendant to restrain the making of representations about the impropriety of plaintiff’s business model — Where plaintiff claims for misleading or deceptive conduct and injurious falsehood in respect of representations alleged to have been made by defendant — Whether there is a serious question to be tried in respect of each of plaintiff’s claims — Whether balance of convenience favours grant of interlocutory injunction
COSTS – where plaintiff was successful in application to set aside statutory demand – where plaintiff sought lump sum costs order – where plaintiff contended costs were disproportionate and inappropriate in context – where costs assessment was likely to be contested and further increase costs – where defendant contended he acted reasonably and grounds raised were arguable – where it is appropriate for costs to follow the event – defendant to pay plaintiff’s costs on a lump sum basis
PRACTICE AND PROCEDURE – defendant’s application for recusal from any further determination in proceedings – where the defendant’s statutory demand was set aside – where the remaining issue concerns costs – allegation of apprehended bias – where fair-minded lay observer would not reasonably apprehend that the question of costs had been pre-determined – where fair-minded lay observer would not reasonably apprehend that arguments will not be considered on their merits – consideration of extent of Court’s role in relation to litigants in person – application refused
CONTRACTS — sale of land — deposit bond — counter indemnity — whether plaintiffs signed deposit bond application and counter indemnity to facilitate purchase of property — plaintiffs alleging signatures forged by finance broker — uncontradicted forensic handwriting evidence supporting forgery — whether indemnity a nullity — whether agreement should be declared wholly void — Contracts Review Act 1980 (NSW), s 7 AGENCY — actual authority — ostensible authority — finance broker — whether finance broker authorised to sign or submit deposit bond application and counter indemnity on behalf of proposed purchasers — provision of identification and financial documents — whether finance broker on a frolic of his own — scope of finance broker’s engagement — where plaintiffs authorised broker to do all things necessary to secure property CONTRACTS — ratification — whether plaintiffs ratified or adopted unauthorised deposit bond application, counter indemnity and deposit bond by subsequently taking steps to obtain finance and complete purchase — whether knowledge of transaction and deposit bond sufficient — whether forged signature capable of ratification — extensive contemporaneous evidence demonstrating plaintiffs' knowledge of financial agreements to facilitate purchase of property CONSUMER LAW — misleading or deceptive conduct — silence or omission — whether plaintiffs failed to disclose alleged forgery before deposit bond was called upon and paid — whether alleged conduct was in trade or commerce — whether duty to disclose arose EQUITY — estoppel — common law and equitable estoppel — alleged forged documents — whether plaintiffs, by silence or subsequent conduct, were precluded from denying liability under counter indemnity — where plaintiffs became aware of alleged forgery — reliance and detriment REAL PROPERTY — caveat — caveat lodged to secure liability under counter indemnity — funds paid into court to procure withdrawal of caveat — whether funds should be paid to plaintiffs or defendants
CONTRACTS — construction — contract for sale of residential property — Spanish style Rose Bay mansion – Villa Biscaya — purchaser granted pre-completion access and exclusive occupation — purchaser permitted to carry out works on property — trees removed from adjoining property — purchaser authorised removal — whether removal breached special condition prohibiting damage, nuisance or inconvenience to adjoining property — clause confined to damage caused by works carried out on subject property CONTRACTS — termination — notice of default — vendor purported to terminate purchaser’s contractual occupation rights — whether notified non-compliance rectified within contractual period — deed polls offered in response to allegations concerning removal of trees — whether rectification required to address only notified non-compliance — whether purchaser rectified notified non-compliance CONTRACTS — performance — vendor required to sign applications, plan and consents reasonably required by purchaser — failure to sign construction certificate application — breach of express term and implied duty to cooperate — no loss caused EQUITY — relief against forfeiture — contractual right of occupation pending completion of sale — vendor’s asserted entitlement to terminate occupation rights — whether relief against forfeiture available EVIDENCE — witness credibility — conflicting accounts concerning responsibility for removal of trees — contemporaneous communications, including WhatsApp messages and video evidence — failure to call material witness — inference that purchaser authorised removal of trees DAMAGES — mesne profits — where purchaser remained in occupation after purported termination — vendor claimed market rent or loss of opportunity to lease property — whether vendor would have leased property to third party — vendor unable to prove lost rental income or opportunity — alternative assessment of mesne profits — whether quantum of land tax payable by vendor if property leased should be deducted from mesne profits DAMAGES — causation — purchaser claimed increased holding costs arising from vendor’s failure to sign construction certificate application — whether purchaser would have commenced main-house works immediately
ADMINISTRATIVE LAW – judicial review – decision of appeal panel – psychological injury – whether jurisdictional error or error of law on the face of the record – whether Appeal Panel failed to consider plaintiff’s substantial and clearly articulated argument – whether constructive failure to exercise jurisdiction – whether Appeal Panel failed to take into account plaintiff’s evidence of the restrictions in functioning – whether Appeal Panel’s reasons adequate – whether material errors WORKERS COMPENSATION – Workers Compensation Guidelines – Psychiatric Impairment Rating Scale – application of Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 – where dispute as to assessment of Whole Person Impairment – whether Appeal Panel misapplied SIRA Guidelines – whether conduct wrongly assigned to a PIRS scale – whether conduct was more directly relevant to “travel” then “social and recreational activities”
CIVIL PROCEDURE — Default judgment — claim for unliquidated damages — judgment for the plaintiff under r 16.7 of the Uniform Civil Procedure Rules 2005 (NSW) LIMITATION OF ACTIONS — Personal injury — Child abuse — Legislative removal of previous limitation period TORTS — Trespass to the person — assessment of damages — continuing serious abuse throughout childhood causing psychiatric injury — Civil Liability Act 2002 (NSW) not applicable by operation of s 3B(1)(a) — general damages — past and future economic loss — medical expenses — single figure awarded for exemplary and aggravated damages
CIVIL PROCEDURE – application to rely on fresh expert evidence – whether expert shopping – where fresh evidence likely to narrow claim CIVIL PROCEDURE – pleadings – application to amend statement of claim – where application depends upon whether leave to rely on further expert evidence is granted
NEGLIGENCE – damages – economic loss – earning capacity – where plaintiff has reduced working capacity following injury – assessment of residual earning capacity – consideration of buffer to be awarded NEGLIGENCE – damages – measure of damages – where plaintiff earned salary and received dividends from shareholdings prior to injury – whether any loss suffered by reason of injury
CONTEMPT — Criminal contempt — Alleged improper pressure applied to a defendant to inhibit him or attempt to inhibit him from defending these proceedings — Whether conduct proved beyond reasonable doubt — Whether real and definite tendency to interfere with the course of justice in these proceedings
CIVIL PROCEDURE – motion to dismiss proceedings commenced in defiance of regime established by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether dismissal is mandatory or discretionary – relevant factors in exercise of discretion to dismiss
EQUITY — Equitable remedies — Injunctions — interlocutory injunction – damages not an adequate remedy – the defendant, the Chief Commissioner, issues a director’s compliance notice to the plaintiff under the apparent authority of the Taxation Administration Act 1996 ("TAA") s 47B – the directors’ compliance notice is issued on 9 July 2026 and would become operative within 21 days under TAA s 47B - the plaintiff disputes the validity of the notice and seeks interlocutory relief restraining the defendant from acting upon it – the defendant resists any grant of interlocutory relief. TAXES AND DUTIES — Administration — Collection and recovery — Recovery pending review – discussion that when a taxpayer brings administrative law remedies rather than proceedings under TAA Part 10, whether a pending review of a payroll tax liability does not prevent the Chief Commissioner in the meantime from collecting the amount due and payable.
COMMERCIAL – unconscionable conduct – agreement for lease – where plaintiff is a special purpose vehicle without substantial assets – where defendant is a State-owned corporation – where plaintiff asserts it was unconscionable within the meaning of s 21 of the Australian Consumer Law for defendant to negotiate terms into the agreement for lease that were not reasonably necessary to protect its legitimate interests and to subsequently terminate the agreement for lease on the non-satisfaction of the conditions precedent – where plaintiff asserts it was not possible to satisfy conditions precedent – no allegations of dishonesty made – where defendant acted reasonably and responsibility – no unconscionable conduct COMMERCIAL – where alleged lost opportunity – causation and quantum – where plaintiff’s causation case advanced in multiple and inconsistent ways – where counterfactual analysis required plaintiff to prove on balance of probabilities that facility would be constructed and lease granted – where shifting and inadequately pleaded counterfactual – whether agreement would have been lawfully terminated in any event – where expert evidence considered on counterfactual – where failure to establish causal connection between alleged conduct and loss of opportunity – whether lost opportunity had non‑negligible value – no compensable lost opportunity – causation not established COMMERCIAL – evidence – expert evidence – global objections to expert evidence – where multiple experts retained by same party communicated directly and exchanged draft reports contrary to retainer directions – whether expert evidence opinion evidence under s 79 of the Evidence Act 1995 (NSW) – whether probative value of expert evidence outweighed by unfair prejudice and should be excluded under s 135 of the Evidence Act 1995 (NSW) – where danger of unfair prejudice did not substantially outweigh probative value and was capable of amelioration by disclosure and cross‑examination – discretion to exclude not exercised – legal professional privilege – where solicitor-expert communications privileged – where privilege waived by inconsistency through distribution of privileged communications among experts and election to rely on their evidence – where waiver confined to expert communications – disclosure ordered
SUCCESSION — Family provision — Proceedings not commenced within time — Where defendants did not oppose an order for application to be made out of time — Where delay was minimal and caused by Registry irregularities SUCCESSION — Family provision — Claim by de facto widow — Where plaintiff received right to occupation of deceased’s property in the will — Where right to occupation was contingent on plaintiff not repartnering — Where residue of estate divided between two children — Where evidence of plaintiff is unreliable, confusing and treated with extreme caution — Where deceased raised two children largely as single parent — Where plaintiff and deceased had a relationship that was loving at times, but filled with arguing at other times — Where plaintiff has limited savings — Where children of deceased put financial circumstances into evidence — No issue of principle
SUCCESSION — Family provision — Claim by spouse for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Defendants daughters of first marriage of deceased — Where plaintiff deceased’s spouse of 32 years — Where plaintiff provided a lot of care and assistance to the deceased — Where plaintiff received 1-year right of residence and portion of residue of estate — Where plaintiff and second defendant both have significant health issues — Whether adequate provision for proper maintenance made for plaintiff —Whether adequate provision for proper maintenance includes provision for plaintiff to live in retirement village of plaintiff’s choice — Whether adequate provision for proper maintenance includes portable life estate
ADMINISTRATIVE LAW — judicial review — judicial review of decision of medical Appeal Panel — claim for worker’s compensation — psychological injury — assessment of degree of permanent impairment — consideration of “travel” under the Psychiatric Impairment Rating Scale classes — whether Appeal Panel denied procedural fairness when making factual finding that plaintiff could travel without support person — where plaintiff did not request re-examination — whether Appeal Panel departed from the grounds of appeal when finding demonstrable error — summons dismissed
BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Where defendant brought payment claim against plaintiff under Building and Construction Industry Security of Payment Act 1999 (NSW) (Act) — Where adjudicator made determinations on payment claim — Where adjudicator decided that payment claim was served within time per s 13(4)(b) of the Act — Whether adjudicator fell into jurisdictional error in his application of s 13(4)(b) — Whether error was material — Whether order in the nature of mandamus is an appropriate form of relief
BUILDING AND CONSTRUCTION — Adjudication determination under s 22 of the Building and Construction Industry Security of Payment Act 1999 (NSW) — Judicial review — Whether determination void for jurisdictional error — Whether plaintiff was denied procedural fairness — Where first defendant advanced waiver and estoppel argument before adjudicator — Where first defendant annexed a bundle of 49 email chains to its adjudication application in support of waiver and estoppel argument — Where adjudicator drew support from a particular email in the bundle in reaching his conclusion that waiver and estoppel was established — Whether determination was made on a basis not advanced by first defendant and not answered by plaintiff
ADMINISTRATIVE LAW — judicial review — judicial review of the decision of a review panel constituted under Motor Accidents Compensation Act 1999 (NSW) — where WPI threshold for availability of award of damages for non-economic loss is 10% — where the original assessor assessed 19% WPI but review panel assessed 7% WPI — whether review panel had to grant leave for the introduction of additional documents — whether failure to allow plaintiff to make a written response concerning the additional documents amounted to a denial of procedural fairness — whether assessor’s conduct and questions amounted to procedural unfairness or gave rise to an apprehension of bias
PROCEDURE — Final orders — Where parties ordered to confer on appropriate orders to give effect to reasons in primary judgment — Where parties could not reach agreement on all orders — Final orders made
SUCCESSION — family provision — claim by stepdaughter as an alleged member of household and dependent of her deceased stepmother for provision from the Estate under the Succession Act 2006 (NSW), Ch 3 — where stepmother died intestate leaving a sister entitled to inherit the whole of her Estate — non-complex facts — where realised Estate comprises cash and jewellery and sports memorabilia of modest value — no notional estate involved — where Plaintiff and her husband are employees whose financial circumstances are not complicated — where the factual background is not complex — where provision is sought principally for assistance to buy a house — where administrator appointed to administer the Estate — where value of the Estate after administrator’s costs is $534,000 — HELD — provision should be made for the Plaintiff in the amount of $160,000 to assist in buying a house COSTS — where Plaintiff claims that her legal costs (including costs claimed by her solicitor for administering the Estate) exceed $282,000 which are sought to be paid out of the Estate but which are not supported by any costs agreements, timesheets or counsel’s fee notes — application by Plaintiff for gross lump sum costs order — HELD — that costs claimed are grossly excessive — an estate is not an underwriting fund against which excessive and disproportionate legal costs may be secured — that the amount of $53,000 should be allowed and paid to her out of the Estate — where Plaintiff has paid more than this to her lawyers — that the provision plus costs of $213,000 is to be paid directly to the Plaintiff — observation: some of this could be used to buy a new car without impairing her ability to buy a house or be used as additional funds towards the purchase of a house
CRIME – SENTENCE – murder based on joint criminal enterprise – assault of deceased over four days – pleas of guilty – youth, deprived backgrounds and mental health impairments reduced moral culpability – punitive, denunciatory and general deterrent purposes of sentencing reduced – finding of special circumstances
EVIDENCE — discretions — exclusion of evidence — improperly or illegally obtained evidence — whether ‘clandestine recording’ was made in a manner reasonably necessary to protect maker’s lawful interests — assessment of desirability of evidence being admitted against circumstances of obtaining it
CIVIL PROCEDURE – Application to stay proceedings under r 12.10 of the Uniform Civil Procedure Rules 2005 (NSW) – Where the plaintiff’s previous claim was dismissed with costs – Whether the plaintiff’s identical second claim could proceed without payment of the costs in the previous proceedings
PRACTICE AND PROCEDURE — application to restrain defendant’s solicitor from acting — alleged possession of confidential information arising from former retainer — former solicitor employed by different law firm — no precise identification of confidential information — whether real risk of misuse of confidential information — delay in bringing action — application dismissed
COSTS — cross-claim — whether successful cross-claimant should be deprived of part of costs because unsuccessful on some heads of damage — whether issues on cross-claim substantially overlapped with issues on statement of claim — whether outcome properly characterised as mixed — ordinary rule that costs follow the event — costs of cross-claim awarded on ordinary basis
COSTS — application for contractual indemnity costs — commercial lease — construction of contractual costs provisions — whether proceedings constituted enforcement of covenant or exercise of contractual right or power — whether contractual entitlement to indemnity costs enlivened — consequential orders — interest — Civil Procedure Act 2005 (NSW), s 100
CRIMINAL PROCEDURE – subpoena – application for bench warrant – where subpoena to attend and give evidence not personally served – whether witness has actual knowledge of the subpoena and its requirements – whether witness will probably be able to give relevant evidence
EVIDENCE — exclusion of prejudicial evidence in criminal proceedings — unfair prejudice said to arise from late disclosure and inherent unreliability of hearsay
EVIDENCE — witness evidence — compellability — spouses, parents and children — where witness is not a biological child of the Accused — whether witness is a ‘child’ of the Accused within the extended definition of the term — relevance of Indigenous identity of the witness and the Accused as to nature of the relationship between them — balancing exercise between likely harm and desirability of having evidence given
EVIDENCE – exclusion of prejudicial evidence in criminal proceedings – where probative value of the evidence is slight – offensive and aggressive language
CORPORATIONS – winding up – statutory demand – application under s 459G of the Corporations Act 2001 (Cth) for order setting aside statutory demand – whether genuine offsetting claim established under s 459H of the Corporations Act 2001 (Cth) – amount of offsetting claim
COSTS — Party/Party — General rule that costs follow the event — Proceedings overtaken by defendant’s separate proceedings in which Court made no order as to costs — No issue of principle
ADOPTION — application for adoption of adult child by paternal uncle and uncle’s wife — whether an “Aboriginal child” under s 4, Adoption Act 2000 (NSW) — principles at [35]-[41] — insufficient evidence to satisfy definition in Aboriginal Land Rights Act 1983 (NSW) — whether child of Aboriginal descent within meaning of s 4(2), Adoption Act 2000 (NSW) — evidence inconclusive — weight attached to findings made by magistrate of Children’s Court years earlier, who presided over multiple hearings in person, rather than a judge determining the question ‘on the papers’ — determination made under s 4(2), Adoption Act 2000 (NSW). ADOPTION — Aboriginal placement principles — principles at [52]-[66] — whether Aboriginal placement principles apply to adoption of a child by relatives — no, at [68]-[71] — child not “placed” with a relative — whether Aboriginal placement principles apply to adoption of a child over 18 years old — no, at [72]-[73] — adult child not “placed” by anybody. ADOPTION — consent of child over 18 years of age — principles at [4]-[14] — whether s 64 “Consent to adoption of Aboriginal child” applies to consent of the child being adopted — it does, at [11]-[14] — adult child voices consent in affidavit — consent not informed consent within the meaning of the Adoption Act 2000 (NSW) nor given in accordance with that Act. WORDS AND PHRASES — “placement” at [56]-[62].
SENTENCING – murder – sentence following trial – whether the offender inflicted the fatal stab wound to the deceased – where the offender has poor prospects of rehabilitation – where the offender has not shown remorse − application of Bugmy principles – application of the principle of totality
ADMINISTRATIVE LAW — jurisdictional error — judicial review of Review Panel decision — Motor Accident Injuries Act 2017 (NSW) — where plaintiff underwent spinal surgery to treat other injuries suffered in an accident — whether the surgical removal of bone from facet joints in the spine resulted in further “injury” as defined in s 1.4 — where plaintiff suffered permanent physiological change as the result of the surgery — consent, therapeutic intent and successful treatment of symptoms of other injuries irrelevant to assessing physical consequences of surgery and whether they fall within definition of injury — error established — Panel’s certificate set aside
EQUITY — Equitable remedies — Injunctions — interlocutory injunction – damages not an adequate remedy – the first plaintiff, a corporation, borrowed money under a loan facility made with the first defendant, a financier – the second plaintiff is the registered proprietor of suburban residential land used as security for the loan facility between the first plaintiff and the first defendant – the first plaintiff defaults on the facility – the first defendant exercises its power of sale over the land – contract for the sale of the land made in exercise of the first defendant’s power of sale with the second defendant as purchaser – the plaintiffs seek to restrain the completion of the contract – the plaintiffs allege that the first defendant has improperly exercised its power of sale and failed in its duties under Conveyancing Act 1919, s 111 in relation to the sale of the property – the defendants resist the relief sought and seek to complete the contract – whether there is a serious question to be tried – whether the balance of convenience favours the grant or refusal of interlocutory injunctive relief – what orders are appropriate in relation to a possible application for leave to appeal. LAND LAW — Mortgages — Statutory power of sale under Real Property Act 1900 – identification of the duties of the first defendant, a mortgagee exercising a power of sale.
CRIME – application for adjournment – prosecutor’s obligation of disclosure – material disclosed in related Victorian proceedings which has not been disclosed in these proceedings – untranslated material in Mandarin – whether non-disclosure would create a risk of an unfair trial – potential for the accused to uncover evidence that may materially assist his defence
COSTS – application for costs against solicitor and law practice under ss 98 and 99 of the Civil Procedure Act 2005 (NSW) – where proceedings commenced and conducted in company’s name without authority – where interlocutory process challenging authority successful at time of hearing – where company subsequently ratified and adopted acts of solicitor and purported instructing agent with retrospective effect – where solicitor did not act dishonestly or knowingly without authority – costs order not made
PRACTICE AND PROCEDURE – Enforcement of judgments and orders – Where judgment entered in earlier proceedings in the Court in favour of first plaintiff and against parties including the first and second defendants in the present proceedings – Where charging order made in the earlier proceedings over units held by the first and second defendants in a unit trust by way of enforcement of the judgment debt – Where first plaintiff now seeks order for judicial sale of those units – Held: Orders made for judicial sale of the units at a price determined by reference to an expert valuation of the units and by a process compliant with the pre-emptive rights granted to unit holders under the trust deed.
ADMINISTRATIVE LAW — judicial review — Appeal Panel of Personal Injury Commission — whether the Appeal Panel made an error of law by excluding the plaintiff’s belief as to her capacity to function without her husband’s support when rating the plaintiff’s functional impairment for the category of self care and personal hygiene — whether error material
APPEALS – Local Court – where dispute concerned characterisation of a cash payment – where defendant below was self-represented – whether the judge erred in application of the rule in Browne v Dunn – whether the judge erred in providing inadequate reasons
CIVIL PROCEDURE — Time — Extension of time — where plaintiff served expert reports of neonatologist and occupational therapist in medical negligence proceedings — where plaintiff now seeks leave to serve additional reports authored by a different neonatologist and occupational therapist — whether the second neonatologist was shown to have expertise or experience which the first neonatologist lacked — whether the plaintiff should be permitted to rely on reports from two neonatologists — whether it was sufficient to show that the neonatologists had different opinions about a relevant matter — whether the occupational therapists were shown to have relevant experience or expertise which the other lacked — whether it was sufficient that the first occupational therapist did not give evidence about a matter which the plaintiff wished to address — whether the plaintiff should be permitted to rely on multiple experts in the same field
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied
CIVIL PROCEDURE – defendant’s application under r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) for leave to rely on late-served expert evidence – where the defendant had received numerous extensions for the service of evidence and made the forensic decision not to secure expert evidence – highly unsatisfactory instances of non-compliance with Court orders – whether late service would cause unfairness to the plaintiff
MISLEADING OR DECEPTIVE CONDUCT – Financial Services – where second defendant was corporate trustee of unit trust and third defendant was director of that trustee – where second defendant provided information memorandum to first defendant relating to the unit trust – where first defendant introduced plaintiffs to the opportunity to invest in the unit trust and provided information memorandum to them – where first defendant received referral fee from second defendant consequent upon the plaintiffs’ investment in the trust – whether the first defendant made misleading oral representations to plaintiffs regarding the unit trust – whether the information memorandum made misleading representations regarding the unit trust – whether the defendants engaged in misleading conduct – whether the defendants committed the tort of deceit – whether the plaintiff relied on any misleading representations in deciding to invest in the unit trust EQUITY – Trusts and Trustees – breach of trust – where the second defendant purported to redeem the plaintiffs’ units in the trust in return for units in a different fund which were held in the name of a company controlled by the first defendant – whether plaintiffs gave authority for this “swap” transaction to be implemented – whether second defendant breached the terms of the trust or its duties as trustee in implementing the “swap” transaction – whether third defendant knowingly assisted in breach DAMAGES – whether the plaintiffs’ loss should be assessed in accordance with the “rule” in Potts v Miller (1940) 64 CLR 282; [1940] HCA 43 – whether the plaintiffs were “locked into” their investment in the unit trust by reason of the defendants’ misleading conduct – whether break in chain of causation by reason of the “swap” transaction – whether interest earned by the plaintiffs should be brought to account to reduce quantum of loss
SUCCESSION — Contested probate — Where deceased made wills in 2010 and 2015 — Where deceased’s son seeks a grant of probate for the 2010 will and challenges the validity of the 2015 will on the basis of lack of knowledge and approval and/or the undue influence of the deceased’s daughter — Where deceased’s daughter seeks a grant of probate of the 2015 will — Where deceased decided to change her 2010 will on the basis of what the deceased understood to be a significant increase in value of her primary asset — Where daughter arranged for the witnesses to the deceased’s execution of the 2015 will — Where daughter, who expected to (and did) receive a substantial benefit under the 2015 will, remained in the room when the deceased’s 2015 will was made and executed — Where the deceased dictated the terms of her 2015 will and read those terms before signing — Whether suspicious circumstances — Whether suspicion dispelled — Held: Deceased knew and approved the contents of the 2015 will SUCCESSION — Contested probate — Undue influence — Where the son’s case of undue influence overlaps with the case as to lack of knowledge and approval — Where daughter did not arrange for the deceased to obtain independent legal advice in relation to 2015 will — History of the deceased declining to change her 2010 will when daughter protested as to perceived unfairness — Relevance of daughter’s 18-month estrangement from the deceased following the execution of the deceased’s 2010 — Where deceased later decided to change her 2010 will on the basis of what the deceased understood to be a significant increase in value of the primary asset of her estate — Where the deceased dictated the terms of her 2015 will and read those terms before signing — Whether the deceased was fearful of her daughter who was present during the making and execution of the 2015 will — Held: Son failed to establish that the deceased made the 2015 will under the undue influence of her daughter CONTRACT— Testamentary contract — Deceased’s son alleges that the deceased and her husband promised that a property in Coogee would eventually pass to him — Held: Alleged representations not proved and testamentary contract claim fails ESTOPPEL — Proprietary estoppel by encouragement — Where the deceased’s son claims that the deceased and her husband promised that a property in Coogee would eventually pass to him — Held: Alleged promises were not made and proprietary estoppel claim fails
MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Where risk factors of paedophilic disorder and intellectual disability are chronic
CONTRACTS – contract between two solicitors for litigation matters to be transferred from one to the other – promise to pay half “profit costs” received after deduction of payments to litigation funder for “funding and other services” – dispute about amount to be paid – no evidence of amount of payments to litigation funder – onus of proof – breach of contract not proved CONTRACTS – solicitor claims to have retained another solicitor to recover costs from opposing party in litigation – retainer not proved EQUITABLE LIEN – whether former solicitor had a lien over costs paid by opposing party in litigation to current solicitor – lien inconsistent with contract – waiver and release of lien by deed poll – notice of lien not pleaded or proved – relief not available without notice of lien FIDUCIARY OBLIGATIONS – whether fiduciary relationship arose where no retainer and no express trust – fiduciary obligation inconsistent with contract
OCCUPATIONS — health practitioners — misconduct and discipline — registered nurse — where disciplinary proceedings commenced by Health Care Complaints Commission — where NSW Civil and Administrative Tribunal made findings of professional misconduct when that allegation was not pleaded — whether Tribunal misdirected itself as to its statutory task COSTS — where summons amended on first day of hearing to vary orders sought and to introduce new ground of appeal — where leave to amend summons resisted by defendant on the ground that the new ground was futile and that any such error would not be material — where error identified in new ground of appeal later conceded by defendant — whether conduct of parties such that costs should not follow the event
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
COSTS – whether general rule that costs follow the event applies – where parties had mixed outcome – where defendants had substantial success – whether costs should be apportioned
COSTS — notice to admit facts — indemnity costs sought under r 42.8(2), UCPR for facts said to have been disputed until first day of trial — the rule is concerned with facts, not mixed legal and factual propositions or legal propositions — unclear what “fact in dispute” the plaintiffs were put to the cost of proving — rule not engaged. COSTS — reserved costs of interlocutory motion — plaintiffs obtain orders for defendant to search archival database — defendant contends that search will likely be time consuming, expensive and a waste of time — judge defers question of costs until product of search known — no discoverable documents found — decline to make costs order sought.
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied
CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement and ancillary orders