CHILD WELFARE – adoption – whether adoption order is clearly preferable in best interests of the child – whether change of name should be approved – whether consent dispensation orders should be made against the birth parents – where birth mother seeks restoration of the child to her care – where birth father cannot be identified after reasonable inquiry – where child has consented to their own adoption but resided with the proposed adoptive parents for a period of less than two years – where it is appropriate to dispense with the requirement for the birth parents’ consent – change of name to be approved – adoption orders to be made
CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Where leave sought by member or former member of company — General principles to be applied under ss 236 and 237 Corporations Act 2001 (Cth) CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Where leave sought by member or former member of company — Reflective loss —Whether loss claimed was reflective of a loss that could have been claimed by company CORPORATIONS — Directors and officers — Fiduciary duties — To whom duties owed — Whether director owed a fiduciary duty to shareholders — Relevance of special circumstances CIVIL PROCEDURE — Originating process — Amendment — Principles to be applied
AGENCY – Powers of Attorney Act 2003 (NSW) (the Act) s 19(1)(c) – where a power of attorney is expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument but the requirement for a certificate to be endorsed on, or annexed to, the instrument by the prescribed witness stating that the person is not an attorney under the power of attorney is not complied with – whether instrument creates an enduring power of attorney for the purposes of the Act – HELD – it does not
EQUITY – TRUSTS – resulting trust – plaintiff and first defendant each contribute to the acquisition of real property which is registered in the plaintiff’s name – Court appoints trustees for sale – Property sold – net proceeds are in Court – determination of amounts to which plaintiff and first defendant are entitled
PRACTICE – indemnities – plaintiff entitled to indemnity from former director in respect of company’s tax liabilities – plaintiff disputed liability – ATO not presently seeking to enforce its claim – whether plaintiff entitled to enforce against former director on terms that money recovered be used to pay tax debt
CIVIL PROCEDURE — Originating process — notice of motion to set aside — sale of land by local council for non-payment of rates — proceedings for possession of land — proper service — final orders already made — notice of motion dismissed CIVIL PROCEDURE — Default judgment — setting aside — applicant actively chose not to participate in the proceedings — no bona fide defence on merits CONSTITUTIONAL LAW — Notice to Attorneys General — Judiciary Act 1903 (Cth) s 78B — whether cause involves a matter arising under the Constitution or concerning its interpretation — Pseudolaw
EQUITY — Fiduciary duties — Mutual wills — Where parties signed a memorandum of wishes providing that surviving spouse would leave property to deceased’s children — Nature and scope of obligations arising from memorandum of wishes — Whether obligations give rise to a fiduciary duty — Whether surviving spouse breached obligations by granting a mortgage over property SUCCESSION — Construction — Gifts — Right to possession — Where deceased bequeathed artworks to his children but provided for his surviving spouse to enjoy right of possession during her lifetime — Whether surviving spouse held the artworks under licence from the deceased’s children — Whether usufructuary right granted to surviving spouse by deceased was akin to holder of life estate in realty EQUITY — Trusts and trustees — Breaches of trust — Discretionary family trust (‘Trust’) established by the deceased — Where Trust made distributions to the deceased’s spouse and farming business — Where original trust deed lost — Where recipients of distributions not named as beneficiaries in replacement trust deed —Whether the deceased was appointor of the Trust where replacement trust deed failed to include an appointer — Whether an unexecuted document purporting to vary the Trust was effective in adding the deceased’s spouse and farming business as beneficiaries — Whether parties bound by estoppel by convention as to a purported amendment EQUITY — Trusts and trustees — Breaches of trust — Court’s power to excuse — Whether trustee ought to be excused under Trustee Act 1925 (NSW) s 85 for honest and reasonable breaches of trust CORPORATIONS — Directors and officers — Whether de facto or shadow director EQUITY — Trusts and trustees — Court’s supervision of — Appointment and removal of trustees — Whether Court should make an order under s 70 of the Trustee Act 1925 (NSW)
PRACTICE AND PROCEDURE – Practice Note SC Eq 3 – CONTRACTS – Construction – Application to strike out paragraphs of a Technology and Construction List Statement pleading a claim in contract on the basis that no reasonable cause of action is disclosed – Whether such an application should be entertained – Where plaintiff claims an entitlement to delay costs for delay or disruption to it carrying out work on a substantial contract to the upgrade of a highway – Where the Contract, on its proper construction, makes no provision for the Claim – HELD – Claim struck out
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — Discussion of principles relevant to UCPR r 12.7 — Plaintiff’s ex-sole director and shareholder (originally a co-plaintiff) disqualified from managing corporations for five years — Plaintiff yet to appoint a new director — No relevant person to pursue the proceedings on behalf of the plaintiff — Plaintiff’s claim struck out and dismissed CIVIL PROCEDURE — Pleadings — Former Supreme Court Rules provision that a prior pleading stands as the answer to an amended pleading — Provision not incorporated into UCPR — Court can nonetheless direct that a prior pleading stands as the answer to an amended pleading as part of case management CIVIL PROCEDURE — Pleadings — Motion to strike out the plaintiff’s defence and give judgment for cross-claimant — Plaintiff originally filed a defence, then consented to filing of further amended cross-claim but did not file response — Discussion of principles relevant to UCPR rr 16.3 and 16.6 — Defence struck out — Judgment for the cross-claimant COSTS — Party/Party — Defendant seeking orders against non-party (plaintiff’s current sole shareholder and ex-sole director) — Application of criteria in FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 — Orders not made
CRIMINAL PROCEDURE – Suppression and non-publication orders – Grounds – Where an order is necessary to prevent prejudice to the administration of justice – Where the findings of a jury or knowledge of a conviction in separate District Court of NSW proceedings may cause prejudice to the administration of justice in ongoing Supreme Court of NSW proceedings MEDIA AND COMMUNCIATIONS – Publication – Court Suppression and Non-publication Orders Act 2010 (NSW) – Orders made in the inherent jurisdiction of the Court
CONTRACTS – Construction and interpretation – where wholly written contract – dispute as to identity of a party – whether regard may be had to post-contractual conduct to identify party to contract CORPORATIONS – Directors and officers – Directors’ duties – whether directors have breached duties – no question of principle CORPORATIONS – Directors and officers – whether director should be relieved of liability under ss 1317S or 1318 of the Corporations Act 2001 (Cth) – no question of principle CORPORATIONS – Winding up – Voidable transactions – where plaintiff contends payments to second defendant and related parties from company were unfair preferences or unreasonable director-related transactions or otherwise voidable – whether related parties were creditors – no question of principle EQUITY – Equitable charges and liens – Contribution to acquisition or improvement of another’s property – whether to impose an equitable charge – no question of principle
PREROGATIVE RELIEF – habeas corpus – where plaintiff is serving a sentence of imprisonment for murder – conviction appeal dismissed – application to set aside or vary orders of Court of Criminal Appeal dismissed – whether the plaintiff’s detention is unlawful – where plaintiff does not contest the warrant committing him to prison – where orders of the Supreme Court as a superior court of record may be assumed valid unless set aside CIVIL PROCEDURE – jurisdiction – inherent jurisdiction – declaratory relief – whether declarations sought by plaintiff are a collateral attack on his trial and sentence – whether the relief sought is available in the proceedings as presently constituted – where relief is not amenable to decision in these proceedings
CONTRACTS — whether contract should be set aside in part under the Contracts Review Act 1980 (NSW) CORPORATIONS —winding up — statutory demand — where irreconcilable differences between company directors — whether company should be wound up on the just and equitable ground and receiver appointed to trust assets — where liquidator appointed over company also appointed as receiver of trust assets
CIVIL PROCEDURE – tuna and swordfish fishing – argument about the most suitable bait whilst fishing offshore – melee subsequently erupts at Ulladulla Harbour – plaintiff allegedly sustains physical and psychological injuries during and after the fracas – where the plaintiff seeks leave to rely upon the second further amended statement of claim – where the plaintiff seeks orders to rely upon and admit into evidence various evidentiary statements and other material – whether certain expert medical evidence was “reasonably available” to the plaintiff when the pre-filing statement was provided – whether the plaintiff would be “substantially prejudiced” were orders not made – leave granted
CIVIL PROCEDURE – Administrative law – Judicial review – Interim relief – Whether orders sought are necessary to ensure the plaintiff’s effective access to the courts in civil proceedings – Whether the plaintiff has access to an “irreducible minimum” of resources required in order to ensure effective access to the courts – Courts are not to second guess the defendant’s expertise about the safe and secure management of correctional facilities – Suppression and non-publication orders – Amicus curiae – Referral to Pro Bono Panel for legal assistance
SUCCESSION — Executors and administrators — Proceedings against executors and administrators — beneficiary of a life estate represented by a tutor – beneficiary of the life estate brings a motion for the passing of estate accounts — the executor has since consented to orders for the passing of accounts — whether the proceedings were necessary – contest about costs.
CIVIL PROCEDURE – Default judgment – Default in entering appearance and filing Commercial List Response – Application of pt 16 of Uniform Civil Procedure Rules 2005 (NSW) by analogy to proceedings commenced by Summons and Commercial List Statement – Default judgment awarded – No issue of principle
CORPORATIONS — managed investments — application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) — whether responsible entity would be justified in propounding resolutions to implement the proposed trust scheme — whether proposed amendments are within the constitutional powers of alteration and s 601GC of the Corporations Act 2001 (Cth)
CORPORATIONS — examinations — whether time for application to set aside examination summons should be extended in respect of one applicant — whether orders for examination should be set aside.
INSOLVENCY – winding up – insolvent trading – where plaintiffs seek an order pursuant to s 588M of the Corporations Act 2001 (Cth) – where plaintiffs allege the second defendant was a de facto director of the company pursuant to s 9AC(1)(b) of the Corporations Act – where there was no dispute that the company was insolvent within the meaning of s 95A of the Corporations Act – finding that second defendant was a director of the company when the debts were incurred – where there were reasonable grounds for suspecting the company was insolvent – where second defendant failed to prevent the company incurring the debts – where a reasonable person in a like position in the company’s circumstances would be aware that there were grounds for suspecting the company was insolvent – where the persons to whom the debts were owed suffered loss or damage in relation to the debts because of the company’s insolvency – where not all debts were wholly or partly unsecured at the time the loss or damage was suffered – plaintiffs successful in establishing breach of s 588M – second defendant to pay the second plaintiff the amount of debt specified
SUCCESSION – Succession Act 2006 s 8 — Contested probate — Testamentary capacity – Application of test in Banks v Goodfellow - deceased makes an informal testamentary document in his journal in August 2022 before taking his own life a few days later – deceased suffered a mental illness throughout much of his adult life - whether he intended the informal testamentary document to be his last will – whether he was of sound mind, memory and understanding when he executed the informal testamentary document.
EQUITY — Trusts and trustees — Express trusts — Declaration of trust ESTOPPEL — Various types — No issue of principle LAND LAW — Torrens title — Exceptions to indefeasibility SUCCESSION — Construction — Gifts
ADMINISTRATIVE LAW – local government – judicial review – complaint about councillor – Local Government Act 1993 (NSW) – Council’s Code of Conduct and applicable administrative procedures – construction of Act, Code and procedures – whether conduct reviewer and investigator adhered to the Code and procedures – whether complaints co-ordinator acted contrary to the Code and procedures – whether complaints co-ordinator exceeded authority – whether general manager adhered to requirements of Act – whether reasons given in reviewers reports inadequate – whether conduct reviewer failed to give required consideration to submissions – judicial review ADMINISTRATIVE LAW – censure of councillor – construction of Local Government Act 1993 (NSW) – construction of Council's Code of Conduct – Council’s decision – reasonable apprehension of bias – procedural fairness – not provided with all relevant information – judicial review of censure ADMINISTRATIVE LAW – the Hardiman principle – whether Council breached Hardiman principle in acting as active contradictor in these proceedings
CIVIL PROCEDURE — Cross-claims — Against plaintiff — Application for leave to file further cross-claim — No issue of principle CIVIL PROCEDURE — Hearings — Vacation of hearing date — Where matter originally listed for final hearing on an estimate of 10 days — Where, since listing of matter, further case management issues have been ventilated — Whether feasible to keep hearing within original estimate — Whether hearing should be vacated in the circumstances — No issue of principle
HIGH RISK OFFENDER – preliminary hearing – serious violence offender – application for Interim Supervision Order (ISO) – making of order contested by defendant – contentious conditions – whether there is a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence – orders for expert assessment and ISO imposed
Crime — Sentence — Murder — Theft and destruction of deceased’s vehicle by fire — Theft of power tools belonging to deceased — Entry of rural premises and multiple application of blunt force using implement or implements to head of deceased while he lay asleep — Vulnerability of victim — Where location of injuries, degree of force and evidence of admissions bespeaks intention to kill — Objective seriousness above mid-range — Where offender’s psychological profile warrants a reduction in moral culpability — Where prospects of rehabilitation are guarded — Finding of special circumstances by virtue of offender’s Type 1 Diabetes condition — Principle of totality in context of existing sentences of imprisonment
TAXES AND DUTIES — Dutiable transactions — Dutiable property — Agreement for sale or transfer — Where land owned by three tenants-in-common in equal shares under co-ownership agreement — Where parent company of plaintiff was one of the tenants in common — Where contract provided for plaintiff to purchase the land from all three tenants-in-common — Whether dutiable property was the fee simple or three one-third shares in the land — Whether transaction attracts corporate reconstruction exemption under Duties Act 1997 (NSW) — Whether transaction was a corporate reconstruction transaction under ss 273B(1)(a), 273C — Whether transaction was undertaken for the purpose of changing the holding of assets within a corporate group under s 273B(1)(b)
NEGLIGENCE – personal injury – where plaintiff worked at abattoir under a labour hire agreement –plaintiff injured when stillage slipped off a forklift – nature of duties employer and owner of the abattoir owed the plaintiff – whether duties breached – whether employer or owner of abattoir vicariously liable for negligence of forklift driver – whether plaintiff was contributorily negligent – whether plaintiff entitled to claimed damages
MORTGAGES AND SECURITIES – Mortgages – Registered mortgages – Attendant loan agreements – Where third tier lenders register mortgages against titles to commercial properties – Mortgagor disclaims having executed loan agreements – Mortgagor contends impersonators forged signatures on loan agreements voiding mortgages – Signatures on agreements unusual and uncharacteristic – Sums advanced allegedly for development of non-existent cryptocurrency – Cryptocurrency promoted by suspicious persons – Whether mortgagor’s director authorised loans and mortgages – Whether mortgages enforceable against mortgagor’s properties – Mortgages executed at behest and to knowledge of director of mortgagor – Mortgages enforceable – No issue of principle MORTGAGES AND SECURITIES – Mortgages – Equitable mortgages – Equitable mortgage of legal interest – Attendant loan agreement – Where private lender advanced money on solicitor’s assurance that repayment guaranteed by mortgage – Where purpose of loan in recital expressed to be renovation and development of mortgagor’s commercial shopping centre – Where purpose of loan also represented to be for bank fee for release of “sovereign funds” for cryptocurrency – Whether purported mortgagor executed loan agreement and agreed to grant mortgage – Whether solicitor alternatively liable to lender for breach of retainer or misleading or deceptive conduct – Purported equitable mortgage ineffectual – Claim against solicitor for breach of retainer upheld – Claim against solicitor for misleading or deceptive conduct upheld CIVIL PROCEDURE – Court administration – Overriding purpose – Just, quick and cheap resolution – Obligations on parties and legal practitioners to assist Court in furthering overriding purpose – Preparation and quality of court books –Parties fail to provide court books in accordance with Court orders – Parties provide assurance at subsequent directions hearing that breach has been rectified – Court books ultimately delivered overly voluminous, not presented in chronological order, and required further insertions prior to trial – Fraction of documents in court books relied on at trial – Whether such conduct consistent with parties and practitioners’ obligations to further overriding purpose – No issue of principle
HIGH RISK OFFENDER – Final hearing – Application for continuing detention order – Alternative application for extended supervision order – Review of legal principles – Should an application for a CDO be considered ahead of an alternative application for an ESO – A two-stage process – Relevance of subs 17(4) factors to unacceptable risk test HIGH RISK OFFENDER – Subsection 17(4) factors – Criminal history – Sentencing remarks – Court appointed experts – Reports of other qualified psychiatrists, psychologists and medical practitioners – Statistical assessments – Risk management report – Treatment and rehabilitation programs – Level of compliance with obligations of parole and CPR – Options to reduce the likelihood of reoffending HIGH RISK OFFENDER – Application for continuing detention order – Determination of risk – No unacceptable risk of committing another serious offence if defendant is not kept in detention – Alternative application for extended supervision order – Unacceptable risk of committing another serious offence if defendant is not kept under supervision
EQUITY — proprietary estoppel — common intention constructive trust — land in name of daughter — whether father and daughter proceeded on basis that he would be responsible for property expenses and would retain beneficial ownership — nature of father’s contribution to the purchase price — whether daughter entitled to indemnity for expenses paid by her
NEGLIGENCE — non-delegable duty of care — school — historical sex abuse — Deputy Principal — whether plaintiff was abused — whether plaintiff was abused by Deputy Principal — onus and standard of proof — abuse found to have occurred by an executive staff member at the school — Court not satisfied that Deputy Principal perpetrated the abuse on the balance of probabilities NEGLIGENCE — vicarious liability — employer and employee — unnecessary to deal with as State breached duty of care
CRIME — appeal and review — powers of Supreme Court under Part 7 — appearance of doubt or question as to a mitigating circumstance — referral made to Court of Criminal Appeal
COSTS – the successful defendant seeks indemnity costs based on non-acceptance by the unsuccessful plaintiff of a Calderbank offer of payment of a specified sum coupled with a requirement for the unsuccessful plaintiff to agree to an undertaking not to procure a third party to pursue a claim against the defendant, a non-disclosure clause and a non-disparagement clause – HELD – not unreasonable for the plaintiff not to accept the offer containing the additional conditions – indemnity costs order not warranted
PROCEEDS OF CRIME – ss 92 and 92A of the Proceeds of Crime Act 2002 (Cth) – where offenders children claim beneficial interest in restrained property – whether failure to comply with requirements of s 92A will invalidate s 92 notice – whether s 92A requires personal service of notice – whether Commissioner complied with the requirements of s 92A – competing declaratory relief sought –declarations sought by Commissioner made
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 – possession – recusal – reasonable apprehension of bias – earlier unfavourable credit findings relevant to motion concerning further dispute about a structure claimed to be a fixture the tenant is not entitled to remove
CORPORATIONS — liquidators — application by liquidator seeking court approval of entry into funding agreement and into costs agreement with two firms of solicitors — liquidator also seeks suppression orders in respect of legal advice and funding agreement — whether approval for entry into agreements should be granted pursuant to s 477(2B) of the Corporations Act 2001 (Cth) — whether the Court should give a direction that the liquidators are justified in entering into the agreements
CRIME – bail – detention application – where accused person was subject to a private electronic monitoring bail condition – amendment to the Bail Act – where private electronic monitoring is now banned – where accused person cannot meet surety condition or secure a suitable replacement condition for electronic monitoring – application by Crown pursuant to s 50 Bail Act 2013 – where accused person does not wish to be heard on detention application – whether the risks nominated by the Crown are unacceptable in absence of suitable conditions
SUCCESSION – Executors and administrators – Commission - Matters affecting quantum –administration of an estate takes over 30 years to finalise – one of the beneficiaries has been litigious throughout the administration – consideration of causes of the delay – consideration of an executor’s “pains and trouble” in awarding commission in the face of – whether executor has financially benefited from estate administration – consideration of extent of executor’s personal performance of executor’s duties. CIVIL PROCEDURE – Registrars – Review of Registrar’s decision – Powers of Judges to review discretionary award of commission – reasons for intervention. COSTS – specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – long-running estate administration due to family conflict – limited funds remaining in estate – need to end conflict – undesirability of further contest about the assessment of legal fees.
CHILD WELFARE — Adoption — where proposed adoptive parents are child’s current foster parents —whether adoption order is in child’s best interests — whether birth parents’ consent should be dispensed with — whether change of name should be approved — whether adoption plans are in the best interests of child and proper in the circumstances — HELD — adoption order is clearly preferable and in child’s best interests — consent dispense order is in the best interests of child — change of name approved — adoption plans are in the best interests of child and proper in the circumstances — adoption plans registered
CIVIL PROCEDURE — evidence — plaintiff tenders supplementary expert report at commencement of expert conclave — report served the day before — leave required — principles at [4]-[5] — no explanation — plaintiff earlier failed to produce the material in discovery — prejudice — leave refused.
CHILD WELFARE — Adoption — two sisters — three older siblings restored to birth mother’s care — where proposed adoptive parents are children’s current foster parents — whether adoption order is in each child’s best interests — whether adoption order clearly preferable to alternatives — whether birth parents’ consent should be dispensed with — where no change of names proposed — whether adoption plans are in the best interests of each child and proper in the circumstances — HELD — adoption order is clearly preferable and in each child’s best interests — consent dispense order is in the best interests of each child — no change of name approved — adoption plans are in the best interests of each child and proper in the circumstances — maternal adoption plan registered
COMMERCIAL ARBITRATION — International Arbitration Act 1974 (Cth) (the Act) ss 3, 7 — Arbitration Act 1965 (Fiji) ss 2, 4, 10, para 3 First Schedule — Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) Art IX(2) — PRIVATE INTERNATIONAL LAW — FORUM NON CONVENIENS — PRACTICE AND PROCEDURE —applications for stay of proceedings in this Court — application by plaintiff to amend its Statement of Claim and to join an additional defendant — the plaintiff and the third defendant companies both incorporated in Fiji, entered into a written Construct & Design Contract (the Contract) under which the third defendant retained the plaintiff to carry out design and building work for an office tower in Suva, Fiji — the plaintiff alleges that the first defendant company, incorporated in Australia, was appointed superintendent of works and acted as the third defendant’s agent and that the second defendant, an Australian citizen living in Fiji was employed by the first defendant and carried out the superintendent’s functions on its behalf — the Contract contains a submission to arbitration in Fiji before an arbitrator appointed by the President of the Fiji Association of Architects (the President) and is governed by the law of Fiji — under the Contract the parties submit to the non-exclusive jurisdiction of the Courts and Tribunals of Fiji — a dispute has arisen between the plaintiff and the third defendant in connection with the Contract and the third defendant gave notice terminating the Contract — the third defendant requested the President to nominate an arbitrator and he has done so but the arbitrator has to date neither accepted the appointment nor taken any step in the arbitration — the plaintiff commenced proceedings in the Court against all three defendants claiming breach of contract and breach of duty of care owed by each defendant to it — the defendants seek that the proceedings be stayed either under s 7(2) of the Act or on forum non conveniens grounds — the plaintiff resists a stay under the Act on several bases including that: (a) the matters to be determined in the proceedings are not capable of settlement by arbitration, because on its proper construction the arbitration clause only covers disputes between the parties whilst the Contract is on foot and the Contract has been terminated, (b) the arbitrator did not make an award within three months after entering on the reference and the arbitration has, therefore, “expired” because the Arbitration Act 1965 (Fiji) provides that an arbitrator must make an award within three months of entering on the reference, (c) both ss 7(1)(a) and (d) only apply if the Convention country referred to in those subsections had that status on the date of the Contract, whereas Fiji became a Convention country on 4 December 2018 when its International Arbitration Act 2017 (Fiji) came into effect, (d) the first and second defendants are not persons claiming through or under the third defendant within s 7(4) of the Act — HELD — the issues to be determined in the proceedings are capable of settlement by arbitration and covered by the arbitration clause notwithstanding termination of the Contract — the arbitrator did not enter on the reference and if applicable, the three month period could be extended by the Fiji court — Fiji became a Convention country when it acceded to the Convention on 27 September 2010 — ss 7(1)(a) and (d) do not require the Convention country to have that status as at the date of the Contract but at the time the stay application is made — the first and second defendants are persons claiming through or under the third defendant — this Court is clearly an inappropriate forum for determination of the dispute between the plaintiff and all three of the defendants — the amendment of the Statement of Claim is futile because proceedings are stayed, but would be refused anyway because it is confusing, internally contradictory and inadequately articulated
HIGH RISK OFFENDERS — application for Extended Supervision Order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) — preliminary hearing — whether there is an unacceptable risk of the defendant committing another serious offence — consideration of the objects of the Act — primary object being the safety and protection of the community — further object being encouraging rehabilitation
SUCCESSION – Construction – General principles – Structure and scheme of will – a will contains provisions dividing the deceased estate after notionally augmenting the value of the estate to include the value of certain real property distributed to one beneficiary, the plaintiff, during the lifetime of the deceased (the inter vivos distribution) – parties dispute whether (a) the provisions in substance divide the net value of the estate and ignore the inter vivos distribution to the plaintiff, or (b) whether the inter vivos distribution to the plaintiff is brought to account and deducted from the distribution to the plaintiff.
LEGAL PRACTITIONERS – Solicitors – Conflict of interest and duty – whether firm should be restrained from acting for defendant – whether former consultant solicitor possessed confidential information of and about plaintiffs – solicitor’s knowledge of litigation strategies, personality and vulnerabilities – professional and personal relationship between solicitor and plaintiffs – solicitor subsequently employed by firm acting for defendant – risk of forensic advantage – where solicitor likely to be witness – whether fair-minded reasonably informed member of community would regard proper administration of justice as requiring firm to be prevented from acting – freedom of party to retain solicitor of choice – HELD – restraint granted
CIVIL PROCEDURE — Pleadings — Amendment — whether fifth, sixth and seventh defendants should be granted leave to amend their defence to rectify deficiencies in current defence — where amended defence replaces the generic defined term of “the Lawyers” with the names of two identified individuals in the pleading of concurrent wrongdoers — HELD — application for leave to amend dismissed — deficient parts of current defences of the third to seventh defendants struck out in their entirety
CORPORATIONS — receivers and managers — powers — statutory construction — where administrators seek declaration that a disposal of the company’s property pursuant to s 437A(1)(c) Corporations Act 2001 (Cth) is not subject to the conditional prohibition in s 41E(3) Registered Clubs Act 1976 (NSW) — whether exercise of statutory power accorded to administrator constitutes an act of the company CONSTITUTIONAL LAW — Commonwealth and State relations — inconsistency of laws — whether conditional prohibition in s 41E(3) Registered Clubs Act 1976 (NSW) directly inconsistent with administrator’s power of sale under s 437A(1)(c) Corporations Act 2001 (Cth)
BANKRUPTCY – Vesting of bankrupt’s property in trustee – Provable debts – Leave for creditor to take fresh step in proceedings – Where plaintiffs allege defendants participated in misappropriation of trust property – Where plaintiffs now seek only an order the bankrupt defendants render an account – Whether leave required under the Bankruptcy Act 1966 (Cth) to take fresh steps in these proceedings – Leave required
CIVIL PROCEDURE — Pleadings — Proposed further amended Commercial List Statement — Whether the proposed changes make the current pleadings incoherent — Whether the amendment is a device to extend discovery — Whether the application should have been made earlier
CRIME – sentence – murder – son and mother party to a joint criminal enterprise to drive a Triton dual cab ute at the deceased and hit him from behind to exact revenge in context of ongoing feud – where the driver of the ute had intention to kill – where the passenger in the ute was a party to a joint criminal enterprise to cause grievous bodily harm or to kill the deceased – mitigating subjective circumstances – need for denunciation and general deterrence for revenge motivated offending
EVIDENCE – s 18 of the Evidence Act 1995 (NSW) – murder charge – objection of the father of the accused to giving evidence – whether the nature and extent of that harm outweighed the desirability of having the evidence given – harm outweighed by desirability of having the evidence given – objection not upheld CRIMINAL PROCEDURE – trial – case management – objection of the father of the accused to giving evidence – whether objection should be upheld under s 18 of the Evidence Act 1995 (NSW) – objection not upheld in the circumstances
CRIME – murder – whether intention to kill or cause grievous bodily harm – whether co-accused participant in a joint criminal enterprise CRIMINAL PROCEDURE – trial – case management – whether witnesses giving evidence by Audio-visual link should be ordered
CRIME – murder – whether intention to kill or cause grievous bodily harm – whether co-accused participant in a joint criminal enterprise EVIDENCE – exclusion of evidence under s 137 of the Evidence Act 1995 (NSW) – whether probative value of the evidence is outweighed by danger of unfair prejudice – danger that jury may be clouded by an emotional response to the evidence – whether danger of unfair prejudice can be adequately mitigated by excluding evidence of connection with outlaw motorcycle gang – evidence in limited respects admissible EVIDENCE – exclusion of evidence under s 138 of the Evidence Act 1995 (NSW)– whether evidence obtained by impropriety – whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained by impropriety
CRIME – murder – whether intention to kill or cause grievous bodily harm – whether co-accused participant in a joint criminal enterprise CRIMINAL PROCEDURE – trial – case management – whether inspection should be ordered EVIDENCE – inspection under s 53 of the Evidence Act 1995 (NSW) – whether considerations in s 53(3) favour ordering an inspection – organisation and transport feasible – inspection ordered
CIVIL PROCEDURE – application to set aside judgment under r 36.16 Uniform Civil Procedure Rules 2005 (NSW) – where defendant had withdrawn from hearing and ex parte orders were made in favour of the plaintiff – where no satisfactory explanation provided – application refused CIVIL PROCEDURE – motions heard concurrently – application to have funds previously paid into court transferred to the plaintiff – where the plaintiff obtained judgment for damages and costs on an indemnity basis – application granted
SUCCESSION — Family provision — Security for costs — Plaintiff (who claims to be de facto partner of deceased at time of death) resident in Greece — Defendant (executrix and spouse of deceased at time of death) seeks orders for security for costs against plaintiff SUCCESSION — Security for costs — Counsel vigorously advanced contestable factual and legal propositions as to various issues — Regarding prospects of success, the exercise of the Court is to make an impressionistic evaluation SUCCESSION — Family provision — Joint schedules — Parties should prepare joint schedules in a way that facilitates ease of reading, even if the schedule is qualified in some way revealing some aspect in which the parties are in contention EVIDENCE — Family provision — Objections to affidavits — Practical guidance SUCCESSION — Family provision — Eligibility — Section 57(1)(e) Succession Act — There is no requirement for the facts which give rise to alleged dependency to coincide or co-exist with those that give rise to membership of a household SUCCESSION — Family provision — Eligibility — Section 57(1) Succession Act — The fact that parties do not own accommodation they are living in does not preclude finding that they are in a de facto relationship or members of the same household SUCCESSION — Family provision — There is no legal principle that so-called “bare satisfaction of eligibility criteria” necessarily dictates a low level of provision or necessarily moderates the amount of provision such an applicant might receive — That is not to gainsay that provision ‘primacy’ might arise in a specific case by dint of the facts rather than as a legal axiom JUDGMENTS — Enforcement — Discussion of means and criteria of recognition of an Australian court judgment in Greece and enforcement or seizure options in Greece WORDS & PHRASES — Promise ring SUCCESSION — Family provision — Costs — Discussion of applicability of the so-called probate cost exceptions such as the “testator cause exception” or the “investigation exception” to family provision claims — The costs of a unsuccessful family provision plaintiff are not necessarily nor generally informed by analogous application of the so-called probate cost exceptions SUCCESSION — Family provision — Costs — The financial circumstances of an unsuccessful family provision applicant may be a material consideration, though not necessarily a compelling (let alone decisive) consideration in assessing an appropriate costs order CIVIL PROCEDURE — Non-inspection application — Discussion of apparent relevance of documents sought to the issue of the extent of the deceased’s estate
SUCCESSION — Will construction — “Home-made” Wills — Contention regarding whether two sentences deal with the same real property — Clauses of Wills should be read in their context — Submission that the sentences are disconnected rejected — Consequently, submission that property adeemed rejected SUCCESSION — Will construction — Properly understood, the task of searching for a “scheme” or a “plan” is not the unequivocal “first” step or task in Will construction. Rather, it is simply one of a number of analytical or constructive tools to discern the deceased’s intention SUCCESSION — Rectification — Submissions regarding rectification rejected — Meaning can be effectively derived through an approach of construction
COSTS — application for costs on an indemnity basis — whether indemnity costs should be ordered. COSTS — whether indemnity costs should be awarded against Plaintiff on basis of Calderbank principles —whether unreasonable not to accept Calderbank offer(s) COSTS — whether third party costs order should be made. COSTS — security for costs — payment of funds out of Court.
EVIDENCE – pre-trial ruling – joint trial – charges of murder and assault with intent to rob, with wounding and armed – whether the Crown can advance a case of extended joint enterprise – where the Crown cannot prove which of the two participants in the joint criminal enterprise is the principal offender
EVIDENCE – application to exclude evidence – s 137 Evidence Act – whether evidence as to expectation of financial gain is prejudicial – whether evidence of lies can be admitted as proof of consciousness of guilt – whether view warranted – whether evidence can be given by audio-visual link
CRIME – evidence – murder – two co-accused – joint criminal enterprise – application to release evidence given before the Crime Commission – ss 45(4) and 45(5) of the Crime Commission Act 2012 (NSW) – whether disclosure in the interests of justice – factors weighing for and against disclosure – two stage approach to disclosure to give witness opportunity to be heard
CRIMINAL PROCEDURE — directed verdict application — charges of murder and assault with intent to rob, with wounding and armed — joint criminal enterprise — whether there is no evidence upon which a jury could convict — eyewitness accounts — evidence of an agreement to be armed with an offensive weapon or instrument — only one intruder — Crown unable to identify intruder circumstantial case — no direct evidence — inferences
REAL PROPERTY – COMMERCIAL AND RETAIL LEASES – claim for unpaid rent and outgoings – whether the Defendant validly terminated the lease pursuant to a contractual right of termination – whether the Defendant breached the Lease prior to termination – whether there was a causal link between the Defendant’s breach and the event giving rise to the right to termination
EVIDENCE – Litigants in person – leave to issue subpoenas – legitimate forensic purpose – Improperly or illegally obtained evidence – motion for order for access to human tissue of deceased person for DNA testing – the senior next of kin, the respondent to the motion, did not consent to the removal of human tissue from the body of the deceased – criminal charges brought against the first applicant to the motion for improperly interfering with a corpse – first respondent pleads guilty to the charges – the human tissue the subject of this motion was illegally obtained – whether the applicants should be allowed to issue a subpoena for the illegally obtained evidence.
CONTRACTS – Rectification – Intention – Common intention – whether the date of the contract is 17 May 2024 or 23 May 2024 LAND LAW – Conveyancing – Contract for sale – Deposit – relief against forfeiture of deposit – whether deposit should be returned pursuant to Conveyancing Act 1919 (NSW), s 55(2A) – no question of principle
JUDGMENTS AND ORDERS — Amending, varying and setting aside – Setting aside judgment entered irregularly and in absence of party — UCPR rr 35.15(1) and 36.16(2)(b) — Whether judgment entered irregularly — Where delay of nine months in bringing application and insufficient reason for delay — Whether bona fide defence on merits
PROPERTY – proceedings by secured creditor for possession of land under registered mortgage – receiver appointed to assets of the corporate mortgagor – directors purport to exercise residual authority to cause corporate mortgagor to defend proceedings and bring cross-claim – directors offer indemnity to compensate mortgagor against costs and adverse costs order – whether directors required to give security for their indemnity
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — frivolous or vexatious proceedings — parallel proceedings in the Industrial Relations Commission concerning same subject matter — HELD — proceedings summarily dismissed
LAND LAW – Co-ownership – co-tenants in occupation – one co-tenant, the plaintiff, claims reimbursement for outgoings expended by her on a residential property, the Glenwood property, she has occupied since 2010 – no evidence that the plaintiff/co-tenant has ousted the other co-tenant, represented by the second defendant, from occupation of the Glenwood property – whether the second defendant can set off a notional occupation fee for the Glenwood property against the plaintiff’s claim for mortgage payments – what evidence is sufficient to establish a notional occupation fee for the Glenwood property – what is the proper quantum of an occupation fee for the Glenwood property since 2010. COSTS – proceedings in the Court of Appeal vary the trial judge’s determination of the equitable ownership of the Glenwood property – the trial judge retires – proceedings remitted to the Equity division to a different judge for the redetermination of relief, including the calculation, if required, of a notional occupation fee for the Glenwood property based on the decision of the Court of Appeal – trial judge’s cost orders left open the redetermination – what costs order is now appropriate. COSTS - specified gross sum instead of assessed costs – Civil Procedure Act 2005, s 98(4)(c) – possible appointment of a single court expert in relation to costs pursuant to Uniform Civil Procedure Rules 2005 (UCPR), r 31.46 – parties negotiating to settle proceedings and for one party to buy out the other’s interests in the Glenwood property – whether the circumstances are appropriate for a specified sum to be fixed instead of assessed costs, or for costs to be fixed by a single court appointed expert – whether a maximum costs order should be made under UCPR, r 42.4.
HIGH RISK OFFENDERS — Extended supervision orders — Preliminary hearing — Appointment of psychiatrists or psychologists — Extension of status as forensic patient — Whether documentation supporting the application would, if proved, “justify the making of an extension order”
CORPORATIONS — winding up — application by creditor for substitution as applicant in winding up proceedings against the defendant company — where creditor that was previously substituted in winding up application against company has not proceeded with its winding up application — whether there is a genuine dispute as to the debt claimed by the creditor who now seeks to be substituted — whether substitution order should be made under s 465B of the Corporations Act 2001 (Cth)
HIGH RISK OFFENDER – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – whether there is an unacceptable risk of the defendant committing another serious violence offence – no subsequent serious violence offending in the 11 years since the index offending – consideration of the objects of the Act – primary object being the safety and protection of community – further object being encouraging rehabilitation
ADMINISTRATIVE LAW – judicial review – Independent Commission Against Corruption (ICAC) – decision to investigate matters – decision to hold public inquiry – adverse findings – no corrupt conduct – report to Parliament – publication of report – whether unlawful
COSTS — Application for costs to be fixed in a gross sum — Appropriateness of gross sum costs order – Sufficiency of evidence required for gross sum costs orders – Where parties scheduled to participate in mediation – Where mediation terminated upon failure of plaintiff’s personal representative to attend – Where defendants’ evidence of wholly and partly wasted costs inconsistent and unexplained – Whether plaintiff should bear defendants’ costs of failed mediation – Whether costs ought to be awarded on gross sum basis – Plaintiff to pay defendants’ costs – Costs to be agreed or assessed – No issue of principle
REAL PROPERTY – Commercial lease of premises for a cinema complex – landlord obliged to replace seats when they reach “end of their economic life” – competing cinemas upgraded seats to reclining seats – whether fixed-back seats reached end of economic life – question of construction – no point of principle
CRIME – bail – show cause – detention application and variation application heard together – murder – joint criminal enterprise – where private electronic monitoring condition has to be removed due to Bail Act amendment – where applicant was charged with domestic violence offences while on Supreme Court bail - where applicant has not breached bail – large surety – cause shown – detention application refused – variation granted
COSTS – party/party – where plaintiff successful in obtaining family provision orders – general rule that costs follow the event pursuant to UCPR r 42.1 – where defendant made an offer of compromise and a Calderbank offer in the alternative – where plaintiff submitted terms of the offers were unclear and ambiguous – where plaintiff submitted it was uncertain whether he had “beaten” defendant’s offers – where defendant’s offer of compromise fails to comply with UCPR r 20.26 – where it was unreasonable for plaintiff to reject defendant’s Calderbank offer – where defendant is to pay plaintiff’s costs up to date of the Calderbank offer on the ordinary basis – parties to bear their own costs after this period – defendant’s application for indemnity costs unsuccessful – plaintiff’s application for all his costs unsuccessful
LEGAL PRACTITIONERS – practice and procedure – solicitor’s lien –solicitor’s general lien over proceeds of sale of a business held in trust – where extension of time for application to have assessed costs reviewed granted by this Court – whether lien applies to the assessed costs and to costs of these proceedings – s 144 of the Legal Profession Uniform Law 2014 (NSW) – whether it permits solicitor’s lien to be exercised in respect of the disputed costs
CONTRACTS – Construction – Interpretation – where multiple interest rate clauses in Loan Agreement – whether contract void for uncertainty – no question of principle CONTRACTS – Construction – Penalties – whether compounding interest clause constituted penalty – no question of principle
HIGH RISK TERRORISM OFFENDER – preliminary hearing – interim supervision order (ISO) under s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW) – examination order under s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) – whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order – consideration of “matters alleged in the supporting documentation” – power to order ISO engaged – exercise of discretion whether to make ISO – ISO made – examination order made – conditions of ISO
COSTS — where directors were personally interested in authorising defence of proceedings — whether third party costs order should be made against directors
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 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 members to consider and, if thought fit, to agree to proposed scheme of arrangement — whether requirements to order scheme meeting are satisfied
CIVIL PROCEDURE — Parties — Joinder — Proceedings for possession of property by a beneficiary against a trustee — Where trustee has capitulated — Where joinder would require the hearing listed for next week be vacated — Where applicant seeking joinder is also a unit holder in the trust — Where applicant seeks to run the trustee's defence and cross-claim as a derivative action
CIVIL PROCEDURE — Hearings — vacation of trial date pending anticipated legislation reform — where one bases of plaintiff’s claim is vicarious liability — where proceedings commenced before High Court ruling of Bird v DP — institutional abuse Discontinuance — where plaintiff proposes determination of costs deferred until fresh proceedings completed
EVIDENCE – Evidence Act 1995 (NSW) s 130 – The Cabinet Office claims public interest immunity over documents – The documents contain commercially sensitive information which would undermine the ability and confidence of the Cabinet Office to maintain confidentiality over internal dealings – The limited forensic value of the documents is outweighed by the public interest in preserving confidentiality – There is no exceptional situation warranting disclosure of the documents – HELD – Claim of public interest immunity upheld
SUCCESSION — Family provision — Claim by adult child whose affairs are under financial management — Procedure where defendant executor declines to participate in proceedings — Hearing in absence of defendant
COSTS – Offer of Compromise for $700,000 plus costs not accepted by plaintiff – plaintiff obtains judgment for $698,000 plus costs, including interest after offer not accepted – costs order made under UCPR 42.15 – no point of principle
EVIDENCE – where the plaintiff sought to reopen previous procedural rulings – where the plaintiff submits inadmissible evidence is critical to proving the pleaded case
CIVIL PROCEDURE – personal injury – application for separate trials of the questions of liability and damages – where parties agree that damages cannot be assessed until applicant is older – where respondent does not oppose or consent to trial being heard separately – orders made
EVIDENCE – admissibility – hearsay evidence – exceptions – where the applicant seeks to admit statement of pseudonymised person made to Royal Commission – where the identity of the deponent is not known – where the statement is not relevant to any fact the applicant is required to prove
CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, to agree to linked schemes of arrangement — whether requirements to order scheme meetings are satisfied
CIVIL PROCEDURE — Stay of judgment — application made after final determination of all issues — whether in interests of justice — finality of litigation — where applicant seeks a stay of judgment after final determination of issues in the proceedings — HELD — stay refused CIVIL PROCEDURE — Transfer of proceedings — application to transfer to Common Law Division to be heard with related proceedings — proceedings already finally determined and judgment given — HELD — no transfer CIVIL PROCEDURE — Stay of proceedings — Pending proceedings in other court — no stay where final judgment given JUDGMENTS AND ORDERS — Amending, varying and setting aside — application to set aside judgment pursuant to rr 36.15 and 36.16 of the UCPR — discretionary power to be exercised sparingly and with great caution — public interest in finality of litigation — where no irregularity, illegality or bad faith — applicant’s disagreement with judgment insufficient basis for setting aside or varying judgment JUDGMENTS AND ORDERS — Entry — Effect of — proceedings concluded — cannot be revived after entry of final judgment APPEALS — Procedure — Time limits — where applicant did not appeal within 28 days — where applicant aware of appeal procedures
PRIVATE INTERNATIONAL LAW — Jurisdiction — Stay of local proceedings — Whether earlier judgments in China on matters with some degree of overlap to current NSW proceedings can give rise to res judicata, issue estoppel, Anshun estoppel or a plea of abuse of process in relation to latter proceedings PRIVATE INTERNATIONAL LAW — Jurisdiction — Non-exercise of jurisdiction — Forum non conveniens — Whether earlier judgments in China on matters with some degree of overlap to current NSW proceedings sufficient to render NSW Supreme Court forum non conveniens in respect of latter proceedings CIVIL PROCEDURE — Admissions — Admission of facts — Withdrawal of admissions CIVIL PROCEDURE — Interim preservation — Freezing orders — General principles to be applied
SUCCESSION – administration of estates – application for administration of an estate upon presumption of death and upon intestacy – plaintiff has had no contact with her father, the defendant, for 25 years – plaintiff seeks a declaration that her father is presumed to have died before her mother who died in 2020 – plaintiff seeks administration of her mother’s estate on intestacy – discussion of Conveyancing Act 1919, s 35.
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 – professional negligence by solicitors – calculation of damages – UCPR 20.14 – where parties were directed to provide ‘the usual form of order’ for reference of four disputed taxation accounting issues to experts – where the defendants contend none of the issues should be referred – whether the issues should be referred to appropriate experts for consideration and report – where defendants contend two issues have already been decided by the Court or ‘dealt with’ – where issues raise complex matters of tax accounting practice – where all four issues should be referred NEGLIGENCE – damages – calculation of damages – final issue to be determined by the court in proceedings – competing versions of issue – timing of hypothetical cashflows – parties agree the issue has not been determined – expert evidence – application of 5% discount for non-diversifiable risk – whether the joint venture would have distributed the project proceeds to the joint venture participants on the agreed dates – whether distribution of the proceeds would have been postponed past the date of receipt until 31 July 2016 – interpretation of clauses in Joint Venture Agreement prescribing mechanism for distribution of project proceeds –where parties had a ‘toxic’ or disharmonious relationship – consideration of mercantile reality and modern commercial conduct
PRACTICE & PROCEDURE – pleadings – summary judgment – claim for unpaid income tax, interest and penalties – application to strike out the defence pursuant to UCPR 14.28 or for summary judgment pursuant to UCPR 13.1 – whether pleading discloses a defence, or has a tendency to cause delay or is otherwise an abuse of the process of the court – whether there is a triable issue
EVIDENCE – Admissions – Admission made during a controlled operation – Where admission unrelated to the offence(s) the subject of the relevant Controlled Operation Authority – No impropriety in recording EVIDENCE – Discretions – Exclusion of evidence – Criminal proceedings – Improperly or illegally obtained evidence – Application of the Law Enforcement (Controlled Operations) Act 1997 (NSW) – Whether evidence obtained during a controlled operation should be excluded – Where the accused made specific admissions of their guilt to an offence not the subject of the relevant Controlled Operation Authority – Where a party to the private conversation is a participant in an authorised operation – Prohibitions on installation, use and maintenance of a surveillance device do not apply EVIDENCE – Witness evidence – Application of section 138 of the Evidence Act 1995 (NSW) – Constitution of “improperly obtained evidence” – Whether a participant in an authorised operation acted unlawfully when providing the subject of an authorised operation with resources known to be for the purchase and subsequent use of illicit substances – Controlled operation determined to have been conducted in accordance with the authorities granted
SUCCESSION — Family provision — Claim by adult child — Small estate — Costs and any provision could only come from superannuation as notional estate — Defendant estranged wife still owed money by deceased from property settlement
COSTS — special costs order — offer of compromise by defendants not accepted — Uniform Civil Procedure Rules 2005 (NSW) r 20.26 COSTS — costs of appeal — consequence of offer of compromise made prior to proceedings — indemnity costs — Uniform Civil Procedure Rules r 42.15A COSTS — costs of appeal and notice of motion — ordered on a gross sum basis — Civil Procedure Act 2005 (NSW) s 98(4)(c)
CIVIL PROCEDURE — parties — representation — by unqualified persons — application by plaintiff’s husband for leave to appear for her as lay representative — no evidence of medical condition said to give rise to legal incapacity — no evidence that plaintiff cannot afford representation by a lawyer — no special or exceptional circumstances demonstrated — not in the interests of justice to grant leave — application dismissed
EVIDENCE – Identification evidence – Recognition evidence – Opinion evidence – Opinion rule – Admissibility – ‘Ad hoc expert’ – Visual identification – Where the accused was known to the witness for a period of many years – Whether probative value is outweighed by the danger of prejudice to the accused – Whether identification from poor quality CCTV footage where there is an absence of any defining facial features in the footage is opinion evidence as opposed to identification evidence – Where jury may unfairly rely upon identification evidence where CCTV footage is poor quality and witness has a prior familiarity with the accused – Evidence admitted
CIVIL LAW – application to set aside default judgment – judgment for possession and repayment of money lent and interest – debt to private lender secured by guarantee and mortgage – whether arguable defence – where previous defence struck out – applicability of National Credit Code – whether arguable that transaction a “sham” – where loan to company secured by property owned by individual who was the sole director – whether attempt to resurrect same defence that was previously struck out – relevance of delay – extent of prejudice to plaintiff – where application to set aside judgment related only to amount of interest – no contest as to principal sum – no contest that lender entitled to sell property – whether arguable defence of unconscionability
CIVIL LAW – legal costs – provisional costs order made against plaintiffs – where plaintiffs’ application for leave to rely on expert evidence granted despite late service and failure to comply with case management orders – where parties afforded opportunity to make submissions for different costs orders – opportunity taken – surprise to nobody – where provisional order against the general rule that costs follow event – whether it appears that some other order should be made – relevant considerations – costs order confirmed
CIVIL LAW – plaintiffs seek leave to rely on expert evidence in reply – where both parties failed to comply with case management orders – where plaintiffs’ delinquency in obtaining report most egregious – whether evidence properly categorised as evidence in reply – contest between experts relating to cause of house fire – whether fire caused by electrical fault in appliance or lightning strike – case management – whether plaintiffs bound to retain original expert to provide evidence in reply – multiplicity of experts – fairness to defendant – imminence of hearing date and expert conclave – where part of expert report raises new issues – where part of report responsive to defendant’s expert’s opinion – avoiding multiplicity of experts on same issue – conditional grant of leave – plaintiffs put to election as to the expert upon which they rely – spirited submissions
CRIMINAL LAW – sentencing – manslaughter by unlawful and dangerous act – where offenders convicted at trial of murder – where appeal against conviction allowed – where plea of guilty accepted many years after offer – impact on victim’s family – where delay failed all participants – all parties buffeted by system – considerations relevant to sentence – joint attack – individual actions – where offence committed over 30 seconds but planning for hours or days – offenders employed as muscle – relevance of gang membership – brutal assault – parity with co-offender sentenced for manslaughter and part of assault – due proportion between sentencing – prospects of rehabilitation – relevance of exposure of offenders to violence and drug use in childhood CRIMINAL LAW – sentencing – parole – lengthy delay – where offenders on remand for longer than non-parole period – where no occasion for the parole board to consider parole – where total sentence exceeds period on remand – where offenders on strict bail and compliant – whether offenders required to re-enter custody – whether parole can be ordered while offenders at liberty on bail – separation of powers – judicial function in sentencing – executive function to grant parole – inappropriate for court to communicate with Parole Authority – recommendations made
CORPORATIONS – application for winding up on ground of insolvency – application for freezing order – whether presumption of insolvency is established under s 459C(2)(b) of the Corporations Act 2001 (Cth) – whether partly unsatisfied garnishee order is sufficient to trigger presumption of insolvency – whether writ for levy of property enlivens presumption of insolvency – whether writ was returned – whether writ was returned unexecuted or unsatisfied – whether defendant is insolvent pursuant to s 95A of the Corporations Act – where defendant is able but unwilling to pay debts as and when they fall due – finding defendant is solvent – applications dismissed with costs
ADMINISTRATIVE LAW – judicial review of decision of Appeal Panel of the Personal Injury Commission – s 323 Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where applicant had pre-existing health condition – whether the Appeal Panel correctly applied s 323 – whether Appeal Panel gave adequate reasons – decision of Appeal Panel set aside
ESTOPPEL – proprietary estoppel by encouragement – where plaintiff is the daughter of the defendants who are co-owners of property – where plaintiff claims the defendants made repeated representations to her that, if she worked full-time in the parents’ real estate business without pay, she would be “given” the property and the business within her parents’ lifetime – where plaintiff did work in the business without pay for approximately 22 years – where first defendant (father) has sold the rent roll of the business and, in separate proceedings, seeks an order under s 66G of the Conveyancing Act 1919 (NSW) for the sale of the property – where plaintiff claims the defendants are estopped from denying her alleged entitlement to have the property transferred to her, hold the property on constructive trust for her, and should account to her for proceeds of sale of the rent roll – Held: alleged representations were not made, proprietary estoppel claim fails EQUITY – trusts – common intention constructive trusts – where plaintiff is the daughter of the defendants who are co-owners of property – where plaintiff claims the parties agreed or had the common intention that, if the plaintiff worked full-time in the parents’ real estate business without pay, she would be “given” the property and the business within her parents’ lifetime – where first defendant (father) has sold the rent roll of the business and, in separate proceedings, seeks an order under s 66G of the Conveyancing Act 1919 (NSW) for the sale of the property – where plaintiff claims the defendants hold the property on constructive trust for her and should account to her for proceeds of sale of the rent roll – Held: alleged common intention or agreement not established, constructive trust claim fails EQUITY – trusts –constructive trust following failure of alleged joint endeavour – where plaintiff is the daughter of the defendants who are co-owners of property – where plaintiff claims the parties were engaged in a joint endeavour to “enhance the material wellbeing of their family” pursuant to which the plaintiff worked in the parents’ real estate business without pay – where plaintiff claims the defendants have received a windfall benefit arising from applying revenue of the business to repay loans secured against the property – where first defendant (father) seeks in separate proceedings an order under s 66G of the Conveyancing Act 1919 (NSW) for the sale of the property – where plaintiff claims the defendants hold the property on constructive trust for her – where subject property was acquired prior to the commencement of the alleged joint endeavour – Held: alleged understanding or joint endeavour not established, constructive trust claim fails LAND LAW – co-ownership – statutory trust for sale – application by plaintiff (father) under s 66G of the Conveyancing Act 1919 (NSW) – where plaintiff and first defendant (mother) are co-owners of property – where first defendant has filed a submitting appearance – where claim by second defendant (daughter) that property is held on constructive trust for her fails – trustees for sale appointed – no question of principle
CRIME – evidence – previous representation of drug supply – where mother gave police statement – where mother is an unavailable witness – whether evidence admissible for its non-hearsay purpose per Evidence Act, s 60 – whether evidence admissible as an exception to hearsay per Evidence Act, s 65
COSTS – proceedings involve two separate claims one for delivery of rolling stock under a call option and the other for the delivery up of documentation which the defendant agreed to provide – the defendant capitulates on the first claim and agrees to deliver the rolling stock and over time delivers the documentation, or agrees to, rendering the relief sought by the plaintiff otiose – plaintiff seeks its costs of the proceedings – defendant concedes that it should pay the plaintiff’s costs of the rolling stock issue and that each party should pay their own on the documentation issue – HELD – the plaintiff obtained everything it wanted – not appropriate to determine costs on the basis of different issues – defendant to pay the plaintiff’s costs
CORPORATIONS — directors and officers — appointment, removal and retirement of directors — where director resigned by written notice to company chairman — where company did not provide notice of director’s resignation to the Australian Securities and Investment Commission within 28-day period — where relief sought under s 203AA of the Corporations Act 2001 (Cth) — orders made fixing director’s resignation date at the time that notice of resignation was provided to company’s managing director
COSTS – motion to vary costs order – where the Attorney-General of NSW intervened and was the only active contradictor – where the plaintiff failed to address on costs – whether Court should have made no costs order – motion dismissed
CRIMINAL PROCEDURE – suppression and non-publication orders – closed court orders – restricted retention orders – where orders sought protect disclosure of monetary amounts paid to witnesses for co-operation – public interest in open justice a primary objective of the administration of justice – meaning of “necessary” – whether reasons for orders sought contained in confidential affidavit should be protected – reasons disclosed – orders made CRIME – murder – destroy or damage property intending to endanger life of another – maliciously wound – maliciously inflict grievous bodily harm
LAND LAW — Option to purchase residential property — Where plaintiff (as prospective purchaser), defendants/cross-claimants (as owners and prospective vendors) and cross-defendants (as guarantors) entered into deed of put and call option — Where plaintiff paid a call option fee of $600,000 to the defendants in accordance with the deed — Where the deed stated that the put option was granted by the plaintiff to the defendants in consideration for the call option and a put option fee of $1.00 — Where deed provided that the call option fee would be retained “absolutely” by the defendant in the event that neither option was exercised — Where the proposed contract for sale of land attached to the deed did not include particulars of the purchase price — Where, prior to the expiry of the period in which it could exercise the call option, the plaintiff issued a notice of rescission of the deed, relying on s 66ZI of the Conveyancing Act 1919 (NSW) — Whether the statutory right of rescission under s 66ZI entitled the plaintiff to rescind the deed ab initio
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – Adjudication – Whether adjudication was affected by jurisdictional error – Whether the adjudicator determined the claim made by the payment claim – Whether the adjudicator failed to consider submissions duly made – Whether there was a denial of natural justice – Whether there was jurisdictional error on the basis of legal unreasonableness
INSURANCE – Application by plaintiff for leave to proceed against second defendant insurer under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) in respect of claims against first defendant for alleged breaches of contract for design and construction of building works – Where first defendant and second defendant insurer entered into design and construct professional indemnity insurance policies – Where first defendant now in liquidation – Whether arguable case that first defendant would be entitled to indemnity under the relevant insurance policies if found liable to the plaintiff for the alleged breaches of the design and construct contract – HELD: Leave to proceed against second defendant insurer refused
DECLARATORY RELIEF – Application by plaintiffs that fees charged in invoices issued by defendants are not due and payable by plaintiffs – Onus of proof – Whether plaintiffs established factual and legal basis for negative declarations sought
COSTS — security for costs — the threshold issue — where plaintiff is impecunious — relevant factors — where director of plaintiff has offered an undertaking — where director of plaintiff has substantial real estate assets and funds in joint bank accounts — quantum
MENTAL HEALTH – Forensic patient – Extension of status as forensic patient – Whether matters alleged in supporting documentation would, if proved, justify making of an extension order – Whether court could be satisfied to the requisite standard that the defendant poses an unacceptable risk of causing serious harm to others if he should cease to be a forensic patient – Application for extension order dismissed.
CIVIL PROCEDURE – substitution of parties – where plaintiff died prior to conclusion of proceedings – plaintiff removed as a party pursuant to UCPR, r 6.29 – representative of the plaintiff’s estate appointed pursuant to UCPR, r 7.10
CIVIL PROCEDURE – court administration – case management – failure to comply with case management orders – cost orders arising from the need to vacate a hearing date due to non-compliance with case management orders
CIVIL PROCEDURE – implied undertakings – release from Hearne v Street obligation – where the plaintiff seeks to use documents in these proceedings which were obtained in District Court proceedings – whether this Court can release a party from the implied undertaking made in a different court – whether special circumstances exist
CIVIL PROCEDURE – interim preservation – freezing orders – UCPR, r 25.14 – whether freezing orders should be maintained – orders maintained against some defendants
CIVIL PROCEDURE – damages – statutory damages under Australian Securities and Investment Commission Act 2001 (Cth), s 12GF – defendant/cross claimant successful in principal judgment in setting aside certain transaction documents with the plaintiff/cross-defendant – contest about the scope of relief claimed by the defendant/cross claimant – whether amendment of pleadings required – apportionment of liability – proceedings conducted based on an Amended Statement of Cross-Claim – in the course of a relief hearing the plaintiff/cross-defendant contends that a claim for statutory damages is not available due to certain statements made by counsel in closing submissions – discussion of the scope of the pleadings and the manner in which the proceedings were conducted – assessment of damages for lost interest and lost opportunity to invest in Australian bank shares – apportionment does not strictly arise but is considered.
CORPORATIONS – winding up – conduct of liquidation – application for leave pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) extending time to bring voidable transactions claims
SENTENCING – murder – where offender previously found guilty by a jury and sentenced for murder – where offender successfully appealed against the conviction – where offender pleaded guilty to murder before retrial – application of the ceiling principle – discount to reflect utilitarian value of plea – objective seriousness of offending – where moral culpability reduced by reason of youth and background of disadvantage – where offender has made progress toward rehabilitation in custody
CIVIL PROCEDURE – judicial review procedure – Uniform Civil Procedure Rule 59.7 – application to tender further evidence from defendant's expert – experts had produced joint and agreed reports – defendant granted time to ask both experts certain questions directly, overnight – plaintiff's expert unavailable; defendant's expert available, and produced answers not seen by plaintiff’s expert – leave refused
CORPORATIONS — membership — register — rectification of register — where shares in two companies left to plaintiff under plaintiff’s mother’s Will — where first defendant, the executor of the Will, agreed to transfer the relevant shares to the plaintiff in accordance with the terms of the Will but subsequently failed to do so — where first defendant instead transferred the relevant shares to himself — where plaintiff did not raise a claim for the transfer of the relevant shares in other proceedings brought in 2018 — where defendants allege Anshun estoppel, abuse of process or laches — where no demonstrated prejudice arising from delay,
CORPORATIONS – Directors and officers – Appointment, removal and retirement of directors – whether director validly resigned – steps required to effect directors’ resignation – long delay in giving notice of resignation. EQUITY – Trusts – Constructive trust – Where property acquired in name of defendant’s parents to effect “asset protection” scheme – Where defendant now asserts beneficial interest in property – Orders not made
EQUITY — equitable remedies — specific performance — whether vendor required to seek order vacating uncompleted order for specific performance before terminating contract — where purchaser has repeatedly failed to perform and has repudiated the contract — legal effect of purported termination by the vendor in the face of an order for specific performance — purported termination invalid — where errant purchaser asserts that vendor’s purported termination was accepted as a repudiation of contract EQUITY — equitable remedies — specific performance — vacating an uncompleted order for specific performance — where innocent party elects for damages in lieu of performance CONTRACTS — remedies — damages — after repudiation — loss of bargain — other expenses
CRIME – Bail – Variation application – Detention application – Large commercial drug supply, manufacture of prohibited drug, possession of proceeds of crime and other serious drug offences –– Bail Act 2013 (NSW) s 30A – Private electronic monitoring – Power of Supreme Court of NSW to hear detention application – Whether revocation within scope of power to vary a bail decision – Whether bail risks could be mitigated by conditions other than electronic monitoring – Bail revoked.
CIVIL PROCEDURE — Hearings — Adjournment — Second defendant’s application to vacate or adjourn hearing — Where 500 pp with potential relevance obtained by subpoena in Family Court proceedings — Where second defendant seeking release from ‘Harman’ undertaking in Family Court — Hearing vacated
PROCEDURE — leave to discontinue proceedings under UCPR r 12.1 — where there are concerns about the plaintiff’s fitness to stand trial — leave granted COSTS — where plaintiff sought leave to discontinue proceedings — where plaintiff largely self-represented
CIVIL PROCEDURE – pleadings – form and content of pleading – whether leave should be granted to amend pleadings – where parties are already making final submissions – where prior pleadings are “highly compressed” and economical – whether the pleadings “mirror” the case as put or are an enlargement of that case – whether granting leave would cause significant prejudice – leave granted
EVIDENCE – admissions – whether certain paragraphs are admissible under s 87(1) of the Evidence Act 1995 (NSW) – whether certain paragraphs can be properly characterised as admissions – statement from school principal – notification of sexual and other offending against schoolchildren
EVIDENCE – tendency evidence – whether the tendency evidence has “significant probative value” under s 97(1) – sexual and other offending against schoolchildren
COSTS – where successful plaintiff seeks indemnity costs – where defendant seeks separate orders in respect of the claim and cross-claim on ordinary basis – no just basis for departure from the usual order CIVIL PROCEDURE – where orders permit immediate issue of a writ of possession – proposed removal of “linking shed” – whether matter justiciable
COSTS — offer of compromise — where purported Calderbank letter sent — where offer was to walk away — whether offer unreasonably rejected —indemnity basis — gross sum costs
CIVIL PROCEDURE – subpoenas and discovery – personal injury claim – where the defendant issued subpoena requiring production by plaintiff – whether subpoena impermissibly requires discovery – where Registrar set aside the subpoena – Registrar’s order discharged
CIVIL PROCEDURE – tutor – where proceedings stayed until legal representation obtained – where statement of claim does not disclose a reasonable cause of action – where defendant seeks self-executing orders to have proceedings dismissed for want of due despatch – further adjournment of hearing of motion refused – self-executing orders made
PUBLIC ASSEMBLY – Palestine Action Group to advocate for the worsening humanitarian crisis in Gaza – procession to take place via Sydney Harbour Bridge – Commissioner of Police sought an order prohibiting the holding of the public assembly – plaintiff’s application refused
COSTS – r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) – where each party had a measure of success – where it is appropriate to depart from the general rule on defendant’s application for costs
BANKING AND FINANCE – CONTRACT – banker and customer – where their contractual relationship is governed by written terms and conditions (Conditions) which permit the defendant bank to close the account immediately to protect the defendant’s Legitimate Interests (a defined term) or to meet the defendant’s prudential requirements or is reasonably necessary to protect the defendant against a material risk of financial detriment – where Conditions provide that except where there are exceptional circumstances (which is not this case) the defendant will give the customer at least 14 days advance notice before closing the account – where the defendant gave notice to close the account for the reason that the defendant lacks the risk appetite involved in continuing to operate the account in circumstances where it concluded that there was a risk that in providing services to the plaintiff, the defendant could be assisting in money laundering or terrorist financing – where the plaintiff customer, contends that the defendant did not have Legitimate Interests in closing the account and its notice to do so is ineffective because it is in breach of the express terms in the Conditions and/or implied terms that the defendant was required to act honestly, for a proper purpose and reasonably in giving notice – where the plaintiff seeks declarations as to the breach and an injunction restraining the defendant from closing the account – HELD – the defendant had Legitimate Interests in closing the account and if the defendant was obliged to act honestly, for a proper purpose and reasonably, it did so – even if the plaintiff had established breach, an injunction requiring the defendant to keep it as a customer and operate a bank account with it would not be granted
MENTAL HEALTH — forensic patient — extension of status as forensic patient — consideration of statutory criteria — whether the defendant poses unacceptable risk of causing serious harm to others if forensic patient status ceases— whether risk can be adequately managed by less restrictive means — diagnosis of schizophrenia and polysubstance use disorder — history of unprovoked violence and poor medical compliance
JUDGMENTS AND ORDERS — calculation of pre-judgment interest and post-judgment interest COSTS — application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) — court’s discretion as to quantum of gross sum costs order CIVIL PROCEDURE — interim preservation — freezing orders — variation of — varied to be discharged on payment of amounts owing
LIMITATION OF ACTIONS — causes of action not maintainable — extension under s 60G(2) of the Limitation Act 1969 (NSW) — where the plaintiff sues for medical negligence alleged to have occurred in 1999-2000 — where proceedings commenced in 2021 — whether the plaintiff was aware of the connection between the personal injury and the defendant’s act or omission for the purpose of ss 60I(1)(a)(iii) and 60I(1)(b) of the Limitation Act — where the plaintiff denied sending the defendant a letter in 2007 referring to a solicitor and calling for an explanation of her treatment — whether the letter was written by the plaintiff
CIVIL PROCEDURE — evidence in reply — whether evidence in chief — principles at [6]-[15] — whether entitled to costs ‘thrown away’ — plaintiff sues for loss of chance to build hotel development — evidence in chief based on hotel design considered at time of breach of contract — defendant serves evidence pointing out problems with that design and an alternate design conceived by defendant — plaintiff reply evidence includes further design said to meet issues identified by defendant — $100 million claim — no trial date set — plaintiff amenable to defendant putting on further evidence in respect of further design — case management directions made.
PROCEDURE — default judgment — claim in nature of indemnity for amounts former director liable pursuant to Director Penalty Notices — whether former director entitled to indemnity under corporate constitution — whether continuing director and her company misled or deceived him in trade or commerce — effect of irrevocable undertaking to appoint restructuring practitioner under s 453B of Corporations Act 2001 (Cth) — form of relief
COSTS – Party/Party – costs of application for appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) – whether usual order should be made for costs to be paid out of the proceeds of the sale of land – whether unreasonable conduct caused costs to be incurred unnecessarily
COSTS – order for costs following summary dismissal of plaintiff’s proceedings against the bank – application for payment of indemnity costs or alternatively as a gross sum – whether costs should be awarded on an indemnity basis – where plaintiffs commenced proceedings with no cause of action or prospect of recovering damages – frivolous and vexatious proceedings – order for costs on indemnity basis
CIVIL PROCEDURE – Commercial List, Technology and Construction List – Transfer to – Principles governing exercise of discretion – Where plaintiffs initially entered proceedings in General List of Common Law Division alleging various breaches of contract – Where proceedings transferred by consent following amendment of pleadings to General List of Equity Division – Where parties consent to proceedings remaining in General List – Where plaintiffs’ solicitors unilaterally request reasons for dismissing application for transfer to Commercial List notwithstanding indication of consent – Application for transfer dismissed – No issue of principle PRACTICE AND PROCEDURE – Email communications with Judge’s Chambers – Unilateral email communications – Where Chambers notified that correspondence sent without consent of defendant – Where Chambers further notified that defendant’s solicitors copied in to correspondence for transparency – No issue of principle
EQUITY – Trusts and trustees – Court’s supervision of – Appointment and removal of trustees – where three adjoining properties – where trustees appointed in respect of one property – whether to remove trustees in respect of the first property – whether to appoint trustees in respect of the other two properties
CIVIL PROCEDURE – professional negligence by solicitors – where breach of duty and breach of retainer admitted – UCPR 20.14 – calculation of damages – where plaintiffs seek reference to experts for inquiry and report on four remaining taxation accounting questions – whether reference out preferable to contested hearing on the issues before the trial judge
CRIME – evidence – murder – application to release evidence given before the Crime Commission – Crime Commission Act 2012 (NSW) s 45(5) – where material relevant to murder trial – whether disclosure ‘may’ be desirable in the interests of justice – where witness is protected – where Crown given a summary of coerced evidence given before Crime Commission – procedural fairness in pre-trial disclosure
CIVIL PROCEDURE — application to set aside default judgment — applicant’s non-compliance with court orders — applicant obviously not pursuing its motion
WORKERS COMPENSATION — medical assessment — medical dispute — degree of permanent impairment as a result of an injury — whether appeal panel erred in confirming medical assessment certificate — whether error of law on the face of the record for appeal panel to confirm medical assessment certificate — whether medical assessor failed to explain why his assessment of the plaintiff’s degree of permanent impairment differed substantially from that of an orthopaedic surgeon upon which the plaintiff had relied for the purpose of her claim — where medical assessor did not so err and therefore not error of law on the face of the record for appeal panel to confirm medical assessment certificate WORKERS COMPENSATION — medical assessment — medical dispute — degree of permanent impairment as a result of an injury — whether appeal panel erred in confirming medical assessment certificate — whether error of law on the face of the record for appeal panel to confirm medical assessment certificate — whether medical assessor failed to give proper, genuine and realistic consideration to the report of an orthopaedic surgeon upon which the plaintiff had relied for the purpose of her claim — where medical assessor did not so err and therefore not error of law on the face of the record for appeal panel to confirm medical assessment certificate WORKERS COMPENSATION — medical assessment — medical dispute — degree of permanent impairment as a result of an injury — whether appeal panel erred in confirming medical assessment certificate — whether appeal panel implicitly found error in the medical assessment certificate and thus did not have jurisdiction to confirm the medical assessment certificate — where appeal panel did not so err
BAIL – release application – detain for advantage – aggravated sexual assault – sexual assault in the alternative – show cause test – unacceptable risk test – Crown case very strong – unrelated charge of sexual touching – delay – recent birth of applicant’s child – residence away from where offences allegedly committed – no prior criminal record – cause shown – bail granted with conditions BAIL – evidence – where almost entirety of alleged offences captured by closed circuit television (CCTV) – where Crown proposed to tender and play CCTV – exposure to footage of serious crimes potentially damaging for persons engaged within court and victims – significant responsibility of courts to take care in determining necessity for viewing such footage – assessment of necessity dependent on nature of matter and issues footage said to address – bail application not a “mini trial” – issues dealt with based upon Crown Case Statement alone – tender of CCTV rejected
CONTEMPT – sentence for contempt – where contemnor pleaded guilty to charges of refusing to give evidence in a criminal trial – where re-trial of the criminal proceedings will raise the prospect that the contemnor will be required to give evidence again – where the contemnor’s attitude to giving evidence at the re-trial not known – whether it is in the interests of justice to adjourn the sentence proceedings until after that issue is clarified
MENTAL HEALTH – forensic patient – preliminary application to extend status as forensic patient –schizophrenia – substance use disorder – traumatic brain injury – whether matters alleged in the supporting documentation would, if proved, justify the making of an extension order – psychiatric reports – orders made pursuant to ss 126(5), 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020
CRIME – murder – special verdict – where defence and prosecution agree mental health impairment defence is available – a total of 30 knife stab wounds to neck, chest, arms and legs – schizoaffective disorder – psychiatric evidence – where forensic psychiatrists agree the accused suffers from a mental health impairment – whether the evidence satisfies that the defence is established – verdict of act proven but not criminally responsible entered
SUCCESSION — Administration of estates — Persons entitled on intestacy – deceased dies intestate – dispute as to whether his mother is his next of kin – a young person claims to be the deceased’s daughter – DNA testing establishes that the claimant is the deceased’s daughter – the deceased’s mother contends that he did not acknowledge his daughter during his lifetime – the deceased’s mother began to administer his estate acting in good faith on the basis that she was the deceased’s next of kin – two disputes remain – whether the daughter should be referred to on the headstone of the deceased’s grave and whether the mother is entitled to commission for her “pains and troubles” for administering the estate during the period of her practical administration before a formal grant.
SUCCESSION — Will construction — ‘Home-made’ Wills — Will drafted by deceased with minimal revision suggestions by a solicitor and no suggested revision to a contentious clause by which the deceased created a fund for his nephew which “cannot be liquidated before his 35th birthday” — Nephew died aged 29 — Whether the gift was vested in the nephew upon the deceased’s death — Discussion of the scheme of the Will — Determination that the gift vested upon the deceased’s death SUCCESSION — Will construction — ‘Home-made’ Wills — Approach to construction — A precedential approach risks missing or perplexing the deceased’s expressed intention — Caselaw provides guidance as to the proper approach to construction, but may otherwise have limited specific use in construing the disputed provisions of a Will
CIVIL PROCEDURE – appearance – no appearance at hearing – where defendant afforded ample opportunity to attend and be heard – whether appropriate to proceed with hearing – no question of principle LAND LAW – co-ownership – statutory trust for sale – application by trustees for disbursements from the proceeds for sale – occupation rent – plaintiff’s costs – trustees’ costs – whether costs to borne by the defendant
LAND LAW – co-ownership – statutory trust for sale – ownership interests in the property – failure to account for rent – occupation fee – no question of principle
CONTRACTS — Remedies — Damages — Loss of chance — Where defendant breached various restraints in employment agreement and shareholders’ agreement — Where breaches caused loss to plaintiffs — Whether ‘Sellars’ discount should be applied to the calculation of damages to be awarded to the plaintiffs EQUITY — Equitable remedies — Injunctions — Where undertakings made by and injunctions ordered against party who was previously the second defendant — Where plaintiffs gave the relevant undertaking as to damages — Where Court of Appeal reversed findings as to the second defendant’s liability — Whether second defendant now entitled to damages flowing from the undertakings and injunctions
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, after previous meeting adjourned — whether requirements to order scheme meeting are satisfied.
PRIVATE INTERNATIONAL LAW — Orders with extraterritorial effect — Anti-suit injunctions — Anti-suit injunctions restraining oppressive or vexatious foreign proceedings PRACTICE AND PROCEDURE — Injunctions — Interlocutory injunctions — Interim order
CORPORATIONS – Application for leave pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) extending the time to bring voidable transaction claims – where delay caused by complexity of liquidation – where liquidator’s investigations incomplete – extension granted