CRIME – manslaughter – retrial – plea to manslaughter on charge for murder CRIME – sentencing – apprehended bias – credibility of offender – disqualification from hearing and determining sentence
HIGH RISK OFFENDER - statutory thresholds conceded – history of sexual abuse of young children as well as creating and accessing child abuse material – two conditions of the ISO contested: electronic monitoring and monitoring bank and financial records – conditions are appropriate to ensure safety of the community and in particular, relevantly, the safety of young children
RELEASE OF FUNDS HELD IN INTERLOCUTORY REGIME – dispute about sale of business – purchase price held in trust account under interim orders – contract binding – whether trust monies should be released to vendor. COSTS – defendant failed to comply with discovery obligations – whether “delinquency” – principles at [31] – Calderbank offers – principles at [33]-[34] – whether plaintiff achieved better outcome – too early to say – revisit after damages or account of profits determined.
CRIMINAL PROCEDURE – applications for a certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW) – where each applicant acquitted of charges of murder and manslaughter by the jury – where the Crown case relied primarily on the evidence of one eyewitness – where in relation to one of the applicants the eyewitness had lied about his involvement – where the investigating police failed to properly investigate the eyewitness’s false account – whether if the prosecution had all relevant facts it would have been reasonable to institute proceedings – application granted with respect to one of the applicants – application dismissed in relation to the remaining applicants
SUCCESSION — Family provision — Notices of Claim — Disregarding power — Identification of the context and purposes of family provision legislation bearing upon s 61 Succession Act SUCCESSION — Family provision — Outline of the evolution of approach to consideration of possible applicants under family provision legislation in determining claims of applicants SUCCESSION — Family provision — Construction of s 61 Succession Act in light of context, purpose and text SUCCESSION — Words and phrases — Family provision — Meaning of “disregard the interests” of any other person (other than a beneficiary) — Meaning of “unnecessary, unreasonable or impracticable” — Examination of “unnecessary, unreasonable or impracticable” terms as applied in family provision caselaw SUCCESSION — Family provision — Service of Notices of Claim — Discussion of purposes underlying notification regime — Outline of requirements of Notices of Claim, including means and time of service SUCCESSION — Family provision — Discussion of types of searches to locate persons and limitations of such searches — Discussion of internet and social media searches — Discussion of property searches — Discussion of electoral roll searches — Meaning and discussion of “skip tracing” SUCCESSION — Family provision — Form of request for s 61 notation — In most cases the request is informally made by email or in proposed short minutes of order or outline of submissions and not formalised by notice of motion SUCCESSION — Family provision — Guidance as to practical application of search and notification requirements SUCCESSION — Family provision — Parties and affected persons — Consent orders — The parties asked the Court to make consent orders in a family provision claim by a child of the deceased in circumstances in which another child had not been served with a Notice of Claim and evinced an intention of not being located by the plaintiff or others associated with dealings with his deceased father’s estate — Credible but untested evidence disclosed deceased had ex-nuptial children — Orders sought (and notation made) to disregard the interests of that other child — Further notation made to address position of such, if any, ex-nuptial children
CIVIL PROCEDURE – application to set aside a notice to produce documents and a subpoena to produce documents – where parties have not served evidence ordered by court – where defendant claims that evidence is not materially relevant, lacks a legitimate forensic purpose and may breach confidentiality – application dismissed CIVIL PROCEDURE – costs – application for further security for costs – where material change in circumstances established – where considerably longer hearing fixed – where damages sought considerably increased – where defendant is in breach of the Court’s orders to serve evidence –further security ordered
CHILD WELFARE – adoption – consent dispense order – where consent dispense order sought before application for adoption order – where father not identified – where reasonable enquiries made to identify and locate the father
HIGH RISK OFFENDER – Preliminary hearing – limited nature of the test to be applied at preliminary hearing – whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO – whether the matters alleged in the supporting documentation establish an unacceptable risk of commission of a serious violence offence as well as a serious sex offence – preconditions for the making of an order of appointing two qualified psychiatrists or psychologists established
SUCCESSION – family provision – practice and procedure – plaintiff shared deceased’s home – alleged promise of continued occupation – plaintiff commences family provision proceedings – no specific claim in summons for continued occupation of deceased’s home in summons – claim for continued occupation made in in correspondence – caveat lodged but permitted to lapse – no injunction sought – executor commences separate proceedings for possession – family provision proceedings remain pending – possession granted, with costs
COSTS – application for certificate under the Suitors’ Fund Act 1951 (NSW) – qualifications for issue of a certificate – whether proceeding in this Court an “appeal” under that Act – whether Appeal Panel of NCAT a “court” under that Act
EVIDENCE — expert evidence — requirement for directions under Uniform Civil Procedure Rule 31.19 — whether evidence "reasonably required to resolve the proceedings” — where defendants wish to answer expert testimony already filed by plaintiffs — where defendants require expert evidence in fields outside their normal business area — where the need for expert evidence arises from issues in the pleadings
EQUITY – where first defendant was sole director of plaintiff – where first defendant held moneys in a bank account in his name on trust for the plaintiff – where first defendant transferred those moneys to a joint account in name of first defendant and his wife, the second defendant – whether moneys were transferred to joint account pursuant to an agreement or arrangement for the plaintiff to pay fees to the third defendant in relation to a property development – breach of trust established CORPORATIONS – directors’ duties – whether the first defendant, in transferring moneys held for the plaintiff into the joint account, used his position as director of plaintiff to obtain an unauthorised benefit for himself and his wife – breach of duty established EQUITY – where moneys in joint account were used to purchase real property in name of second defendant – where second defendant did not have notice at time of purchase that any funds in the joint account had been misappropriated– whether, having subsequently been put on notice, second defendant was liable to restore the funds or their traceable products to the plaintiff pursuant to the principles in Black v Freedman – liability not established
BAIL – 14 year old Aboriginal child – charged with police pursuit and knowingly carried in conveyance while on bail – these charges to be dropped – Court is still required to apply s 22C of the Bail Act 2013 (NSW) because charges not yet dropped – tension between s 22C Bail Act and s 6 Children (Criminal Proceedings) Act 1987 (NSW) – s 22C requires a child not to be treated equally before the law when accused of certain crimes – child in custody for 3 months as a result of charges that are to be withdrawn – consideration of unacceptable risk – prosecution not established bail should be refused – conditional bail granted
ADMINISTRATIVE LAW – Marine Safety Act 1998 (NSW) – marine notice under s 12(2) Marine Safety Act 1998 (NSW) – exclusion zone – Newcastle Harbour – protest activity – whether the Notice is invalid and of no legal effect on the grounds it exceeds the powers granted to the Minister for Transport by the Marine Safety Act 1998 (NSW) – whether notice would frustrate or prevent special event from being carried out – notice declared invalid and of no legal effect – no order as to costs made
CIVIL PROCEDURE – application for summary dismissal – where plaintiff is undischarged bankrupt – whether proceedings come within exception in s 116(2)(g) of Bankruptcy Act – no question of principle – where alleged injuries said to be caused by bankruptcy – not a category of exception – no standing – proceedings untenable – abuse of process – application granted for summary dismissal as against third defendant
SUCCESSION — Family provision — Claim by two adult children — Whether adequate and proper provision not made for the plaintiffs and, if so, the nature and quantum of the provision to be made
ADMINISTRATIVE LAW – judicial review – decisions of medical assessors referred to review panels – review panels issue certificates – applications for judicial review under s 69 of the Supreme Court Act 1970 – errors by review panels not clearly identified – no jurisdictional error – no error of law on the face of the record – application dismissed – no point of principle
CRIMINAL LAW – sentence – constructive murder – robbery in company whilst armed with shotgun – where offender discharged gun into front door of house – where offender unaware that victim standing close to other side of door – victim shot in leg and died en route to hospital – no intention to inflict harm, death or grievous bodily harm – assessment of objective criminality CRIMINAL LAW – sentence – where offender young, exposed to drug use and violence in his infancy and childhood and probably suffering intellectual disability – impact on sentence – where offender institutionalised – 5 months in the community between the ages of 17 and 23 – hopelessly sad personal circumstances – balancing gravity of crime and devastating impact on victim’s family against compelling personal history CRIMINAL LAW – sentence – delay in charging – totality principle – unusual circumstances – where offender arrested for unrelated offending shortly after the murder – no murder charge for two years – where sentence for temporally proximate crimes served by the time of current proceedings – where further sentence required by statute to be served cumulatively – application of authority – whether backdate appropriate in circumstances – application of totality principle – better course to reduce sentence rather than back-dating in unusual circumstances of case
CIVIL PROCEDURE – interim preservation – freezing orders – where plaintiff owners corporation seeks freezing order against defendant developer – where reasonable to infer defendant developer will sell remaining four residential units and not retain the proceeds of sale – whether a danger that prospective judgment will be unsatisfied – meaning of “danger”
CIVIL PROCEDURE – pleadings – application for leave to file an amended statement of claim – where the amendment would join a second defendant to the proceedings – where the application was made early in proceedings – where the amendment would avoid multiplicity of proceedings – where there would be no material prejudice to the defendant – leave to amend granted – costs
COSTS – party/party – court’s discretion – whether r 42.7 of the UCPR had been displaced – where each party had a measure of success – where each party to bear their own costs
VACATE TRIAL – defendant seeks to vacate 5-day trial – blames former solicitor for failing to file lay and expert evidence and not informing defendant that he had ceased to act – principles at [23]-[25] – in fact, defendant had terminated solicitor’s retainer six-months earlier – inadequate explanation – application refused. LEAVE TO ADDUCE FURTHER EVIDENCE – defendant serves 3,000 pages of lay and expert the day before trial – plaintiff cannot meet evidence without vacating trial – principles at [22] – application refused.
EVIDENCE – client legal privilege – waiver – principles at [6]-[8] – defendant seeks to vacate hearing and adduce further evidence – blames former solicitor for predicament – whether defendant thereby waived privilege over communications with former solicitor – maintenance of privilege unfair in the circumstances.
PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Recognition and enforcement of foreign judgment – Enforcement at Common Law – People’s Republic of China – People’s Court – Whether judgment to be registered must be determined to be a judgment by reference to the law of the foreign jurisdiction or the law of the forum- Judgment to be enforced
APPEAL – sentence appeal – penalty for young person in Children’s Court – whether penalty excessive – aggregate control order imposed for multiple offences – some offences objectively serious – favourable personal circumstances of offender – whether commencement date to be backdated to account for presentence custody CRIME – Children’s Court – sentencing – control order – period not to exceed 2 years unless accumulating on existing order – aggregate control order subject to 2-year limit – limit of 3 years applicable only to new order extending term of existing order CRIMINAL PROCEDURE – appeals – appeal from Presidential Children’s Court to District Court – deemed appeal to Supreme Court – criminal proceeding – rules governing civil proceedings inapplicable
NEGLIGENCE —solicitor’s negligence – scope of solicitor’s retainer – purchase of land and business –failure to provide advice prior to exchange – defective premises – whether Council owed duty of care – contributory negligence – limitation of liability
CRIMINAL LAW – sentence – murder – murder of wife – where offender killed his wife in order to be free to continue a relationship with his teenage lover – intention to kill – delay – 36 years between commission of the offence and arrest – whether extra curial punishment caused by extraordinary publicity – objectively very serious example of murder – need for general deterrence – good prospects of rehabilitation – 74 year old offender in deteriorating physical and cognitive health – significant likelihood that offender will not survive to become eligible for parole
CRIME – bail – second release application – rehabilitation centre – s 74 Bail Act 2013 satisfied CRIME – bail – show cause – violent offences – firearm offences – cause shown – where Crown raises all bail concerns in s 17(2) Bail Act 2013 (NSW) – where conditions can adequately ameliorate concern of committing a serious offence whilst on bail – bail to residential rehabilitation centre
OCCUPATIONS — Medical practitioners — Health Practitioner Regulation National Law (NSW) — physiotherapist — employment of the Barral technique during treatment of a back injury — unsatisfactory professional conduct — where allegation made that patient’s pubic bone was exposed inappropriately and without prior explanation — where finding made that practitioner inappropriately and without adequate explanation palpated and/or massaged on or around the patient’s labia majora inappropriately — whether NCAT erroneously conflated two aspects of the plaintiff’s expert evidence regarding whether the exposure of pubic hair alone amounted to an inappropriate use of the Barral technique — professional misconduct — where NCAT found that the plaintiff engaged in inappropriate conduct of a sexual nature that was sufficiently serious to justify the suspension or cancellation of his registration — whether NCAT made a sufficiently serious error in fact finding to warrant the grant of leave to appeal — whether NCAT’s approach in determining that the impugned conduct was sexual in nature required consideration of the plaintiff’s state of mind and the context of the conduct — whether NCAT’s errors constituted jurisdictional errors or errors of law on the face of the record
TRAFFIC LAW AND TRANSPORT – Traffic law – Motor Accident Injuries Act 2017 (NSW), s 7.26 – where various injuries suffered by plaintiff referred for assessment by Personal Injury Commission – where medical assessor did not provide assessment of an injury – where medico-legal report in respect of that injury subsequently procured by insurer – where plaintiff applied for further medical assessment on basis of report, but certificate instead referred back to original medical assessor for correction under r 112 of Personal Injury Commission Rules 2021 (NSW) – where report not before or not referred to by medical assessor in course of r 112 assessment – where plaintiff’s application for referral to review panel refused by delegate of President of Personal Injury Commission – whether delegate erred in concluding that report not required to be considered by medical assessor because it was not available at time of first assessment ADMINISTRATIVE LAW – Judicial review – summons seeking judicial review of decision of delegate of President of Personal Injury Commission for jurisdictional error and/or error of law on the face of the record – whether delegate misconstrued r 112 of Personal Injury Commission Rules – whether delegate misconceived effect of cll 67-73 of Procedural Direction PIC6 – whether delegate should have found that medical assessor did not conduct assessment in accordance with Motor Accident Guidelines contrary to s 7.21(1) of Motor Accident Injuries Act
HIGH RISK OFFENDERS – Preliminary hearing – Urgent application for interim detention order – Violent index offence – Where defendant opposes the imposition of an interim detention order – Where defendant subject to interim detention order previously made pending finalisation of outstanding sentence proceedings – Where defendant subject to an extended supervision order which is suspended while the defendant is in custody – Where defendant’s current interim detention order will expire on the following day – Whether an interim detention order should be made
HIGH RISK OFFENDER – preliminary hearing – Terrorism (High Risk Offenders) Act 2017 – application for an interim supervision order – interim supervision order granted
CIVIL PROCEDURE – judgments and orders – where dispute whether injuries sustained in motor vehicle accident give rise to permanent impairment greater than 10% – order setting aside review of medical assessment by the Personal Injury Commission Motor Accidents Division – order remitting review of medical assessment to a differently constituted Review Panel
INSURANCE — miscellaneous indemnity insurance — buyer’s warranty and indemnity insurance policy — acquisition of international property services business with facilities management contract in Singapore — warranties given by sellers in share sale agreement — claim against first, second, third and fourth excess layer insurers for damages in respect of breach of warranties by sellers — breach of warranty established in relation to information disclosed and not disclosed about facilities management contract — assessment of damages — amount of any damages less than threshold of first excess layer policy — claim dismissed CONTRACTS — breach of contract — breach of warranty — breach of warranty given by sellers in share sale agreement that Disclosure Materials were not misleading — proper measure of damage
HIGH RISK OFFENDER – interlocutory hearing – Whether existing conditions of an extended supervision order ought be deleted or modified – Some conditions amended – No point of principle
CRIMINAL PROCEDURE – application for trial by judge alone – where earlier jury was hung – whether trial by judge alone is in the interests of justice – complainant suffering from an intellectual disability – where expert report on the condition of the complainant served after trial – where Crown indicated not all of report would be relied upon – evidence not complex – report does not require complex jury directions – finality not a sufficient reason for finding that a judge alone trial is in the interests of justice – credibility of witness being a central issue favours a jury trial – application for trial by judge alone refused
APPEAL – question of law - Civil and Administrative Tribunal – internal appeal – claim of procedural unfairness – failure of Appeal Panel to identify claim as raising a question of law – application treated as requiring leave – refusal of leave did not mean there was no appeal – plaintiff party to an internal appeal – failure of Appeal Panel to identify appeal before it as of right constituted error on a question of law
CIVIL PROCEDURE – application to strike out amended statement of claim – application for claim to be summarily dismissed – no reasonable cause of action pleaded – no reasonable cause of action disclosed – fifth iteration of statement of claim struck out – proceedings untenable and futile – proceedings dismissed
TORTS –– claimed historical child sexual abuse –– where defendant denies abuse and alleges plaintiff and witnesses have conspired to give false evidence about claimed abuse –– credibility –– abuse established –– assessment of damages –– unchallenged expert evidence –– damages including aggravated and exemplary damages awarded
CIVIL PROCEDURE — application by plaintiff for leave to rely on expert report in reply served after guillotine order — significant delay in service of expert report — application heard two weeks before trial — previous failed attempts by plaintiff to engage experts — HELD — leave refused due to inadequate explanation of delay and prejudice to defendant
CIVIL PROCEDURE – Representative proceedings – Conduct of proceedings – Motion brought by the defendant seeking leave to rely upon Statements of Contentions – Where a court appointed Senior Referee has conducted inquiries and prepared reports for the Court in respect of damages payable to remaining group members – Where the Statements of Contentions raises the defendant’s position that certain claimants failed to mitigate their losses, in circumstances where a failure to mitigate loss had not been previously pleaded in the Defence and thus had not been considered by the Senior Referee – Defendant not permitted to rely on a failure to mitigate loss argument with respect to the particular group.
CIVIL PROCEDURE — notice of motion seeking to set aside notice to produce issued by the plaintiffs — Uniform Civil Procedure Rules 2005 (NSW) rr 21.9 and 21.10 — extensive and expensive discovery already provided by defendants — documents sought not relevant to fact in dispute in pleaded case — documents being sought in attempt to lead expert evidence not properly in reply — relevance of overriding purpose and other considerations in ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) — repeated non-compliance by plaintiffs with case management and timetabling orders and directions leading to procedural delays — where production in compliance with notice would involve substantial burden in terms of time, effort and expense — injustice to defendants — HELD — notice to produce set aside
SUCCESSION — will — construction — testamentary grant of right to occupy property — property expenses payable by “my Estate” — whether a reference to deceased estate or trust estate — superannuation entitlements — whether separate gift or estate residue — deceased submits redemption application before death — ademption
CIVIL PROCEDURE — Summary dismissal — Abuse of process — Plaintiff suing defendant solicitors in relation to costs arising out of previous family law proceedings and related matters — Application of the defendant to have the plaintiff’s summons struck out on various bases, in circumstances where the plaintiff had commenced related proceedings in this Court seeking substantially similar relief, which proceedings are currently part-heard — Where the plaintiff’s summons otherwise contained similar relief to that which the Court refused her leave to pursue in the related proceedings — Held that the plaintiff’s conduct in filing new summons constituted an abuse of process — Plaintiff’s summons dismissed WORDS AND PHRASES — Meaning of “court” in Uniform Civil Procedure Rules 2005 (NSW) CIVIL PROCEDURE — Summary dismissal — Where the plaintiff’s summons sought appeal or review of an order for default judgment made by the Principal Registrar of the District Court — Discussion of the right of review under r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) — Right to appeal under s 127 of the District Court Act 1973 (NSW) not applicable to plaintiff’s claim — Issues of forum and delay — Held that relief seeking appeal or review of the order was untenable COSTS — Gross sum costs orders — Defendant made application for a gross sum costs order — In circumstances where there had already been vexing litigation between the parties over a number of years and the plaintiff planned to permanently relocate overseas, held that gross sum costs order should be made
HIGH RISK OFFENDER – final hearing – whether the index offence is a “serious violence offence” – the meaning of the words “of a kind” in s 5A(1)(b) – whether the elements of the index offence “contemplate” the elements of s 33(1)(b) of the Crimes Act 1900 (NSW) – summons dismissed
LAND LAW – possession of land – urgent application to stay execution of writ of possession – previous application for temporary stay had been granted and stay then expired – no adequate explanation for lack of action by applicant
CORPORATIONS — voluntary administration — deed of company arrangement — application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to DOCA — whether residual equity in company — whether sole shareholder unfairly prejudiced — no issue of principle
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.
CORPORATIONS – Winding up – where not proved that creditor’s statutory demand was served by post, absent evidence that proper postage applied – presumption of insolvency arising from non-compliance with statutory demand not established.
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.
SUCCESSION — Family provision — Succession Act 2005, s 59 – in her will the deceased divides her estate into five equal parts, giving one part to each of her four children and one part to her granddaughter, the plaintiff – the plaintiff lived in the deceased’s household for part of her life – the plaintiff seeks further provision out of the deceased’s estate – whether the plaintiff is an “eligible person” under Succession Act – whether there are factors warranting the making of an order for provision to the plaintiff – whether an order for provision should be made and if so in what amount. EQUITY — Unconscionable conduct — Special disability or disadvantage — Undue influence — Actual undue influence – the estate cross claims against the plaintiff to set aside a gift made by the deceased to the plaintiff/cross-defendant shortly before the deceased’s death – the plaintiff/cross claimant attended a bank with the deceased and caused the transfer of a term deposit to the value of approximately $200,000 from the name of the deceased into the name of the plaintiff/cross-defendant – whether the deceased was in a position of special disadvantage in relation to the plaintiff/ cross-defendant at the time of making the gift – whether the plaintiff/ cross-defendant exercised actual undue influence over the deceased at the time of making the gift.
CIVIL PROCEDURE - service outside Australia - application for leave to proceed and default judgment against the fourth defendant - whether the fourth defendant validly served with the statement of claim - where the fourth defendant is a dissolved company formerly registered in the United States of America - where the plaintiff relies upon UCPR pts 11 and 11A and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters - whether the fourth defendant’s dissolved status prevents the plaintiff from proceeding against it.
CORPORATIONS - Statutory demand - Application to set aside creditor's statutory demand - Whether an offsetting claim is established – preliminary views as to whether there may have been some other reason to set aside creditor’s statutory demand issued inn context of ongoing proceedings as to related matters.
CORPORATIONS – Statutory derivative action – Application to bring proceedings on behalf of company – Whether leave to bring derivative action should be granted.
CORPORATIONS – Winding up – Application for the adjournment of winding up application. CORPORATIONS – Winding up – Whether the Court should extend period within which winding up application must be determined nunc pro tunc. CORPORATIONS – Winding up – Presumption of insolvency arising from non-compliance with statutory demand – Where presumption of insolvency not rebutted.
GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Challenge to guardianship order of NCAT through prism of the Court’s parens patriae jurisdiction – Factors warranting an exercise of parens patriae jurisdiction – Decision of NCAT affirmed
CRIME – sentencing – murder – joint criminal enterprise to inflict grievous bodily harm – where offender fled to Thailand shortly after commission of the offence – offender subsequently convicted of further offences in Thailand – parity with co-offender – special circumstances
CORPORATIONS – Management and administration – Whether leave should be granted to continue proceedings against a company in administration – Where voluntary administrators neither consent to nor oppose grant of leave – Where proceedings are a regulatory action concerning allegations of public relevance.
CORPORATIONS – application for leave to bring a derivative action – where orders made requiring First and Third Defendants to pay $1.5m to the company – where Plaintiffs sought leave to bring action in name of company to enforce judgment debt – where First and Third Defendants claimed judgment debt had been paid in full by set-off – whether serious question to be tried – whether Plaintiffs acting in good faith – leave granted
ORDERS – Whether declarations should be made – Date from which removal of receiver should take effect – Compensatory damages – Availability of and quantum of exemplary damages – Costs.
HIGH RISK OFFENDER – final hearing – serious sex offender – application for extended supervision order – making of order and nature of some conditions contested by defendant – whether there is high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order – extended supervision order imposed for two years with conditions – discussion about appropriate conditions
CRIMINAL LAW – sentencing – offences of violence – violent melee in a suburban street – six people stabbed – one child killed – manslaughter – attempted murder – wound with intent – animosity between groups of young men – an art form known as drill rap music – where offenders’ group initiated violence by attending with knives – where victims’ group emerged from house and attacked – zombie knife and golf clubs – where jury rejects proposition that joint criminal enterprise abandoned – dispute over content of joint criminal enterprise – relevance of self-defence – fact finding on sentence – finding that subjective component established but objective component rejected – relevance of extent to which conduct exceeded what was reasonable – different findings in relation to each offence – devastating impact on victims – eloquent and moving victim impact statement – subjective circumstances of offenders – requirement for stern punishment – balancing competing considerations – a place for leniency – assessment of moral culpability – different findings in each case – where one offender contended subjective factors fed into assessment of moral culpability – application of cases – submission rejected – parity and proportionality in sentencing co-offenders – different considerations – varying assessment of objective criminality – individualised justice – application for direction that three offenders serve sentences as juvenile offenders – Prosecutor chooses to oppose – direction made – special circumstances
COSTS — interlocutory costs — restraint of trade — application for injunction — short service obtained — plaintiff served voluminous evidence on defendant shortly before, and on date of, hearing — adjournment granted to allow defendant to file evidence — interlocutory injunction refused — application by plaintiff for costs thrown away by reason of adjournment refused — plaintiff to pay costs of interlocutory application in full — application by defendant for costs payable forthwith refused — costs in the cause
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.
EVIDENCE – Whether a document contains “restricted information” within the meaning of the Transport Safety Investigation Act 2003 (Cth) – Whether the document and its contents are inadmissible – Whether the document and its contents breach the restriction on the disclosure of restricted information under the Transport Safety Investigation Act 2003 (Cth).
HIGH RISK OFFENDER – final orders hearing – serious sex offence – whether the defendant poses an unacceptable risk – where defendant is a forensic patient – whether residual discretion should be exercised – whether community safety addressed through the forensic health process – application granted – Extended Supervision Order made
CIVIL PROCEDURE — Application for transfer of proceedings from the Local Court to the Supreme Court — Where Local Court proceedings related to a motor vehicle accident and claim was only for property damage — Where Local Court proceedings were set down for hearing to commence in just over two months — Whether jurisdictional limit of the Local Court would be exceeded — Whilst the first plaintiff provided some figures of what he asserted he would claiming as hire costs for a replacement vehicle, in circumstances where the pleadings on which the Local Court proceedings were based were not before the Court, there was no real clarity as to the amount actually being claimed and the Court was not satisfied that the jurisdictional limit of the Local Court would be exceeded — Even if the jurisdictional limit of the Local Court could be exceeded, it was accepted between the parties that the claim was well within the jurisdictional limit of the District Court — Consideration of prejudice that would be suffered by the defendant in the loss of an impending hearing date — Consideration of purported complexity of the claim — Consideration of the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) — Transfer application dismissed
NEGLIGENCE – duty of care – whether breach of duty of care – historical child sexual abuse – where defendant did not appear – where plaintiff sexually abused by assistant priest in 1970s – where sexual abuse occurred inside church and in private rooms of presbytery – whether risk of harm foreseeable – whether other priests knew or ought to have known
COSTS — Party/Party — Bases of quantification — Ordinary basis — Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 — Whether issues subject to costs are clearly dominant or separable — Where claims are separate in a sense, but arise out of same factual matrix — Not appropriate to attempt apportioning of costs between different claims — Plaintiffs awarded 90% of costs to recognise failed or abandoned claims JUDGMENTS AND ORDERS — Interest — Award of as damages — Where fiduciary relationship — Where appropriate for interest to be calculated from date Court delivered principal judgment
EQUITY — trusts and trustees — powers, duties, rights and liabilities — trustees appointed for sale of commercial properties pursuant to s 66G of Conveyancing Act 1919 (NSW) — maximum remuneration amount fixed at time of appointment, subject to application for increase — maximum fixed by reference to estimate provided by trustees before appointment — actual fees greatly exceeded estimate - application by trustees for increase to remuneration limit and legal costs of application — trustees were directors of a proprietary company providing accountancy services — remuneration claimed for services provided by employees — whether part of trustees’ remuneration or a disbursement — estimate inadequate — application for increase in fees only partially successful — application for legal costs of application refused
LEASES AND TENANCIES – Construction and interpretation of rent clause in commercial lease between the plaintiff, as lessor, and defendant, as lessee – Where the rent clause provides that the yearly rent payable under the lease is to be calculated as 8% of “the then current land value” as at 1 June, “as determined pursuant to the Valuation of Land Act 1916 or any Act amending or in substitution of the same … or otherwise pursuant to this Lease” – Whether a valuation made by the Valuer-General of New South Wales pursuant to s 14A of the Valuation of Land Act 1916 (NSW) of the “land value” of the land, as defined in s 6A of that Act, which is current as at the date on which the forthcoming yearly rent falls to be calculated, is a determination of the "then current land value" within the meaning of the rent clause, properly construed – Held: answered affirmatively. CONTRACTS – Implied terms – Terms implied in law or fact – Construction of indemnity clauses. LEASES AND TENANCIES – Construction and interpretation – Terms implied in law or fact – Construction of indemnity clauses.
COSTS – costs of motion – competing claims for indemnity costs and order that each party bear their own costs – whether circumstances warrant a departure from usual order for costs – no justification for departure – usual order made
ORDERS – restraining defendant from retaining a solicitor– whether plaintiff previously a client of the solicitor – whether plaintiff provided solicitor with relevant confidential information – whether discretion to restrain solicitor being retained should be exercised – what the due administration of justice requires EVIDENCE – affidavit evidence – exception to the hearsay rule – second hand hearsay – proper construction of s 75 of the Evidence Act 1995 (NSW) – whether orders excluding the evidence should be made under s 135 – evidence admitted
CIVIL PROCEDURE – suppression and non-publication orders – application for pseudonym and other orders – whether orders necessary to protect the safety of the fourth defendant – whether orders necessary in the public interest – where fourth defendant fears for her safety and the safety of their family – where fourth defendant has legitimate basis for concern about their safety – where orders being made will have limited impact on open justice – suppression and non-publication orders made
COSTS – Application for indemnity costs – Whether conduct of litigation by plaintiff in relation to trust claims (the Equity Proceeding) unreasonable where claims had been subject of release and where proceedings barred by issue estoppel and or Anshun estoppel or Anshun estoppel – Where allegations of fraud made without evidentiary foundation whether relevant delinquency on part of plaintiff – Where unreasonable rejection by plaintiff of Calderbank offer made by second defendant in Equity Proceeding and first defendant in Family Provision Proceeding for settlement of both proceedings
CIVIL PROCEDURE – forensic decisions – lost documents – non-compliance with subpoena to defendant filed in 2021 – pursued repeatedly to produce contemporaneous statements and investigation reports – not a new issue – ss 56 to 60 Civil Procedure Act not empty incantations – compliance with Practice Note SC CL 1 not optional – defendant too late to re-engineer its case – trial by ambush not permitted
JUDGMENTS AND ORDERS – application for orders setting aside orders made by this Court in 2009 – where substantive proceedings finalised some time ago – substantial lapse of time – restraining orders – NSW Crime Commission –equitable mortgage – request for Court to revisit and review original proceedings – claimed loss to the applicant as a result of the failure to recognise him as a secured creditor – where applicant seeks documentation with respect to the substantive proceedings to “ascertain a clear picture of what exactly happened” – whether Crime Commissioner acted in a manner such that the orders were obtained irregularly, illegally or against good faith – motion dismissed – costs awarded
CIVIL PROCEDURE – settlement approval – whether settlement in the best interests of the children – where children’s father suffered a catastrophic brain injury caused by a parasitic infection – where claim for damages for nervous shock suffered by the children – settlement approved
CIVIL PROCEDURE – where defendant’s solicitor sought an expert report from plaintiff’s treating chiropractor close to the trial date – where plaintiff’s treating chiropractor had been subpoenaed to give evidence – where chiropractor under mistaken impression provision of report for defendant’s solicitor “adhered to the legal obligations imposed by the subpoena” – no waiver of patient/chiropractor privilege – where no evidence was provided as to why there was not earlier investigation by subpoena – expert report not allowed to be tendered by defendant – oral evidence of chiropractor not permitted to be called by defendant
SUCCESSION — will — construction — will trust — gift of property subject to right of occupation for defined period — will divides specified property costs between occupier and “my Estate” — allocation of costs between occupier and reversioners
CORPORATIONS — where plaintiff is director of corporate defendants – where plaintiff sought access to specified books and records of corporate defendants for herself and for nominated professional advisers on the basis of a confidentiality undertaking — whether access should be conditional on the giving of an undertaking that any advice by the advisers would be directed to the performance of plaintiff’s role as director – whether plaintiff should be prevented from seeking any advice on issues arising in relation to the books and records from her current solicitors
LAND LAW – strata title – where plaintiffs own two lots in large strata plan – where NSW Civil and Administrative Tribunal made order for reallocation of unit entitlements pursuant to s 236 of Strata Schemes Management Act 2015 (NSW) – where effect of reallocation is significantly to increase strata levies payable on plaintiffs’ lots – where internal appeal to Appeal Panel dismissed – where plaintiffs now seek leave to appeal under s 83 of Civil and Administrative Tribunal Act 2013 (NSW) – whether summons identifies questions of law – whether Appeal Panel misconstrued s 236 of Strata Schemes Management Act – whether exercise of discretion to make reallocation order miscarried – whether decision legally unreasonable – whether plaintiffs’ arguments misstated or not addressed – whether Appeal Panel erred in not finding that Tribunal failed to afford procedural fairness by not informing plaintiffs, as litigants-in-person, of need to lead certain valuation evidence
EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of trade — Where there was a Services Agreement between the plaintiff and the first defendant — Where a restraint clause in favour of the plaintiff bound the defendants to certain obligations — Whether the defendants breached the restraint clause by “soliciting”, “canvassing”, “securing”, “diverting” or “attempting to divert” former clients of the plaintiff to themselves or a third party after Services Agreement terminated — Where most former clients approached second defendant after termination of the Services Agreement for assistance — Whether “secure” or “divert” could capture a passive receipt of instructions from a former client — Whether restraint clause was valid under s 4 of the Restraints of Trade Act 1976 (NSW) — Whether restraint clause was reasonable — Whether plaintiff had a legitimate protectable interest — Where plaintiff was franchisee under a Franchise Agreement — Where second defendant knew most former clients personally, long before Services Agreement entered into EQUITY — Fiduciary Duties — Whether a fiduciary duty existed between plaintiff and the defendants — Whether defendants breached a fiduciary duty by doing work for former clients of the plaintiff — Whether obligations subsisted beyond the termination of the relationship
CORPORATIONS – Voluntary administration – administrator – Where directors appointed resolved to place club in voluntary administration – Whether directors validly passed requisite resolution under s 436A of the Corporations Act 2001 (Cth) – Whether appointment of voluntary administrator was made for an improper purpose. CORPORATIONS – Voluntary administration – administrator – Whether appointment of voluntary administrator should be validated under s 447A of the Corporations Act 2001 (Cth).
CRIME – Murder – Sentencing following trial – Where offender inflicted fatal stab wound to the deceased’s armpit using a flick knife in the context of the deceased refusing to hand over stolen methylamphetamine – Where Crown and offender agreed that the offence was unplanned and involved an intent to cause grievous bodily harm – No finding of remorse – Poor prospects of rehabilitation found – Application of Bugmy principles
CIVIL PROCEDURE — judgment and orders — application for stay of execution pending appeal —where plaintiff will be unable to repay money if appeal were successful — departure from usual practice proposed by plaintiff — where plaintiff terminally ill and at risk of not surviving until appeal judgment is given— what justice requires — stay granted on terms
EQUITY – trusts – discretionary family trust – beneficiary application for removal of trustee – whether trustee has breached fiduciary duties – where trust generates no income – where defendant beneficiary is the sole director and shareholder of trustee company and has been paying for trust expenses personally – determination that no breach of fiduciary duty in the circumstances – whether even if breach of duty, case for removal made out EQUITY – whether principal beneficiary under discretionary family trust disclaimed any interest, benefit, or entitlement in or under the trust – where principal beneficiary has been receiving aged pension since April 2002 – where a variation to the trust deed was executed – no effective disclaimer – finding of an intention to remain as principal beneficiary
COSTS – unsuccessful application for security for costs – costs to follow the event – where applicant for security successful on some issues – whether costs should be payable forthwith – whether a gross sum costs order should be made
CIVIL PROCEDURE – Discovery – Application by plaintiffs in proceedings for damages arising out of a fire at industrial premises for discovery under r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) – Whether categories identified by plaintiffs relate to a fact in issue in the proceedings – Application for discovery granted
COSTS — where judgment was for the defendant — where plaintiff is seeking apportionment of costs as they had succeeded on two of the three substantive issues in the proceedings — Calderbank offer by defendants — where Calderbank offer was made at an early stage of the proceedings — where defendants rejected Calderbank offer — no indemnity costs awarded — plaintiffs are to pay the defendant’s costs of the proceedings on an ordinary basis
SUCCESSION — Family provision — Claim by adult son — Fractured relationship between the deceased and son – Deceased made provision for son’s children in lieu of son – Failure by the deceased to make sufficient provision – Provision made SUCCESSION — Family provision – Costs – Court’s inherent jurisdiction to make costs orders to regulate costs between lawyer and client
CORPORATIONS – Corporations Act 2001 (Cth) sch 2 s 90-15(1) – Application for directions in the nature of judicial advice that liquidators would be justified in investigating and pursuing certain claims against a director and a Capital Gains Tax concession – Where the Company currently has a surplus sufficient to discharge all creditors, which surplus might be eroded or entirely eliminated if the Company failed against the director or succeeded and was unable to recover – Where the only person with an direct economic interest in the outcome is a contributory who has not given an indemnity to the Company for any liability for costs – HELD: Liquidators would not be justified in investigating and pursuing the foreshadowed claims and will not be justified in doing so, unless, within a reasonable time the contributory moves the Court for leave to bring a derivative action and fails, or another party applies for the termination of the winding up and fails
CIVIL PROCEDURE – application for possession of property – where defendant sought leave to file an amended defence – where defendant no longer seeks leave to amend and neither opposes the plaintiff’s orders for possession – order of possession made
JUDGMENTS AND ORDERS – Amending, varying, and setting aside – interlocutory regime of orders imposed on parties engaged in a long-running dispute in relation to easements – final judgment given – whether the interlocutory regime of orders should be continued on a permanent basis and if so, whether those orders should be varied. COSTS – specified gross sum costs order – Civil Procedure Act 2005 s 98(4)(c) – long-running dispute between two neighbours involving multiple proceedings – final judgment given – discretionary factors relevant to making a specified gross sum costs order – need to accelerate the disengagement of the parties from their present disputes and to avoid further aggravating contests between them including in relation to costs assessment – whether a specified gross sum order should be made instead of a costs assessment.
HIGH RISK OFFENDERS – extended supervision orders – application for a second extended supervision order – application for interim supervision order – preliminary hearing – appointment of psychiatrists or psychologists – schizophrenia – continued lack of insight into own risk factors – unacceptable risk of committing a serious offence
CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Circuit and Family Court of Australia or Federal Court of Australia — Defendant seeks to file cross-claim for relief under Fair Work legislation for which Supreme Court does not have jurisdiction
CIVIL PROCEDURE – subpoenas – where plaintiff objects to access being granted to documents produced by health professionals – where claim based on protected confidence under s 126B Evidence Act - where plaintiff treated by health professionals – where reports served by plaintiff disclosed certain imparted information – whether material had probative value – confidential addendum to judgment explaining reasons for outcome
CIVIL PROCEDURE – Application by plaintiff to re-open proceedings – whether granting leave to the plaintiff to re-open proceedings is in the interests of justice
SUCCESSION — Administration of estates — By her statement of claim, the plaintiff claims that the assets of the deceased’s estate are held on constructive trust for the plaintiff and the first defendant executor, with alternative claims for damages or a family provision order — Claims also made for sums alleged to be owing to the estate from the second defendant trustee — Application for the first defendant’s grant of probate to be revoked and an independent administrator to be appointed — First defendant executor consented on without admissions basis to the revocation of his grant and the appointment of an independent administrator — Identity of appropriate independent administrator discussed — Orders made for revocation of grant and appointment of independent administrator SUCCESSION — Representative orders — Whether the first defendant should be appointed to represent the estate in the defence of the proceedings pursuant to r 7.10(2)(b) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), in circumstances where he is the only person with personal knowledge relevant to the issues in dispute — Whether UCPR r 7.10 was applicable in circumstances where the independent administrator would be joined to the proceedings — UCPR r 7.10(2)(b) order not made SUCCESSION — Administration of estates — Interim distributions — Whether the plaintiff should receive interim distribution from sources which could more promptly realise funds than a property in Kensington which the plaintiff was bequeathed under the Will — Discussion of necessity for independent administrator to also have some cash available — Orders made for interim distribution in accordance with regime agreed between the parties COSTS — Interlocutory applications — Whether the first defendant executor should pay the plaintiff’s costs of the application personally, in circumstances where the first defendant failed to put on evidence or indicate his position on the relief sought on the plaintiff’s application until effectively the day before the hearing, only to substantially concede (on a without admissions basis) to the primary relief sought — Where the plaintiff’s legal representatives had incurred costs in preparing for a fully-contested hearing on the relief sought, including the preparation of a court book and submissions — Held that the first defendant executor pay the plaintiff’s costs of the application incurred over the period specified personally
CONTRACTS – construction – where plaintiffs and defendants have entered irrevocable offers deed concerning land at Campbelltown – where deed provides call and put options – whether plan of subdivision based on plan annexed to deed – whether plaintiffs have lost right to call for remaining lots EQUITY – equitable remedies – injunctions – mandatory – where plaintiffs make application for interlocutory mandatory injunction requiring defendants to lodge plan of subdivision with local council – where final hearing fixed for March 2025 – where plaintiffs seek interlocutory relief to same effect as final injunctive relief – whether serious question to be tried – nature of degree of satisfaction required as to plaintiffs’ prospects of success where plaintiffs seek to require defendants to take fresh steps rather to compel them to revert to prior course of conduct
CIVIL PROCEDURE – where plaintiff has served expert evidence – where that expert evidence based upon inspection of some but not all units allegedly affected by defects – where plaintiff belatedly seeks leave to adduce expert evidence in respect of defects alleged to exist in remaining units
CIVIL PROCEDURE – pleadings – amendment – late application for amendment to Summons and List Statement – where hearing date recently vacated and matter referred out for determination – where no explanation offered for belated application to amend – where amendment would significantly expand plaintiff’s case – where defendant would be obliged to engage in factual investigation to meet proposed amended claim
ADMINISTRATIVE LAW – jurisdictional error – where Residential Tenancy Agreement terminated by consent orders – where plaintiff alleged Residential Tenancy Agreement had already been terminated prior to consent orders being made ADMINISTRATIVE LAW – remedies – discretionary factors – where judicial review proceedings lack utility – relief refused APPEALS – right of appeal – relationship with judicial review – where plaintiff had the available and effective alternative remedy of a right of appeal – relief refused COURTS AND JUDGES – bias – apprehended bias – application for recusal – where plaintiff alleged association with Attorney General – application rejected
ADMINISTRATIVE LAW — correct application of s 150 of the Health Practitioner Regulation National Law 2009 (NSW) — whether the council impermissibly duplicated matters in both limbs of s 150 — whether the council combined its concerns expressed under both limbs to decide it was appropriate to suspend the plaintiff’s registration — whether an error of law was made — whether the error was material — held summons dismissed
CIVIL PROCEDURE — interim preservation — freezing orders —whether freezing order should be discharged — where terms of the freezing order are such that the money resides in defendant’s solicitors’ trust account pending the determination of the proceedings — where an application for default judgment has been made — where no application for extension of freezing orders was made — no variation to freezing order permitted
COSTS — party/party — protracted proceedings arising out of terminated partnership — multiple claims between various parties — general costs follow the outcome of the partnership claim — other costs follow the event on a claim-by-claim basis — purported “Calderbank” offers made by defendant’s solicitors rejected as a matter of form and substance — application for indemnity costs refused
CONTRACTS – breach of contract – where agreement formed between plaintiff customer and defendant manufacturer for the manufacture of protein water beverages in accordance with identified specifications – whether defendant manufacturer overcharged plaintiff customer concerning identified ingredients – whether defendant manufacturer in breach of alleged certification agreement concerning supply to ALDI stores CONTRACTS – construction – interpretation – meaning of “clear protein beverage” – whether defendant manufacturer breached obligations of exclusivity by manufacturing for third parties “clear” protein water beverages CONTRACTS – implied terms – terms implied in fact – where ‘mould’ issue was found in the protein water beverages manufactured by the defendant manufacturer for the plaintiff customer – where cause of the ‘mould’ issue in dispute – whether ‘mould’ issue caused by environmental factors at the defendant manufacturer’s factory or by reason of spores in ingredient supplied by plaintiff customer – whether an implied term of the agreement that the product would be suitable and safe for human consumption and free from contamination, regardless of whether mould caused by spores in ingredient supplied by plaintiff customer – whether implied term would be reasonable and equitable – whether defendant manufacturer otherwise breached express term concerning quality control procedures EQUITY – breach of confidence – necessary quality of confidence – material in public domain – whether defendant manufacturer breached obligations of confidence by manufacturing for and assisting third parties to make protein water beverages – whether an identified “formula” was confidential information – where each element in that “formula” was in the public domain – whether combination of those elements was nonetheless confidential – whether the “formula” was a ”formula” for the purposes of the agreement
CRIME – sentence – joint criminal enterprise – murder – assault with intent to rob in company – armed robbery – deceased stabbed multiple times during robbery – aggravated break and enter with intent to steal – assault occasioning actual bodily harm in company – where trial separated from co-accused – where offender was on conditional liberty at the time of the offending – where offender has limited reduced moral culpability – where offender has experienced hardship in custody – where delay in trial being heard to finality – where special circumstances
HIGH RISK OFFENDERS – preliminary hearing – application for extended supervision order – dispute about whether such an order is justified – risk of further serious offending notwithstanding recent progress – dispute about electronic monitoring condition resolved
EQUITY – Trusts – Where plaintiff alleges that rural properties in Walgett are held on express trust for the benefit of himself and the fourth defendant – Where trust established in 1962 over a monetary sum for the benefit of plaintiff’s mother – Whether properties held on same trust – Where plaintiff alleges various conversations regarding the fact of the properties being held on trust – Where plaintiff’s claim fails on its merits – Where plaintiff’s claims have been released – Where plaintiff is estopped by issue estoppel and Anshun estoppel SUCCESSION – Family provision – Claim by plaintiff for provision from stepfather’s estate – Where plaintiff is not an eligible person – Where no factors warrant the grant of provision – Where lack of provision justifiable in circumstances of estrangement – Where adult stepchild not a natural object of testamentary intention
CIVIL PROCEDURE — freezing orders — application to extend interim freezing orders until further orders of the court — satisfied that the defendant was served with the application and interim freezing orders — defendant listed one of his properties for sale — steps taken by the defendant suggesting he is attempting to make himself ‘judgment proof’ — defendant was in a de-facto relationship with the plaintiff’s mother — plaintiff alleges that the defendant sexually abused her whilst she was between ages 9 and 16 — plaintiff has more than a good arguable case — risk if plaintiff establishes her case she will no uncompensated — application for extension of freezing order acceded to
JUDGMENTS AND ORDERS – Default judgment – Cross-claim brought by the defendant/cross-claimant against the cross-defendant – Where the defendant/cross-claimant settled the claim brought by the plaintiff – Where no defence to the cross-claim has been filed and no appearance has been made by the cross-defendant – Whether the Court should order complete indemnity by the cross-defendant of the cross-claimant – Judgment for the defendant/cross-claimant against the cross-defendant – Order that the cross-defendant indemnify the defendant/cross-claimant.
EQUITY – Trusts and trustees – Court’s supervision of – Appointment and removal of trustees – matrimonial dispute – in March 2023 the Family Court of Australia upon the making of final property in relation to matrimonial property appoints a wife as trustee for sale of two jointly owned matrimonial properties – continuing conflict between the wife and the husband and neither property sold by November 2024 – wife has an AVO against the husband – wife occupies one of the two properties – wife tries to sell the other property and the couple’s daughter claims to have purchased it – husband places caveat on titles to the properties – wife seeks removal of the caveat – continuing conflict likely – whether the wife should be removed as trustee for sale – whether the husband should be appointed in place of the wife – whether independent trustees for sale should be appointed. COURTS AND JUDGES – Bias – Apprehended bias – self represented litigants – husband seeks judge’s disqualification from further involvement in the proceedings – whether the judge conducted the proceedings in a manner such that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
COSTS – general rule that costs follow the event – whether successful party failed on a separable issue – whether any basis for award of indemnity costs
CRIME – bail – release application – violent offences – weapons offences – drug offence – show cause – delay – remand conditions – cause shown – unacceptable risks – risk of committing further serious offences or interfering with witnesses or evidence – bail refused
CIVIL LAW – high risk offender – interim supervision order – statutory requisites – disputes over conditions – where defendant subject to guardianship orders – various difficulties concerning compliance – disputes resolved after argument – no question of principle
CIVIL PROCEDURE – Application to use three documents for the purpose of the preparation and presentation of the plaintiff’s case – Grant leave for the plaintiff to use the documents and contact certain individuals for the preparation of his case.
CIVIL PROCEDURE – withdrawal of concession – where a concession was made by defendant during closing address based on an intermediate appellate court’s decision – where that decision has now been overruled by High Court – where the party now wishes to withdraw the concession – concession not accepted or acted upon by the plaintiff – conditional leave to withdraw granted
ESTOPPEL — Proprietary estoppel by encouragement — Plaintiffs (husband and wife) claimed an interest in a residential property at Illawong on the basis of a proprietary estoppel, based upon various representations made by the defendant and his wife (the first plaintiff’s parents) to them over several decades — Representations evolved over time and formed part of a larger “family arrangement” requiring the first plaintiff to get married and have a family, after which the plaintiffs were required to work and care for the defendant and his wife at home and in the defendant’s property investment business in Mullumbimby, in return for income, security and (eventually) inheritance — Held that the representations as to occupation and inheritance, employment and care were made, but the estoppel case was not made out ESTOPPEL — Reliance — Discussion of requirements of reliance and counterfactual reasoning — Plaintiffs’ evidence of reliance included making certain life decisions (including the first plaintiff sacrificing his art career to an extent, the second plaintiff moving to Australia from North Macedonia, and both starting a family together), financial contributions, a forgone investment opportunity and caretaking duties — Held that reliance in respect of certain matters was made out, but not to the extent claimed by the plaintiffs ESTOPPEL — Detriment and countervailing benefits — Discussion of onus of proving detriment and accounting for countervailing benefits — Whether the plaintiffs suffered detriment in circumstances where they received significant countervailing benefits which accrued to them by reason of the single “family arrangement” encouraged by the representations (including rent-free accommodation, caretaking income and proprietary interests in valuable commercial and residential investment properties) — Whether the countervailing benefits in effect subsumed or sufficiently made good the representations of the defendant so as to make it not unconscionable for him to depart from the expectation that the plaintiffs could occupy and the first plaintiff would inherit the Illawong property — Held that onus was on the plaintiffs to account for countervailing benefits in proving detriment, and that no real or substantial detriment was made out EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions (s 63 Evidence Act 1995 (NSW)) — Whether the defendant was not available to give evidence — Discussion of meaning of “not available” in context where the defendant had a tutor in the proceedings EVIDENCE — Jones v Dunkel inferences — Whether inference can be drawn that the defendant’s evidence would not have assisted his case in circumstances where, between the defence being verified by him and a consent to act as tutor being filed, the defendant failed to serve any affidavit evidence despite having court directions to do so — Held that no such inference ought to be drawn ISSUE ESTOPPEL — Orders made by consent — Whether orders made by consent in the NSW Civil and Administrative Tribunal can raise an issue estoppel
LAND LAW – Easements – Creation of easements – Creation under statute – Application under s 88K of the Conveyancing Act 1919 (NSW) – Where the plaintiff and defendant are residential neighbours – Where the plaintiff’s land and the defendant’s land front directly onto a public road – Where a driveway was constructed along and on either side of the boundary between the two properties in 2000 by agreement between the plaintiff and a previous owner of the defendant’s land, but no easement was registered – Where that driveway was used by the owners and occupants of, and visitors to, both properties for about 23 years prior to the commencement of these proceedings – Where that driveway presently provides the only vehicular means of access from the road to the dwelling on the plaintiff’s land – Whether an easement burdening the defendant’s land in relation to the part of the driveway constructed on his land is reasonably necessary for the effective use of the plaintiff’s land within the meaning of s 88K(1) – Where the proposed easement would expose the present and future owners and occupants of the defendant’s land to an ongoing risk of interference with their reasonable use and enjoyment of their land due to noise, light and vibration caused by vehicles using the driveway which abuts the dwelling on the defendant’s land narrow block of land – Where there is an alternative means of vehicular access to the plaintiff’s dwelling available by constructing a driveway wholly on the plaintiff’s land Held: The plaintiff failed to discharge his onus of establishing reasonable necessity within the meaning of s 88K(1).
COSTS – offer of compromise – expedited hearing – offer open for 4 business days – whether offer open for a reasonable time – whether Court should “order otherwise” – indemnity costs order made.
CONTRACTS – sale of business – businessman in need of cash sells one of his businesses to his bookkeeper – bookkeeper pays for business and begins operations – parties sign Heads of Agreement while more detailed transaction documents are prepared – businessman changes his mind, fires the bookkeeper and re-takes possession of the business – whether businessman bound by his agreement – absolutely. CONTRACTUAL CONSTRUCTION — ascertaining parties to contract — principles at [125]-[127] — vendor described by business name and ABN – both registered to the businessman – signature block assumed vendor was a corporation – drafting error corrected through contractual construction, at [135]. UNCONSCIONABLE CONDUCT – special disadvantage – principles at [154]-[162] – English not first language of businessman – bookkeeper translated some words into Arabic – businessman was the more experienced of the two. MISREPRESENTATIONS – principles at [139]-[140] – not persuaded that bookkeeper represented that the Heads of Agreement was a licence – not satisfied bookkeeper gave the businessman only one page and represented it comprised the entire agreement, where page clearly part of a larger document on its face. NON EST FACTUM – principles at [147], [150] – not established.
CONTRACTS — Remedies — Liquidated damages — Penalty — Whether penalty doctrine engaged by obligation to pay compensation, determined by an expert valuation process, following plaintiff’s non-fulfilment of promise to construct and dedicate a public road and defendant’s issuance of notice demanding payment — Whether compensation clause protects defendant’s legitimate interests — Whether compensation clause is out of all proportion with impact on plaintiff’s legitimate interests — Appropriate remedy if clause properly characterised as penal VALUATION — Valuer — Whether valuation in conformity with agreement — Whether experts did not comply with contractual valuation process by failing to consider relevant information and/or failing to “state the basis” of their determination — Appropriate relief if valuers erred CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Whether plaintiff represented that defendant entitled to compensation as determined by valuation or that it would not challenge compensation clause as penal — Whether alleged representations misleading or deceptive
EQUITY – Fiduciaries – where First Defendant received $20m from Plaintiff following discussions between Plaintiff and Third Defendant – where 30% of shares in First Defendant were transferred by Third Defendant to Plaintiff’s wife, who was appointed a director of First Defendant – where money received from Plaintiff was transferred by First Defendant to Fourth Defendant, in which First Defendant owned 95% of shares, and was used by Fourth Defendant for purchase of shopping centre as development project – where development project was subsequently sold at substantial profit and no amount of profit was distributed to Plaintiff – whether sum of $20m was advanced by Plaintiff as a loan to First Defendant or was contributed as investment in joint commercial endeavour between Plaintiff and Third Defendant, on basis that Plaintiff was entitled to a share of profits from the development project – whether Third Defendant owed fiduciary obligations to Plaintiff – whether Third Defendant breached fiduciary obligations – whether Fourth Defendant liable as knowing participant or as alter ego of Third Defendant EQUITY – whether Third Defendant agreed to hold a further 30% of shares in First Defendant on trust for Plaintiff – where shares held by Third Defendant were transferred to Second Defendant – whether Second Defendant holds shares on trust for Plaintiff EQUITY – Remedies – equitable compensation – account of profits – where Fourth Defendant failed to discover relevant documents – whether Plaintiff entitled to discovery prior to making election between remedies CONTRACT – oral loan agreement – where Plaintiff paid $16.8m to First Defendant following conversation with Third Defendant – whether the money was paid as a loan to First Defendant, or as a loan to Third Defendant which was guaranteed by First Defendant –whether term of loan that interest payable at rate of 24% per annum – whether payments received by Plaintiff were repayments made in respect of loan – whether loan was repayable on demand – whether recovery of outstanding balance is statute-barred
CIVIL PROCEDURE – UCPR 10.14 (substituted and informal service generally) – defendants located in a Hague Convention country – practicability of personal service of the originating process – application for an order under UCPR 10.14(3) that originating process be taken to have been served – no inconsistency with UCPR 11A – orders made
MENTAL HEALTH – preliminary hearing – forensic patient – extension of status as forensic patient – schizophrenia – whether unacceptable risk of causing serious harm to others – consideration of other adequate, less restrictive management regimes – extension of status as forensic patient granted
CIVIL PROCEDURE — Commencement of proceedings — Proceedings carried on by corporation — Necessity for solicitor to act CONSTITUTIONAL LAW — Commonwealth and State relations — Inconsistency of laws CORPORATIONS — Limits on the rights and powers of a company as an artificial legal person
CIVIL PROCEDURE — Interim preservation — Freezing orders — continuation of freezing orders made by Duty Judge — where both elements for the making of a freezing order are satisfied — where matters taken into account which allow the Court to infer that the defendants are dishonestly dealing with assets
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CORPORATIONS – enforcement of guarantee given by director as to amounts payable under deed of company arrangement – calculation of interest. REAL PROPERTY – termination of co-ownership –whether liquidators should be appointed as trustees for sale under s 66G of the Conveyancing Act 1919 (NSW).
JUDGMENTS AND ORDERS – reasons – publication – application for restriction on publication of judgment – where limited redactions made to principal judgment – where plaintiff has determined not to appeal part of principal judgment that deals with confidentiality claims – where plaintiff accepts no further justification for redaction – where plaintiff presses separate application for permanent redaction of document attached to judgment
HIGH RISK OFFENDERS – Interim detention orders – Application – Where defendant is in custody awaiting sentencing – Interim detention order made for as short a period as practicable.
COSTS — party/party — general rule that costs follow the event — proceedings discontinued against eighth and ninth defendants after appointment of receivers to second plaintiff – whether costs should be payable in accordance with r 42.19 UCPR - whether appointment of receivers to second plaintiff was a supervening event – where appointment of receivers due to default by second plaintiff – appointment not a supervening event – plaintiffs to pay eighth defendant’s costs COSTS – where Calderbank offers served by eighth defendant at various stages of proceedings – where indemnity costs sought after discontinuance - where plaintiffs did not act unreasonably in refusing Calderbank offer prior to appointment of receivers – plaintiffs to pay eighth defendant’s costs on the ordinary basis COSTS - agreements as to costs – whether costs of the proceedings include costs of mediation – no evidence of any agreement about costs at mediation – costs of mediation form part of costs of the proceedings
COSTS — party/party — application of the rule and discretion under Civil Procedure Act 2005 (NSW) s 98 — indemnity costs application by representative plaintiffs in class action as successful party on motion— where plaintiffs submit interlocutory application brought in a representative capacity in fulfilment of duties to group members analogous to fiduciary duties and to progress the main proceedings — where plaintiffs submit second defendant’s conduct necessitated the application — whether conduct of second defendant was unreasonable — HELD — plaintiffs should not be left out of pocket for making an application protective of the interests of group members — costs ordered on indemnity basis COSTS — application for gross sum costs — no evidence of second defendant’s ability to meet adverse costs order — where costs assessment likely to involve further expense, delay and aggravation — broad brush approach based on informed assessment of actual costs incurred by plaintiffs — no discount necessary where accurate and reliable costs evidence provided — HELD — costs awarded as gross sum COSTS — timing — costs payable forthwith — application of Morningstar factors — HELD — costs payable forthwith
MENTAL HEALTH – forensic patient – interim extension order due to expire – application for an order extending status as forensic patient – extension order appropriate – duration of extension order – order that status as a forensic patient be extended for 3 years and 6 months.
BUILDING AND CONSTRUCTION – claim for breach of statutory warranties under Home Building Act 1989 (NSW) – proceedings on foot for 8 years – before the Court on 52 occasions – parties reach agreement ‘in principle’ for builder to rectify defects but no final agreement reached more than a year later – owner refuses access to builder to rectify defects – referral to engineer/barrister – 13-day reference – referee provides liability and quantum reports totalling 440 pages. REFEREE – reference made to facilitate just, quick and cheap resolution – principles at [5]-[9] – whether to adopt report – principles at [10]-[14] – whether interests of justice served. MITIGATION – obligation on plaintiff to act reasonably – principles and case law review at [38]-[53] – Owners v Di Blasio Constructions considered – whether plaintiff owes duty to allow builder to minimise its damages. SCOTT SCHEDULES – history and purpose – amendment, at [114]-[118] – whether referee made ruling that defects not in Scott Schedule would not be considered – whether referee denied natural justice by considering defects not in Scott Schedule.
ARBITRATION – leave to appeal – s 34A, Commercial Arbitration Act 2010 (NSW) – occasions for grant of leave narrowly circumscribed – case law review at [2]-[20] – whether “will substantially affect rights” – s 34A(3)(a) – whether question “of general public importance – building contract for defence project – defence contracts use standard templates widely used – this particular contract was bespoke – s 34A(3)(c)(ii) – whether tribunal decision “open to serious doubt”; less onerous than “obviously wrong” – s 34A(3)(d) – whether “just and proper” to determine the question; nature of the fourth requirement – need to assess whether requirements satisfied for each question for which leave to appeal is sought. BUILDING AND CONSTRUCTION – liquidated damages – the ‘prevention’ principle – principles at [76]-[78].
ADMINISTRATIVE LAW – judicial review – determination of medical appeal panel – claim for workers’ compensation lump sum payment – answering application of request for referral for reconsideration – response to application not within functions of the appeal panel – determination of deduction for pre-existing injury – availability turned on issue of statutory construction – error of law on face of record (reasons of appeal panel) WORKERS’ COMPENSATION – medical dispute – demonstrable error – failure to address part of dispute (scarring) – request for reconsideration not determined – request referred to appeal panel – scarring not part of appeal – calculation of deduction for pre-existing injury – injury caused by nature and conditions of work – determining date of injury occurring by a gradual process
JUDGMENTS AND ORDERS — Final orders — Where parties previously invited to propose form of final orders and make submissions giving effect to principal judgment — Orders proposed by plaintiff are disputed — Orders proposed by Plaintiff made with some variation EQUITY — Subrogation — Principles in Heperu Pty Ltd v Belle (2009) 76 NSWLR 230; [2009] NSWCA 252 considered and distinguished — Where the present case involves proprietary relief against the person guilty of the fraud to the extent that the misappropriated funds were used to maintain property belonging to the fraudster
COSTS – security for costs – impecunious plaintiffs –undertaking offered by a third party to the proceedings – adequacy of undertaking – ability to realise assets – effect of delay on the plaintiffs – plaintiffs to provide security
BAIL – Aboriginal youth – multiple offences – whether unacceptable risks can be ameliorated by proposed conditions – a number of services actively engaged with by RB – close to age 18 – application for some of his other offences (part heard) to be dealt with under s 31(3) of the Children (Criminal Proceedings) Act 1987 (NSW) – s 22C commenced 3 April 2024 – applicability to the offending – Bail and Crimes Amendment Act 2024 (NSW) – tension with Children (Criminal Proceedings) Act – unfairly discriminatory against a class of children accused of crimes – police letters – expressed in generalities rather than facts – police letters expressing opinions as to whether a person should be released – Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [33]-[34] and [38]-[39] – s 22C does not apply as all alleged offending before s 22C commenced so no further relevant offence committed whilst on bail
BAIL – release application – multiple release or detention applications not permitted to the same court – s 74 Bail Act 2013 – whether new material presented in the application that was not presented to the court in the previous applications – whether change of circumstances since the previous application – s 74 Bail Act 2013 satisfied – unacceptable risk – risk of non-appearance – strong Crown case – bail refused
CIVIL PROCEDURE – proceedings for persons under legal incapacity – settlement or discontinuance – court approval – wrongful imprisonment at a mental health facility – difficulties obtaining instructions due to the plaintiff’s neurocognitive impairment – whether the settlement in the plaintiff’s best interests – settlement approved
CRIMINAL LAW — Sentence — Accessory after the fact to murder — Firearms offences — Plea of guilty — Objective seriousness of accessory after the fact to murder well below the middle of the range — Motivation of misguided loyalty — Background of disadvantage and childhood attachment issues — Explanation for gravitating to anti-social group — General deterrence
CRIME – sentence – murder – shooting of the President of the Bandidos Western Chapter - five co-offenders –verdict after trial – factual findings on sentence following verdicts of guilty by a jury – numerous disputes as to factual findings – sentenced on the basis of a joint criminal enterprise to shoot the deceased with an intention to inflict grievous bodily harm upon him – where offenders and their associates were subject to intimidation and violence at the hands of the Bandidos – motivation for the offending reduces the objective seriousness of the offence – parity – hardship in custody – offenders sentenced
CRIMINAL LAW — sentence — joint criminal enterprise where agreement was to shoot the deceased with at least an intention to inflict grievous bodily harm — planning — where deceased shot while lying in his bed — deceased President of the Bandidos Central West Chapter — where offender has serious health issues — poor prognosis
CRIMINAL LAW — Fitness to be tried — Accused charged with murder — Where the accused is mentally and cognitively impaired — Whether the accused’s impairment can be ameliorated by the Court modifying the process and sitting hours — Accused unfit to be tried — Whether the accused “will not become fit” within 12 months
CRIMINAL LAW — Hearsay evidence — Evidence contained in police statements — Where witness refers to statements to refresh memory — Where portions of statements read aloud — Whether evidence of previous representations read aloud pursuant to s 32(3) of the Evidence Act is hearsay — Direction warning the jury that the evidence may be unreliable — Significant forensic disadvantage caused to the accused by reason of the witness’s lack of recollection
FAMILY LAW AND CHILD WELFARE — Adoption of 9 year old child where the birth parents have not provided consent — Whether the birth parents had been provided with the required notice pursuant to ss 72(1) and 88(1)(a) Adoption Act 2000 (NSW) (“Adoption Act”) through email communications FAMILY LAW AND CHILD WELFARE — Notice — Requirements for giving of “notice” discussed — Review of the legislative history and subsequent amendments to s 197(1) Adoption Act, which specifies the manner of giving notice under the Act — Held that notice via email will only fulfil the requirements of s 197(1)(b) if, prior to the notice giver attempting to give notice to the intended recipient by email to a particular email address, the intended recipient confirmed that such email address may be used for the service of documents of that kind — Held that the required notice was not effected FAMILY LAW AND CHILD WELFARE — Dispensing with consent — Whether consent of the birth parents should be dispensed with pursuant to s 67(1)(d) Adoption Act — In circumstances where the child had been placed with the proposed adoptive parents for close to 90% of her life (including the last eight years), there had been little engagement from the birth parents and there was no realistic prospect of the child being able to return to both or either of her birth parents, held that a consent dispense order in respect of the birth parents should be made FAMILY LAW AND CHILD WELFARE — Considerations bearing upon orders dispensing with the requirement for birth parents’ consent identified and discussed — Whether notice of the application for a consent dispense order in respect of the birth parents should be dispensed with pursuant to s 72(2)(c) Adoption Act — While formal notice had not been effected, the birth parents had been made aware of the fact that an adoption order was being sought and progressed in this Court by email correspondence with the applicant — Consideration of the best interests of the child — In the circumstances, held that it was desirable to make the consent dispense order without notice of the application having been given to the birth parents FAMILY LAW AND CHILD WELFARE — Requirements for notice of the application for adoption on the birth parents — Apparent overlap of notification provisions and dispensation powers as between ss 54(3) and 88(1) and (4) Adoption Act discussed and explained FAMILY LAW AND CHILD WELFARE — Whether notice of the application for an adoption order should be dispensed with pursuant to s 88(4) Adoption Act — Despite several unsuccessful attempts to give formal notice of the application to each of the birth parents, both had been made aware that an adoption order was being sought by email correspondence with the applicant — Considered that it would not be in the child’s best interests for any adoption order to be stymied by difficulties with the applicant being able to formally give notice of the application to her birth parents — Held that the giving of notice of the application to the birth parents be dispensed with FAMILY LAW AND CHILD WELFARE — Whether the adoption order should be made — In all the circumstances, held that the adoption order should be made FAMILY LAW AND CHILD WELFARE — Change of name of child under 12 years of age — Whether the Court should approve proposed change to the child’s surname to align with that of her proposed adoptive parents (who shared the same surname) — Consideration of the wishes of the child, the proposed adoptive parents and the birth parents, as well as the assessor’s opinion — Proposed change of surname approved
BAIL – Applicant 14 year old Aboriginal child – operation of s 22C of the Bail Act 2013 (NSW) – whether high degree of confidence requires certainty that the applicant will not reoffend – application of s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) to the bail proceedings – consideration of unacceptable risk – prosecution failed to establish that bail should be refused – conditional bail granted
CRIMINAL LAW – special hearing – murder – Crown case based on joint criminal enterprise or extended joint criminal enterprise – no dispute that deceased shot but not by accused – where accused suffers from schizophrenia, intellectual disability and a hearing impairment – dispute at to whether the accused was present at the time plans to kill the deceased were discussed and his ability to comprehend such statements – dispute as to whether the accused ever left the car which he travelled to the deceased’s property in – multiple witnesses criminally concerned in the events and already convicted
SUCCESSION — executors and administrators — application by executor and trustee of estate to be substituted by the NSW Trustee and Guardian — where beneficiary seeks termination of trust and the funds held on trust — Saunders v Vautier — whether trustee acted unreasonably by failing to obtain judicial advice
SENTENCING – Manslaughter – Intentionally damaging property by means of fire in company – Guilty pleas – Joint criminal enterprise to assault the deceased with a co-perpetrator – Did not foresee the possibility that the co-perpetrator would use force to intentionally kill, or inflict grievous bodily harm on the deceased – Offender present when co-perpetrator rendered the fatal assault – attempt to cover up crime by burning deceased’s apartment – whether Bugmy and De La Rosa reduce moral culpability
NEGLIGENCE – work accident – where plaintiff subcontractor fell three metres through an open penetration at a construction site sustaining injury – where head contractor owed the plaintiff a duty of care to keep the work site safe – where head contractor installed a timber cover over the penetration as a precaution against falls – whether the head contractor failed to take reasonable care to ensure adequate protection against a risk of falling remained in place whenever the timber cover was removed NEGLIGENCE – contributory negligence – where the plaintiff removed plywood timber covering an open penetration – where the plaintiff then covered the open penetration with a plastic sheet – where the plaintiff stepped onto the plastic and fell through the penetration – whether the plaintiff’s inadvertence or inattention amounted to contributory negligence
COSTS – application for costs order to be paid in gross sum – no question of principle – where proceedings dismissed on appeal from Associate Justice – gross sum costs order made in respect of proceedings including costs of proceedings giving rise to the appeal
EVIDENCE – expert evidence – admissibility of expert reports – whether expert possessed specialised knowledge – whether expert report inadmissible because of expert’s opinion being based upon facts not independently proved – evidence admitted
CIVIL PROCEDURE — jurisdiction — where parts of the plaintiffs amended statement of claim allege breaches of a development consent which would fall within the exclusive jurisdiction of the Land and Environment Court — where the amended statement of claim also alleges nuisance — whether the alleged nuisance is dependent upon a finding of breach of the development consent — held the nuisance was pleaded as a separate issue and the Supreme Court has jurisdiction to deal with a cause of action in nuisance TORTS — private and public nuisance — interference with use and enjoyment of land — whether vehicles parked alongside both sides of the road leading from the Farm and past the plaintiff’s property constitutes nuisance — where plaintiff alleges inability to safely egress from property and interference with enjoyment of their land TORTS — nuisance — remedies — whether injunction should be granted requiring defendants to modify website booking process and place a restriction on the number of vehicles allowed to book — where wording of injunction sought is not a practical means of achieving abatement of the nuisance — where injunction would have a minor or meaningless effect — injunction not ordered
TORTS – intentional tort – claim of historical child sexual abuse – whether the second defendant groomed the plaintiff – whether on balance of probabilities the abuse by the second defendant in October 2005 occurred – held grooming had not been established – held incident of abuse in October 2005 occurred EVIDENCE – sexual assault – complaint evidence in civil proceedings – delay in complaint – where detail of complaints is generally consistent EVIDENCE – admissions – civil proceedings – whether letter offering counselling services amounted to an admission – held the letter was not an admission NEGLIGENCE – vicarious liability – agent and principal – where vicarious liability arises in church context – where second defendant was a Sub-Deacon of the first defendant but not an employee – whether the position of power and intimacy and nature of the second defendant’s acts were connected to his role in the church – where abuse occurred whilst the second defendant was driving the plaintiff home in his car – discussion and application of Bird v DP [2023] VSCA 66 – held the first defendant is vicariously liable for the second defendants actions DAMAGES – assessment of damages – historical child sexual assault – past and future economic loss – damages by way of buffer – past and future out of pocket expenses – future care and treatment – aggravated damages
HIGH RISK OFFENDERS – Final Hearing – application for an extended supervision order – sexual offender – risk factors of substance abuse and impulsivity – history of offences committed shortly after release to parole – limited time spent in community – consideration of statutory criteria – application granted
PROCEDURE – application for separate questions under UCPR 28.2 – where plaintiff seeks orders under Part 1C of the Civil Liability Act 2002 to set aside settlement agreements which may otherwise preclude the plaintiff from maintaining the balance of the proceedings – claimed benefit to defendants of plaintiff’s promise to “take no action”– statutory right to commence proceedings subsequently enacted – construction of s 7D(1) of the Civil Liability Act 2002 – overlap in issues and credit for hearing of separate questions and the balance of the proceedings – application for separate questions rejected.
LAND LAW — Easements — Rights of way – Substantial interference with easements – Remedies for substantial interference – plaintiffs hold the dominant tenement of a right-of-access over rural land of the defendant – the right-of-access provides the primary vehicular access to the plaintiff’s land – the plaintiffs constructed a gravel road over the right-of-access 2018 – the plaintiffs complain in their Summons that the defendant has substantially interfered with their rights of access over the right-of-access by various actions including the placing of obstacles on the easement, the tightening of gate chains the planting of trees – plaintiffs further allege that the defendant engaged in threatening conduct to deter them from using the easement – whether this conduct amounts to an actionable nuisance – whether injunctive relief should be granted or damages assessed in respect of any proven nuisance – the defendant’s Cross Summons complains that the plaintiffs’ construction of the gravel road over the right-of-access over his land has been undertaken improperly and has caused more than as little damage as is practicable to the lot burdened and claims that the burdened lot should be restored to its former condition before the construction of the road – what order should be made in relation to the remediation of the road.
CORPORATIONS – winding up – where plaintiff sought winding up of company on just and equitable ground – where company was a closely held family company – where plaintiff contended that winding up order should be made because the relationship with her other family members had broken down and she was unable to sell her shares and end her involvement of company – where subsequent to initial hearing of application plaintiff accepted a buy-back offer and ceased to be a member of the company – where parties unable to agree on form of orders resolving proceeding – application dismissed
CIVIL PROCEDURE – where directions made to prepare short minutes to give effect to reasons for judgment, including calculation of interest – where determination had been made in reasons for judgment regarding date from which interest was to be calculated – where defendants sought to reagitate that issue – where the defendants had the opportunity to address that issue at the hearing – public interest in finality of litigation – application to reopen issue refused
PRACTICE AND PROCEDURE — pleadings —applications in related proceedings — whether plaintiffs should have leave to amend their respective commercial list statements — where proposed changes meet the essential requirements of an acceptable pleading — where defendants on notice of the cases they have to meet — HELD — leave to amend commercial list statement in each set of proceedings granted
COSTS — party/party — multiple claims in which plaintiff was primarily, but not totally, successful — costs follow the event on a claim-by-claim basis — apportionment based on costs solely referable to each claim — informal offers of compromise made by both parties — refusal of offers not unreasonable in the context of the claims being pursued at the time — respective applications for special and indemnity costs orders failed — plaintiff entitled to ordinary costs of proceedings apart from costs solely referable to unsuccessful or abandoned claims
ADMINISTRATIVE LAW – judicial review – motor accident injury – whole person impairment based on PTSD – where President’s Delegate refused plaintiff’s application for medical assessment and medical assessment certificate to be referred to a review panel for review – whether failure to consider a substantial and clearly articulated argument – whether Delegate erred in decision to not allow a review of the medical assessment certificate
ADMINISTRATIVE LAW – Judicial review of decision of Local Court Magistrate to dismiss application under s 50(1) of the Fines Act 1996 (NSW) – Where first defendant accepts that the Local Court Magistrate mistook the scope of the Court’s function and committed a jurisdictional error – Where Court must satisfy itself that the orders sought should be made – Jurisdictional error established – Decision of the Local Court quashed