CIVIL PROCEDURE − non-compliance with case management orders designed to ensure readiness for hearing – failure to relist matter in a timely manner following significant non-compliance with Court’s orders – extensions of time ordered
CRIME – appeal and review – application to Supreme Court under Part 7 Crimes (Appeal and Review) Act 2001 – where applicant convicted at trial of common assault and failure to leave a licensed premises – whether case should have been diverted under Mental Health and Cognitive Impairment Forensic Provisions Act 2020 – where application for diversion properly considered and rejected by Magistrate and on appeal at District Court – application dismissed.
BUILDING AND CONSTRUCTION – casino refurbishment – architect specifies “non-combustible” cladding for external façade – procurement concerns – builder and façade installer suggest aluminium composite panels (ACPs) instead – ACPs are “combustible” – casino and architect approve product substitution – construction drawings not updated – certifier unaware of ACPs – government requires ACPs to be replaced – casino sues builder for $4M remediation costs – builder sues architect, façade installer and its insurers – partial damages awarded. BUILDING CODE OF AUSTRALIA – 2014 and 2015 editions – fire-resisting construction – cl 2.4 – attachments – cl 3.1 – whether “combustible” materials can be attached to a Type A building – consideration at [48]-[62]. CONTRACT – façade installer gave warranty that works would be fit for purpose – whether installation of non-compliant ACPs on building breached warranty – principles at [386]-[387] – not fit for purpose. AUSTRALIAN CONSUMER LAW – whether “supply” by architect to builder absent contract between them – s 4(1) – principles at [251]-[256] – no “supply” – whether casino a “consumer” – s 3(10) – presumption that a consumer “unless the contrary is established” – whether architect represented to builder that ACPs were suitable to install on external walls by approving sample and shop drawings – whether statement of fact or opinion – whether representation as to a future matter. CONTRACT – Construct Only contract excluded “Design Responsibility” – warranty that works would comply with BCA – proper construction – multiple documents in same transaction – presumption against surplusage – commerciality – principles at [207]-[216] – warranty did not extend to non-compliance with BCA referable to tasks within “Design Responsibility”. NEGLIGENCE – economic loss – whether architect owed duty to builder – principles at [235]-[239] – builder lacked “vulnerability” – builder protected itself by excluding Design Responsibility in contract with principal. INSURANCE – “property damage” – whether attaching non-compliant ACPs to casino was “property damage” – principles at [398]-[405] – removing non-compliant ACPs left holes, gaps and damaged adjacent building elements – exclusions – principles at [414]-[416] - whether insured’s agreement with builder to exclude operation of Civil Liability Act was an assumption of liability regardless of fault – not so – whether insurers entitled to nonetheless rely on apportionable claims – not so – s 4, Civil Liability (Third Party Claims Against Insurers) Act 2017. DAMAGES – whether casino entitled to estimated or actual cost of remediation – actual cost less given remediation works undertaken together with other works – principles at [435]-[437] –actual costs is a more accurate award of damages and does justice between the parties.
GIFT of property – Elements of gift – Donor intention to make a gift – Donee intention to accept the gift – Delivery of the gift – Once an unconditional gift effectively made, freely and voluntarily, it cannot be recalled by donor
CIVIL PROCEDURE — notice to produce to the Court — claims for client legal and litigation privilege — waiver CIVIL PROCEDURE — subpoenas — claims for legal and professions privilege by third parties — waiver
SUCCESSION — Family provision — Nature of orders — Apportionment of burden of provision — Settlement of family provision claim in which there was agreement between parties and consent from residuary beneficiaries regarding a lump sum provision for the plaintiff but dispute regarding the incidence of burden of the provision from residuary estate — Beneficiaries of one half share of the deceased’s residuary estate (4 niblings of the deceased, now D2-D5) contended that the deceased’s brother (now D6) the sole beneficiary of the other half share of the deceased’s residuary estate should bear the entire amount of the burden of the plaintiff’s provision (or alternatively the majority of the burden) — Held submission that the deceased’s brother bear the entire burden rejected —Deceased’s brother (D6) ordered to bear 70% of the provision burden with the remaining residuary beneficiaries the balance in specified percentages (D2 9%, D3 9%, D4 7% and D5 5%) SUCCESSION — Family provision — Parties — Principles regarding joinder of parties discussed — Whether beneficiaries should be joined to address apportionment of burden of provision (on facts – Yes) SUCCESSION — Family provision — Historical development of incidence and apportionment of burden principles outlined — Burden principles under s 65(1)(c) Succession Act discussed SUCCESSION — Family provision — Apportionment of burden of provision — Burden allocation is an evaluative decision to be determined on the relevant material facts including s 60(2) Succession Act factors unique to each case — Features of burden allocation discussed — The burden jurisdiction is not to be exercised to produce, in light of the order for provision, a per stirpes distribution to attempt put the respective generational families in a position where each family unit receives overall an equal part or division of the deceased’s estate WORDS AND PHRASES — Distribution per stirpes, distribution per capita, ‘Carriage order’, ‘just and equitable’
EVIDENCE – whether evidence not served in accordance with Court orders would cause unfair prejudice − whether an order under s 136 of the Evidence Act 1995 (NSW) could overcome any prejudice or unfairness – s 136 order imposed limiting reports’ operation – tender of some evidence rejected due to unfairness and prejudice
SUCCESSION — Family provision — Costs — Prospective costs capping orders — Novel contested application for costs capping in small estate post-mediation and prior to completion of interlocutory steps before allocation of any hearing date — No precedents of contested family provision capping orders being made at an early interlocutory stages — Parties’ current actual costs total $62,416 incl GST being approximately 46% of net estate of $135,674 — Held cost capping order is appropriate (amount that any party may recover from any other party, or out of the estate in these proceedings limited to $22,500 incl GST) SUCCESSION — Family provision — Prospective costs capping —Examination of and guidance regarding costs capping in civil litigation— Examination of family provision costs by reference to nature and purpose of the jurisdiction legislative and practice provisions, differences between family provision costs and costs in other civil litigation SUCCESSION — Family provision — Examination of historical antecedents of costs capping following final hearing of family provision claims — Consideration of quantum of costs in “standard” family provision and ‘uplift’ referable to success in conditional cost agreements SUCCESSION — Family provision — Prospective costs capping — Consideration and discussion of costs capping at early interlocutory stage — Consideration of what is ‘proper’ and ‘proportionate’ — The basis for early interlocutory capping may be justified by various sources including r 42.4 UCPR, s 98(1)(b),(3) CPA and s 99 Succession Act — Evidentiary and other materials discussed SUCCESSION — Family provision — Prospective costs capping — Prospective capping must be legally principled and involves an evaluative determination of relevant matters including proportionality considerations rather than being determined by fixed percentages or rules of thumb — The capping power serves various objectives including ensuring that the purposes of family provision jurisdiction are not frustrated or thwarted —There needs to be a sufficiency of materials on which the Court is able to make the evaluative assessment in which having regard to the nature of the process precision or exactitude is not possible or warranted and there may be a range of appropriate capping outcomes based on the evaluative assessment. SUCCESSION — Family provision — Prospective costs capping — interlocutory costs capping orders under UCPR r 42.4 are subject to later variation where there are ‘special reasons, and it is in the interests of justice to do so’ — Comment (obiter) regarding ‘special reasons’ and ‘interests of justice’ SUCCESSION — Family provision — Discussion of party and practitioner obligations in light of legislative reform and cost concerns especially in small estates WORDS AND PHRASES — ‘Proportionality’, ‘Costs capping’ ‘Maximum costs’ ‘Protective costs order’
COSTS — costs order against non-party — s98(1)(b), Civil Procedure Act 2005 — plaintiff goes into liquidation while judgment reserved — successful defendant seeks order that the plaintiff’s sole director and shareholder be jointly and severally liable for costs — principles at [2]-[6] — whether in the interests of justice to make non-party costs order— director had earlier given undertaking to the Court to meet any adverse costs order against the plaintiff, to avoid an order for security for costs — non-party costs order made.
CIVIL PROCEDURE — Pleadings — Amendment — Abuse of process — Separate question decided adversely to plaintiffs — Surviving plaintiff seeks to amend to plead case completely inconsistent with unsuccessful case advanced on separate question
OCCUPATIONS — legal practitioners — solicitor’s practising certificate — whether Council of the Law Society of New South Wales entitled to make findings of misconduct when making renewal decision under Ch 3 of Legal Profession Uniform Law (NSW) instead of proceeding under Ch 5 ADMINISTRATIVE LAW — application for judicial review — decision by Council of the Law Society of New South Wales not to renew solicitor’s practising certificate and to appoint manager of law practice for period of 2 years — where practitioner is found to not be a fit and proper person — whether jurisdictional error or error of law on the face of the record — whether judicial review relief should be denied having regard to statutory right of appeal CIVIL PROCEDURE — whether notices to admit facts should be set aside — whether non-publication and suppression order should be made in circumstances where defendants apprehended publication of materials relating to proceedings for extraneous purpose
OCCUPATIONS — legal practitioners — solicitor’s practising certificate — whether Council of the Law Society of New South Wales entitled to make findings of misconduct when making renewal decision under Ch 3 of Legal Profession Uniform Law (NSW) instead of proceeding under Ch 5 ADMINISTRATIVE LAW — application for judicial review — decision by Council of the Law Society of New South Wales not to renew solicitor’s practising certificate — where practitioner is found to not be a fit and proper person — whether jurisdictional error or error of law on the face of the record — whether judicial review relief should be denied having regard to statutory right of appeal CIVIL PROCEDURE — whether notices to admit facts should be set aside — whether non-publication and suppression order should be made in circumstances where defendants apprehended publication of materials relating to proceedings for extraneous purpose
SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow SUCCESSION — Family provision — Claim by spouse for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3
CIVIL LAW – contractual dispute – dispute over provision of internet routing services – consumer protection – application for urgent interlocutory relief – mandatory injunction requiring defendants to re-activate plaintiff’s routing service – whether plaintiff acted with due dispatch – where affidavit sworn on Thursday but application brought on Saturday – where defendant’s business located in Pennsylvania – discretionary considerations – whether plaintiff’s “usual undertaking” as to damages is enforceable – whether plaintiff’s loss cannot be compensated by monetary damages – lack of supporting evidence of plaintiff’s commitments to DFAT, ASIO and Australian Federal Police – Saturday AVL to Puerto Escondido – 🖕
CIVIL LAW – high risk offender – urgent application for orders under the Terrorism (High Risk Offenders) Act – where defendant convicted of offences found to be motivated by hate and prejudice – anti-Israel graffiti – where area targeted suggests anti-Semitic attack – relevance of Magistrate’s findings – where Magistrate satisfied crimes motivated by hate and prejudice – assessment of risk – test to be applied on preliminary hearing – whether material if proved would justify the making of an extended supervision order CIVIL LAW – high risk offender – statutory construction – whether defendant’s current custody “will expire” before application determined – statutory pre-requisite to making an interim supervision order – meaning of “will” in statutory context – construction of statute to give effect to primary object of the legislation – whether words “appears to the Court” changes natural meaning of the phrase “will expire” – where Local Court sentence expires in many months – where appeal against severity pending in the District Court – where one possible result is that the sentence will be reduced to allow for defendant’s imminent release – whether “will” means “may possibly” – construction rejected – will expire amounts to a realistic inevitability
COSTS — costs orders in interlocutory proceedings — general rule that costs follow the event — application of the rule and discretion CIVIL PROCEDURE — alternative dispute resolution — referral to mediation
CIVIL LAW – stay of writ of execution – application on compassionate grounds – where level of indebtedness likely to exceed sale price – delay in bringing application – exercise of discretion – application refused
COSTS — Party/Party — Proceedings discontinued — whether there is reason to depart from the starting point as to costs in rule 42.19 of the Uniform Civil Procedure Rules 2005 (NSW)
CRIMINAL LAW – Murder – Single count of murder – Where offender pleaded not guilty of murder but guilty of manslaughter – Trial by Judge-alone – Verdict – Not guilty of murder but guilty of manslaughter – Application of Muldrock SENTENCING – Aggravating factors – Offence involved the actual use of violence – Offence involved the use of a weapon – Offence was committed in the presence of a number of juveniles – Offence was committed in a public place – Offender has a record of previous convictions – Offender was on conditional liberty at the time of the offence SENTENCING – Mitigating factors – Offender was not fully aware of the consequences of their actions because of their age – Offender entered a plea of guilty to the offence of which they were ultimately convicted – Offender has good prospects of rehabilitation SENTENCING – Objective seriousness – Allowance made for offender’s youth and psycho-social immaturity – Determined to be below the mid-range – Sentencing of a juvenile – Principles of sentencing a juvenile – Plea of guilty – Entitlement to discount
CRIMINAL LAW – Murder – Single count of murder – Where accused pleaded not guilty of murder but guilty of manslaughter – Trial by Judge alone CRIMINAL LAW – Features of offending – Gang violence – Stabbing death by single stab wound – Offence committed at Sydney Royal Easter Show – Two groups of young males confronting each other in public – Post-offence conduct of the accused – Videos posted mocking the death of the deceased – Relevance of disrespectful post-offence conduct to the s 23A(1)(b) test CRIMINAL LAW – Manslaughter – Alternative to murder – Intention – What was the accused’s intention at the time he inflicted the stab wound – Where Crown asserts that the accused had the intention to kill or cause grievous bodily harm – Where the accused was affiliated with a gang and may have been motivated by a desire for revenge – Where accused armed with a weapon at a public event – Where accused had witnessed the fatal consequences of a stab wound previously CRIMINAL LAW – Manslaughter – Alternative to murder – Excessive self-defence – Whether the accused acted in excessive self-defence – Whether the accused believed that his actions were necessary in the defence of himself or others in the circumstances as he perceived them – Whether the accused observed the deceased to be a threat – Whether the accused’s group were the aggressors – Where PTSD impacted the accused’s perception of events CRIMINAL LAW – Manslaughter – Alternative to murder – Substantial impairment – s 23A Crimes Act 1900 (NSW) – Substantial impairment because of mental health impairment or cognitive impairment – Whether the accused’s capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by a mental health impairment or a cognitive impairment – Whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter – Application of community standards – Factors relevant – Young age and vulnerability of the accused – Diagnosis of PTSD – Accused’s history of involvement in gang activity and violence – Lack of developmental maturity CRIMINAL LAW – Witness evidence – Eyewitness evidence – Expert psychiatric evidence – Where both psychiatric experts agree on mental health diagnosis but disagree on degree of impairment
CIVIL PROCEDURE – stay of proceedings – concurrent civil and criminal proceedings – prejudice to defendants – Australian civil proceedings and Hong Kong criminal proceedings
CIVIL LAW – criminal contempt in the face of the court – refusal to answer questions – where contemnor a juvenile – applicability of sentencing legislation – whether “criminal” or “civil” proceedings – Children (Criminal Proceedings) Act held not to apply CIVIL LAW – punishment for contempt – assessment of seriousness – relevant considerations – where refusal to answer selective and sustained – motive unclear – possible reflection of underworld policy of non-cooperation – serious example of contempt – youth of contemnor resulting in little weight to retribution or denunciation – general deterrence also of less weight – where contemnor due to give evidence in separated murder trial – personal deterrence of significant weight – principles stated in other cases – consideration of comparable cases – somewhat lame apology – order for detention as a juvenile offender – order suspended on condition that contemnor be of good behaviour
CRIMINAL LAW – bail – detention application – where court satisfied respondent will be sentenced to full-time imprisonment – section 22B Bail Act – “special or exceptional circumstances” – where offender under 18 at the time of the offences – where kept in juvenile detention centre before bail granted – where offender now an adult – where legislation provides no power or discretion in bail court for offender to be detained in detention centre on remand – possible lacuna in legislation – where sentencing court has power to order offender to be detained in juvenile institution upon sentence – threats from other accused – where sentencing proceedings to occur in the next 6 weeks – prosecution of detention application fairly and properly muted – special or exceptional circumstances established – application refused
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
CRIMINAL LAW – evidentiary ruling – telephone intercept – dispute over words used – whether accused said “I dig it” in reference to the murder – where word sounds like “deep” – whether used as a verb – possible antiquated judicial understanding of modern Australian usage – possible interpretation that accused ruminating on events – comparison with other evidence in case – assessment of probative value – taking the evidence at its highest – whether evidence tendency evidence – use as circumstantial evidence going to state of mind – consideration and application of authorities – significant potential for misuse – possible remedies to cure prejudice – Pulp Fiction
EVIDENCE – telephone intercept – conversation between 17-year-old accused and his sister – consciousness of guilt – accused musing as to the prospects of being sent to gaol – where accused charged with affray in which another young person was killed – accused subsequently charged with murder – intractable neutrality – evidence excluded
CRIMINAL LAW – contempt of court – witness indicates preference to take a contempt charge rather than an affirmation or oath – where deference paid to contemnor’s preference
CRIMINAL LAW – contempt in the face of the court – where witness refuses to answer questions when directed to do so – alternative procedures for dealing with contempt – unusual circumstances – witness charged with unrelated murder – where witness seeking to traverse a plea of guilty based on trauma response to watching death of victim of current killing – where witness directed to answer questions with the protection of a certificate under s 128 of Evidence Act – preferable not to deal with contempt by summary procedure – preferable for a different judge to deal with contempt proceedings – whether witness should be afforded opportunity to be heard
EVIDENCE – client legal privilege – whether privilege waived or lost – whether conduct inconsistent with maintenance of the privilege – multifarious complications – where witness faces unrelated murder charge – where expert reports provided to prosecution in those proceedings – where witness objects to production of reports on Prosecutor’s call in these proceedings – Prosecutor’s proper compliance with Harman undertaking – whether reports served under compulsion of law – broad or strict approach – consideration of authorities – brutal environment of the Commercial List EVIDENCE – loss of client legal privilege – relevant considerations – whether witness’s contemptuous but courteous approach in witness box is a relevant consideration – considerations of fairness – where witness a child guided by lawyers – where Prosecutor denied more detailed understanding of witness’s observations – where witness declines to answer questions – “no comment” – disclosures in present proceedings – where witness objects to giving evidence – privilege against self-incrimination – contents of solicitor’s affidavit – disclosures striking “fine balance between candour and maintenance of privilege” – whether substance of evidence disclosed
CRIMINAL LAW – application for separate trial – unusual possibly unique case – where Prosecutor agrees to tender statement of co-accused based on understanding the accused will give evidence in joint trial – where statement makes substantial admissions – where statement also implicates co-accused – where statement not tendered against co-accused and not admissible against them – where length of trial estimated to be 2-3 months – where four accused in custody for more than 2 years – dire consequences if basis of tender proves invalid – length of remand – relevance of Senior Counsel’s indication of accused intention to give evidence – acting on hope rather than an understanding of the fluidity and unpredictability of the criminal trial process – counsel and Court unable to find precedent – assessment of prejudice – consideration of possible jury directions – extent to which the accused giving evidence may alleviate the prejudice – summary of relevant principles – whether positive injustice established CRIMINAL PROCEDURE – accused person’s decision to give evidence – decision for accused not counsel – accused not bound by counsel’s current understanding – many reasons accused may change his mind about decision to give evidence
CRIMINAL LAW – admissibility of evidence – covert recording by surveillance device of three juveniles in police truck – six hours of recordings – around twenty portions to which objection is taken pressed by prosecution – remainder of recording not to be played to the jury – a mercy – where accused charged with murder – where accused provided with lengthy fact sheet – discussion relating to the same – consciousness of guilt – admissions – assessment of probative value – danger of unfair prejudice – seventeen evidentiary rulings made – no question of principle
CRIMINAL LAW – intersection of artistic endeavour in the form of “drill rap” lyrics and s 137 of the Evidence Act – evidence derived from telephones – determination of relevance – whether probative value outweighed by danger of unfair prejudice – over 300 objections to be determined – overview of relevant legal principles – evidence to be taken at its highest –assessment of potential for misuse of the evidence – a fine balance – application to specific examples CASE MANAGEMENT – fail
EVIDENCE – admissions – assessment of probative value – where accused admits or boasts that he stabbed “AK” – where AK gives evidence that he was not harmed – whether probative value of evidence diminished by virtue of AK’s denial – where stabbing not subject of charge or incident giving rise to charges – where incident subject of admission occurred on night before alleged murder – whether evidence “transactional” – evidence of context – probative value of evidence – danger of unfair prejudice – potential for misuse of evidence – tendency evidence – bad character evidence – whether prejudice can be cured by direction
CRIMINAL LAW – evidence – admissions by conduct – lies and consciousness of guilt – statements made by accused near the scene of the murder – no adult, lawyer or support person present – statutory prohibition on admissibility – whether exception to prohibition established – where questions asked in urgent circumstances – accused member of suburban gang – differences leading to violent confrontation – overview of prosecution case – eye witness testimony by other witnesses – taking the contempt charge rather than an affirmation or oath – repeated mantra of “no comment” – circumstantial case – assessment of accused’s vulnerability – palpable fear and confusion – satisfactory explanation of absence of adult – a lot happening – other factors militating against admission of evidence – evidence not admissible
HIGH RISK OFFENDER – serious sexual offender – final hearing – application for Extended Supervision Order – whether defendant poses unacceptable risk of committing serious offence if not kept under supervision – application dismissed
CORPORATIONS – Insolvency – Administration – Extension of time to convene second meeting of creditors CORPORATIONS – Insolvency – Administration – limitation of administrators' personal liability in respect of funding agreement – whether it is in the interests of the companies that the borrowing take place.
PROCEDURE - Judgment and orders of the Court – appointment of a receiver for the limited purpose of ensuring compliance with a mandatory injunction ordered by the Court – stay of the appointment
COSTS — appeal against costs assessment — leave sought to adduce expert evidence available at the initial costs assessment and at the costs appeal — evidence deliberately not adduced below — leave to adduce refused APPEAL — appeal to Court from costs assessment — rehearing — nature of rehearing in statutory context
PROCEDURE – release of funds paid into court – where trust monies held by the plaintiff’s solicitors were paid into court pending determination of entitlement – where consent orders now sought for distribution of those funds
HIGH RISK OFFENDER – preliminary hearing –serious violence offender – application for interim supervision order – where 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 – interim supervision order imposed
SUCCESSION – Executors and administrators – Commission - Matters affecting quantum –administration of an estate takes over 30 years to finalise – one of the beneficiaries has been litigious throughout the administration – consideration of causes of the delay – consideration of an executor’s “pains and trouble” in awarding commission in the face of – whether executor has financially benefited from estate administration – consideration of extent of executor’s personal performance of executor’s duties. CIVIL PROCEDURE – Registrars – Review of Registrar’s decision – Powers of Judges to review discretionary award of commission – reasons for intervention. COSTS – specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – long-running estate administration due to family conflict – limited funds remaining in estate – need to end conflict – undesirability of further contest about the assessment of legal fees.
LAND LAW — Caveats — Removal of caveat – plaintiff’s application to remove defendant’s caveat – where the parties have settled family law proceedings – where the form of the caveat insufficiently describes defendant’s interest in the property – where the defendant allegedly filed the caveat by reason of the plaintiff’s default of the family law settlement orders - where both parties are in breach of the settlement agreement – relief granted to the plaintiff, conditional on the defendant having the opportunity to challenge allegations against the plaintiff about undervaluing the property.
CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement and ancillary orders
LAND LAW — Co-ownership — Statutory trust for sale — Discretion of court — Whether the making of such order inconsistent with a term of the co-owners’ agreement which would prevent exercise of discretion — No question of principle
CIVIL PROCEDURE – interlocutory applications –where earlier notice of motion seeking revocation of restraining orders was withdrawn – where defendants were given incompetent legal advice because of ignorance of relevant provision – where defendants disposed of earlier notice of motion and made a related undertaking – whether defendants can reinstate earlier notice of motion – applications under ss 29 and 73 of Proceeds of Crime Act 2002 (Cth) do not have the same substantive effect – different proof requirements amount to material disadvantage to defendants if motion is not reinstated – orders sought granted CIVIL PROCEDURE – interlocutory applications – where orders for compulsory examination of the first defendant exist – where AFP received mutual assistance request from Austria – first defendant seeks orders under s 266A(2)(b) of Proceeds of Crime Act 2002 (Cth) prohibiting disclosure of compulsorily obtained material to law enforcement in foreign countries – power of the Court to make disclosure prohibition orders must be undertaken on sure footing – clear prejudice has not been demonstrated – legislative provisions address and approve of information being provided to a foreign country – notice of motion dismissed
DEFAMATION — summary dismissal — pleadings — failure to plead material facts — no pleading as to identity of publisher — no material facts as to alleged authorisation — three years of delay — summary dismissal granted
CRIMINAL LAW – application for proceeds assessment order under the Criminal Assets Recovery Act 1990 (NSW) s 27 – proper foundation for order conceded – assessment order – onus on defendant under s 28(3) to establish that expenditure was funded from sources unrelated to any illegal activity – whether defendant discharged that onus – convoluted and implausible explanations – defence witnesses not credible – assessment order made
CIVIL PROCEDURE – Pleadings – Strike-out or summary dismissal – Whether leave to replead should be granted CIVIL PROCEDURE – Transfers to other courts – Local Court ESTOPPEL – Res judicata – Whether claim barred by cause of action estoppel – Whether exception for special circumstances JUDGMENTS AND ORDERS – Amending, varying and setting aside – Whether orders made or entered irregularly
CONTRACT- identification of parties; identification of terms; company bound by conduct of director; Novation – no common intention; ESTOPPEL-whether representations made; No question of principle
COSTS — Party/Party — Payable out of a fund — Deceased estate – Where an executor sought indemnity costs out of the estate – Whether the executor acted unreasonably - UCPR r 42.20 – UCPR 42.25 – HELD the executor acted unreasonably and was therefore not entitled to indemnification out of the estate
CIVIL PROCEDURE — Interim preservation — Freezing orders – adult daughter brings civil proceedings for sexual assaults that she alleges her father committed against her when she was a minor – prior criminal proceedings brought against the father in respect of alleged sexual assaults upon the daughter in New South Wales and father was acquitted – current criminal proceedings brought in Queensland against the father in respect of alleged sexual assaults upon the daughter in Queensland – allegations against father involve conduct over 8 years concealed from other family members - father lives in Queensland and owns real estate and holds superannuation in Queensland – father alters title to Queensland real estate at the time of the recent criminal proceedings to transfer a half share to his wife as a joint tenant - whether a freezing order should be granted against the father pending the outcome of these civil proceedings.
CORPORATIONS — statutory demand — application to set aside — whether genuine dispute established — whether offsetting claim established — statutory demand not set aside
EQUITY — ADVANCES OF MONEY — GIFTS — Purposes — Claim by the plaintiff to recover land purchased in the name of the defendant and other amounts of money transferred to the defendant — Recovery of the property is said to be justified in various ways, including a resulting trust, express trust, a common intention constructive trust and money had and received — Presentation of the plaintiff’s case permeated by alternative claim that he, in vulnerable circumstances under a ‘special disadvantage’, was prevailed upon by the defendant and her husband (alleged to be a Sovereign Citizen) as leaders of a cult through undue influence and unconscionable conduct to pay over moneys for the purpose of promoting an illusory ‘Kindom Motherland’ being allegedly a cockamamie purpose — Claims that defendant and husband were cult leaders and that the husband was a Sovereign Citizen rejected — Claims of alleged undue influence and unconscionable conduct rejected — Finding that funds were gifted with the primary purpose of development of a community consistent with a charitable trust, and an incidental purpose to benefit the Cristian family — Held property accordingly unrecoverable by the plaintiff WORDS AND PHRASES — ‘Sovereign Citizen’ — ‘Cult’— ‘Gift’ EQUITY — ADVANCES OF MONEY — GIFTS — Principles discussed — Capacity requirements — Various purposes discussed distinguishing predominant purpose and incidental purposes EQUITY — Trusts — Resulting Trust — Purchase money trusts — Contest regarding purpose, if any, of provision of funds used to purchase a farm — Defendant and husband under the name ‘Love for Life’ espouse ideas regarding ‘Kin Domains’ (a form of family homestead) and aspire to build a community on land ‘where no one owns the land’, growing enough food and maintaining the land such that they and others can leave ‘the System’ and benefit the broader community through provision of free food — Plaintiff first emailed the defendant and her husband in 2008 expressing interest in their ‘Kindom’ — Plaintiff later messaged defendant’s husband from 2017, making the first payment into the defendant’s account — From April 2022, communications between the plaintiff and defendant’s husband along with payments into the defendant’s account heavily increased — Plaintiff initially transferred $100,000 in April 2022 and, consequent upon the parties locating a suitable property, wrote a cheque for $575,000 in September 2022 EQUITY — Trusts — Charitable trusts — Charitable purposes — Whether the identified purpose is a valid charitable purpose — Discussion of the fourth head of Commissioner for Special Purposes of Income Tax v Pemsel [1891] AC 531 — Held purpose is within the spirit and intendment of the Statute of Elizabeth — Whether the public benefit element — Held it meets the public benefit test — Held valid charitable trust EQUITY — Trusts — Charitable Trust — Trusts with mixed purposes — Discussion of Charitable Trusts Act 1993 (NSW) s 23 — Determined that incidental benefit to the Cristian family did not invalidate the primary charitable purpose EQUITY — Trusts — Charitable Trust — The trust does not fail for impossibility or impracticability EQUITY — Unconscionable conduct and undue influence — Alternative submission by plaintiff that the defendant procured the purchase funds from the plaintiff by exercising undue influence — Plaintiff submits defendant and her husband threatened him and others with physical violence, manipulated him into providing further funds as the only way to ‘save’ the $100,000 he had transferred, and by generally targeting and exploiting him — Submissions rejected CIVIL PROCEDURE — Litigants in person —Distinguishing between submissions and evidence
CRIME – manslaughter – unlawful and dangerous act – appreciable risk of serious injury – throwing Molotov cocktail into backyard of residential premises – death of child – severe burns – Form 1 – maliciously inflict grievous bodily harm – biting of ears SENTENCING – victim impact statement – offender’s personal history – background of deprivation – significance of criminal record – passage of time – letter of apology – depth of remorse – conditions of custody – threats – objective seriousness – very serious case of manslaughter – plea of guilty – applicable discounts – sentence imposed
INSURANCE — Liability insurance — Construction of policy — Whether various types of “Loss arising from Pollution Conditions caused by” the plaintiff’s operations of excavating, removing and stockpiling soil — Where plaintiff’s operations caused asbestos fibres to be released into the air — Where plaintiff liable in contract to pay costs of investigating, removing and disposing of contaminated soil — Where WorkSafe Victoria issued “Improvement Notice” pursuant to Occupational Health and Safety Act 2004 (Vic), s 111, giving directions to provide a safe system of work — Where plaintiff incurred costs in safely managing and removing contaminated fill
CORPORATIONS – creditors’ meeting – appeal from decision of voluntary administrators – where plaintiff brought a proceeding against the first defendant for alleged building defects – where first defendant entered voluntary administration – where plaintiff and various unit owners in the building lodged proofs of debt for voting purposes at the second meeting of creditors – where administrator admitted the proofs of the plaintiff and of various unit owners for $1 for voting purposes, and rejected the claims of other unit owners in full – where administrator admitted the claims of four related creditors in full – whether administrator made a “just estimate” of the claims of the plaintiff, the unit owners and the related creditors CORPORATIONS – Voluntary administration – application to set aside deed of company arrangement – where creditors passed resolution for the first defendant to execute the deed – where resolution would have passed on value, but not on votes, if the related creditors were disregarded – whether resolution to enter deed should be set aside CORPORATIONS – Voluntary administration – Application to terminate Deed of Company Arrangement – whether material omissions from or misstatements in the information provided in the second report to creditors – whether the deed of company arrangement should be terminated for “some other reason” under s 445D(1)(g) or s 447A of the Corporations Act 2001 (Cth) — whether deed of company arrangement oppressive, unfairly prejudicial to, or unfairly discriminatory against one or more creditors – whether effect cannot be given to the deed without injustice
EQUITY — Unconscionable conduct — Special disability or disadvantage — Independent advice – Whether a solicitor was improperly acting for both plaintiff and defendant – Whether solicitor provided adequate independent advice – HELD solicitor was not acting improperly – solicitor arranged and provided rational and independent advice EQUITY — Unconscionable conduct — Special disability or disadvantage — Whether unconscientious advantage taken – HELD no special disadvantage was taken advantage of
TAXES AND DUTIES — Dutiable transactions — Dutiable property — Declaration of trust — Where plaintiffs are the registered proprietors of certain properties — Where plaintiffs each sign a “Confirmation Deed” in which each plaintiff “acknowledges and confirms” that a third party holds the beneficial interest in properties legally owned by the plaintiffs — Whether the deeds signed by plaintiffs constituted declarations of trust TAXES AND DUTIES — Review — Application — Onus — Dispute as to dutiable value — Expert opinion evidence provided on the question of dutiable value — Consideration of operation of onus and approach to expert evidence when aspects of expert evidence provided by parties cannot be accepted
CONTEMPT — Civil contempt — Breach of undertakings — Clarity of terms — Distinction between defendant as a natural person in his own right and where acting in right of companies of which he was sole director and shareholder
EQUITY — Equitable remedies — Injunctions — Appointment of administrator alleged to be beyond power — Stay of appointment pending final hearing — Balance of convenience — No issue of principle
EQUITY — Agreements in fraud of third parties – Conveyancing Act 1919 s 37A – Where a married couple entered into a separation agreement to split property – Whether such a division of property included alienation of property from one partner to the other with the intention to defraud creditors – HELD the alienation of property from alienor to their partner was made with the intention to defraud creditors under s 37A BANKRUPTCY — Property divisible among bankrupt’s creditors — Exceptions — Property held by bankrupt on trust – Whether property was held by a debtor on resulting trust for his partner – Whether the reasoning in Calverley v Green should be expanded – HELD no grounds for a resulting trust existed EQUITY — Assignment — General principles – Where one debtor entered into a deed of assignment releasing them from certain liabilities – Where it was asserted that those liabilities were jointly owed by another debtor – Whether the deed of assignment had the effect of releasing both debtors – HELD the liabilities were both joint and several, and therefore even if the assertion that the deed of assignment released the debtor who entered into it, it could not release the other debtor RESTITUTION — Restitution for wrongdoing — Equity — Account of profits – Whether plaintiff was entitled to an account of profits for the rent paid for a property which it asserted an interest in JUDGMENTS AND ORDERS — Form of orders — Effect of — “Make-available” order – Where restitutio in integrum is not possible – Where creditors hold partial interests in real property – HELD amounts owed to creditors to be calculated on account, and real property to be sold and proceeds to be split between creditors EQUITY — Equitable fraud — Agreements in fraud of third parties – Where an agreement was entered into which was mala fide in respect of other persons – Whether plaintiffs are entitled to recover rent on equitable grounds EQUITY — Fiduciary duties — Breach – Where a fiduciary relationship arose between the eighth defendant and son – Where the eighth defendant acted to put the assets of her son out of the reach of his creditors – Whether the eighth defendant acted in her son’s interests or to enrich herself – whether fully informed consent was given – HELD fiduciary duties were breached, and the creditors are entitled to obtain applicable equitable remedies EQUITY — Tracing – Where part of the proceeds of sale of one property was appropriated to discharge mortgages on other properties – Whether plaintiff entitled to a charge on properties – HELD whether properties can be subject of proprietary orders is contingent on the results of the account ordered in the proceedings
SUCCESSION — Contested probate — Costs of unsuccessfully propounding wills — Costs of unsuccessful beneficiary who joined the proceedings — Overall attempt to achieve a fair and just result.
COURTS AND TRIBUNALS – jurisdiction – jurisdiction of the NSW Supreme Court and NSW Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW) Sch 4, cl 5(3) - where proceedings commenced in NSW Civil and Administrative Tribunal (NCAT) – regarding water ingress into penthouse lot – duplication of issues in NCAT and the NSW Supreme Court – both parties accept the NSW Supreme Court’s lack of jurisdiction – question of appropriate consequential orders – whole matter transferred to NCAT
CRIMINAL LAW – SENTENCE – murder – domestic violence – committed in the home of the victim and presence of children – intent to kill – contribution of mental impairment – drug-induced psychosis - remorse
CRIME — Murder — Voluntary act— whether the question of automatism should be left to the jury — where the accused leads no evidence — where the accused is self-represented — finding that there is no evidence from which an inference could be drawn that the accused’s actions were not wilful or voluntary
CRIMINAL PROCEDURE – Trial – Voir Dire EVIDENCE – relationship evidence – where there were issues in the relationship – where the accused referenced these issues to an investigating officer after being informed of the death of the deceased – multiple inferences available – s 85 of the Evidence Act 1995 (NSW) – where circumstances in which the admission were such as to make it unlikely the truth of the admission was adversely affected
PROCEDURE – transfer of proceedings – from Supreme Court to District Court – Civil Procedure Act 2005 (NSW) s 146(4) – complex legal issues – issues of general public importance – transfer refused
ESTOPPEL — Proprietary estoppel — Encouragement — Nature of promise — Whether conditionality of promise renders promise incapable of founding an estoppel — Consideration of requisite level of certainty ESTOPPEL — Proprietary estoppel — Encouragement — Detrimental reliance — Whether conditionality of promise renders it unreasonable to be relied upon
COSTS — Party/Party — Costs orders in interlocutory proceedings — Whether costs should be in the cause or successful applicant should get her costs — No issue of principle COSTS — Party/Party — Bases of quantification — Whether applicant in motion should have costs on the ordinary or indemnity basis — No issue of principle COSTS — Party/Party — Whether gross sum costs order should be made — No issue of principle COSTS — Party/Party — Whether costs of interlocutory application should be ordered payable forthwith — No issue of principle
CRIME – sentence – murder – domestic violence – history of controlling and violent behaviour – intent to inflict grievous bodily harm – no remorse – general and specific deterrence
CIVIL – Criminal Assets Recovery Act 1990 (NSW) – application for summary judgment – forfeiture orders under s 22 – whether interests in property available interests for the purposes of the Act – whether property “used in, or in connection with” the serious crime related activity of the defendant – property seized cash reasonably suspected to be proceeds of crime – order that property be forfeited to and vest in the Crown
PROCEDURE – defendants’ application for determination of a separate question – motion for a separate question dismissed – application for joinder – no orders for joinder made
CRIME – sentence – manslaughter – juvenile offenders – one stabs deceased acting in self-defence with excessive force – three others convicted on basis of joint criminal enterprise – significant subjective cases – issue of parity with each other and other people present – prospects of rehabilitation
CIVIL PROCEDURE – court administration – plaintiff seeking expedition of hearing – proper basis for expedition found CIVIL PROCEDURE – defendant seeking to amend defence in a significant way – parties directed to serve further evidence
CRIME – murder – defence of mental health impairment – where parties agree defence available – Court satisfied that defence established – special verdict of act proven but defendant not criminally responsible
CONTRACTS — Construction — Deed under which parties agreed that interests in two residential properties held by plaintiff were to be transferred to defendants in consideration of a sum of $700,000 to enable plaintiff to comply with court orders — Where recitals to deed expressly contemplate second defendant would need to take out a loan secured by a mortgage over one of the residential properties the subject of the deed to fund $700,000 payment to plaintiff — Where the other residential property was held by plaintiff and first defendant as tenants in common in equal shares — Where deed requires first defendant to transfer back to plaintiff his half-share in the property once “the loan” is repaid and “the mortgage” is discharged — Whether second defendant refinancing its loan triggered obligation of first defendant to transfer back to plaintiff his half share in the property he jointly held with plaintiff — Construction of “the loan” and “the mortgage”
CRIMINAL LAW – murder of an intimate partner – where the offender entered an early guilty plea SENTENCING – objective seriousness of offending – intention of the offender to inflict grievous bodily harm, not intention to kill – where cause of death due to multiple, possible contributing factors causing death – “unascertained causes” – where the offender inflicted moderate force, not extreme or severe – no history of domestic violence – objective gravity of offending somewhat below middle range SENTENCING – aggravating factors – murder committed in the offender’s home where the victim resided SENTENCING – subjective circumstances – where the offender pleaded guilty at earliest opportunity and demonstrated remorse – evidence of prior good character – good prospects of rehabilitation
SENTENCING – Sentencing procedure – Instinctive synthesis – Application of Muldrock – Reasons for sentence SENTENCING – Relevant factors on sentence – Character of offence – Circumstances of offence – General and specific deterrence – Prevalence of offence – Moral culpability – Objective seriousness – Purposes of sentencing – Victim attitude to offender – Post-offence conduct – Treatment of the body of the victim SENTENCING – Aggravating factors – Home of victim – Record of previous convictions – Series of criminal acts – Use of violence SENTENCING – Subjective considerations on sentence – Familial upbringing – Mental illness diagnosed after the offence – Lack of remorse SENTENCING – Life sentences – Whether life sentence appropriate – Whether the offence falls into the worst category of offences of this kind
COSTS – Whether ordinary costs should be apportioned – Where it is appropriate to depart from the general rule where breaches of the deed were established – Apportionment of costs ordered CONTRACTS – Remedies – Where the parties were asked to address the appropriate form of relief in light of the primary judgment – Where the only relief sought was possession of property – Where Court found that relief was not available – Proceedings dismissed
LAND LAW – restrictive covenants – non-application of restrictive covenants – where the plaintiff operates a hotel and bottle shop – where neighbouring land is burdened by covenant restricting a business selling alcohol – where defendants lodged a development application to operate a “Liquorland” – where development application approved – whether covenant does not apply by reason of cl 1.9A of Port Macquarie-Hastings Local Environmental Plan 2011 (NSW) ENVIRONMENT AND PLANNING – jurisdiction of Supreme Court – whether Land and Environment Court has exclusive jurisdiction under ss 20(1)(e), 20(2) and 71 of the Land and Environment Court Act 1979 (NSW) ENVIRONMENT AND PLANNING – interpretation of development consent – incorporation of documents referred to in development consent – where development consent describes documents as “approved” and requires development to be carried out in accordance with approved plans and documents – consideration of plans and/or statement of environmental effects to understand the nature of the development that is the subject of development consent
EVIDENCE – accidental tender of document containing problematic material – phone data that indicates the accused was present for over twenty minutes in the street where the murder occurred two days before the murder – not part of the Crown case – prejudice to the accused – prejudice arguably not alleviated by the calling of other evidence – role of directions to the jury – no application made for discharge – accused does not want jury discharged
CIVIL PROCEDURE — preliminary discovery — to identify potential cause of action — to identify potential defendant or defendants — reasonable inquiries — where initial inquiries by the plaintiff were not considered reasonable — where orders made directing the plaintiff to request copies of documents held by certain related parties — whether, despite production of that material, the defendants should give discovery of the requested documents — application for preliminary discovery granted
CIVIL PROCEDURE — application for separate determination of questions — Uniform Civil Procedure Rules 2005 (NSW), r 28.2 — application to consider whether the proceedings are barred by the Limitation Act 1969 (NSW) prior to substantive hearing — application for separate determination of questions declined LIMITATION OF ACTIONS — discoverability — personal injury — whether the plaintiff “ought to know” facts — knowledge of fault of defendant — knowledge of seriousness that warrants suing — where a solicitor failed to advise on common law claim
LEASES AND TENANCIES – possession of commercial property – where property leased by mother to son for many years – dispute over terms of undocumented lease and payment of rent – notices to quit served – declaratory relief in respect of lease sought – refused – order for possession made LOANS – where money loaned by mother to son – dispute about interest and repayment of loans – payment of unpaid interest and repayment of loans ordered PROCEEDS OF THE SALE OF LAND – son and his parents previously registered proprietors of a farming property – proceeds of sale split between parents – claim for share of proceeds pursued against mother – Pallant v Morgan equity – son not entitled to share of proceeds
ADMINISTRATIVE LAW – judicial review – decision of Magistrate dismissing application for costs in criminal case – where charge withdrawn by prosecution – whether jurisdictional error – whether wrong question asked – whether irrelevant considerations taken into account – where new points raised – whether material error
CRIMINAL LAW – closing address – unfairness – document unfair purporting to be a “summary” of exhibits – not a summary – text messages out of context – unfair document
EQUITY – trusts – constructive trusts – common intention constructive trust – whether there was a common intention that the plaintiff had some proprietary interest – common intention constructive trust claim fails – joint endeavour constructive trust – where plaintiff made financial and non-financial contributions to the joint endeavour – where joint endeavour failed – whether unconscionable for defendant to deny plaintiff an interest in the property – joint endeavour constructive trust claim made out – resulting trust – resulting trust claim fails – laches – laches defence fails
CRIMINAL LAW – subpoena issued by prosecution – calls made by accused from gaol – whether access should be given to the sound files produced – 20 out of 21 calls were in fact to co-accused’s wife – personal matters irrelevant to the matters for determination in the trial discussed – one call in which co-accused came onto the phone and spoke to accused – personal matters irrelevant to the issues for determination in the trial – four calls to Joseph Vokai – one call another person got on phone at gaol end and spoke in language other than English – three other calls social chat
CRIMINAL LAW – subpoena issued by Prosecutor – calls made by the accused from gaol to a phone subscribed to co-accused’s wife – calls made by the accused from gaol to a phone subscribed to Joseph Vokai, a person known to be a member or associate of the Alameddine OCN – murder of Mejid Hamzy, the head of the Hamzy OCN – “feud” between the Hamzy and Alameddine OCNs raised by counsel for the accused as being “the reason behind the shooting” – on the cards that the gaol calls will materially assist the Crown – first access to the accused
SUCCESSION – family provision – where the plaintiff is the deceased’s spouse – where the defendant is the deceased’s daughter and executrix – where the plaintiff seeks a family provision order for her maintenance, education or advancement in life – where the deceased’s will left everything to his children – whether to designate property as notional estate – where notional estate orders not granted – where the plaintiff is entitled to a family provision order
CRIMINAL LAW – murder trial – subpoena issued by defence – application to be excused from production of documents on ground of public interest immunity – claim for public interest immunity upheld
CRIMINAL PROCEEDINGS – trial – jury – discharge of three jurors – jury of 15 – eight week trial – discharge of whole jury where prospect of concluding trial with jury of 12 is at risk – both the Crown Prosecutor and counsel for the accused requested whole jury discharge – only one day of trial so far – jury panel available tomorrow
ESTOPPEL – proprietary estoppel – common intention constructive trust – where land is in the first defendant’s name – whether the first defendant promised to transfer the property back to the plaintiff on the basis that the plaintiff pay all costs associated with the property and pay $10,000 – the first defendant holds the property on trust for the plaintiff – the first defendant to transfer the property to the plaintiff, conditional on the first defendant being indemnified and paid $10,000
PRIVATE INTERNATIONAL LAW — Applicable law — Choice of law rules — Immovable property – deceased died domiciled in Germany with moveable assets in Germany and New South Wales – deceased owned real property in New South Wales – a German citizen applies for probate of the deceased’s 2021 will made in Germany of which he is the beneficiary – Australian citizen applies for administration of the deceased’s 2018 will (made in Germany) and in the alternative probate of the deceased 2013 will (made in New South Wales) both of which he is the beneficiary – issue concerning the deceased’s testamentary capacity and knowledge and approval of the 2021 will – German citizen commences proceedings for a summons for administration in 2022 – Australian citizen lodges caveats in answer to those proceedings – German citizen commences proceedings in Germany – nature of the German proceedings in issue – Australian citizen commences these proceedings in New South Wales in 2025 – German citizen applies to dismiss these proceedings on forum non conveniens grounds, or in the alternative, to stay these proceedings until the German courts have finally decided the issue of the deceased’s capacity to make and his knowledge of and approval of the 2021 will – whether New South Wales is a clearly inappropriate forum for the conduct of these proceedings.
PROCEDURE — contempt of court — penalty hearing — question of defendant’s capacity — where recurrent pattern of late service of capacity evidence — where plaintiff denied opportunity to test capacity evidence — held that lack of capacity not established — proceedings adjourned — hearing date to be allocated for penalty phase.
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 — receivers and managers — special purpose receiver — direction as to issue arising in distribution of funds to debenture holders COSTS — general rule that costs follow the event — no departure from general rule — where indemnity costs sought by third defendant — where no basis to order costs in favour of the third defendant on the ordinary basis or indemnity basis
CORPORATIONS — statutory demand — application to set aside — offsetting claim — where plaintiff contends that defects in plumbing and hydraulic works created offsetting claim — statutory demand not set aside
CRIMINAL PROCEDURE — voir dire — preliminary issues — admissibility of parts of recorded interviews — ERISP — body worn video — Evidence Act 1995 (NSW) ss 135, 137
HIGH RISK OFFENDERS — application for an extended supervision order — final hearing — serious violence offence — unacceptable risk of committing a serious offence — risk factors of alcohol and antisocial personality traits — relevance of conditions to risk — application granted
CRIME – sentence – murder – offender found guilty by jury at trial – murder of former female partner – domestic violence – 18 stab wounds inflicted – where offender was self-represented – no remorse – no subjective case before the Court – where offender’s history and prospects of rehabilitation are indeterminable – where there are no known mitigating factors – need for specific and general deterrence in a domestic violence context
CIVIL PROCEDURE – Stay of proceedings – Contract – where Strata Management Statement contains dispute resolution clause – where dispute regarding validity of convening of general meetings – whether dispute “about” the Strata Management Statement – whether to stay proceedings – no question of principle
CONSUMER LAW – misleading or deceptive conduct – where plaintiff owned a Holden car dealership – where representations allegedly made regarding commitment to the Holden brand in Australia – where decision subsequently made to wind down the supply of new Holden cars in Australia – whether representations were false – where evidence does not establish that the representations were misleading or deceptive CONSUMER LAW – misleading or deceptive conduct – where defendants argued that oral representations were not made – where the evidence lacked the precision necessary to make any finding as to what, if any, representations were made CONSUMER LAW – misleading or deceptive conduct – representations as to future matters – where person making alleged representation had reasonable grounds for doing so CONSUMER LAW – misleading or deceptive conduct – where plaintiff alleged that but for the alleged representations it would have taken a different course – where plaintiff’s claim was analogous to a “different transaction” case – where plaintiff did not prove relevant counterfactuals on the balance of probabilities
COSTS — Security for costs — Relevant factors — Other factors — Impecuniosity conceded — Application by second defendant — Where second defendant separately represented from first defendant — Where there is significant overlap in the cases of the defendants — Whether second defendant’s choice to obtain separate legal representation disentitles it from obtaining security for costs — Consideration of the effect of separate legal representation on whether security for costs should be ordered — Where the sum of money in dispute in these proceedings is “modest” for proceedings in the Supreme Court — Where security is sought for approximately $180,000 — Whether quantum of security for costs sought is proportionate to the importance and complexity of the subject matter in dispute
CIVIL PROCEDURE – Pleadings – Application for leave to file proposed Amended Statement of Claim – Allegations of malicious prosecution, abuse of process and criminal conspiracy – No reasonable cause of action disclosed – Consideration of the tort of collateral abuse of process – Pleadings deficient in identifying a tortfeasor – Failure to identify an improper purpose – Where pleading does not comply with the principles of proper pleading – Section 56 Civil Procedure Act 2005 (NSW) – Leave refused CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Where plaintiff out of time – Section 55 Limitation Act 1969 (NSW) – Application of principle of judicial immunity – Causes of action pleaded hopeless – No improper purpose identified – Application for summary dismissal granted
CIVIL PROCEDURE – Representative proceedings – Leave sought to file Amended Statement of Claim – Where defendants oppose the granting of leave – Application for summary dismissal – Whether causes of action are hopeless – Whether it would be futile to grant leave to file Amended Statement of Claim – Where proposed Amended Statement of Claim seeks to join all members of the State Executive of an unincorporated entity where an unincorporated entity cannot be sued – Whether duty of care capable of being established between members of the State Executive and those nominated for local government election – Where reasonable foreseeability alone is insufficient to establish a duty of care – Where a duty of care in the manner pleaded by the plaintiff is reasonably arguable – Where the pleading pleads a reasonably arguable cause of action in contract and in negligence – Where no prejudice is occasioned by a grant of leave to file the proposed Amended Statement of Claim – Where at an early stage of proceedings, no defence filed as of yet and discovery not yet undertaken CONTRACTS – Whether the pleaded counts in contract are hopeless – Whether it is open to the plaintiffs to rely upon the Constitution of a political party as creating legal relationships – Where plaintiff seeks to distinguish the proceedings from authorities considering a similar issue – Where the existence of a contract is not sufficiently clear as to warrant summary dismissal – Where defendants have not demonstrated that the filing of the proposed Amended Statement of Claim would leave it open to summary dismissal CIVIL PROCEDURE – Application for substitution of first defendant – Application opposed on the grounds of a likely increase in costs and difficulties in case management – Where joining the members of the State Executive is the joinder of a necessary party
EQUITY – Unconscionability – Whether plaintiff took unconscientious advantage of special disadvantage under which first and second defendants laboured when they executed a guarantee and mortgage in favour of the plaintiffs securing amounts owing by the second cross-defendant EQUITY – Unconscionable conduct – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB, 12CC, 12GM – Whether plaintiff engaged in unconscionable conduct in contravention of s 12CB
CIVIL PROCEDURE – Default judgment – where default judgment entered in earlier District Court proceedings – whether arguable defence to these proceedings – whether res judicata or issue estoppel from District Court judgment – whether claims precluded by Henderson/Anshun estoppel – no question of principle
COSTS – Party/Party – Bases of quantification – Indemnity basis – whether offer more favourable than result – whether indemnity costs should be ordered – no question of principle COSTS – Party/Party – Bases of quantification – Ordinary basis – where amended summons and two cross-summons dismissed – whether each party should pay costs – whether plaintiff should pay costs for whole proceedings – no question of principle
MENTAL HEALTH – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – forensic patient – extension of status as forensic patient – final hearing – whether unacceptable risk of causing serious harm if status as forensic patient ceases – whether risk can be managed adequately by less restrictive means
ADMINISTRATIVE LAW — judicial review of appeal panel decision — assessment of whole person impairment — where appeal panel provided five different statements of reasons for decision and five corresponding medical assessment certificates — whether appeal panel erroneously failed to make a s 323 deduction for pre-existing injury, condition or abnormality — whether appeal panel failed to respond to clearly articulated argument — whether appeal panel made an irrational or illogical finding of fact — adequacy of reasons of appeal panel — no reviewable error established despite poor quality of appeal panel’s documentation
CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of person under legal incapacity – settlement approved
MENTAL HEALTH – Criminal proceedings – murder – special verdict where prosecutor and defence agree that defence of mental health or cognitive impairment available – where accused diagnosed with schizophrenia – Court satisfied that defence established – special verdict entered
CHILD WELFARE — Adoption — Consent — Dispense order — where consent dispense order sought before application for adoption order — where birth father not identified — where reasonable enquiries made to identify and locate the father — HELD — consent dispensed with
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Sale of premises – Termination by Landlord – Where landlords and tenants both contributed to the purchase of the property – Whether the landlord holds a portion of interest in the property on trust for the tenant LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — NSW Civil and Administrative Tribunal — Jurisdiction and power – Whether the Supreme Court has jurisdiction to direct NCAT to order the termination of a lease
CIVIL PROCEDURE — Application to reopen case as to damages and liability following delivery of reasons for judgment — No issue of principle BUILDING AND CONSTRUCTION — Contract — Damages — Where asserted difficulty with proof of damages — Whether damages should still be awarded notwithstanding this difficulty JUDGMENTS AND ORDERS — Interest — Pre-judgment interest — Time from which interest is payable — No issue of principle
CIVIL PROCEDURE – proceedings commenced on behalf of persons under legal incapacity – settlement approval applications – Court to consider the best interests of persons under legal incapacity – settlements approved
COSTS – personal injury – where plaintiff successful– where defendants’ offer of compromise and Calderbank offer not accepted – where plaintiff did not better offers – impact of s 56 Civil Procedure Act 2005 (NSW), Workplace Injury Management and Workers Compensation Act 1998 (NSW) and the Workers Compensation Regulation 2016 (NSW) on exercise of Court’s costs discretion
TORTS – helicopter crash – cause of crash – mechanical defect – maintenance obligations – failure to properly inspect TORTS – negligence – contributory negligence – same obligation on both plaintiff and defendant to inspect prior to flight TORTS – damages – personal injury and property loss – psychiatric illness – failure to disclose symptoms to CASA over 6 years – inconsistent contemporaneous records – operation of business for 13 years – insufficient earnings to pay tax – consequences on assessment EVIDENCE – practice and procedure – the rule in Browne v Dunn – procedural fairness – failure to cross-examine – acceptance of witness’ evidence
COSTS – applications by defendant and cross-defendant for security for costs – where defendant is a foreign corporation with no Australian assets – whether plaintiff is an “attacker” or “defender” – quantum – plaintiff and cross-claimant to provide security for costs
CIVIL PROCEDURE – proceedings commenced on behalf of persons under legal incapacity – settlement approval applications – Court to consider the best interests of persons under legal incapacity – settlements approved
CIVIL PROCEDURE – application to strike out paragraphs of defence – where paragraphs do not adequately plead material facts – application granted in part
CIVIL – Criminal Assets Recovery Act 1990 (NSW) – substituted serious crime use property declarations under s 22AA and forfeiture orders under s 22 – whether interest in property an available interest for purposes of the Act – property sold and substituted serious crime use property declaration sought in respect of net proceeds of sale – whether original property was “used in, or in connection with” the serious crime related activity of the defendants – original property used to conceal a large commercial quantity of methylamphetamine for the purposes of supply – whether original property used in or in connection with manufacture of methylamphetamine by refinement – where the original property was used in, or in connection with the serious crime related activity of manufacturing and supplying a large commercial quantity of a prohibited drug contrary to ss 24 and 25 of the Drug Misuse and Trafficking Act 1985 (NSW) – declarations and forfeiture orders made STATUTORY INTERPRETATION – Criminal Assets Recovery Act 1990 (NSW) – construction of s 9B – meaning of "used in, or in connection with”
CIVIL PROCEDURE – proceedings commenced on behalf of persons under legal incapacity – settlement approval applications – Court to consider the best interests of persons under legal incapacity – settlements approved
CIVIL PROCEDURE – proceedings commenced on behalf of persons under legal incapacity – interim payment approval – where plaintiff incapable of managing affairs – interim payment made to manager of plaintiff’s estate
CIVIL PROCEDURE – proceedings commenced on behalf of persons under legal incapacity – settlement approval application – Court to consider the best interests of persons under legal incapacity – settlement approved
EVIDENCE ON COMMISSION – application pursuant to s 32 of the Evidence on Commission Act 1995 (NSW) – where application relates to family law proceedings in overseas Court – orders made
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.
COSTS – Party/Party – Bases of quantification – Indemnity basis – where offers of compromise – whether indemnity costs should be ordered – whether offer contains any real or genuine compromise – no question of principle
COSTS – Security for costs – dispute as to form of security – whether after-the-event insurance policy with anti-avoidance endorsement in favour of defendant adequate to achieve the objective of security for costs – whether policy may be readily, legitimately and contractually avoided CONTRACTS – Parties – Privity – whether third party able to enforce contract of insurance to which it is not party – no question of principle
COSTS — timing of costs order — whether should defer until remaining discrete issue resolved — where cannot conceive how resolution of remaining issue will affect costs orders, no reason to defer. SANDERSON OR BULLOCK ORDERS – principles at [31]-[39] — solicitor joined to proceedings after defendants allege that $100M loss wholly caused by solicitor and any damages should be reduced on account of solicitor’s wrongdoing – professional negligence claim not ultimately determined as plaintiffs succeeded in primary claim — whether solicitor a “successful defendant” — whether defendants an “unsuccessful defendant” — whether reasonable to join solicitor — assessment of reasonableness to be made as at time of joinder – whether causes of action substantially connected — whether fair to impose cost liability on unsuccessful defendant — Sanderson order made. INDEMNITY COSTS – whether defendants persisted in a hopeless case – principles at [51]-[53] – order not made. UNDETERMINED CLAIMS — unnecessary to determine claims between some parties on cross claim — undetermined claims were minor – claimant represented by same lawyers as successful claimants – substantial overlap of evidence. OFFER OF COMPROMISE — whether court should make an order otherwise – principles at [66]-[68] —whether offer a “genuine offer of compromise” — indemnity costs ordered.
CIVIL PROCEDURE – Pleadings – Particulars – Order sought for further particulars – Whether further particulars required – Where defendant has already filed List Response – Where matters were clarified by counsel during hearing of motion – Order for limited further particulars made
CRIME – murder – murder of family – where offender murdered mother and child at his martial arts studio by strangulation – where father was fatally stabbed at home – where offending is captured on CCTV – where offender did not appear to give any thought to avoiding detection – where murders were planned and premeditated – where motivation for murders was to acquire a BMW vehicle and family money SENTENCING – objective seriousness – where the objective seriousness of each offence needs to be considered individually – where objective seriousness of murders for all three of the victims is at the upper end SENTENCING – relevant factors on sentence – subjective circumstances – where it is submitted the offender’s difficult background affected his moral development – whether subjective circumstances should diminish the offender’s moral culpability SENTENCING – plea of guilty – where offender pleaded guilty at the first opportunity in the Local Court – where offender is entitled to be considered for a discount of 25 percent – whether the offender should receive a discount for his plea of guilty SENTENCING – life sentences – whether the murders attract sentences of life imprisonment or lengthy sentences of imprisonment – consideration of the four indicia in s 61(1) Crimes (Sentencing Procedure) Act 1999 – where there were multiple murders as part of a single episode of criminality – whether the offender’s culpability is so extreme that community interest can only be met through a life sentence
CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement and ancillary orders
BUILDING AND CONSTRUCTION — where homeowner and builder agreed Work Order — where homeowner brought successful renewal proceedings in New South Wales Civil and Administrative Tribunal — where builder unsuccessfully appealed to Appeal Panel — whether leave to appeal from Appeal Panel decision should be granted — whether proposed grounds of appeal raise questions of law
BUILDING AND CONSTRUCTION – adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) – where notice of adjudicator’s acceptance of adjudication application not served on respondents (plaintiffs) – where adjudication determination subsequently made in favour of claimant (first defendant) and District Court judgment entered in pursuant to s 25 of the SOP Act – whether failure to serve notice of acceptance of adjudication application constitutes jurisdictional error – interpretation of s 19 of the SOP Act – HELD: adjudication determination declared void and District Court judgment set aside
CIVIL PROCEDURE – Representative proceedings – Settlement or discontinuance – Court approval – Where proposed settlement is reasonable between the parties to the proceedings – Where the settlement is fair and reasonable amongst all group members – Known and unknown group members considered – Court satisfied – Settlement approved
MENTAL HEALTH – Hearing – Review – Forensic patient – Extension of status as a forensic patient – Previous review by Mental Health Review Tribunal – Where Attorney-General seeking orders pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Where defendant has been subject to previous extension orders – Section 122 test – Whether the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient – Whether the risk cannot be adequately managed by other less restrictive means – First limb made out – Where alternative treatment regime is unsatisfactory – Second limb made out – Extension order made
LAND LAW – possession of land – application to extend stay of writ of possession – where the applicant has a strong imperative to sell and made genuine attempts to sell – limited stay granted
CHILD WELFARE — Adoption — where proposed adoptive parent is child’s current foster parent —whether adoption order is in child’s best interests — whether birth parents’ consent should be dispensed with — whether change of name should be approved — whether adoption plans are in the best interests of child and proper in the circumstances — HELD — adoption order is clearly preferable and in child’s best interests — consent dispense orders are in the best interests of child — change of name approved — adoption plans are in the best interests of child and proper in the circumstances — adoption plans registered CHILD WELFARE — Adoption — Aboriginal placement principles — reasonable inquiries — where birth mother identifies as Aboriginal — where Secretary considers child is not Aboriginal — whether Secretary has made reasonable inquiries as to whether the child is an Aboriginal child — whether child is an Aboriginal child on the evidence before the court — HELD — reasonable inquires made — insufficient evidence to determine the child is an Aboriginal child
CIVIL PROCEDURE — Hearings — Adjournment — Where pending review of Federal Court Bankruptcy order — Continuation of case against second defendant — No viable defence to the claim — Other consequential orders
COSTS – Party/Party – Costs application for appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) – whether to depart from usual order for costs to be paid out of the proceeds of sale – no question of principle
COSTS – Party/Party – Costs application for appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) – whether to depart from usual order for costs to be paid out of the proceeds of sale – no question of principle
ADMINISTRATIVE LAW — Remedies — Equitable remedies – the plaintiff, a tenant was ordered by the NSW Civil and Administrative Tribunal (NCAT) to vacate certain premises for non-payment of rent – the plaintiff’s case that rent of the premises was abated because of an unexecuted repairs at the premises was rejected by NCAT – the plaintiff seeks relief in the nature of prerogative relief under Supreme Court Act 1970, s 69 – plaintiff moves for interlocutory relief staying the orders of the Tribunal pending a final hearing – whether interlocutory orders should be made – consideration of a serious question to be tried and the balance of convenience – no question of principle.
CIVIL PROCEDURE – dismissal application by the First and Fourth Defendants to dismiss the proceedings pursuant to UCPR r 13.4 or alternatively have the proceedings struck out pursuant to UCPR r 14.28 – no reasonable cause of action – proceedings dismissed
LAND LAW – Caveats – Extension of operation of caveat – where deed of family arrangement between mother, brother and sister – where brother lodges caveat over sister’s land pursuant to deed – where sister seeks to provide security to remove caveat pursuant to deed – whether adequate security provided LAND LAW – Caveat – Removal of caveat – whether Court should remove caveat pursuant to s 74MA of the Real Property Act 1900 (NSW)
ADMINISTRATIVE LAW — Jurisdictional error — Whether reviewable error of law — Whether Appeal Panel erred in characterisation of medical dispute — Whether medical assessment of lower extremity following ankle injury can include knee
CORPORATIONS — insolvency — winding-up — where application for adjournment of winding up refused — where winding up order made and liquidator appointed COSTS — where costs of adjournment application not ordered against administrators — where gross sum costs ordered in respect of winding up
CORPORATIONS — application for rectification of records maintained by ASIC — where appointment of receivers to property held by company on trust — whether the court has power to and should order rectification of registers maintained by ASIC — application of s 1322(4) of the Corporations Act 2001 (Cth)
WORKERS COMPENSATION – Liability – employment connected with a state – state in which the worker is usually based and works – whether payments were caused by mistake or made voluntarily – where inaccurate information gathered by claim investigators – where usual efforts of an insurer to inform itself of the true facts before accepting liability were made – held – payments made by mistake WORKERS’ COMPENSATION – Double compensation – compensation received in other law area – statutory choice of law rule – mechanism of recovery of payments – where restitution retains the character of compensation originally paid – held – cross defendant prevented from retaining benefit of cross claimant’s mistake to the extent to which it was relieved of liability
MONEY CLAIM – claimed loan – terms – whether monies loaned to company or director – whether proceedings were brought out of time – whether term of loan three months or loan repayable on demand
CIVIL PROCEDURE – application for leave under Civil Liability (Third Party Claims Against Insurers) Act 2017 and s 151D of the Workers Compensation Act 1987 to proceed against insurer – unopposed leave given – failure to comply with subpoena for production of documents – application to examine director – granted
CIVIL PROCEDURE – Separate determination of questions – Whether a construction of statute argument should be heard separately – Where the construction of statute would be determinative of evidence led at trial – Consideration of countervailing efficiency considerations – Where the construction of statute cannot be separated from facts of the case – Where there are overlapping factual issues – Where the separate determination of questions would not facilitate the overriding purpose – Separate determination of questions refused EVIDENCE – Advance rulings – Whether an order should be made for the Court to give advance rulings as to the admissibility and use of evidence in chief – Whether overriding purpose facilitated by advance rulings – Where admissibility and use of evidence will depend on the way the case unfolds at trial – Where no significant benefit to the advance rulings
APPEAL – Application for leave to appeal from the decision of an Appeal Panel of the New South Wales Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Principles governing grant of leave to appeal – Discrete treatment of contractual and statutory issues – No appeal as to question of contract APPEAL – Question of law – Construction of building contract – Whether the Appeal Panel’s construction of the contract was erroneous – Whether the contract provisions preclude the builder’s claim because the builder failed to take out warranty insurance – Principles of construction of commercial contracts – Notations APPEAL – Question of law – Whether the Appeal Panel erred in holding that the builder’s claim was part of the contract price – Builder not entitled to any payment from the owner except for the contract price APPEAL – Whether Appeal Panel erred in definition of “residential building work” – Home Building Act 1989 (NSW) – Operation of ss 10, 92 and 94 – Whether work of a preparatory nature constitutes “residential building work” – Effect of failure to obtain warranty insurance – Statutory bar on recovery – Relationship between Home Building Act 1989 (NSW) and contractual rights APPEAL – Relief – Failure to appeal Tribunal Decision on contract – Failure to bring effective appeal to Appeal Panel on contract or in Supreme Court appeal – Leave refused on contract ground – Appeal otherwise dismissed
CIVIL PROCEDURE – summary disposal – application for summary judgment by plaintiffs – where statements of claim plead malicious prosecution, misfeasance in public office and collateral abuse of power – notice to admit facts – where defendant disputes notice to admit facts – whether the defendant has no real defence arising from the pleadings or there are no serious conflicts as to material facts or important matters – where the motions are entirely without merit
CONTRACTS – Formation – Uncertainty – Intention to contract – Whether a contract existed between the parties – Objective assessment of conduct and surrounding circumstances to demonstrate an intention to create legal relations – Where party has a history of dealing with the plaintiff in both a personal and professional capacity – Where history of friendly favours for reimbursement of expenses exists between the parties – Requisite intention not proved – Lack of specific terms and indicia suggesting intention to create legal relations – Ground of appeal upheld CONTRACTS – Error of law – Where it is an error of law for a finding of fact to be made where there is no evidence to support that finding – Agency – Whether a party was acting as agent for the defendant when engaging the plaintiff – Where no evidence to suggest that the party had the authority as agent for the defendant – Where evidence suggests the contrary – Where party allegedly acting as agent an undischarged bankrupt – Error of law established – Ground of appeal upheld APPEALS – From error of law – Appeal from Local Court to Supreme Court – Terms of the Local Court judgment varied
CIVIL PROCEDURE – Pleadings– Amendment to Statement of Claim – Notice of Motion seeking leave to file and serve an Amended Statement of Claim – Leave opposed – Principles of requirements for a proper pleading – Vicarious liability – Where the perpetrator had previously been misidentified and amendment sought to attach vicarious liability to an unidentified officer – Where only broad, general description of perpetrator provided – Whether sufficient detail in pleadings to allow defendant to meet the case – Whether delay was sufficient to warrant refusal of leave – Whether there are sufficient material facts to allow the defendant to understand the nature of the perpetrator’s employment for the purpose of vicarious liability – Where plaintiff unable to positively identify abuser beyond general physical description – Where defendant still able to meet the claim – Principles of case management – Leave granted
CIVIL PROCEDURE – Representative proceedings – Pre-trial issues – Determination of common questions – Breach of consumer guarantees – Section 61 of the Australian Consumer Law – Fitness for a particular purpose – Merck orders – Whether questions need to be ventilated at trial – Where the disputed questions should be included as common questions and fixed for hearing
CRIMINAL LAW – murder – trial by judge alone –circumstantial Crown case – where unidentified intruder hypothesis does not rise to the level of a reasonable possibility – satisfied beyond reasonable doubt that the accused was the assailant – mental health impairment defence raised under s 28 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – where the accused diagnosed with Schizophrenia disorder – distinction between legal and ‘moral’ wrongfulness – verdict of act proven, but not criminally responsible.
EQUITY – Remedies – where the first and second defendants diverted fourteen projects from the first plaintiff to the third and fourth defendants – where the first and second defendants dishonestly breached their fiduciary duties in diverting those projects and third and fourth defendants knowingly assisted in those breaches – where thirteen of those projects resulted in a net profit for the third and fourth defendants and one resulted in a loss – where first plaintiff elected for an account of profits in respect of the thirteen profitable projects and did not seek any remedy in respect of the loss-making project – whether the defendants were entitled to set off, against their liability to account for the profits of thirteen profitable projects, the loss on the remaining project – whether the first plaintiff was entitled to compound interest
LAND LAW – possession of land – deed of settlement included short minutes of order for judgment and possession executed by the parties – a payment required 5 December 2025 – no payment made – no basis to set aside settlement deed – possession and judgment ordered
EVIDENCE – Identification evidence – Recognition evidence – Opinion evidence – Opinion rule – Admissibility – ‘Ad hoc expert’ – Visual identification – Where the accused was known to the witness for a period of many years – Whether probative value is outweighed by the danger of prejudice to the accused – Whether identification from poor quality CCTV footage where there is an absence of any defining facial features in the footage is opinion evidence as opposed to identification evidence – Where jury may unfairly rely upon identification evidence where CCTV footage is poor quality and witness has a prior familiarity with the accused – Evidence admitted
EVIDENCE – Admissions – Admission made during a controlled operation – Where admission unrelated to the offence(s) the subject of the relevant Controlled Operation Authority – No impropriety in recording EVIDENCE – Discretions – Exclusion of evidence – Criminal proceedings – Improperly or illegally obtained evidence – Application of the Law Enforcement (Controlled Operations) Act 1997 (NSW) – Whether evidence obtained during a controlled operation should be excluded – Where the accused made specific admissions of their guilt to an offence not the subject of the relevant Controlled Operation Authority – Where a party to the private conversation is a participant in an authorised operation – Prohibitions on installation, use and maintenance of a surveillance device do not apply EVIDENCE – Witness evidence – Application of section 138 of the Evidence Act 1995 (NSW) – Constitution of “improperly obtained evidence” – Whether a participant in an authorised operation acted unlawfully when providing the subject of an authorised operation with resources known to be for the purchase and subsequent use of illicit substances – Controlled operation determined to have been conducted in accordance with the authorities granted
APPEALS – appeal from decision of Associate Justice – interlocutory decisions – separate but related proceedings – regrettable – rehearing – grounds – whether error in refusing leave to file amended summonses – whether error in dismissing application for discovery – whether error in dismissing application for stay of costs assessment – whether failure to provide reasons – finding that the primary judge erred in refusing leave to amend summonses – orders made granting leave – appeal otherwise dismissed APPEALS – further evidence – where plaintiff sought to rely on two affidavits not before primary judge – contents known to plaintiff at time of hearing – contents not in dispute – tender rejected
CIVIL PROCEDURE – striking out and dismissal – proceedings previously dismissed against the tenth and fifteenth defendants pursuant to UCPR r 13.4(1)(b) – plaintiff seeks to set aside that order dismissing proceedings pursuant to UCPR r 36.15 – plaintiff alleges evidence relied upon by the defendants was fraudulent – dismissal of plaintiff’s motion COSTS – Party/Party – self represented litigant – application by tenth defendant for a gross sum costs order – costs order made with 40 percent discount
CIVIL PROCEDURE – separate determination of questions – proceedings for breach of equitable and contractual obligations of confidence – proposed separate determination of pecuniary relief subsequent to determination of “all other issues” in the proceedings – significant risk of bifurcation and delay in the event of an appeal – separate question refused
APPEALS — leave to appeal orders of the Local Court — Local Court Act 2007, ss 39, 40 — no appeal as of right — where amount of dispute under statutory threshold — leave refused — no issue of principle, question of general importance or reasonably clear injustice — costs disproportionate to amount in dispute APPEALS — appeal on question of law — whether primary judge erred in applying discount for damages — no error established