CIVIL PROCEDURE – Administrative law – Judicial review – Interim relief – Whether orders sought are necessary to ensure the plaintiff’s effective access to the courts in civil proceedings – Whether the plaintiff has access to an “irreducible minimum” of resources required in order to ensure effective access to the courts – Courts are not to second guess the defendant’s expertise about the safe and secure management of correctional facilities – Suppression and non-publication orders – Amicus curiae – Referral to Pro Bono Panel for legal assistance
EVIDENCE – summary – Evidence Act 1995 (NSW), s 50 – plaintiff seeks to tender summary of 395 lever-arch folders of documents – whether “evidence of the contents of … documents in question” – whether summary interprets underlying documents, involves exercise of judgement, is a submission or gives expert opinion – principles at [6]-[12] – plaintiff reduces tender to 16 lever-arch folders – now possible conveniently to examine the evidence.
CRIME – SENTENCE – murder – guilty verdict after Judge alone trial – where the deceased was assaulted by the offender and died from head injuries – where the deceased suffered 71 injuries to his body – where motive for assault was to elicit information – mid range objective seriousness – moral culpability – criminal history – facilitation of administration of justice – aggregate sentence
SUCCESSION — Wills — Succession Act 2006 (NSW) s 27 — Application for rectification of Will — Whether Will gives effect to the testator’s intention — Will gifts nephew property traced by the Lachlan River, including stock and crops on the land but omits reference to water access licence required to utilise the property effectively — Evidence from solicitor that omission was an oversight — Found that Will did not give effect to testator’s intention — Rectification orders made SUCCESSION — Wills — Succession Act 2006 (NSW) s 27 — Request for an extension of time for making a rectification application — Whether extension is necessary — Whether final distribution of estate has been made — Order extending time for application made
CIVIL PROCEDURE – Commercial List, Technology and Construction List – Removal from – Where proceedings neither arose out of commercial transaction nor of importance in trade or commerce – No issue of principle
CIVIL PROCEDURE – Commercial List, Technology and Construction List – Entry in – Where proceedings seek declaratory and compensatory relief for alleged breaches of leasehold covenants – Where proceedings ought be entered in Real Property List – No issue of principle
EVIDENCE – admissibility of evidence – ruling on summary of DNA table – s 50 Evidence Act not satisfied – where the evidence can be given by reference to expert certificate and/or oral evidence – where crime scene evidence already given sufficiently establishes the basis for various matters contained in the expert's report.
CORPORATIONS – application for relief under s 1322(4)(a) of the Corporations Act 2001 (Cth) regarding plaintiff’s failure to properly appoint an auditor for a period spanning approximately 9 years – where failure to appoint auditor was due to honest inadvertence – where plaintiff acted promptly to address the error once identified – where no substantial injustice resulted from non-compliance or is likely to be caused through granting relief – declaration that appointment of auditor not invalid by reason of contraventions of the Corporations Act
SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for relief PRACTICE AND PROCEDURE — Injunctions — Interlocutory injunctions — Interim order
EVIDENCE – expert evidence – application to exclude expert evidence – s 79 Evidence Act – opinion within area of expert’s specialised knowledge of bloodstain pattern analysis – where the expert conducted technical review of secondary materials generated in the investigation – HELD expert formed own independent opinion
EVIDENCE – admissibility – photographic evidence admissible for limited purpose of illustrating witness evidence – where photographs have been digitally enhanced and zoomed in – where photographs taken some 19 months after the event – jury direction regarding limited purpose of evidence
EVIDENCE – fairness to a witness – directions to jury – where the matter of a witness having seen video evidence in the trial was elicited in cross-examination – where re-examination as to that matter was put to the witness – where direction made to jury regarding the practice of legal representatives’ conferring with witnesses – HELD no further jury direction required EVIDENCE – fairness to a witness – directions to jury – where the witness cross-examined on the state of mind of another person – questions asked outside rulings on cross-examination – objection to questions upheld – where direction made to jury to disregard exchange between counsel and witness – HELD no further jury direction to be made as proposed
EVIDENCE – Crown application to cross-examine unfavourable witness – s 38(3) Evidence Act – where the Crown raised the proposition the witness has tailored evidence and/or not told the whole truth – where the witness has not had the opportunity to respond to the proposition
CIVIL LAW – application for expedition – trespass to person – elderly infirm defendant – where allegations of sexual abuse admitted – where fairness dictates defendant allowed opportunity to retain expert evidence
ADMINISTRATIVE LAW — judicial review — jurisdictional error — motor vehicle accident — medical assessor assessed permanent impairment of a body part which did not fall within the scope of referral to medical assessor — where medical assessor denied procedural fairness — error of law on the face of the record and jurisdictional error — President’s delegate refused to refer decision to appeal panel — decisions of medical assessor and President’s delegate must be set aside — Motor Accidents Injuries Act 2017 (NSW), ss 4.11, 7.20, 7.21, 7.26 ADMINISTRATIVE LAW — application for extension of time granted as review panel could have corrected error had President’s delegate allowed it to be referred
JUDGMENTS AND ORDERS — Amending, varying and setting aside — Consent orders — Where parties had agreed a form of interlocutory orders — Where plaintiff now seeks to vary those interlocutory orders — Whether Court can order for interlocutory orders to be varied
CIVIL PROCEDURE – summary judgment – whether summary judgment should be ordered in plaintiff’s favour – where plaintiff claims priority over sale proceeds of two properties – where the sale proceeds have been paid into Court – where 11th to 28th defendants claim their interest in the Kelly Street property should prevail – where plaintiff’s equitable claim is based on an unregistered mortgage provided as security under a loan agreement – where 11th to 28th defendants purchased lots in an unregistered plan of subdivision – where contracts were subsequently rescinded and subdivision never occurred – whether 11th to 28th defendants each acquired an equitable interest in the form of a purchaser’s lien – whether 11th to 28th defendants’ rights were mere equities – where allegations of postponing conduct – not an appropriate matter for summary judgment in relation to matters in contest
SUCCESSION — Family provision — Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether factors warranting – whether deceased promised child provision – whether child suffered detriment due to reliance on alleged promises – whether a Crisp order should be made – whether estate assets were misappropriated – provision refused – no issue as to principle
EVIDENCE — witness evidence — warnings — unreliable evidence — whether s 165(1)(d) warning required — whether witness might reasonably be supposed to have been criminally concerned in events giving rise to the proceedings — whether “events giving rise to the proceedings” includes criminal activity that makes up the background to the alleged crime
CIVIL LAW – restraining orders made – order for compulsory examination refused – accusatorial nature of criminal proceedings – where defendant not afforded to be heard
CIVIL LAW – separate determination of issue of liability – where toddler injured when kicked by horse at show-jumping event – where plaintiff’s injuries unlikely to stabilise for many years – quantum uncertain until that time – where liability in issue – where memories of witness will fade – relevant consideration – whether potential savings illusionary – order for separation of issues made
CONTRACT — sale of goods — miller supplies bulk flour to baker for 5 years — baker makes ‘artisan’ bread — requires flour suitable for its processes including high water absorption, long fermentation and no additives — extensive but inconclusive attempts by parties to formulate specifications for flour — uneventful supply for 4 years – change of head baker and recipe — drought followed by flooding rains — seasonal variation in flour — baker encounters difficulties using flour — continues to order flour until supply ceased for non-payment — whether breach of contract. CONSUMER LAW — false or misleading representations — representations 8 years ago — whether representations made — whether ‘puffery’ — principles at [33]-[34], [64] — whether miller represented that it could supply flour that met baker’s specifications and requirements — unlikely, where no evidence that the baker had “specifications and requirements” at the time — whether represented would supply unique blend of consistent quality — represented consistent quality with seasonal variations — whether misleading — principles at [71]-[74] — reasonable basis for representation as to future matter. PARTIES – contractual document addressed to incorrect company – miller and baker continue to trade for 5 years – who were the contracting parties – principles at [95]-[96] – correction by construction – obvious error. TERMS – miller issues terms of sale – miller prepares Product Information Form (PIF) and Product Specification – letter of agreement – what were the contractual terms – whether PIF incorporated by reference – implied terms – Sale of Goods Act 1923 (NSW) – acceptance of updated terms of sale inferred from conduct – principles at [101]-[115]. SET-OFF – whether entitled to set-off damages against debt ESTOPPEL — Estoppel by convention — Mutual assumption — Course of dealing — whether the baker estopped from disputing unpaid invoices where baker continued to order flour notwithstanding knowledge of flour deficiencies — no mutual assumption.
ADMINISTRATIVE LAW – consent orders – application to set aside decision of the Appeal Panel of the Personal Injury Commission – where Appeal Panel had regard to inadmissible material – where parties agreed there had been an error of law on the face of the record – consent orders made
SUCCESSION – family provision – intestacy – application for family provision order under s 57(1)(e) or (f) of the Succession Act 2006 (NSW) – whether plaintiff is an eligible person – whether plaintiff was dependent on the deceased – whether deceased had a moral obligation or duty to provide for plaintiff – whether plaintiff was a member of the same household as deceased for a period – whether factors warranted plaintiff making an application pursuant to s 59(1)(b) – whether plaintiff a natural object of testamentary recognition in circumstances where she had an ‘on and off again’ relationship with the deceased – where defendant was administrator of the deceased’s estate and his sister – family provision application successful
CONTEMPT — civil contempt — breach of orders — Harman undertaking — distinction between civil and criminal contempt — where orders made to restrain defendant from publishing any matter conveying the same or substantially similar imputations to the publications complained of pending the hearing of this matter — where publications were made after the order — meaning of “pending the hearing of this matter” — defendant found guilty of contempt DEFAMATION — defamatory matter — particular imputations — fraud — misuse of charitable funds for personal financial benefit — misappropriation of funds — misleading people for the purpose of raising funds — registered charity — Wild2Free — wildlife care
CIVIL LAW – plaintiffs seek leave to rely on expert evidence in reply – where both parties failed to comply with case management orders – where plaintiffs’ delinquency in obtaining report most egregious – whether evidence properly categorised as evidence in reply – contest between experts relating to cause of house fire – whether fire caused by electrical fault in appliance or lightning strike – case management – whether plaintiffs bound to retain original expert to provide evidence in reply – multiplicity of experts – fairness to defendant – imminence of hearing date and expert conclave – where part of expert report raises new issues – where part of report responsive to defendant’s expert’s opinion – avoiding multiplicity of experts on same issue – conditional grant of leave – plaintiffs put to election as to the expert upon which they rely – spirited submissions
CIVIL PROCEDURE — cross-vesting — transfer to Supreme Court from District Court — transfer to Supreme Court of Tasmania — related proceeding — interests of justice — negligence claim — motor vehicle accident — where proceedings against the same defendant for the same accident have been commenced in Tasmania — where the plaintiffs in the Tasmanian proceedings are the current plaintiff’s family members — where defence has not been filed in current proceedings
COMMERCE – Shipping – Imposition of wharfage charges by port authority – Quantification of imposable wharfage charges – Interpretation of determination of Australian Competition Tribunal – Whether plaintiff entitled to rates as determined by Tribunal on proper interpretation of determination – Whether plaintiff entitled to pay determined wharfage charge without also paying determined navigation service charge – Plaintiff entitled to rates as determined – Scope of determination required combined use of wharfage charge and navigation service charge JUDGMENTS AND ORDERS – Interest – Award of on judgment – On order for payment of outstanding wharfage charges – Whether defendant’s evidence sufficient to establish entitlement to interest on outstanding wharfage charges at maximum statutory rate – Evidence insufficient – Defendant did not establish entitlement to interest
EQUITY – trusts and trustees – common intention constructive trusts – informal agreement between two brothers to build duplex development – where one brother owns underlying land – each brother to occupy respective property on completion of duplex development – loan for construction costs taken out jointly and secured over the property – designers and tradespersons engaged jointly by brothers – construction completed – subdivision undertaken – where brother registered on both titles dies intestate and prior to transferring title to one lot to other brother – title to both lots transferred to deceased’s widow following transmission application – whether lot occupied by living brother held on trust for him pursuant to agreement with deceased brother – whether detriment established for purposes of common intention constructive trust – detriment established – common intention constructive trust established
EQUITY — Trusts and trustees — Judicial advice — Decision to continue or settle proceedings — Decision to defend proceedings SUCCESSION — Executors and administrators — Rights, powers and duties
CONTRACT – adviser’s exit from financial services business – whether breach of contract established – whether loss established. OPPRESSION – Whether oppression established – whether compensable loss established.
CIVIL LAW – orders to facilitate the taking of evidence of commission – request from overseas court – statutory criteria satisfied – delightfully succinct submissions – no question of principle
CIVIL PROCEDURE – Implied obligations – Hearne v Street obligation – Release from obligation – Where plaintiffs seek release to use documents discovered by defendants to plead action in England and Wales – Whether release appropriate in circumstances – Release appropriate – Application granted
PROCEDURE — default judgment — claim in nature of indemnity for amounts former director liable pursuant to Director Penalty Notices — whether former director entitled to indemnity under corporate constitution — whether continuing director and her company misled or deceived him in trade or commerce — effect of irrevocable undertaking to appoint restructuring practitioner under s 453B of Corporations Act 2001 (Cth) — form of relief
CRIMINAL LAW – Murder – trial by judge alone – verdict – where deceased was assaulted by accused and died from head injuries – where accused denies that he intended to inflict grievous bodily harm on the deceased – where accused admits he is guilty of manslaughter but not murder – assault witnessed by two persons – crime scene evidence – delayed post-mortem examination – where deceased suffered 71 injuries to his body – where motive for assault was to elicit information – relevance of acts of gratuitous cruelty to ultimate issue – whether reasonable possibility that the accused did not intend to inflict grievous bodily harm – accused guilty of murder
CRIME — murder — plea of not guilty — elements of murder — causation — circumstantial evidence — inferences — where medical mechanism of death is not straightforward — where experts disagree on cause of death — whether assault by accused caused death — cause of death versus mechanism of death — methadone overdose — commotio medullaris — positional asphyxiation — axonal injury — domestic violence — requisite intention not found — verdict of not guilty to murder but guilty of manslaughter CRIME — manslaughter — alternative to murder — unlawful killing — plea of not guilty — elements of manslaughter — verdict of guilty CRIME — violent offences — assault occasioning actual bodily harm — guilty plea CRIMINAL PROCEDURE — trial — judge alone — Criminal Procedure Act 1986 (NSW) s 133
CIVIL LAW – habeas corpus – urgent call to Duty Judge – where no formal application made – where Judge exercised supervisory role by calling police station – no evidence of unlawful detention – putative application for orders refused
CIVIL LAW – interstate freezing notice – criminal assets – where order registered in New South Wales – leave to re-open – cancellation of registration of order – no question of principle
CORPORATIONS — Director’s duties — Where sole director of first company sells company to second company, being alter ego of the director, for minimal consideration — Whether sole director has breached duties under Corporations Act 2001 (Cth), ss 180, 181, 182 CORPORATIONS — Constitution and replaceable rules — Construction of company’s constitution — Whether company’s constitution operated to retrospectively ratify breach of fiduciary duty CORPORATIONS — Director’s duties — Whether director should be relieved of liability under s 1318 of the Corporations Act 2001 (Cth) EQUITY — Fiduciary duties — Rule in Barnes v Addy — Whether second company liable for knowing receipt — Whether remedy of constructive trust is in the circumstances appropriate
CRIME – bail – release application – second application for bail – s 74 Bail Act 2013 – whether there are grounds for a further release application –show cause – whether the applicant has shown cause – where the applicant’s access to the brief of evidence is severely constrained by custodial conditions and computer access – where the applicant’s legal representative has been unable to gain any form of meaningful access to him – where applicant will be denied a chance adequately to prepare for his trial – where the Crown case is not straightforward or uncomplicated – where unacceptable risks are capable of amelioration by the imposition of conditions
CRIME – Sentence – basis of liability “constructive murder” – attempted armed robbery as the foundational offence – discharge of firearm causing fatal wound – multiple disputes of fact – admissibility of voice recognition evidence – ad hoc expertise – repeated listening to telephone intercept product and CCTV footage – confirmation bias – whether reliability a relevant factor to admissibility under s 79 – significantly lesser role than the co-accused –background of deprivation and disadvantage – youth – mental health conditions – interrelatedness of deprived background, mental health conditions and substance abuse – reduced moral culpability – finding of special circumstances
CIVIL PROCEDURE — Interlocutory applications — second motion brought in the Equity duty list to restrain the continuation of proceedings in the Industrial Relations Commission – previous motion raising the same subject matter which was determined adversely to the applicant – whether the second motion is founded on a material change of circumstances since the first motion was heard or upon the discovery of new material which could not reasonably have been put before the Court on the hearing of the first motion.
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – Injunction sought in the Supreme Court –Applicant seeks by her next friend, her husband, an injunction against her dismissal from a teaching position – where dismissal is effected prior to hearing – where concurrent proceedings in the Industrial Relations Commission – discretionary considerations. COSTS – Party/Party – Orders against non-parties –Personal costs orders against next friend.
CRIME – Sentence – murder – violent assault – offence committed in the home of the deceased – plea of guilty at the first opportunity – childhood deprivation and disadvantage – childhood exposure to extensive drug use in extended family – reduction in moral culpability – genuine remorse – difficulty in predicting prospects of rehabilitation and likelihood of reoffending – progress in custody – special circumstances
CRIME – Notice of Motion – application to remit the matter to the Local Court for further committal hearing – where technological difficulties with the audio visual link hampered the proceedings – whether the magistrate ascertained whether or not the accused pleads guilty to the offence – whether the magistrate accepted the plea of guilty in committal proceedings for the offence – application dismissed
EVIDENCE – admissibility – hearsay evidence – exceptions – criminal proceedings if maker not available – s 65 Evidence Act 1995 – where witness has been issued a subpoena to give evidence – whether the witness is mentally or physically unable to give the evidence – where the witness does not have a recognised psychiatric illness or psychiatric history – where it is reasonably practicable for witness to overcome manifestations of trait anxiety
CRIMINAL PROCEDURE – application to discharge the jury – where there is disputed admission of enhanced photoshopped crime scene photographs – where meeting the additional evidence may require independent expert opinion – whether there is a real risk the jury will form an unreasonable view that the defence seek to challenge the crime scene investigation unfairly – HELD Crown may meet defence challenges during the presentation of the Crown case – application refused
EVIDENCE – application made under s 18 Evidence Act 1995 (NSW) – defacto granddaughter of accused objects to give evidence – where witness is a child per Pt 2 Dictionary to Evidence Act – where witness is concerned about familial conflict – where witness was present throughout the whole of the central events – where the desirability of the evidence outweighs risk of harm – HELD application refused
PROCEDURE – application to vacate hearing date – revisiting informal ruling made five weeks earlier – no material change in circumstances – no demonstrated incapacity to prepare for trial – prejudice to other parties because applicant an undischarged bankrupt – application dismissed
CORPORATIONS — directors and officers — appointment, removal and retirement of directors — where director resigned by written notice to company chairman — where company did not provide notice of director’s resignation to the Australian Securities and Investment Commission within 28-day period — where relief sought under s 203AA of the Corporations Act 2001 (Cth) — where orders made fixing director’s resignation date at the time that notice of resignation was provided to company’s chairman
CORPORATIONS — voluntary administration — Deed of company arrangement — application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to DOCA — whether residual equity in company — whether shareholders unfairly prejudiced
CIVIL PROCEDURE — Interlocutory injunctions — minority shareholder seeks control of corporate group by acquiring rights of lenders to the group — corporate group presently in default under Syndicated Loan Facility — actions by former directors and chief executive officer said to be in breach of fiduciary obligations – whether a serious question to be tried – where balance of convenience lies – interim injunction granted.
CRIMINAL PROCEDURE – application to discharge the jury – where jury cautioned pursuant to s 165 Evidence Act 1995 (NSW) – where the witness was cross-examined in relation to crime scene photographs taken by other officers – where the witness had no direct knowledge of circumstances related to the photographs – hearsay evidence – whether the challenge to the hearsay evidence was the subject of agreement between counsel
CRIMINAL LAW – Evidence – Cross-examination of witness – credibility rule – where counsel for the accused cross-examined witness as to credit – where the witness has a criminal history of traffic offences – s 103 Evidence Act exception satisfied – cross-examination question objected to is allowed
CRIMINAL LAW – procedure – admissibility of ISRAPS evidence of crime scene and blood staining – where blood stain experts will give evidence – where a proper direction can be given to the jury
EVIDENCE – admissibility of crime scene photograph – misleading or prejudicial evidence – where photograph depicts significant amount of bloodstaining – where bloodstaining has been diluted by rain – whether evidence is relevant to a central fact in dispute
EVIDENCE – admissibility of evidence – where the parties seek to tender a selection of enhanced still photographs of CCTV and dashboard camera footage central to the fatal incident – where the footage depicts a degree of violence and use of makeshift weapons by the accused and the deceased – no forensic purpose found – where the stills present a skewed view of the circumstances – where the jury have access to the entirety of the footage
CRIMINAL PROCEDURE – pre-trial hearing – ruling on admissibility of late served additional material served – no identified forensic disadvantage in the conduct of the trial arising EVIDENCE – s 146 Criminal Procedure Act – application for exclusion for non-compliance with pre-trial disclosure requirements – where late served evidence included is in Amended Crown Case Statement – non-compliance waived
CRIMINAL PROCEDURE – practice and procedure – trial – change of venue – trial aborted on second day – limited availability of court space in Wollongong in 2025 – accused in custody since December 2022 – interests of justice – “expedient” in the interests of justice to fix the trial to commence in Sydney in May 2025
EVIDENCE – credibility evidence – accused – ERISP evidence denying the use of a baseball bat – where accused admits to using the baseball bat in the same interview – whether prior inconsistent statement – probative value of evidence – not unfairly prejudicial – evidence allowed
EVIDENCE – documentary evidence – dash-cam footage – where the Crown superimposed red squares on the accused’s and deceased’s hands to draw the jury’s attention to contents or otherwise – permissible for the purpose of assisting the jury
CRIMINAL PROCEDURE – trial – jury – application to discharge jury – discharge of whole jury – Crown’s service of lay witness and expert statements on the second day of trial – where parties have already opened their cases – where the new materials are at odds with the accused’s case theory based on evidence previously served – interests of justice to discharge the jury and adjourn the trial
EVIDENCE – tendency evidence – tendency rule – murder – self-defence – accused’s reliance on the deceased’s tendency evidence – tendency to opportunistically deploy as a weapon any object readily available – tendency insufficient to provide significant probative value as to the deceased’s tendency to arm himself with a knife under s 97(1)(b)
EVIDENCE – tendency evidence – tendency rule – murder – defence of self-defence – accused’s reliance on tendency evidence of the deceased – whether the tendency evidence has “significant probative value” under s 97(1)
JUDGMENTS AND ORDERS — Amending, varying and setting aside — Whether defendant’s motion to vary orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.16(3A) should be granted — Where defendant seeks additional declarations and an order under UCPR r 42.25(1) COSTS — Party/Party — General rule that costs follow the event — Where principal judgment was generally in favour of the defendant — Where plaintiffs submit they had a measure of success — Whether parties should pay their own costs
CIVIL PROCEDURE – medical examinations – r 23.4 Uniform Civil Procedure Rules 2005 (NSW) – whether the request for a further medical examination is reasonable – real purpose of the request is to ascertain whether malingering – improper and impermissible purpose – motion dismissed
EVIDENCE – course of evidence – reopening case – whether the interests of justice are better served by allowing or rejecting the application – where significant shift in plaintiff’s financial resources and financial needs following reservation of judgment SUCCESSION – family provision – claim by adult daughter for provision from mother’s estate under Succession Act 2006 (NSW), Ch 3 – proceedings not commenced within time – whether sufficient cause shown to extend time – where claim for provision brought by amended statement of claim 19 days out of time SUCCESSION – family provision – claim by adult daughter from mother’s estate – where nominal provision made for plaintiff in mother’s will – where estate left to plaintiff’s brother – where brother caring for mother – where plaintiff and mother had complete breakdown of their relationship – where plaintiff had minimal contact with mother for two years before her death amidst fiercely contested legal proceedings – where needs of brother exceed those of the plaintiff – whether adequate provision made for the proper maintenance, education or advancement in life of the plaintiff – nature and quantum of provision to be made having regard to the facts known to the court at the time the order is made COSTS – family provision – collective costs outrageously disproportionate to the value of the deceased estate
CIVIL PROCEDURE — Application by plaintiff for vacation of hearing dates of a family provision claim — Illness of counsel — Plaintiff’s counsel contracted RSV less than two business days before two-day hearing scheduled to commence — Counsel’s discussion with doctor indicates he would be quite unwell for at least 3-4 days — Counsel has been involved from the beginning of the matter for a period of two years and is acting on a conditional fee basis — Subject matter not overly complex but strongly contested — One of the defendants is the deceased’s elderly widow with significant health issues — Experienced counsel for the plaintiff confirmed the day before the scheduled hearing that the position regarding his health and asserted inability to discharge his duties has not changed — Hearing dates vacated — Defendants’ counsel’s submission that plaintiff’s counsel should simply “soldier on” rejected LEGAL PRACTITIONERS — Discretion of judge in urgent circumstances to act upon representations from the bar table
APPEAL – sentence appeal – penalty for young person in Children’s Court – whether penalty excessive – aggregate control order imposed for multiple offences – some offences objectively serious – favourable personal circumstances of offender – whether commencement date to be backdated to account for presentence custody CRIME – Children’s Court – sentencing – control order – period not to exceed 2 years unless accumulating on existing order – aggregate control order subject to 2-year limit – limit of 3 years applicable only to new order extending term of existing order CRIMINAL PROCEDURE – appeals – appeal from Presidential Children’s Court to District Court – deemed appeal to Supreme Court – criminal proceeding – rules governing civil proceedings inapplicable
CRIME – bail – release application – further release application – change of circumstances – where trial date was vacated – conspiracy to import a commercial quantity of a border controlled drug – AN0M devices – admissibility of AN0M evidence – strength of prosecution case – very strong Crown case – where substantial delay – lengthy period of time in custody – stringent bail conditions – where substantial security offered – combination of circumstances – cause shown – unacceptable risk test – bail concerns – where risk of flight – strong evidence of association with international criminal syndicates – where applicant committed present offence whilst on parole – non-compliance with parole – unacceptable risks of failure to appear and committing further serious offence – bail refused
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
CRIMINAL LAW – murder – application by accused for trial by judge alone – pre-trial publicity – whether in the interests of justice to make order for judge alone trial – application refused
CONTRACTS – Breach of contract – Remedies – Damages – Expectation damages – Quantification of expectation loss – Whether evidence adduced by plaintiff sufficient to establish extent of expectation loss occasioned by repudiation – Whether plaintiff expected to adduce further evidence to establish expectation loss – Plaintiff’s evidence insufficient – No damages awarded on head as claimed CONTRACTS – Breach of contract – Remedies – Damages – Limits on recovery – Remoteness – Where plaintiff claims loss in form of wages paid to carpenters retained on construction of defendants’ residence – Where plaintiff’s employment of carpenters not brought to defendants’ attention prior to retention – Whether loss natural result of defendants’ repudiation of contract – Whether second defendant assumed responsibility for loss – Loss too remote – No damages awarded on head as claimed CONTRACTS – Recovery on quantum meruit – Nature of claim in quantum meruit – Free acceptance – Where plaintiff effected further construction works at defendants’ request – Whether plaintiff entitled to restitution for construction work outlaid – Contract in favour of plaintiff inferred from defendants’ request for further construction works
EQUITY — Fiduciary duties — Fiduciary relationships — Where plaintiffs and defendant were joint and several co-attorneys for principal — Whether defendant breached her fiduciary duty in selling principal’s shares and borrowing the proceeds at interest for specified purpose — Whether principal consented to the sale of the shares and the terms of the loan — Where plaintiffs and defendant actively worked together to decide which shares were to be sold and the terms on which the funds would be lent COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Whether indemnity costs should be awarded COSTS — Party/Party — Bases of quantification — Trustee basis — Whether exception in r 42.25 of the Uniform Civil Procedure Rules 2005 (NSW) applies
COMMERCE – Restraint of trade – Interlocutory relief – Whether orders should be made for an interlocutory injunction – Whether there is a serious question to be tried – Whether the balance of convenience favours the granting of interlocutory relief
SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 SUCCESSION — Construction — General principles — Structure and scheme of will SUCCESSION — Construction — Gifts
COSTS — application for a gross sum costs order — where plaintiff an incorporated legal practice acting for itself — where evidence before the Court insufficient to support extent of costs claimed — exercise of discretion to award discounted costs
CRIME – evidence – murder – application to release evidence given before the Crime Commission – Crime Commission Act 2012 (NSW) s 45(5) – where material relevant to murder trial – whether disclosure ‘may’ be desirable in the interests of justice – where witness is protected – where Crown given a summary of coerced evidence given before Crime Commission – procedural fairness in pre-trial disclosure
CIVIL PROCEDURE – Service – Informal service – Where plaintiff’s agents personally served originating documents on defendant’s ex-father-in-law – Whether such service sufficient steps taken for purpose of bringing originating documents to notice of defendant – Application for confirmation of informal service dismissed CIVIL PROCEDURE – Service – Substituted service – Where defendant ordinarily resident in People’s Republic of China – Where defendant prohibited by Consumption Restriction Orders from departing from People’s Republic of China – Where plaintiff attempted personal service on two occasions – Whether originating documents unable practicably to be served on defendant – Application for order for substituted service dismissed
HIGH RISK OFFENDER – preliminary hearing – serious violence offender – application for Interim Supervision Order (ISO) – where making of order and 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 – orders for expert assessment and ISO imposed
CORPORATIONS – insolvency – winding up – application for leave under s 459S of the Corporations Act – where applicant failed to serve the s 459G application within the statutory period – where applicant seeks to rely on the ground that the debt claimed in the statutory demand is disputed – whether requirements for leave under s 459S are satisfied – application dismissed
ADMINISTRATIVE LAW – judicial review – medical assessor’s determination of whole person impairment for the purposes of the Motor Accident Injuries Act 2017 (NSW) – assessment of whole person impairment as a result of psychiatric injury – whether the medical assessor took into account an irrelevant consideration – consideration that “no overt cognitive difficulties noted during the assessment” wrongly assigned to the “concentration, persistence and pace” area of functional impairment as defined in the Motor Accident Guidelines – error established – decisions and reasons of assessor set aside AMDINISTRATIVE LAW – judicial review – where medical assessor’s function included obtaining necessary information to assess whole person impairment for the purposes of the Motor Accident Guidelines – where necessary information not obtained – medical assessment of class 2 for the “Concentration, consistency and pace” area of functional impairment – where class rating based on considerations that did not provide a basis for distinguishing between class rating 2 and class rating 3 – error established
ADMINISTRATIVE LAW – Judicial review – Motor Accidents Compensation Act 1999 (NSW) – Decisions of medical assessor and delegate of President of Personal Injury Commission on review applications – Failure of Review Panel to exercise jurisdiction as required – Where Review Panel issued medical assessment certificate determining plaintiff’s whole person impairment at 8% - Where Review Panel failed to determine the extent of whole person impairment as it existed at the time of assessment – Where Review Panel failed to determine whole person impairment relating to subsequent injury and conduct appropriate calculation as required – Errors established – Medical assessment and review determination set aside – Matter remitted for re-determination
CIVIL LAW – high risk offender proceedings –terrorism - media application to access file – where documents tendered in open court – exercise of discretion – reports of experts – summaries of phone calls from jail - desirability of high risk offenders providing honest history – where access may frustrate purposes of the act – where extensive reasons are given in preliminary and final judgment – where access to exhibits is not required for fair and accurate reporting – where non-publication orders made under the Court Suppression and Non-Publication Orders Act 2010
CORPORATIONS – management and administration – orders sought for modification of operation of Corporations Act s 443A for limitation of administrators’ liability in respect of relevant borrowings – whether the funding arrangement is in the interests of the company’s creditors CORPORATIONS – charges, debentures and other borrowings – security interests – registration – extension of time – where the security agreements creating the security interests are to be entered on a date after the appointment of administrators – whether it is necessary to make an order under s 588FM – whether, in the absence of intermediate appellate authority determining this issue, it is just and equitable to make an order under s 588FM
CHILD WELFARE — Adoption — Order — No issue of principle — Public interest in encouraging fostering and adoption of children where restoration to birth parents or family not possible
COSTS – party/party – where defendant made an offer of compromise pursuant to UCPR r 20.26 – where plaintiff rejected this offer – where plaintiff obtained judgment for nominal damages – where UCPR r 42.15 is enlivened – whether the Court should order otherwise under r 42.15 – where there is no reason the Court can only otherwise order if it is in favour of the offeree – where plaintiff was substantively the unsuccessful party – where the policy underpinning the regime is to encourage the proper compromise of litigation – plaintiff is to pay defendant’s costs up to the date of the offer of compromise on the ordinary basis and on the indemnity basis thereafter
SUCCESSION — Family provision — Notional estate — Whether Court has jurisdiction to grant interlocutory injunction restraining dealing in property liable to be designated as notional estate — Succession Act 2006 (NSW), s 62(3) SUCCESSION — Family provision — Practice — Application to amend to introduce substantive equitable claim after Court-annexed mediation — Where no explanation for lateness and not based on facts not previously discoverable with reasonable diligence
MENTAL HEALTH – forensic patient – extension of status as forensic patient – cognitive impairment – unacceptable risk of causing harm – no alternate (less restrictive) means of adequately managing the risk – interim orders neither consented to or opposed – consideration of statutory criteria
PROBATE – informal will – whether handwritten document signed by testator and witnessed by two witnesses was intended to form her will and to revoke earlier will – whether necessary to show continuing intention thereafter – significance of absence of revocation clause – handwritten document admitted to probate
CIVIL PROCEDURE – application to adjourn proceedings – where cross claim dismissed and part of defence struck out – where defendants failed to comply with court orders and still have not served all the evidence – where still no explanation given – adjournment refused CONTRACTS – contract for acquisition of land for joint venture development – where defendant did not appear – where plaintiffs evidence about the proper construction of the contract was not challenged – judgment for the plaintiff
ADMINISTRATIVE LAW – application for judicial review of decisions of Delegate of President of the Personal Injury Commission and of Appeal Panel – whether Delegate obliged to give reasons for decision to refer to Appeal Panel – whether Appeal Panel gave adequate reasons and exposed its actual path of reasoning – application dismissed
CIVIL PROCEDURE — preliminary discovery — to identify potential cause of action — where the plaintiff fails to satisfy any of the elements of Uniform Civil Procedure Rules 2005 (NSW) r 5.3 — where the plaintiff brought the application for an extraneous purpose and the court would exercise its discretion to refuse it
CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Whether leave required under the Felons (Civil Proceedings) Act 1981 (NSW) –Whether the Felons (Civil Proceedings) Act 1981 (NSW) applies exclusively to persons in custody in NSW who have been convicted of or found to have committed a serious indictable offence in New South Wales STATUTORY INTERPRETATION – Legal presumptions – Jurisdiction – Extraterritorial application – General law rule of construction – References to New South Wales implied under the Interpretation Act 1987 (NSW)
CIVIL PROCEDURE – Application for the appointment of pro bono representation – Where special reasons exist to justify further referral for pro bono representation
CORPORATIONS — statutory demand — application to set aside — offsetting claim — whether Graywinter principle applicable — where plaintiff contends that defendant’s delay and representations as to costs of building works created offsetting claim — statutory demand set aside
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
PRELIMINARY DISCOVERY — Mass departure of personnel from the Australian professional services partnership conducted by the plaintiffs (EY) including D2-6 (ex-partners), with all being employed by the D1, a global competitor of EY — Remaining partners contend that the ex-partners may have engaged in wrongful conduct and they may be entitled to make claims for relief against D1 and D2-6 — EY seeks preliminary discovery PRELIMINARY DISCOVERY — Purported ‘Goldilocks’ dilemma — Plaintiffs know enough to be concerned but not enough to make a sensible and informed decision about whether or not to commence substantive proceedings against the defendants PRELIMINARY DISCOVERY — Elements for enlivening the discretion to order preliminary discovery — The correct test is the “appears to the Court” test — Submissions regarding “reasonable cause to believe” test rejected EVIDENCE — Inferences — Drawing such inferences where the relationship is between a given fact and a human act WORDS & PHRASES — Garden Leave PRELIMINARY DISCOVERY — Costs and expenses — Distinction between the cost of the litigation per se and the costs of actually providing discovery
CIVIL PROCEDURE — Interlocutory applications — Freezing orders – Ex parte — Duty of disclosure — Whether plaintiffs failed to put before the Court all material facts and arguments within their knowledge which the defendants, if present, could be expected to have brought to the Court’s attention — Held: Material non-disclosure, which was deliberate on the part of the plaintiffs and inadvertent on the part of counsel appearing at the ex parte hearing — Held: Freezing orders discharged — Held: Plaintiffs not permitted to treat the hearing of the defendants’ application to discharge the freezing orders as a de novo application for the freezing orders or equivalent orders under r 25.3 of the Uniform Civil Procedure Rules
COSTS – Security for costs – where second and third defendants and plaintiff both claim interests in first defendant’s property and there is a priority dispute between them – where parties made agreement and orders were made by consent facilitating the registration of the second and third defendants’ mortgage, the sale of the property and the preservation of the sale proceeds, on the basis that priority between plaintiff’s claimed interest and the second and third defendants’ mortgage would be determined in these proceedings as at the date of those orders immediately before the registration of the second and third defendants’ mortgage – where second defendant now seeks an order requiring the impecunious plaintiff to provide security for its costs within 14 days, and orders dismissing the proceedings, releasing the second and third defendants from their obligations under the agreement, and discharging the order requiring the sale proceeds of the property to be preserved, if such security is not provided – whether an order for security would work an injustice
CRIMINAL PROCEDURE – Discharge of jury – Application for Suitors’ Fund Certificate – Where the NSW Police disclosed a substantial volume of documents on the sixteenth day of the trial – Trial adjourned through no fault of accused or his lawyers – Certificate granted
CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — Whether plaintiffs unable to obtain sufficient information to make decision about whether to commence proceedings — Whether inspection of documents sought would assist plaintiff to make decision — Preliminary discovery ordered
CORPORATIONS — application by special purpose receiver for directions — where applicant was appointed by the Court as special purpose receiver under s 283HB of the Corporations Act — whether Court has jurisdiction under s 283HB of the Corporations Act to give such directions — whether the directions sought are within the class of questions on which the special purpose receiver may properly seek directions — whether directions sought by the special purpose receiver should be given
CRIMINAL PROCEDURE – Trial – Adjournment – Vacating of hearing date – Where NSW Police first disclosed to the DPP and the accused, 37.3 gigabytes of data by way of a Cellebrite download two weeks before trial - A misleading affidavit erroneously identifying that all documents had been disclosed – Where counsel failed to allocate sufficient time for trial preparation – Where the DPP continued to serve material which necessitated consideration and contextualisation before agreements on proposed edits could occur
CRIMINAL PROCEDURE – Trial – Jury – Discharge of whole jury - Where the NSW Police disclosed a substantial volume of documents on the sixteenth day of the trial – Whether late disclosure of documents has prejudiced the accused’s right to a fair trial
COSTS — Party/Party — bases of quantification —— whether plaintiff entitled to special costs order because of non-acceptance of offer of compromise — offer only capable of acceptance by both defendants COSTS — Party/Party — exceptions to general rule that costs follow the event — consideration of “rule of thumb” approach to the apportionment of costs where a plaintiff succeeds against one jointly represented defendant but not another
LEGAL PRACTITIONERS - contested litigation concerning the admission to probate of wills of the deceased made in 2015, 2019 and 2021 – solicitor acted for the deceased in relation to the preparation of the 2019 will and now acts for the plaintiff (the executor of that will) in seeking admission of the 2019 will to probate, alleging that the deceased lacked testamentary capacity at the time of making the 2021 will – deceased uplifted the 2019 will from the solicitor before making the 2021 will – other parties contend that the deceased’s 2021 will is valid and that he destroyed the 2019 will – solicitor is a witness in the contest in relation to contentious factual circumstances of the deceased’s making of the 2019 will and his later uplifting of the 2019 will from the solicitor’s office before the will’s alleged destruction – whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires that the solicitor be prevented from acting for the plaintiff in the proceedings.
HIGH RISK OFFENDER – interim supervision order – where no issue is taken with the making of the order – the Court is required to be independently satisfied of the statutory preconditions – dispute as to appropriate conditions – balancing the intrusion on a defendant’s liberty and privacy with the safety of the community, which must be given primacy – order made – conditions amended
CRIME – appeal and review – application to Supreme Court under Part 7 – Crimes (Appeal and Review) Act 2001 (NSW) – conspiracy to murder – where co-conspirator found not guilty of conspiracy and acquitted – whether doubt or question as to applicant’s guilt – whether verdict unsustainable as a matter of law – principle of incontrovertibility of an acquittal – broader claim of inconsistency – impact of “fresh” evidence led at co-conspirator’s trial – responses of each accused to Crown case of conspiracy substantially different – conviction of applicant consistent with acquittal of co-conspirator – abundant evidence at applicant’s trial to support guilt – discretion under s 79(3) – application refused
CIVIL PROCEDURE — Cross-claims — Connection with subject-matter of claim — Whether cross-summons should be dismissed or in the alternative stayed COSTS — Security for costs JUDGMENTS AND ORDERS — Enforcement — Charging orders
MENTAL HEALTH – forensic patient – extension of status as a forensic patient – application for interim extension order – whether making of extension justified on assumption matters alleged in supporting documentation proved – where defendant does not oppose making of order – orders for examination made – interim extension order made
BUILDING AND CONSTRUCTION – claim by subcontractor against principal in relation to debt certificates issued under Contractors Debts Act 1997 (NSW) – subcontractor’s right of recovery under s 11(4) subject to any defence the principal would have had against recovery of the debt by the contractor – whether principal entitled to raise matters of set-off defending debt claim
COSTS — Party/Party — Bases of quantification —Indemnity basis — Offer under the rules — Whether to ‘otherwise order’ — Where defendant claims they were surprised by case run at final hearing
SUCCESSION — Family provision — Limitation period — Where claim brought almost two years after the expiry of limitation period — Whether sufficient cause shown to ‘otherwise order’ SUCCESSION — Family provision — Claim by alleged de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether eligible person — Whether in a de facto relationship pursuant to s 21C of the Interpretation Act 1987 (NSW) — Whether couple ‘living together’ SUCCESSION — Family provision — Notional estate — Restrictions on out of time or additional applications — Where estate already fully distributed — Whether ‘special circumstances’
CRIME – Sentence – Judge alone trial – not guilty of murder but guilty of manslaughter – fatal stab wound to the chest – cousins – where the offender and the deceased were slapboxing and “mucking around” minutes before the fatal stabbing – where the offender’s anger escalated quickly “zero from a hundred” – no planning – youth – sexual assault as a child – Bugmy Bar Book “Childhood Sexual Abuse” – mental health condition of PTSD – reduced moral culpability – guarded prospects of rehabilitation – little acceptance of responsibility – offer to plead guilty to manslaughter rejected
COSTS — Security for costs — Relevant factors — Place of incorporation or residence out of jurisdiction — Where plaintiff domiciled in People’s Republic of China and has significant assets — Whether cross-claim is in substance defensive — Whether security for costs should be limited to costs of enforcing judgment — Security for costs granted
CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving creditors’ scheme of arrangement — where formal requirements satisfied — whether scheme of arrangement should be approved.
COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.
CIVIL PROCEDURE — Default judgment — Motion to set aside – where defendant is vendor and plaintiff is purchaser under a contract for sale of land – where default judgment for specific performance of the contract was entered against the defendant on 14 June 2024 – where defendant’s first motion to set aside default judgment dismissed on 6 December 2024 in the absence of any appearance by the defendant – where defendant continued to deal with the property despite being on notice of the Court’s orders requiring specific performance of the sale contract and took other steps to interfere with completion of the sale contract in accordance with those orders – whether defendant asserts a bona fide defence and cross-claim – whether there is an adequate explanation for defendant’s default and delay – prejudice to plaintiff caused by delay – whether an order setting aside default judgment is in interests of justice and consistent with the overriding purpose and objects contained in ss 56-60 of the Civil Procedure Act 2005 (NSW)
CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether change of name should be approved
PROCEDURE — advance ruling under s 192A Evidence Act — whether defect reports prepared by quantity surveyor are business records — whether prepared for purpose of proceedings — s 69(3)(a), Evidence Act 1995 (NSW) — whether opinions expressed in business record admissible — limitation made under s 136 Evidence Act (NSW).
COSTS – Gross sum costs order – Where costs assessment likely to involve further expense and delay – Where assessment would disadvantage party seeking order because of other party’s inability to discharge costs liability – Whether sufficient evidence for Court to undertake fair and just quantification
CIVIL PROCEDURE – Interim preservation – preservation of property – where plaintiff obtained orders to enter real property to obtain personal goods but has failed to comply with a Court order as to retrieving the goods – where the Court has provided further opportunity for the plaintiff to obtain personal goods FAMILY LAW — Property — Property of relationship — Injunctions and restraints – Where Husband has obtained orders to enter real property to obtain personal goods but has failed to comply with Court orders as to retrieving goods – where trustees have been appointed to dispose of family property – where Husband has been restrained from entering property
CORPORATIONS – winding up – insolvency – statutory presumption of insolvency – plaintiff’s application to wind up defendant on the ground of insolvency pursuant to s 459A – where plaintiff relies on a debt that was not the debt that was the subject of the statutory demand - defendant’s application for leave under s 459S to oppose the winding up application on the ground that there is a genuine dispute - whether plaintiff has standing as a creditor under s 459P(1)(b) to bring winding up application – whether there is a genuine dispute about the alleged debt forming the basis of the winding up application – where the plaintiff does not have standing as a creditor – where the pursuit of these proceedings would have been an abuse of process if the plaintiff had standing – originating process and amended interlocutory process dismissed
EVIDENCE — Privileges — Client legal privilege — Litigation — inadvertent disclosure of email communication — where privileged communication accessed via Dropbox link with specialist IT assistance — whether privilege waived — whether there was knowing and voluntary disclosure — whether there was deliberate abuse of power — no waiver established APPEAL — costs — costs assessment — appeal from Review Panel — s 89(1) Legal Profession Uniform Law Application Act 2014 (NSW) — whether Review Panel erred in fact or law in determining the amount payable by the plaintiffs — where proceedings conducted without reference to the email communication — no error of fact or law established CIVIL PROCEDURE — Jurisdiction — Monetary limits — leave required under s 89(1)(b) Legal Profession Uniform Law Application Act 2014 (NSW) — leave refused CIVIL PROCEDURE — Time — Extension of time — Leave required under r 50.3 UCPR — approximately three months out of time — leave refused
CORPORATIONS – Directors and officers – Appointment, removal and retirement of directors – Notice – Where Plaintiff issued notice of intention to move a resolution at general meeting of shareholders removing directors of Defendant and notice of intention to nominate new directors – Whether notices were valid CORPORATIONS – Meeting of members – Notice – Where Plaintiff issued notice to Defendant’s shareholders convening a general meeting of shareholders – Where Defendant’s directors resolved to postpone and change venue of general meeting of shareholders– Whether Defendant’s directors’ resolution was valid – Whether Plaintiff’s notice was valid – Where independent chair of general meeting of shareholders ordered
BAIL – where applicant is accused of murder – Aboriginal mother with mental health challenges – where the Crown’s case is strong – whether cause has been shown – application refused
CRIMINAL LAW – Murder – application for judge alone trial – retrial – where the matter has a protracted and unusual history – where the Crown case relies on constructive murder by way of joint criminal enterprise – whether it is in the interests of justice to grant the order sought – whether the complexity of the issues are such that it is in the interests of justice that the order be granted – where there is a strong interest in efficiencies and finality in the trial – whether a jury is better placed to assess credibility – application for a judge alone trial granted
CHARITIES AND NOT-FOR-PROFITS — charitable gifts and trusts — administration of two trusts in parallel — appointment of a common trustee to the two trusts ineffective — proposed scheme to transfer trust property of two trusts into new trust to be administered by a new trustee — whether cy près or administrative scheme
COSTS — Further security for costs — Relevant factors — Procedure and discretion — Strength of the claim — Stultification — proceedings — Impecuniosity of opponent — Impecuniosity attributable to the applicant’s conduct – Whether the plaintiff is effectively in the position of a defendant
CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement — whether requirements to order scheme meeting are satisfied
CIVIL PROCEDURE — appearance — withdrawal of appearance — leave of Court — where breakdown in relationship between solicitor and client — leave granted CORPORATIONS — winding up — practice and procedure — leave of Court — where director of company seeks leave to appear for company — leave granted CORPORATIONS — winding up — statutory demand — failure to comply with statutory demand — whether company should be wound up — where winding up ordered subject to a stay
PROCEDURE – Contempt, attachment and sequestration – Contempt of court – Where court makes freezing order and orders disclosure affidavits – False invoices to obtain payments purportedly under exception for business expenses – Breach of freezing orders.
CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — District and Local Courts — transfer of proceedings from Local Court to Supreme Court — where cross claim sought equitable relief
CRIME — Confiscations — Restraining order — Ancillary order for examination of third-party regarding defendant's property — s 12(1)(b)(ii) Criminal Assets Recovery Act 1990 (NSW)
LAND LAW – possession of land – urgent application to stay execution of writ of possession – too little to late – no adequate explanation for lack of action by applicant – defence struck out in April 2025 – question mark over legitimacy of alleged contract for sale – stay refused
MORTGAGES AND SECURITIES – claim by mortgagee for possession of land following default by mortgagors – default judgment entered and writ of possession issued – application for stay of execution of writ of possession – factors relevant to application for stay – stay in terms sought refused
EQUITY – Equitable remedies – injunctions – where the plaintiff seeks leave to proceed pursuant to UCPR r 11.8AA – where the plaintiff seeks final relief by way of default judgment - where defendants’ names unknown but defendants involved in clearly identifiable acts – injunctive relief ordered against such “persons unknown” – non-publication and suppression orders.
CIVIL PROCEDURE – where trustee in bankruptcy appointed for plaintiffs – where proceedings were dismissed by consent except as against second defendant - where second defendant served a notice of action on trustee – where trustee is deemed to have abandoned action – where proceedings were not prosecuted with due despatch – where fourth plaintiff sought to make submissions as to costs due to sufficient interest – where fourth plaintiff made no claim for relief against second defendant – where there was no hearing on the merits – proceedings against second defendant dismissed – no costs order against fourth plaintiff – application by third plaintiff to make a claim after reasons delivered – application by third plaintiff after reasons delivered to revisit orders – orders unchanged
COSTS – where defendant’s statutory demand served on plaintiff was set aside pursuant to s 459G of the Corporations Act 2001 (Cth) – where plaintiff seeks an order that defendant pay its costs of the proceedings on the indemnity basis – where plaintiff relies on without prejudice letters as the basis for their indemnity costs application – where plaintiff made a Calderbank offer but only provided a modest amount of compromise – where defendant seeks there to be no orders made in relation to costs or for costs to be limited to those assessed on the standard basis – where defendant seeks a stay on the enforcement of any costs orders – where defendant submits that any costs orders would be punitive and futile – no departure from the usual position that costs follow the event – defendant is to pay plaintiff’s costs of the proceedings on the ordinary basis
EXPERT DETERMINATION — vendor sells company for $2M plus ‘earn out’ based on EBIT x multiplier — expert determination clause requires chartered accountant of 10 years’ experience — expert determines earn-out payment is $9.7M — whether parties agreed to be bound by expert’s construction of contract — principles at [124]-[129] — purchaser raises proper construction of contract outside timeframe prescribed by expert determination clause — whether expert should have determined that matter at all — expert determination clause varied by letter appointing expert, at [146] — “manifest error” — where suggested error of law — principles at [150]-[153] — Bagata Pty Ltd v Runner Pty Ltd [2024] QCA 17 followed — construction not obviously wrong — no manifest error — parties bound. RECTIFICATION — principles at [231]-[235] — purchaser’s board had authority to vary contract – board papers and minutes, contemporaneous documents and post-contractual conduct paint compelling picture of common intention – purchaser seeks to avoid bad deal by exploiting imperfect drafting – appropriate case for rectification. JONES v DUNKEL — issue waiver — written communications with lawyer tendered — whether to draw inference where solicitor not called — whether unnecessary witness — no evidence that lawyer and client had confidential oral communication – inference not drawn, [11].
APPEAL – appeal from Local Court – dispute between landlord and tenant – whether Magistrate was biased – whether hearing was procedurally unfair – whether any other irregularity in hearing – whether Magistrate erred in upholding landlord’s claim for unpaid rent and damages – appeal dismissed
CORPORATIONS – winding up – application by contributory and sole director to set aside orders for winding up and appointment of liquidator – where winding up orders were made in the absence of applicant – where applicant was unaware of the statutory demand or winding up application – where liquidator consents to the termination of the winding up – where creditor neither consents nor opposes the termination of the winding up – where company is solvent and profitable - where creditors are protected – where liquidator’s remuneration is agreed
OPPRESSION – Members’ rights and remedies – whether oppression established – terms of buy-out order available where company in liquidation COSTS – Whether indemnity costs should be awarded against Defendants on basis of Calderbank principles – Whether unreasonable not to accept Calderbank offer
BAIL – multiple bail applications – Bail Act 2013 (NSW) s 74 – whether there are grounds to hear a further bail application in circumstances where there is a change in the identity of the surety, the sum offered and more information about the Crown’s case – s 74 satisfied BAIL – charge of supplying a commercial quantity of a prohibited drug, direct activities of criminal group and deal with proceeds of crime – show cause offence – cause is not shown
SUCCESSION — Family provision — Notices of Claim — Disregarding power — Identification of the context and purposes of family provision legislation bearing upon s 61 Succession Act SUCCESSION — Family provision — Outline of the evolution of approach to consideration of possible applicants under family provision legislation in determining claims of applicants SUCCESSION — Family provision — Construction of s 61 Succession Act in light of context, purpose and text SUCCESSION — Words and phrases — Family provision — Meaning of “disregard the interests” of any other person (other than a beneficiary) — Meaning of “unnecessary, unreasonable or impracticable” — Examination of “unnecessary, unreasonable or impracticable” terms as applied in family provision caselaw SUCCESSION — Family provision — Service of Notices of Claim — Discussion of purposes underlying notification regime — Outline of requirements of Notices of Claim, including means and time of service SUCCESSION — Family provision — Discussion of types of searches to locate persons and limitations of such searches — Discussion of internet and social media searches — Discussion of property searches — Discussion of electoral roll searches — Meaning and discussion of “skip tracing” SUCCESSION — Family provision — Form of request for s 61 notation — In most cases the request is informally made by email or in proposed short minutes of order or outline of submissions and not formalised by notice of motion SUCCESSION — Family provision — Guidance as to practical application of search and notification requirements SUCCESSION — Family provision — Parties and affected persons — Consent orders — The parties asked the Court to make consent orders in a family provision claim by a child of the deceased in circumstances in which another child had not been served with a Notice of Claim and evinced an intention of not being located by the plaintiff or others associated with dealings with his deceased father’s estate — Credible but untested evidence disclosed deceased had ex-nuptial children — Orders sought (and notation made) to disregard the interests of that other child — Further notation made to address position of such, if any, ex-nuptial children
SUCCESSION — Family provision — Claim by a de facto spouse of the deceased (first plaintiff) and her daughter (second plaintiff), who claimed to be a dependent member of the household of which the deceased was a member — Parties settled the proceedings with an amount of provision being agreed for both plaintiffs, as well as a specified amount of their costs to be paid out of the estate, subject to the fulfilment of certain conditions — First plaintiff died before orders were made giving effect to settlement — Defendant executrix by a notice of motion sought a declaration that the proceedings instituted by the first plaintiff abated by reason of her death and an order that those proceedings be dismissed with no order as to costs, which relief was reflected in a revised form of consent orders agreed to between the remaining parties SUCCESSION — Family provision — Abatement of proceedings — Whether family provision order can be made in respect of a deceased applicant —Whether statutory right of an applicant to bring a family provision claim survives her death — Discussion of context of Ch 3 of the Succession Act 2006 (NSW), including purposes of family provision legislation and context of historical and recent family provision reforms in NSW — Discussion of textual indicators bearing upon nature of family provision claims — Determined that an order under Ch 3 of the Succession Act 2006 (NSW) can only be made in favour of a person then living —Determined that a right to bring a claim under Ch 3 of the Succession Act 2006 (NSW) is personal and therefore not transmissible so as to survive the applicant’s death — Held that proceedings instituted by first plaintiff abated on her death and ought to be dismissed SUCCESSION — Family provision — Interests of a potentially eligible person or affected beneficiary under an incapacity — Discussion of requirements for service of a Notice of Claim on a person under an incapacity — Discussion of issues regarding the representation of interests of persons under an incapacity — Whether interests of second plaintiff’s child (a minor) should be disregarded — Held that service of a Notice of Claim on second plaintiff, in an attempt to satisfactorily serve her child, was not adequate — However, in the circumstances of the case, in particular the relatively short time in which the child was potentially dependent upon the deceased and the fact that he is under the care of the second plaintiff who is providing for him, the proposed settlement (which included provision to the second plaintiff) ought to proceed without any further requirement for service of a Notice of Claim on the child SUCCESSION — Family provision — Interests of other potentially eligible persons — Basis for disregarding interests — Whether interests of the deceased’s former de facto spouses and the adult child of the second plaintiff can be disregarded — In circumstances where (inter alia) both former spouses were likely deceased and the adult child had been served a Notice of Claim and did not wish to bring a claim, their interests could be disregarded COSTS — Jurisdiction — Whether the Court has jurisdiction to make a costs order in family provision proceedings which abate — Discussion of effect of abatement on proceedings and cases where the Court has determined that the proceedings are a nullity — Authorities indicate that it cannot be presumed that the Court has jurisdiction to make a positive costs order in favour of or against a deceased applicant — Position in respect of costs of defendant executrix is arguably different, as such costs properly incurred will ordinarily be a testamentary expense to be paid out of the estate — Notation made that the costs of the first plaintiff will be a matter to be addressed, if at all, by those interested in the administration of her estate, without the benefit of a specific court order — Order made for defendant’s costs to be paid out of the estate on the indemnity basis
LIMITATION OF ACTIONS — Discoverability — Personal injury — When plaintiff “ought to know” facts — Medical negligence — Where plaintiff has been diagnosed with a non-functioning pituitary macroadenoma with symptoms including memory impairment — Whether there should be an extension of the long-stop limitation period — Whether just and reasonable to extend the limitation period
CIVIL PROCEDURE – judgments and orders – amending – whether reasons for judgment require amendment to reflect arguments made and consequences of findings made
EQUITY – trusts and trustees – where building contract provided that retention shall be held in trust by defendant developer for plaintiff builder until such time as either became entitled to retained funds – where plaintiff builder alleges breach of trust against defendant developer – where plaintiff builder alleges defendant director knowingly involved in the defendant developer’s breach of trust – whether any trust constituted – no trust constituted EQUITY – contribution – coordinate liability – where plaintiff builder settled claims against some defendants prior to hearing by transfer of residential lots – whether settling parties had coordinate liability to the plaintiff builder for the defendant developer’s contractual debts – whether coordinate liability arose by reason of knowing involvement in breach of trust or by reason of mortgages entered over properties – whether effect of settlement was to discharge that liability – whether transfer of residential lots was at an undervalue such that the plaintiff builder achieved a benefit – no discharge of coordinate liability BUILDING AND CONSTRUCTION – contract – variation – where defendant developer’s representative priced and approved variations – where plaintiff builder obliged to do work when directed by defendant developer under contract – whether defendant developer now entitled to contest variations – construction of “variation” and “direction” BUILDING AND CONSTRUCTION – contract – damages – delay – where defendant developer claims liquidated damages against plaintiff builder for delay – factual dispute over the original contracted date for practical completion
ADMINISTRATIVE LAW — Jurisdictional error — Whether NSW Civil and Administrative Tribunal ("NCAT") had jurisdiction to determine tenancy when District Court proceedings already afoot — Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 5(7) — Where District Court proceedings concerned the relationship between landlord and tenant — Where NCAT proceedings sought enforcement by the landlord of a s 85 termination notice — Whether there was an overlapping of issues between the NCAT proceedings and the District Court proceedings
LEASES AND TENANCIES – Default and termination – Relief against forfeiture – where the change of ownership of the shares of the tenant company constitute an assignment of the lease – where consent was not sought for the assignment of the lease – whether to grant relief against forfeiture – no question of principle EVIDENCE – Standard of proof – Civil cases – where defendant alleges that plaintiff made up evidence of serious wrongful conduct of defendant – application of Briginshaw – application of s 140(2) of Evidence Act 1995 (NSW) – no question of principle ESTOPPEL – Cause of action estoppel – Anshun estoppel – no question of principle
CONTRACTS – Construction – Interpretation – where no time specified for the completion of the contract for the sale of land – whether contract void for uncertainty – implied reasonable time for completion of contract – no question of principle CONTRACTS – Termination – whether breach by either party – whether repudiation of contract – whether acceptance of repudiatory conduct – no question of principle LAND LAW – Conveyancing – Contract for sale – Termination – whether necessary for vendor to show readiness, willingness and ability to perform contract at time of termination – whether vendor ready, willing and able – question of principle LAND LAW – Conveyancing – Contract for sale – Deposit – relief against forfeiture of deposit – where deposit is 13% – whether deposit is a penalty – whether deposit should be returned pursuant to Conveyancing Act 1919 (NSW), s 55(2A) – question of principle
EQUITY — Trusts and trustees — Judicial advice — Where the object of the association is to afford assistance in necessitous and deserving cases — Whether association funds may be used to provide a counselling service — Where association was plainly intended to be charitable in the legal sense — Where counselling service is directed to former and current barristers and their dependents
EQUITY — Equitable remedies — Equitable compensation — Assessment — Where equitable compensation to be assessed on the basis of a loss of opportunity — Whether discount should be applied pursuant to Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 EQUITY — Equitable remedies — Where defendants accept that plaintiff entitled to make a ‘split election’ for different remedies as between them — Where the second defendant was the sole director of the first defendant — Where the defendants were found in substance to owe the same fiduciary duties to the plaintiff — Where acts constituting separate breaches by each of the defendants were in each case performed by the second defendant only — Whether risk of double recovery
CORPORATIONS – action for enforcement of judgment debt due to corporate trustee – form of orders to give effect to reasons for judgment – whether any reason why costs should not follow the event – no issue of principle
COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.
CONTRACTS — Termination — Whether parties agreed to terminate building contract CONTRACTS — Remedies — Damages — Proof of loss or damage — Whether plaintiff entitled to loss of bargain damages following defendant’s alleged repudiation — Where plaintiff has failed to adduce precise evidence of quantum of loss of bargain damages
COSTS – party/party – costs orders in interlocutory proceedings – where cross-defendant seeks previous costs order made on the notice of motion be varied – whether defendant should pay cross defendant’s costs – whether defendant’s notice of motion went primarily to the issues on the cross-claim – where cross-defendant filed no evidence nor provided written submissions on the notice of motion – where cross-defendant’s appearance could have been mentioned by plaintiff – where no orders were made against cross-defendant
CIVIL PROCEDURE – judicial review procedure – Uniform Civil Procedure Rule 59.7 – application to tender further evidence from defendant's expert – experts had produced joint and agreed reports – defendant granted time to ask both experts certain questions directly, overnight – plaintiff's expert unavailable; defendant's expert available, and produced answers not seen by plaintiff’s expert – leave refused
CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Whether leave required under Felons (Civil Proceedings) Act 1981 – Whether a plaintiff in custody requires leave to commence civil proceedings – Where section 4 of the Felons (Civil Proceedings) Act 1981 has been incorrectly applied to a plaintiff in custody
LAND LAW – possession of land – claim by trustee in bankruptcy against bankrupt – where bankrupt has not in engaged in proceedings – judgment for possession
CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Whether leave required under Felons (Civil Proceedings) Act 1981 – Whether a plaintiff in custody requires leave to commence civil proceedings – Where section 4 of the Felons (Civil Proceedings) Act 1981 has been incorrectly applied to a plaintiff in custody
ADMINISTRATIVE LAW – diversity jurisdiction – extraterritoriality – dispute between residents of two States arising under State law – whether the Anti-Discrimination Board (NSW) has jurisdiction to accept and refer a complaint of homosexual vilification to NCAT pursuant to ss 89B and 93C of the Anti-Discrimination Act 1977 (NSW) where residents of two different States – whether a delegate of the President of the Board needs to be satisfied of residency in NSW and that the relevant “public act” occurred in NSW before exercising any discretionary power – whether these factors constituted jurisdictional facts – not found to constitute jurisdictional facts – Anti-Discrimination Board (NSW) found to possess relevant jurisdiction to accept complaints and refer to NCAT ANTI-DISCRIMINATION – meaning of homosexual vilification provisions in Anti-Discrimination Act 1977 (NSW) – section 49ZT – meaning of “to incite” – meaning of “public act”
MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Final hearing — History of schizophrenia and polysubstance use disorder — Where two forensic experts were appointed by the Court to conduct examinations of the forensic patient — Dispute as to the appropriate length of extension period of the defendant’s status as a forensic patient
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Act 1996 (NSW), s 210 — whether applicant required to allege that a protected matter is the cause of any detrimental action — whether Commissioner impermissibly reversed onus — where no evidence given by particular police officer in first defendant’s case — where Commissioner found matters involving that police officer not a substantive and operative cause of identified detrimental action — no jurisdictional error ADMINISTRATIVE LAW — judicial review — extension of time to file application — where applicant pursued appeal rights to Full Bench of Industrial Relations Commission — where grounds of review overlapped with argument advanced to Full Bench — where no suggestion first defendant suffered prejudice — where issues fully argued — extension granted
CONTRACTS — Construction — Interpretation — Whether plaintiff entitled to payment from defendant under special condition for what plaintiff contends is additional work — Scope within contract sum
EVIDENCE – criminal proceedings – exclusion of prejudicial evidence – where representations made in prior proceedings are unfairly prejudicial and contain information of marginal relevance EVIDENCE – criminal proceedings – admissions – whether previous representations are adverse to the accused’s interest in the outcome of the proceeding – where previous representations made by accused are prima facie exculpatory – where contradictory evidence may be adduced at trial
SUCCESSION — Family provision — Claim by adult child — Two adult sons in dispute over mother’s estate — Mother’s clear and rational intention to leave most of her estate to one of her sons in preference to the other
COSTS — withdrawal of caveat — no caveatable interest — substituted service on defendant — relevance of no personal service on defendant — costs follow the event
ADMINISTRATIVE LAW — Judicial review — Jurisdictional error — Decision regarding the share component for a replacement floodplain harvesting access licence — Whether the decision required the Minister to estimate the volume of water capable of being used by the plaintiff’s water supply works — Whether the Minister’s calculation omitted water used for direct irrigation — Whether the omission constituted a failure to exercise jurisdiction, as stipulated by the Regulations
COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.
COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.
CIVIL PROCEDURE – Admissions – Admission of facts – Withdrawal of admissions – Where Defendant served a defence containing an admission necessary for Plaintiff’s standing to bring an oppression claim under ss 232 – 233 of the Corporations Act 2001 (Cth) – Where Defendant subsequently filed and served a defence withdrawing the relevant admission COSTS – No order as to costs of the application – Defendants to pay Plaintiff’s costs thrown away by reason of the withdrawal of the of the admission
CORPORATIONS – Winding up – Public examination of directors, officers and others – Application to set aside summons to attend examinations, orders for production and related orders – Where applicants rely on medical evidence of purported incapacity to attend examinations – Where medical evidence noncompliant with Expert Witness Code of Conduct CIVIL PROCEDURE – Appearance – Withdrawal of appearance – Leave of Court refused
CORPORATIONS – Winding up – Conduct of liquidation – Meeting of creditors – Where liquidators did not convene a meeting of the company’s creditors in response to creditors’ direction – Whether creditors’ direction was unreasonable
CRIME – sentence – murder – son and mother party to a joint criminal enterprise to drive a Triton dual cab ute at the deceased and hit him from behind to exact revenge in context of ongoing feud – where the driver of the ute had intention to kill – where the passenger in the ute was a party to a joint criminal enterprise to cause grievous bodily harm or to kill the deceased – mitigating subjective circumstances – need for denunciation and general deterrence for revenge motivated offending
CIVIL PROCEDURE – extension of time – application to rely on expert evidence served out of time – where expert evidence is essential to the Plaintiffs’ case – where explanation for delay in serving expert evidence provided – where no prejudice identified by Defendant – extension granted
EQUITY – Equitable remedies – where equitable mortgagee seeks order for judicial sale – whether order for judicial sale should be made – no question of principle
EQUITY — Trusts and trustees — Trust instruments — Trust language – interpretation – where 1873 deed of trust established church school – where the object was “to provide an efficient course of education for youth” – where school previously adopted male-only admission policy – whether coeducation permissible – meaning of “youth” in trust deed – “plain and ordinary” meaning – evidence of contemporaneous usage – dictionary definitions – quotations from individual publications – admissibility – contextual factors – nature of instrument – constitution for ongoing institution – whether ambiguous – recourse to “surrounding circumstances” – 19th century educational practice – boys-only predecessor school – prior deliberations of church authorities – parol evidence rule – recourse to subsequent conduct of parties – subsequent adoption of boys-only admission policy – subsequent establishment of separate girls-only school – “ancient instruments” rule
WORKERS COMPENSATION — limitation period — s 151D Workers Compensation Act 1987 (NSW) — application for leave to commence proceedings more than three years after injury — prejudice to defendant — different versions of accident — absence of witnesses — extension of time granted