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
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
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
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
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
CONTRACTS — Remedies — Specific performance — Whether buyer ought be ordered to specifically perform unit sale and purchase agreement — Whether buyer’s parent ought be ordered to specifically perform guarantee and/or indemnity GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability — Whether guarantee on proper construction is “see to it” or primary obligation to pay money — Whether indemnity requiring buyer’s parent to pay certain amounts on demand requires payment of balance of purchase price where completion has not occurred CIVIL PROCEDURE — Discontinuance of proceedings — Leave of court — Whether cross-claimants ought be granted leave to discontinue claims for declaratory relief at the commencement of hearing — Where claims raised by cross-claim said to be hypothetical
BUILDING AND CONSTRUCTION — Contract — Specific performance – Where changes to zoning laws altered contractual parameters – Whether contract was frustrated by changes to zoning laws – No issue as to principle BUILDING AND CONSTRUCTION — Contract — Termination — Frustration – Where changes to zoning laws altered contractual parameters – Whether contract was frustrated by changes to zoning laws – Whether frustration is impacted by statutory scheme – No issue as to principle LAND LAW — Conveyancing — Contract for sale — Off the plan Contracts — Rescission – Where rescission of an off the plan contract for sale of land was sought – Where the Conveyancing Act 1919 s 66ZS creates requirements for rescission – Where changes to zoning laws altered commercial conditions – Whether developers acted unreasonably COSTS — Party/Party — Exceptions to general rule that costs follow the event – Orders when proceedings involve multiple parties – How parties liable – Multiple claims in multiple proceedings – Where statutory scheme modifies the general rule that costs follow the event – Whether statutory scheme captures the entirety of the multiple claims – Held: Conveyancing Act 1919 s 66ZS(8) applies only to claims under s 66ZS, not the proceedings as a whole
COMMERCIAL ARBITRATION – arbitration agreement – stay of proceedings – proper construction of scope and effect of arbitration clause – where plaintiff and first defendant are parties to a joint venture deed – where deed included arbitration agreement with arbitral seat in Singapore – where first defendant’s rights in joint venture deed transferred to creditors’ trust administered by remaining defendants as trustees under deed of company arrangement – where plaintiff seeks declaratory relief and specific performance in relation to acquisition of first defendant’s interest in the joint venture – where first, second, and fifth defendants raise matters in defence of the proceedings and a cross-claim for contribution to a call on performance security – whether those claims are arbitrable – whether the proceedings involve any “matter” that is “capable of settlement by arbitration” pursuant to s 7(2)(b) of the International Arbitration Act 1974 (Cth) COMMERCIAL ARBITRATION – arbitration agreement – stay of proceedings – whether arbitration agreement is null, void, inoperative or incapable of being performed – whether arbitration agreement “inoperative” pursuant to s 7(5) of the International Arbitration Act 1974 (Cth) – whether commencement of proceedings was a repudiation, waiver or abandonment of arbitration agreement
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payments Act 1999 (NSW) – service of payment claims – where payment claim sent after business hours through agreed electronic messaging system – where that system generated an email to an authorised recipient – where that email not opened until next business day – where contract deemed service after 5pm to be service on the next business day – whether deeming provision modified the operation of the Act and therefore void – operation of Electronic Transactions Act 2000 (NSW)
FINANCIAL MANAGEMENT ORDERS — New hearing consequent upon orders allowing an appeal of financial management orders of the Guardianship Division of the NSW Civil and Administrative Tribunal under the Guardianship Act 1987 (NSW) PROTECTIVE JURISDICTION — Evidence — New hearing — In the exercise of its protective jurisdiction the Court is not necessarily bound by strict rules of evidence but, subject to or with due regard to considerations of procedural fairness, has a discretion to act on material which is rationally probative of material facts and issues, even though excluded by technical rules of evidence PROTECTIVE JURISDICTION — New hearing — Application for financial management orders — Repeated impermissible correspondence by applicant (first defendant) to Judge’s chambers email disclosed actuating purposes in respect of the new hearing which were very remote from the purported purpose of whether the third defendant was incapable of managing her affairs — Case management directions to achieve procedural fairness required service of affidavit material by the parties for the new hearing and relevantly by the applicant before mid-December 2024 — In early February 2025 the new hearing of the application was fixed to take place in early May 2025 — Applicant in early March 2024 provided certain “witness statements” rather than affidavits — That material was not rationally probative and not permitted to be relied upon — No subsequent application was made by the applicant, prior to the hearing, to be permitted to rely upon oral evidence (nor other materials) on the hearing — At the listed hearing the applicant had not served affidavit evidence, had travelled to China and sought to be permitted to conduct the hearing by AVL from China and contemplated that oral evidence would be called from two witnesses who had not been subpoenaed to attend to give any such evidence — That request was refused (in light of above context and prejudice to the active respondent) and the application for financial management order dismissed FINANCIAL MANAGEMENT ORDERS — Permissible purposes — A financial management order, per se, is not a vehicle for commandeering and otherwise realising and dividing family wealth by reference to purported intentions of the deceased family members or otherwise than in accordance with the principles that properly inform the jurisdiction to make a financial management order CIVIL PROCEDURE — Dismissal of proceedings — Civil Procedure Act 2005 (NSW) s 61(3)(a) — Failure to comply with case management orders PRACTICE AND PROCEDURE — Principles regarding email communications with Judge’s chambers — Approach with self-represented litigants HEARINGS — Mode of appearance at hearing —Proceedings in Supreme Court are generally held in person — Audio visual and other modes of appearance — r 31.3 Uniform Civil Procedure Rules 2005 (NSW), Pt 1A Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
CIVIL PROCEDURE – Notice to Produce – Application to set aside – no issue of principle COSTS – Security for costs – whether there is reason to believe the Plaintiff will be unable to pay the Defendants’ costs if ordered to do so – quantum of security
COSTS – application for gross sum cost order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – whether appropriate to make a gross sum cost order – quantum of gross sum – no issue of principle
LAND LAW – conveyancing – contract for sale – notice to complete – where vendor finances portion of purchase price – where purchaser’s offer of finance in relation to balance conditional upon vendor executing proposed deed of priority – where vendor rejects terms of proposed deed of priority – where issue of priority was not the subject of prior agreement as between purchaser and vendor – whether completion was dependent on vendor executing proposed deed of priority – whether vendor’s conduct prevented issuance of valid notice to complete – whether termination valid based on failure to comply with notice to complete. CONTRACTS – express terms – construction of express terms – construction of multiple contracts executed contemporaneously – construction of further assurance clause – whether covenant for further assurance obliged vendor to negotiate and execute the proposed deed of priority. CONTRACTS – implied terms – construction and interpretation – terms implied in law – general rule of construction – implied duty to cooperate – consistency with express terms of contract – whether implied duty to cooperate obliged vendor to negotiate and execute the proposed deed of priority.
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 DEFAMATION — defamatory matter — capacity to convey pleaded imputations — ordinary reasonable reader — ordinary and natural meaning of words — Grapevine effect — onus of proof on plaintiff — on the balance of probabilities — Jones v Dunkel — publications found to have conveyed some pleaded imputations DEFAMATION — publication — multiple publications — emails — social media — Facebook — Facebook comments — defendants found to have published defamatory material — republication — defendants responsible for republication DEFAMATION — harm — Defamation Act 2005-2019 — previous version of legislation applicable — assumption of harm — serious harm not necessary to prove — plaintiff suffered significant harm DEFAMATION — defences — Defamation Act 2005 (NSW) — justification— triviality — honest opinion —contextual truth — lack of jurisdiction — where email was published overseas — common law qualified privilege — mutual interest and/or duty — reply to attack — where Facebook comments posted for a short period of time — onus of proof on defendants — plaintiff to prove malice in relation to qualified privilege — malice not found — plaintiff was not acting dishonestly DEFAMATION — remedies — injunctive relief — general damages — aggravated damages — malice — where plaintiff had a good reputation — where plaintiff suffered hurt and damage to reputation — general damages awarded
CONTRACTS — Breach of contract — Consequences of breach — Right to damages — Joint venture agreement EQUITY — Trusts and trustees — Breaches of trust — Remedies
JUDGMENTS AND ORDERS — Amending, varying and setting aside — For irregularity, illegality or against good faith — Limited application of rule after full hearing on the merits — Not available where merits of decision challenged such that appeal is the proper course — UCPR Pt 36 r 36.15(1)
EVIDENCE – criminal proceedings – discretions – exclusion of evidence – hearsay – video walkthrough – positioning of vehicles – exception to hearsay rule – where maker available – whether representations concern identity of a person, place or thing for the purpose of s 66(3) of the Evidence Act 1995 (NSW)
EVIDENCE – criminal proceedings – discretions – exclusion of evidence – text messages between co-accused – “half done job” – competing inferences – where inference is available that the sender of text messages was party to an agreement to harm persons seeking revenge for earlier attack – whether probative value outweighed by danger of unfair prejudice
CORPORATIONS – Insolvency – Winding up – Application for adjournment of winding up application - Where voluntary administrators of company sought adjournment of winding up application to allow a proposed deed of company arrangement to be considered at second creditors’ meeting – Whether it is in the interests of the company’s creditors that the company continue under administration rather than be wound up. CORPORATIONS – Insolvency – Winding up – Presumption of insolvency – Where company failed to comply with creditor’s statutory demand – Where presumption of insolvency arises – Whether voluntary administrators should be appointed as company’s liquidators instead of liquidators nominated by the Plaintiff.
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of secured creditors to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CIVIL PROCEDURE – security for costs – where plaintiffs are ordinarily resident outside Australia – where plaintiffs have no significant assets within the jurisdiction – where plaintiffs contend that the reason for their lack of assets in Australia is due to second defendant’s conduct – where prima facie case of wrongdoing – whether costs orders can be enforced against plaintiffs assets in Hong Kong – security for costs granted – freezing order – where prima facie case that second defendant has dishonestly taken assets of the plaintiffs – where plaintiffs delayed in commencing application – where second defendant has not dissipated assets to date – where second defendant alleges plaintiffs would not be able to satisfy an undertaking as to damages – limited freezing order appropriate – security required to support undertaking as to damages.
BUILDING AND CONSTRUCTION – Damages – where admitted defects in structural design prepared by the second and third defendant engineers for the plaintiff’s home – where breach of general law duty of care admitted by engineers – where it is common ground that additional wind bracing is necessary and reasonable to rectify the structural defects – where the design for the additional bracing is agreed – where scope of works required to implement that design is disputed – where the reasonable cost of undertaking the rectification works is disputed – quantum of damages – no question of principle.
CONTRACTS – Breach of contract – Sale of business contract – Whether vendors in breach of contract for failing to adjust the purchase price for tax liabilities and employee entitlements – Where clause did not impose an obligation on the vendors – Where two inconsistent clauses – Application of generalia specialibus non derogant maxim – No breach established CONTRACTS – Restraint of trade – Sale of business contract – Whether vendor in breach of restraint of trade – Where vendor loaned real estate licence to a competing business during the restraint period – Construction of restraint of trade clause – Meaning of ‘capacity to exercise control’ – Where vendor found to have capacity to exercise control of competing business pursuant to Property and Stock Agents Act 2002 (NSW) – Breach established CONTRACTS – Breach of contract – Sale of business contract – Where vendor did not discharge registered security interest – Whether vendor failed to comply with conditions precedent – Where vendor failed to satisfy conditions precedent – Classification of a contingency versus a promise – Whether purchaser waived the requirement to satisfy conditions precedent by proceeding with completion of the sale – Waiver of condition precedent established CONTRACTS – Breach of contract – Sale of business contract – Whether vendor breached warranty – Whether shares were sold free of any security interests – Whether a security interest over the assets of a company is different from a security interest over the shares in a company – Where a company does not own its own shares – Where shares were sold free of any security interests – No breach of warranty established CONTRACTS – Construction and interpretation – Principles of construction of commercial contracts – Application of principles set out in Electricity Generation CONSUMER LAW – Misleading or deceptive conduct – Where certain pleaded representations not established on the evidence –Representation made as to intention to retire – Representation made as to future employment – Representation made as to predicted sales figures – Whether representations were misleading or deceptive or likely to mislead or deceive – Where representations as to future matters – Whether reasonable grounds for making representations as to future matters – Where reasonable grounds established – No misleading or deceptive conduct established CONTRACTS – Remedies – Damages for breach of restraint of trade – Whether loss suffered as a result of relevant breach – Where failure to establish causation – Where failure to quantify damages – Where failure to demonstrate any loss – No entitlement to damages EQUITY – Equitable remedies – Rescission – Whether restitutio in integrum possible – Where substantial time elapsed and substantially altered circumstances – Rescission not available – Whether partial rescission an available remedy –Partial rescission not available CONSUMER LAW – Remedies – Remedies for misleading or deceptive conduct – Declaring whole or part of contract void – Whether court’s discretion informed and guided by principles at common law and equity – Where partial rescission not possible – Where no loss established – Partial rescission not available EVIDENCE – Credibility of witnesses – Where similarities in affidavit evidence calls into question credibility of that evidence – Where no contemporaneous record – Where denial of the account by another witness – Evidence with striking similarity found not to be credible
CIVIL PROCEDURE – separate determination of questions – where appropriate – where defendant seeks separate determination on the plaintiff's application for preliminary discovery –where resolution of the proposed separate questions would not be dispositive of the plaintiff’s claim and would require determination of possibly multiple contested questions – no order for separate question
CORPORATIONS – application to set aside creditors’ statutory demand under Corporations Act 2001 (Cth) s 459H and 459J – whether application and supporting affidavit were served within the statutory period – whether genuine dispute has been established – whether some other reason for statutory demand to be set aside – statutory demand set aside
CIVIL PROCEDURE – discontinuance – leave of the court – whether plaintiff should pay defendant’s costs – supervening event making proceedings futile – proceedings under the Criminal Assets Recovery Act 1990 – where defendant subsequently became insolvent – where defendant had no interests in property to enable the making of an unexplained wealth order – where proceedings properly instituted
COSTS — party/party — bases of quantification — indemnity basis — where proceedings dismissed without proceeding to final determination — whether plainly unreasonable conduct
ADMINISTRATIVE LAW – Judicial review – Local Council approval of development application – whether Council failed to consider the Development Control Plan in its terms as prescribed by the Environmental Planning and Assessment Act 1979 (NSW) – whether decision was unreasonable – no question of principle LAND LAW – Easements – Creation of easements – Creation by implication – implied easement for light – where apparent sale of adjoining lots by common vendor to separate purchasers – whether Wheeldon v Burrows easement as extended by Aldridge v Wright created – whether undertaking by purchaser of servient tenement to respect dominant tenements solar access and natural ventilation to create an in personam exception to indefeasibility LAND LAW – Easements – Creation of easements –Creation by court order – s 88K easement for light – whether easement is reasonably necessary – whether easement is in the public interest – whether reasonable attempts have been made to obtain the easement through negotiation LAND LAW – Easements – Creation of easements – Creation by court order – compensation – where concurrent expert evidence given on value of land – quantum of appropriate compensation ENVIRONMENT AND PLANNING – Environmental planning instrument – whether environment planning instrument would defeat the claimed implied easement – whether the claimed s 88K easement would be inherently defeasible given the operation of the environment planning instrument
CIVIL PROCEDURE – cross-vesting – application to transfer the proceedings to Federal Circuit and Family Court of Australia – where the Supreme Court proceedings include claims by the plaintiffs for a declaration that the first and second defendant hold property on remedial constructive trust for their benefit – where the relevant property in the Supreme Court proceedings is the only asset of value in the FCFCA proceedings – where the FCFCA has jurisdiction to hear the matter – whether it is in the interests of justice to transfer the proceedings – balancing the interests of justice – proceedings transferred
TAXES AND DUTIES — Administration — Tax garnishee notices — Notice issued to purchaser under contract of sale of land by taxpayer — Mortgagee requires payment of purchase moneys in full – whether purchaser bound to account to Commissioner for tax debt specified in notice – whether mortgagee would have equitable interest in proceeds which would defeat Commissioners – Taxation Administration Act 1953 Sch 1, s 260-5
CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Whether leave to bring derivative action should be granted.
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.
CORPORATIONS – Shares – Transfer – Whether estate of deceased company director entitled to one or two company shares – Where prior purported transfer of a share was not effective – Orders not made
CIVIL PROCEDURE – Administrative law – Judicial review – Interim relief – Request for adjournment – Discretion to make directions in context of extant proceedings concerned with what is required for a fair trial – Deference to Commissioner in terms of managing safety and security of inmates and correctional centres generally – Where prayer based on anticipated inadequacy of computing facilities at Lithgow – Difficulties in seeking to bring proceedings whilst incarcerated – Where Commissioner gave undertaking with respect to facilities to be provided to plaintiff – Undertaking sufficient to ensure plaintiff’s access to justice – No utility in adjourning proceedings – Application dismissed
SUCCESSION — Family provision — Claim by adult child of de facto partner of deceased— Whether claimant is an eligible person — Whether there are factors warranting the bringing of the application — Whether an order for further provision should be made — Where deceased held a right of residence in de facto partner’s property — Where claimant time and money repairing property SUCCESSION — Family provision — Notional estate — Where property of the estate already distributed — Whether order designating property as notional estate should be made
COSTS – application for gross sum cost order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – where defendant seeks gross sum cost order following plaintiff seeking leave to discontinue proceedings – no issue of principle
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranty – proceedings for breach – whether proceedings were commenced by plaintiff owners corporation within the warranty period – whether effect of interim occupation certificate was to cause warranty period to commence – whether interim occupation certificate authorised “the occupation and use of the whole of the building” – whether the two blocks of units should be seen as “separate buildings” that have separate completion dates ESTOPPEL – promissory estoppel – where parties entered into deed of settlement containing a term allowing plaintiff owners corporation to rescind the deed in particular circumstances – whether plaintiff owners corporation estopped from rescinding deed – alleged representation by conduct inconsistent with express right of rescission – where defendant builder already in breach of contract and exposed to rescission before alleged representation made – no detrimental reliance established LAND LAW – strata title – owners corporation – whether owners corporation has standing to seek compensation for building defects within strata lots – no standing established
SUCCESSION – family provision – claim by adult child with disability for further provision out of the deceased’s estate under Succession Act 2006 (NSW) Ch 3 – successful application for approval of settlement
ADMINISTRATIVE LAW – judicial review – decision of magistrate to reject application for professional costs under s 213 of the Criminal Procedure Act 1986 – application for judicial review under s 69 of the Supreme Court Act 1970 – no jurisdictional error – no error of law on the face of the record – Court’s residual discretion to decline relief – bad faith – improper purpose – disproportionality – application dismissed
HIGH RISK OFFENDERS — extended supervision orders — unacceptable risk of committing a serious sex offence — final hearing — existing Extended Supervision Order imposed — extension of two years — significant history of sexual offending — previous breaches of terms of Extended Supervision Order — defendant with intellectual disability — Conditions expressed in more easily understood terms
CIVIL PROCEDURE – experts reports – service of experts reports – notice of motion to extend time to serve expert evidence and unsigned evidentiary statement – whether there are ‘exceptional circumstances’ that warrant a grant of leave to rely upon expert reports – where there is no explanation for extensive delay in serving expert evidence – where defendant has identified difficulties in witness adopting unsigned evidentiary statement CIVIL PROCEDURE – medical evidence – psychometric testing – notice of motion to require plaintiff undertake psychometric testing – where expert has expressed the opinion that plaintiff was ‘malingering’ – whether the proper purpose of the application is for a medical examination – where application is disguised as an attempt to impugn plaintiff’s credit
PRACTICE AND PROCEDURE – application for determination of separate questions – application for questions of liability to be determined separately and in advance of quantification of damages – whether there should be a departure from the ordinary position to hear and determine all issues concurrently – whether separate questions will facilitate the just, quick and cheap resolution of the real issues in the proceedings – where there would be a potential for overlapping evidence – no separate questions to be answered.
LAND LAW – possession of land – where defendant re-entered land after execution of writ – where writ of restitution sought – where service of judgment with endorsement threatening committal or sequestration authorised
PRACTICE AND PROCEDURE – stay of enforcement of judgment and orders pending appeal – consideration of terms and conditions of stay – where the fifth defendant has been served with bankruptcy notices issued by the second and fourth plaintiffs in respect of judgment debts arising from orders made by this Court – where an interim extension of time for compliance with those notices has been granted by the Federal Court of Australia pending determination of the fifth defendant’s application for an extension of time, which has been adjourned pending the determination of the fifth defendant’s present application for a stay – where the grant of a stay would adversely affect the second and fourth plaintiffs’ ability to oppose any further extension of time for compliance with the bankruptcy notices – where fifth defendant has offered an undertaking not to deal with his property for the period of any stay – whether it should be a condition of any stay that the fifth defendant grant the second and fourth plaintiffs a charge over his real property where judgment debts may already exceed value of the fifth defendant’s property – where risk of prejudice to second and fourth plaintiffs arises from the prospect that the fifth defendant’s liabilities will increase during the period of the stay – where no evidence of prejudice to the fifth defendant of the imposition of such a condition is adduced – where fifth defendant has given evidence that he has no other current creditors.
CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — Where juror has engaged in misconduct CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury — Whether to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice — Where strong inference that discharged juror was the dissident juror — Whether the accused has lost the sole voice standing against a conviction — Whether discharged juror’s misconduct has contaminated the remaining jurors
EVIDENCE — Opinion evidence — Exceptions — Expert opinion — telecommunications and cell tower evidence — objection to parts of expert evidence and two expert reports — dispute as to the location of the accused — whether expert was qualified to express an opinion that the antenna that a mobile phone connected with was in fact the closest antenna and cell tower to its location — whether expert was qualified to express an opinion as to whether two mobile phones were in the same specific location
EVIDENCE — Discretions — Exclusion of evidence — Improperly or illegally obtained evidence — where the accused participated in two electronically recorded police interviews and body worn videos — whether the accused was a “protected suspect” when questioned by police — whether police believed that there was sufficient evidence that the accused committed the offences in question — statutory construction — whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence — where balancing exercise undertaken — whether advantage taken of vulnerable person
EVIDENCE — Witness evidence — Compellability — Spouses, parents and children — where Crown witness is in a de facto relationship with the accused — where evidence is likely to adversely affect relationship — whether there is a likelihood that harm will be caused to witness and children if required to give evidence
CORPORATIONS – Directors and officers – Appointment, removal and retirement of directors – whether director validly resigned – steps required to effect directors’ resignation – long delay in giving notice of resignation. EQUITY – Trusts – Constructive trust – Where property acquired in name of defendant’s parents to effect “asset protection” scheme – Where defendant now asserts beneficial interest in property – Orders not made
SUCCESSION — Family provision — Costs — Statutory framework in which costs orders are made discussed — Purposive approach to costs orders in family provision proceedings discussed SUCCESSION — Family provision — Costs — Relevance of impecuniosity — Default rules in rr 42.1 and 42.20 UCPR applies to family provision proceedings, though its application remains subject to the Court exercising greater than usual “liberality and discrimination” in deciding whether to depart from it SUCCESSION — Family provision — Calderbank offers — Unusual deployment of offers by the parties — Unsuccessful applicant seeking to underpin a different costs outcome than provisionally foreshadowed following dismissal of claim notwithstanding the outcome achieved was worse than the offer made — Conversely the successful defendant not seeking indemnity costs notwithstanding the making of an offer giving the plaintiff substantial provision bettering the actual outcome (dismissal of her claim)
LAND LAW – specific performance – alleged competing interest – where off the plan sales and subsequent sale of entire Lot without disclosure of earlier off the plan contracts – whether off the plan purchasers have an interest in land prior to registration of subdivision sufficient to compete with later bona fide purchaser for value without notice – consideration of nature of interest of off the plan purchaser prior to registration of subdivision – question of principle LAND LAW – contract for the sale of land – proper construction of pre-sale contracts – whether pre-sale contracts are at an end after the expiry of Sunset Date – no question of principle LAND LAW – competing priorities – whether postponing conduct of holder of earlier interest – no question of principle LAND LAW – specific performance – whether purchaser ready, willing and able to perform – whether third parties would suffer hardship – no question of principle
HEALTH — Burial and cremation — Burial – plaintiffs include the named executor of the estate of a deceased person, who was a member of the Jewish faith – the deceased survived her parents, who were Holocaust survivors – the deceased’s parents are buried in a part of the cemetery (Section 18E) reserved for Holocaust survivors and Orthodox members of the Jewish faith who observe the Sabbath – the first defendant is the cemetery operator responsible for managing this cemetery on Crown land – the function of the second defendant is to care for the burial needs of the Sydney Jewish community according to Jewish law – the deceased was not proven to be an observer of the Sabbath – the plaintiffs applied for the transfer of an existing interment right to the estate of the deceased enable the deceased to be buried with her parents in Section 18E – after consulting the second defendant, the first defendant declined to allow the transfer or the burial applied for – whether the plaintiffs can require the first defendant to issue an order for interment under Cemeteries and Crematoria Act 2013, s 65 to allow the deceased to be buried in section 18E – construction of the Cemeteries and Crematoria Act ss 46 and 58.
PRIVILEGE — client legal privilege — waiver —plaintiff seeks declaratory relief as to proper construction of contract — defendant seeks rectification – plaintiff denies common understanding or knowledge of defendant’s misunderstanding – plaintiff waives privilege over email with lawyer – whether waiver over related documents – test of inconsistency, principles at [22]-[26]. ISSUE WAIVER — plaintiff cross-examined as to state of mind – whether ‘issue waiver’ — principles at [31]-[38] — plaintiff does not assert state of mind in pleading – plaintiff did not refer to legal advice in cross examination – plaintiff made no assertion as to contents of any such advice – privilege not waived.
CRIMINAL PROCEDURE – applications for trial by judge alone – whether trial by judge alone in the interests of justice – where no evidence was led to explain delay in application – where context evidence of other offence necessary – where proposed expert evidence is not particularly complex – where courts proceed on the basis that juries are presumed to follow directions not to access internet materials relating to the event and the earlier trial – not in the interests of justice to order a trial by judge alone – applications refused
SUCCESSION — Probate and administration — Informal document — Dispensing with requirements for execution of a will pursuant to Succession Act 2006 (NSW), s 8 — Intention to constitute a will
COSTS – general rule that costs follow the event – application of the rule and discretion – costs of motion seeking stay of judgment – where cross-claimant ultimately successful in having stay lifted but unsuccessful in relation to earlier hearing of motion – where unnecessary for plaintiff to be an active participant on the motion
CORPORATIONS – Winding up – Public examination of director, officers and others – Interim orders previously made under s 1323(1) of the Corporations Act 2001 (Cth) for freezing of assets – Where liquidator’s examinations will shortly take place – Whether final orders should be made under s 1321(1) of the Corporations Act – Whether interim relief could be granted under UCPR r 25.11, 25.14 – Whether interim relief could be granted under s 1323 of the Act pending any appeal.
CRIMINAL LAW – Evidence – When objection was taken to evidence of conversation between two co-conspirators - Conversation recorded by listening device – Primary objection on the basis of relevance – Where counsel for the accused sought that the determination of admissibility be made without the aid of a transcript – Where the conversation was played on several occasions – Court unable to determine what was said – Evidence not relevant – Evidence excluded
CRIME – murder – wounding with intent to cause grievous bodily harm – Judge alone trial – question as to whether the Court should be closed – where accused was a child at the time of the alleged offending – where accused no longer a child – little in the way of authority on the question – bound by a decision of a superior court – Court to be open
CRIME – murder – wounding with intent to cause grievous bodily harm – Judge alone trial – accused a young person at the time of alleged offences EVIDENCE – objection by the accused - relevance – video evidence – file taken from accused’s phone as a result of a Cellebrite examination – failure by Crown to disclose this evidence – evidence relevant to provide further background with respect to issues relating to the accused’s state of mind – significant evidence already available – evidence excluded and not admitted
CRIMINAL PROCEDURE – impending murder trial – alleged stabbing by one juvenile of two others, one fatally – foreshadowed reliance on self-defence and substantial impairment – application for trial by judge alone of accused opposed by Crown – leave permitting late application not opposed – whether in the interests of justice to make the order – recent notorious fatal and non-fatal knife attacks in NSW – very recent homicide by multiple stabbings in Coffs Harbour – perpetrator still at large – apparent inability for trial to be conducted elsewhere, or at a later time – finely balanced competing considerations – application granted
CRIMINAL LAW – murder – wounding with intent to inflict grievous bodily harm – trial by judge alone – where the accused a young person at the time of the alleged offences – stabbing – Beef Week – melee at a KFC restaurant – numerous young persons involved – where the event is captured by CCTV and mobile phone – where the deceased exhibited significant animus towards the accused – where the accused suffers from a cognitive impairment – Foetal Alcohol Spectrum Disorder (FASD) – defence of substantial impairment – self-defence – knuckledusters – guitar capo – whether the accused believed his conduct was necessary in order to defend himself – whether the conduct of the accused was a reasonable response to the circumstances as he perceived them – excessive self-defence – accused not guilty of murder but guilty of manslaughter on the basis of excessive self-defence – accused not guilty of wounding with intent to cause grievous bodily harm – orders made
CRIME – sentence – manslaughter – excessive self-defence – offender a young person at the time of the offence – trial by judge alone – fatal stabbing – confrontation between young people – KFC restaurant – melee – tragic loss of life – where deceased exhibited hostility towards offender –deceased armed with knuckledusters – offender did not initiate confrontation – offender had no interest in fighting the deceased - offender outnumbered by adversaries – offender believed he was going to be killed – chaos – clamorous noise – extreme situation – real threat to the offender – no intention to kill – where offender suffers from cognitive impairment – FASD – ADHD – youth and lack of maturity – moral culpability significantly reduced – unblemished criminal record – very good prospects of rehabilitation – whether sentence to be served as a juvenile offender – convicted – sentence imposed
APPEALS — Leave to appeal — Principles governing — Whether leave required — Whether questions of law are of sufficient public importance TAXES AND DUTIES — Land tax — Liability — Exemptions — Whether principal place of residence exemption applied to land where some areas reserved for commercial use only — Where plaintiff intended to leave the exclusively designated commercial areas vacant
SUCCESSION — Family provision — Claims by adult children — Whether insufficient provision was made by deceased to plaintiffs SUCCESSION — Family provision — Notional estate — Whether estate was affected by relevant prescribed transactions
CONTRACT – whether binding agreement as to process for sale of shares established - quantification of loss of opportunity for sale of shares at higher price. OPPRESSION — Members’ rights and remedies — whether oppression established — whether buy-out order available where company in liquidation
CIVIL PROCEDURE – discovery – further and better discovery – whether discovery adequate – whether reasonable search undertaken – where limited documents discovered – where defendant earlier indicated that email inboxes are automatically deleted, but then indicated email inboxes are automatically archived – where defendant has not undertaken search of such archives – whether reasonable grounds for being fairly certain other relevant documents have not been discovered
SUCCESSION – where the plaintiff is the adult child of the deceased – where the defendant is the widow of the deceased – where the plaintiff is not the issue of the defendant – where the plaintiff seeks a family provision order for his maintenance, education or advancement in life – where the deceased died intestate – where the estate of the deceased is nominal – whether to designate property as notional estate of the deceased to satisfy family provision and costs orders – where the plaintiff is entitled to a family provision order – where notional estate orders are granted.
CIVIL PROCEDURE – form of final orders to give effect to judgment – where Court has made determination of proper construction of the Deed – where neither party sought any order as to status of the Deed following determination – where plaintiffs now seek to amend pleadings to find Deed has been frustrated – where not appropriate for plaintiffs to agitate matters at this very late stage