BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – where development approval required developer to carry out work to train station pedestrian tunnel and comply with second defendant’s requirements – where first to third plaintiffs and defendants entered into written contract for works to train station pedestrian tunnel – where fourth plaintiff issued payment claim for services works in the train station pedestrian tunnel – whether services works undertaken under an “arrangement” between the fourth plaintiff and defendants separate to the written contract – no separate arrangement found as works within scope of written contract and arrangement inconsistent with dealings between parties
JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule — Inherent jurisdiction COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Exceptions to general rule that costs follow the event — Orders when proceedings involve multiple parties — Bullock and Sanderson orders
CIVIL PROCEDURE — Default judgment — Default in entering appearance — Default in filing defence CIVIL PROCEDURE — Service outside Australia — Proceedings in which permitted — Application for leave to proceed
EQUITY – unconscionable bargains – undue influence - elderly person gives power of attorney to her adult daughter, the defendant – the defendant/daughter lives with her mother – using the power of attorney the daughter claims she assists her mother to sell her house, before relocating the mother into a nursing home – daughter applies the funds from the sale of the mother’s house property to purchase her own property, claiming that the funds were an inter vivos gift from the mother to her – after the mother’s death her will leaves her estate equally to the defendant and the plaintiff but little remains in the estate – the son challenges these transactions and claims a constructive or resulting trust on behalf of the estate over the defendant’s property acquired with the proceeds of sale of the mother’s house – whether the sale of the mother’s property and application of the sale proceeds by the daughter was improvident – whether the mother received independent legal advice – whether the mother was suffering from dementia – whether the mother was dependent upon the daughter – whether the mother was in a position of special disadvantage in relation to the daughter at the time of the transactions – whether the transactions resulted from the unconscionable conduct or actual undue influence of the daughter over the mother. SUCCESSION – Family Provision – competing claims by two adult children for provision from the estate of their deceased mother under Succession Act 2006, Chapter 3 – the mother’s will leaves her estate to her adult son and daughter – the deceased’s estate is minimal, as a result of the sale of the mother’s principal asset, her residence, six months before her death – not in issue that the proceeds of sale of the mother’s residence are notional estate – the son brings proceedings for further provision from the mother’s estate and notional estate – the mother gifted the son a property during her lifetime but he sold it to meet pressing financial obligations – whether the son requires further provision for his proper maintenance, education or advancement in life – the daughter brings a contingent claim for further provision for the mother’s estate, in the event that property purchased with the sale proceeds of the mother’s residence is held in trust for the estate – whether the daughter requires further provision from the estate for her proper maintenance, education or advancement in life.
CIVIL PROCEDURE – professional negligence – separate question – opportunistic application apparently prompted by late service of expert evidence on damages – opportunistic and late application for referral of assessment of damages to referee - oral application for vacation of hearing date – applications refused – question of admissibility of expert evidence reserved for trial judge
PERSONAL PROPERTY — Ownership and possession — Rights of possession — Human tissue — Where plaintiff seeks possession of the reproductive tissue sample removed from her late husband’s body with consent of the Coroner given under the Human Tissue Act 1983 (NSW) ADMINISTRATIVE LAW — Proper operation of the legislative scheme — Assisted Reproductive Technology Act 2007 (NSW) — Rights of possession — Where plaintiff is the executive and beneficiary of the estate of the deceased and the next of kin who authorized removal of the sample under the Human Tissue Act — Where no other party disputes or objects to the plaintiff’s ownership or right to possession of the tissue — Proposed transport out of the State — Whether the plaintiff is entitled to an order for possession of the tissue — Plaintiff entitled to possession — Plaintiff entitled to transport the tissue out of the State ADMINISTRATIVE LAW — Proper construction of the Assisted Reproductive Technology Act 2007 (NSW)— The giving of required consent — Where there is no required form by which consent must be given — Whether the consent of the plaintiff is sufficient – Whether plaintiff is the gamete provider whose consent must be given for ART treatment — Plaintiff is not gamete provider and cannot give required consent for use of the gamete removed from her husband’s body CIVIL PROCEDURE — Hearings — Application by Attorney General to intervene — Leave granted
ADMINISTRATIVE LAW — particular administrative bodies — complaint-handling body — Judicial Commission of New South Wales ADMINISTRATIVE LAW — procedural fairness — whether on the proper construction of the legislation the administrative body was required to accord procedural fairness to a complainant — duty to accord procedural fairness to complainant but with limited content — whether the complainant was given reasonable opportunity to advance the basis of the complaint — whether complainant suffered practical injustice
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 – Whether creditors’ scheme of arrangement should be approved. CORPORATIONS – Arrangements and reconstructions – Application under s 63 of the Trustee Act 1925 (NSW) for judicial advice with respect to the implementation of trust scheme – Whether scheme is fair and reasonable so that an intelligent and honest person who was a unitholder, properly informed and acting alone, might approve it.
SUCCESSION – family provision – notional estate – deceased’s superannuation passed to children pursuant to nomination given before deceased’s death – application for designation of superannuation monies as notional estate to provide liquid funds – sufficient value in the estate to make provision for applicant in due course – application untenable SUCCESSION – family provision – husband and wife – parties separate about twenty years before deceased’s death – parties register wife as separated for pension purposes – parties sever joint tenancy over matrimonial home, continuing to live in separate parts of it – husband’s will leaves estate including his half-share of the property to the parties’ three children in unequal shares – application by wife for provision – children agree on figure for provision in wife’s favour but disagree on its incidence – no settlement – wife must establish entitlement to provision – application refused
CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt — Where there exists a dispute as to the character of certain amounts paid — Whether the amounts paid were in the nature of loans — Where the determination of that question would require the court to make a merits decision.
CORPORATIONS — Winding up — Statutory demand — Application to set aside — Claim for offsetting — Whether offsetting claim was genuine — Where Plaintiff was assigned claims by third party against the Defendant company — Question as to assignability of bare right to litigate — Where the genuine commercial interest exception would otherwise have applied.
CORPORATIONS — Meeting of members — Resolutions — Where deed of settlement and release required the parties to take reasonable steps to ensure that certain persons would be directors of the company and associated companies — Inconsistency between constitution and shareholders agreement as to quorum — Where constitution provided for quorum of two directors — Where shareholders agreement provided for quorum of three directors, being all the company’s directors — Whether company can hold quorate board meeting in the circumstances — Where one director representing a shareholder has resigned and replacement appointee does not accept appointment. CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors — Where the relevant shareholders were parties to deed of settlement and release — Where deed of settlement required the execution of certain directorship documents — Whether s 249A of the Corporations Act 2001 (Cth) applies — Where general law concept of unanimous consent or s 1322(4) of the Corporations Act 2001 (Cth) otherwise applies.
CORPORATIONS – Managed investments – Judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – Whether to convene meetings of unitholders – Whether responsible entity would be justified in treating consequential constitution amendments as within power.
EQUITY — Trusts and trustees — Resulting trusts — Presumption of advancement — Property purchased by parents (the Plaintiffs) in daughter’s (the Defendant) name — Consideration of whether the Plaintiffs intended to gift the whole of the Property to the Defendant or retain the beneficial interest, or a part thereof, for themselves — Consideration of whether the Plaintiffs have rebutted the presumption of advancement — Plea by the Defendant, in the alternative, that if she holds the Property on trust for the Plaintiffs, it is only in respect of a life estate for the Plaintiffs — Held: the Plaintiffs have not discharged their onus of rebutting the presumption of advancement, save to the extent of a life interest — Declaration that the Defendant holds the Property on trust for the Plaintiffs for their lifetimes and then for herself absolutely EQUITY — Unconscionable conduct — Special disability or disadvantage — No special disability or disadvantage EVIDENCE — Witness evidence — Competence — Lack of capacity — First Plaintiff deposed to two affidavits — Plaintiffs assert that the First Plaintiff lost capacity on account of his diagnosis of mixed vascular Alzheimer dementia soon after swearing his second affidavit — Consideration of whether the Court should make an order permitting the Plaintiffs to use those affidavits pursuant to r 35.2(3) of the Uniform Civil Procedure Rules 2005 (NSW) — Second affidavit sworn so close in time to diagnosis that the First Plaintiff’s cognitive function is likely to have been seriously affected — Plaintiffs only permitted to use the first affidavit, but limited weight given to that affidavit EVIDENCE — Witness evidence — Cross-examination — Rule in Browne v Dunn (1893) 6 R 67 — Submissions involving assertions of fact not put to the Defendant in cross-examination
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Application by both Plaintiffs and Defendant for costs — Both Plaintiffs and Defendant submit that they were successful in the outcome of the proceedings — Consideration of the relevant “event” pursuant to which costs should follow — Plaintiffs failed on all aspects of their pleaded case and the Defendant was successful on her alternative defence — The alternative defence produced a limited degree of success to the Plaintiffs, even though that case had not been advanced by them — The Defendant’s success is the “event” which costs should follow — Reduction in award of costs in the exercise of the Court’s discretion in recognition of the Plaintiffs’ partial success — Held: Plaintiffs to pay 70% of the Defendant’s costs
CONTRACTS — Termination — Breach of term — Where the plaintiff sought enforcement of a deed — Where the defendants argued that there were additional oral terms that operated in conjunction with the deed — Where the defendants argued that the plaintiff seriously breached an additional oral term and that the plaintiff had repudiated the deed — Where the defendants claimed that they terminated the deed in response to the plaintiff’s breach or in acceptance of the plaintiff’s repudiation — Where the defendants argued that they had effectively communicated termination of the deed — Where the Court found that the defendants had not effectively communicated termination of the deed — Where the Court held that deed had not been terminated EQUITY — Unconscionable conduct — Special disability or disadvantage — Where the defendants argued that a deed should be set aside in its entirety because it was procured by the plaintiff taking unconscientious advantage of special disadvantages suffered by the defendants — Where the Court found that the defendants did suffer from some special disadvantages — Where the Court found that the plaintiff was not in a powerful bargaining position when the deed was entered into — Where the Court held that the conduct of the plaintiff in entering into the deed was not sufficiently unconscientious to justify the Court setting the deed aside MORTGAGES AND SECURITIES — Mortgages — Whether a deed recorded a transaction that was in substance a mortgage — Where the plaintiff argued that the transaction was not a mortgage but rather a loan document with an added facility similar to an option — Where on its face the deed was an amalgam of a loan secured by an option granted to the plaintiff to call for a transfer of a one third interest in property, plus a collateral right to receive one third of the net price of the property on sale — Where the Court found that the transaction was in substance a mortgage — Where the Court held that the obligation to transfer the one third interest in property was a collateral advantage MORTGAGES AND SECURITIES — Mortgages — Mortgage contracts — Clogs on equity of redemption — Where the plaintiff and defendants executed a deed which would give the plaintiff a one third interest in property in consideration of the plaintiff lending the defendants money — Where the deed contained a term that allowed the plaintiff to compel the transfer of the one third interest by way of notice — Where the deed did not provide for the defendants being able to repay the plaintiff the loan without the sale of the property — Where the plaintiff brought proceedings to enforce the transfer provisions in the deed — Where the defendants resisted the claim on several grounds including on the basis that the transfer provisions were a clog on the equity of redemption — Where the Court found that the transfer provisions were a clog on the equity of redemption — Where the Court held that the transfer provisions were void
EQUITY — General principles and maxims — Discretionary nature of jurisdiction — Those who seek equity must do equity — Where the plaintiff sought to enforce a deed executed by the defendant in which the defendant agreed to pay the plaintiff an amount for the plaintiff’s work in renovating the defendant’s property — Where the Court found that the defendant was entitled in principle to an order setting aside the deed on the ground that it was entered into in unconscionable circumstances — Where the defendant had not offered to do equity by paying reasonable compensation for the plaintiff’s work — Where the evidence of the reasonable amount of remuneration of the plaintiff was unsatisfactory — Where the plaintiff applied for leave to introduce additional evidence going to the condition upon which relief should be granted to the defendant — Where the Court granted the plaintiff’s application limited to additional evidence already served on the defendant CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Power of Court — Where the Court has decided in principle to set aside an unjust contract subject to the defendant paying reasonable remuneration to the plaintiff for work done — Where the evidence of the reasonable amount of remuneration of the plaintiff was unsatisfactory — Where the plaintiff applied for leave to introduce additional evidence to establish the reasonable remuneration — Where the plaintiff’s application was granted CIVIL PROCEDURE — Application by the plaintiff for leave to introduce additional evidence to prove condition the Court should impose on the defendant before making an order that a deed between the plaintiff and the defendant be set aside — Where application was granted
CONTRACTS — Breach of contract — Consequences of breach — Right to damages where there has been partial performance — Whether damages ought to be reduced for betterment CIVIL PROCEDURE — Cross-claim — Against plaintiff — Right of set-off
CIVIL PROCEDURE — Discovery — Whether an order for discovery ought to be made for the production of material relevant to whether the respondent is indemnified under an insurance policy
COSTS — Lump sum or gross costs orders — Whether lump sum costs order should be made COSTS — Party/Party — General rule that costs follow the event — Special costs order
JUDGMENTS AND ORDERS — In favour of plaintiff INSURANCE – Insurance Claim – Reliability of records – Where the insured established part of its claim – Where the insurer refused to make any payment under the policy – Where interest must be calculated COSTS – Indemnity costs order – Calderbank Offer – Offer of compromise under Rules – Where reasonable grounds exist to refuse the Calderbank offer – Consequences of refusal of offer of compromise
CIVIL PROCEDURE – Separate determination of questions – where appropriate – whether an order should be made for the separate determination of a question of construction of the operative agreement
BUILDING AND CONSTRUCTION – adjudication – payment claim seeks payment in respect of multiple construction contracts – case law review at [10]-[26] – section to be construed in the singular (at [27]-[33]) – s13(1) Building and Construction Industry Security of Payment Act 1999 (NSW) requires payment claim in respect of one contract – adjudication determination based on such a payment claim is void (at [34]-[42]) – obiter in Ausipile v Bothar Boring [2021] QCA 223 plainly wrong – no “arrangement” where there is a contract – clauses providing that work orders comprise a new agreement do not exclude, modify or restrict operation of the Act.
ADMINISTRATIVE LAW – application for judicial review – Commissioner of Corrective Services’ directions subjecting inmate to urinalysis – broad drug testing discretion – claimed psychological impediment to provide urinalysis unfounded on the evidence – torture – prohibitions on torture as custodial punishment – legal unreasonableness
JURISDICTION – supervisory jurisdiction – challenge to interlocutory establishment decision of Children’s Magistrate – care proceedings – application for summary dismissal of application for review – whether merits review in disguise – whether reasonable cause of action for judicial review pleaded – case for review clearly untenable
CIVIL PROCEDURE – commercial list – procedure – list statements – whether defendants should have leave to amend their List Response COSTS – whether defendants should pay the plaintiff’s costs thrown away by the vacation of the hearing date
COSTS – departure from the general rule – where plaintiff unsuccessful in obtaining relief at final hearing – whether costs of various interlocutory applications warrant a departure from the general rule – held that some departure warranted – order that defendants pay certain costs and otherwise that the plaintiff pay the costs of the proceedings COSTS – gross sum order – held the evidence does not establish likelihood that the plaintiff will be unable to pay defendants’ costs once assessed – held that evidence does not place Court in position to be confident it could resolve challenges about amount of costs on a fair and logical basis – gross sum costs order declined
COSTS – proceedings to sell co-owned property under section 66G of the Conveyancing Act 1919 (NSW) – proceedings settled save as to costs – settlement agreement contemplated a subdivision of co-owned property and sale of one of the subdivision lots – where no determination on the merits – where neither party acted unreasonably – where costs of section 66G application usually taken from the proceeds of sale of co-owned property – held that each party’s costs to be paid out of the sale proceeds of the proposed subdivision lot
CRIME – Murder – Defences – Mental illness – special hearing by judge alone – where accused was found unfit to be tried – whether accused not criminally responsible by reason of mental illness – special verdict of act proven but not criminally responsible
COSTS – Security for Costs – the defendants seek an order for security for costs against the corporate plaintiff, a private company – the principal shareholder in the plaintiff is proposed to guarantee the obligations of the plaintiff and pay costs – no evidence as to the assets of the principal shareholding of the plaintiff – whether an order for security for costs should be made against the plaintiff. COSTS – Interlocutory costs – Uniform Civil Procedure Rules 2005, r 42.7 – defendants have the benefit of interlocutory costs orders against the plaintiff – defendants seek that the plaintiff pay the interlocutory cost orders forthwith – whether the circumstances warrant payment of the costs orders forthwith. CIVIL PROCEDURE – Court appointed expert – orders made for appointment of a Court expert – Court expert seeks directions for the future conduct of the expert’s task – concern that parties are excessively corresponding with the Court expert and increasing the costs of the expert’s work – need for discipline in the conduct of proceedings in relation to the Court expert.
CRIME – sentencing – murder – plea of guilty to constructive murder – hearing as to contested facts – deceased killed by a single stab wound – whether wound inflicted accidentally – whether offender had intention to cause grievous bodily harm
CRIMINAL LAW – public interest immunity – where Commissioner submits that information sought by subpoena would reveal identity of person of interest and potentially compromise ongoing and sensitive police investigation – where forensic purpose of information sought is to identify person of interest and assist accused to respond to Crown case – material to be made available to accused’s legal representatives on limited basis
MENTAL HEALTH – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Extension Order – unacceptable risk – less restrictive means – extension granted
SENTENCING – remarks on sentence – manslaughter – unlawful and dangerous act – disposal of corpse – where offender killed his partner and concealed her body – where remains not found for five and a half years – history of personal violence offences – background of deprivation – special circumstances – plea of guilty – new count offence – limited evidence of remorse
PRACTICE AND PROCEDURE – cross-vesting – whether proceedings should be transfer from the NSW Supreme Court of New South Wales to the Supreme court of Western Australia – whether it is in the interests of justice to transfer the proceedings
CRIMINAL LAW – murder – trial by judge alone – death by shooting – wholly circumstantial case – extended joint criminal enterprise – whether accused had foreknowledge that an associate was armed with shortened weapon – whether accused as a party to an agreement with gunman to cause serious harm to a member of the victim’s group foresaw the possibility that death may result – whether Crown case was capable of supporting a legitimate inference that accused became aware of the weapon or rose no higher than mere speculation, conjecture or supposition – whether Crown excluded all reasonable hypotheses consistent with innocence – verdict of not guilty
CRIME — sentence — where offender tried for murder — early guilty plea to manslaughter on the basis of extreme provocation— attempted sexual assault of offender by deceased – immediate complaint and admissions by offender — jury convicted offender of manslaughter — extreme provocation not disproved — s 23 Crimes Act 1900 (NSW) — where offender has supportive family and good prospects of rehabilitation — evidence of remorse – strong subjective case
CIVIL PROCEDURE – stay of proceedings – whether proceedings should be stayed pending observance of dispute resolution procedures in contract CIVIL PROCEDURE – cross-vesting – transfer to other Supreme Court – relevant factors – transferred to Supreme Court of Western Australia
CRIME – Appeal and review – Appeal from Local Court to Supreme Court – inadequacy of reasons – question of mixed law and fact – where plaintiff’s case alleged inconsistency between body-worn camera footage and police officers’ evidence – where plaintiff submitted that certain elements could not be established beyond reasonable doubt – failure to deal with arguments raised by plaintiff – appeal allowed
CIVIL LAW – advocate’s immunity - Magistrate’s order for summary dismissal - plaintiff’s claim for negligence and breach of contract against solicitors who acted in criminal proceedings - appeal against Magistrate’s order - whether Magistrate exhibited bias - whether application an abuse of process - whether Magistrate erred in conducting a “hybrid hearing” conflating immunity with summary judgment - whether Magistrate applied the wrong test - self represented litigant - not his first rodeo - allowance made for pleadings and submissions - scatter gun - whether whole of claim bound to be defeated by immunity - whether disputed facts required resolution in final hearing
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – where s 25 judgment entered in favour of builder – where time to claim damages under building contract out of time – where earlier proceedings claiming damages under building contract discontinued – where principals now seek declaration of the parties’ rights under the building contract purportedly in aid of injunction to restrain builder from being unjustly enriched by enforcing the s 25 judgment – whether such a claim is liable to be struck out CIVIL PROCEDURE – stay of proceedings – application by reason of unpaid costs in earlier proceedings – whether same or substantially the same cause of action in these proceedings as in those earlier proceedings COSTS – security for costs – relevant factors – impecuniosity – whether proceedings in substance defensive – other factors
CIVIL PROCEDURE – pleadings – application for leave to file an amended statement of claim – form and content of pleading – whether the proposed amended statement of claim properly pleads the causes of actions alleged – whether requisite detail and specificity of pleadings – leave refused
CIVIL PROCEDURE – pleadings – application for leave to file an amended statement of claim – form and content of pleading – whether the proposed amended statement of claim properly pleads the causes of actions alleged – whether requisite detail and specificity of pleadings – leave refused
EVIDENCE – criminal proceedings – application to exclude evidence – application brought by three accused charged with murder of deceased – evidence concerns intercepted phone calls prior to arrest and gaol calls when accused in custody, social media posts, witness statements and a music video – whether evidence is relevant – whether evidence if relevant is unfairly prejudicial EVIDENCE – criminal proceedings – consciousness of guilt – Crown relies on evidence that one accused changed physical appearance shortly after police posted media release with his picture – where accused charged with murder/manslaughter and affray from assault causing death – where accused facing separate charge of affray from another incident – whether evidence of change of appearance was intractably neutral between various charges – where it was open to jury to infer accused’s reason for altering appearance came from realisation of involvement in the murder – evidence admissible and capable of amounting to consciousness of guilt evidence EVIDENCE – criminal proceedings – state of mind – evidence of conduct of accused to demonstrate state of mind – where conduct demonstrated shows aggressive state of mind shortly before altercation with deceased – evidence not unfairly prejudicial EVIDENCE – criminal proceedings - hearsay – lay opinion evidence – evidence concerning gang membership by accused – where evidence derived from social media – evidence inadmissible
CORPORATIONS — winding up — where the first plaintiffs are the liquidators of two related companies — application for directions concerning claim to be made on behalf of one company (BBYN) in Court approved process for distribution of assets of other company (BBYL) to BBYL’s clients where BBYN’s claim reflects value of assets held by BBYN as bare trustee for BBYL clients – conflict of interest and duty BBYN liquidators making claim and BBYL liquidators adjudicating claim – process for distrusting proceeds of BBYN’s claim to BBYL clients for whom the relevant assets were held on trust. CORPORATIONS — winding up — liquidators’ remuneration, costs and expenses — whether remuneration claimed reasonable and proportionate
COSTS - Proceedings commenced by litigant in person purportedly on behalf of his two children who were then persons under a legal incapacity – Named Plaintiff not identified in Statement of Claim as tutor for those persons and no application made that, as tutor, he be permitted to commence or carry on the proceedings without a solicitor – Subsequent appointment by litigant in person of solicitor following which an independent person appointed to act as the tutor for the person under a legal incapacity, the other child having attained the age of 18 years – Amended Statement of Claim filed in accordance with the UCPR - Costs reserved in relation to the proceedings commenced by litigant in person
SUCCESSION – Construction of deceased’s Will - Administration - Effect of testamentary dispositions - Whether direction to pay debts and testamentary expenses displaces s 46C(2) of the Probate and Administration Act 1898 or whether the section inapplicable because of terms of the Will SUCCESSION – Family Provision – Claim by adult child of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – Provision made for Plaintiff in the last Will of the deceased – No competing financial claim of the Defendant, and his sister, both of whom are also adult children of the deceased – Whether the Plaintiff was left without adequate provision for his proper maintenance and advancement in life – Whether an order for provision should be made for his proper maintenance and advancement in life and, if so, in what amount – Provision to be made for the Plaintiff in lieu of the provision made for him in the deceased’s Will
CIVIL PROCEDURE – Section 73 Civil Procedure Act 2005 (NSW) - Power of court to determine questions in dispute between the parties to the proceedings as to whether and on what terms the proceedings have been compromised or settled between them – Plaintiff claims settlement reached - Evidence of Plaintiff’s adoption subsequently revealed – Whether settlement reached remains valid – Whether common mistake renders settlement void or voidable – Orders considered appropriate to give effect to determination SUCCESSION – Substantive proceedings involve claim for family provision order under Ch 3 of the Succession Act 2006 (NSW) – Applicant alleged to be child of the deceased – Subsequent evidence given that Plaintiff was not a child of the deceased as he had been adopted by a third party
CONTRACTS – Implied terms – Whether term should be implied requiring payment within a reasonable time or requiring immediate payment of money owing under a deed
TORTS – negligence – personal injury – liability – duty of care – breach of duty – causation – credit – surveillance footage – Markus ruling – damages – non-economic loss – economic loss – out of pocket expenses – future treatment - quantum of damages
EQUITY – house purchased by defendants for plaintiff to live in – purchase financed with a loan in the names of the defendants – plaintiff contributed to mortgage repayments and paid outgoings – dispute as to quantum of plaintiff’s contribution – whether plaintiff was merely renting the property from the defendants – whether the property was subject to a joint endeavour constructive trust – terms of constructive trust – form of account to determine quantum of contributions
COSTS — party/party — costs orders in interlocutory proceedings — application withdrawn and dismissed — analogous to discontinuance of proceedings — general rule that costs follow the event — application of the rule and discretion — timing — costs payable forthwith CRIME — confiscations — restraining order — application for allowance for reasonable living expenses — costs when application not pressed
CIVIL PROCEDURE – Appeal from decision of NCAT Appeal Panel – Fair Trading Act – Competency of appeal – UCPR 50.16 – No question of law raised – Whether decision of tribunal member at first instance appealable – Affected paragraphs dismissed as incompetent
CRIME — confiscations — forfeiture order — where no exclusion application has been made in respect of the property — whether reasonable steps taken to notify affected persons — whether the Court has a discretion to refuse to make a forfeiture order if not in the public interest — whether the Court is required to specify the value of forfeited property WORDS AND PHRASES — “money” — Proceeds of Crime Act 2002 (Cth), s 56
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — proceedings brought by plaintiff in the form of an appeal from a Local Court judgment — summons did not contain statement setting out grounds relied on in support of the appeal — Registrar made directions for filing and serving of amended summons, documents required under r 50.14 UCPR and written submissions — non-compliance with Registrar’s orders over a 10 month period to the hearing of defendant’s motion — no explanation for failure to comply — where failures so egregious that dismissal of proceedings is justified under both s 61 of the Civil Procedure Act and r 12.7 of the UCPR — proceedings dismissed
CORPORATIONS – application to set aside statutory demand – genuine dispute – construction of contract implied term – non-performance of contract – clear beyond argument that defendant provided services during period for which invoices rendered – suggested construction patently feeble.
ARBITRATION – seek to set aside award – building dispute – whether agreement to appeal on questions of law – s34A(1), Commercial Arbitration Act 2010 (NSW) – principles at [31]-[32] – no agreement – whether estopped from denying agreement – no estoppel. JURISDICTION of arbitrator – principles at [126] –declaratory relief – prevalence and utility of declaratory relief in contractual matters at [130]-[131] – challenge to claim as time barred does not deprive arbitrator of jurisdiction at [132]. PUBLIC POLICY – principles at [137]-[140] ADEQUACY OF REASONS – principles at [142]-[148]
CIVIL PROCEDURE — Interim preservation — Freezing orders — Where the substantive proceedings concern by way of restitution the recovery of monies paid directly or indirectly by the plaintiff to the defendants — Where the plaintiff seeks freezing orders by reason of the risk of dissipation of the defendants’ assets — Where the defendants opposed the making of the freezing orders — Where the Court held that the circumstances warranted the making of freezing orders against the defendants
CRIMINAL LAW – sentencing – murder – shoot with intent to murder – fact finding following long trial of 6 co-accused – implications of acquittals for related offence of attempted murder – implication of acquittal of co-offender – whether contract killing – where principals not charged or called to give evidence – where quality of evidence questionable – principal witness self-serving fabricator with access to police brief – other prosecution witnesses evasive and unfavourable – analysis of whole of evidence – drug debt established – contract to kill not established –chaotic and poorly executed escapade – three firearms used – high level of objective seriousness – upper mid-range – gangster lifestyle – guns and drugs – shooting at makeshift Buddhist Temple – innocent by-stander killed – drug dealer target escaped – Sifu – Buddhist master and collector of fine wine – more than meets the eye CRIMINAL LAW – sentencing – application of principle – fact finding in context of jury verdicts – alternative bases of liability – aggravating and mitigating circumstances – refusal to adopt a check-list approach to sentencing – totality – cumulation of sentences – partial concurrence – aggregate sentencing – special circumstances – parity and proportionality
CONTRACTS AND NEGLIGENCE — plaintiff claims damages for alleged negligence and breach of retainer and duty of care — defendants knew that if notices to extend the Registration Date were not given by certain dates purchasers would have an automatic entitlement to rescind and receive their deposit — defendants told the developer of the effect of contractual provisions but the developer did not appreciate their import or know whether it was entitled to an extension — the developer gave instructions to defendants to extend Registration Dates by agreement or notice — date on which notice had to be given was never set out in the numerous schedules provided by the defendants to the developer — defendants would have appreciated that when notices were sent that they were invalid in respect of contracts for two Lots — defendants were negligent and breached their retainer by not alerting the developer to the imminent deadline for service of notices — reasonable care required the defendants to seek instructions from the developer to ascertain whether they ought send notices to purchasers — not satisfied that defendants advised the developer that it had a defence to the claim for declarations that contracts had been validly rescinded in associated Equity proceedings or that its conduct in respect of the proceedings was negligent or amounted to breach NEGLIGENCE — Defences — Contributory negligence and apportionment — persons alleged to have contributed to the harm taken as agents of the developer rather than potential wrongdoers — the contractual provisions were relatively complex for non-lawyers and the developer was entitled to rely on the defendants’ expertise — developer cannot bear full responsibility for monitoring dates by which extension of time notices had to be given — a reasonable person in the position of the developer would have appreciated the import of the provisions and realised that notices had to be given by certain dates — failure to take reasonable precautions against a risk of harm established — reduction for the developer’s contributory negligence NEGLIGENCE — Damages — but for the defendants’ negligence, the developer would have instructed the defendants to serve notices to extend time — developer received less for the Lots because of the defendants’ breach — factual causation and scope of liability established — not satisfied that the scope of the defendants’ liability extends to consequential loss arising from the need to re-sell the Lots or legal costs associated with the Equity proceedings —plaintiff entitled to interest at court pre-judgment rates under s 100 of the Civil Procedure Act 2005 (NSW)
COSTS – succession – family provision – application for further provision refused – incidence of costs – adverse effect on plaintiff’s financial position if costs order made against him – plaintiff’s application was for provision in the nature of advancement not maintenance – no sufficient reason to depart from the usual order as to costs – solicitor-client costs out of the estate – form of order
CIVIL PROCEDURE – Cross-vesting – Transfer to other Supreme Court – application under Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) to transfer proceedings to Supreme Court of Victoria – whether it is in the interests of justice that that Court is the more appropriate
COSTS – whether monitors appointed to company pursuant to Insolvency Act 1986 (UK) should be jointly and severally liable with company for costs of unsuccessful application for recognition of moratorium under UK Act as a foreign main proceedings under Model Law on Cross-Border Insolvency – costs order made against joint monitors and company jointly and severally COSTS – application for gross sum costs order – whether costs estimated on a fair, logical and reasonable approach – order refused
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – De-stapling scheme – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Destapling scheme – Whether requirements to order scheme meetings are satisfied.
CIVIL LAW - appeal from Local Court - plaintiff self-represented - documents lacking legal finesse - where plaintiff did not appear - where statement of claim struck out - procedural fairness - confusion - woefully inadequate record - conflict as to whether matter dealt with in court or chambers - the plaintiff’s right to be heard - failure to give reasons - appeal allowed and matter remitted to the Local Court
CRIMINAL LAW – sentencing – manslaughter – 62 year old man kills his wife of 30 years – happy normal relationship – frenzied knife attack – inexplicable crime – severe psychiatric illness – where prosecution accepts substantial impairment defence – plea of guilty in the local court – assessment of moral culpability and objective criminality – relevance of reduction of charge pursuant to s 23A – protection of community – substantial adjustment to non-parole period
RES JUDICATA – multiple prior proceedings in this Court arising out of the administration and liquidation two companies that also gave rise to the events the subject of these proceedings – whether plaintiffs’ claims in these proceedings are precluded by the doctrines of res judicata, issue estoppel or Anushun estoppel – whether plaintiffs’ claims in these proceedings are an abuse of process POWER OF ATTORNEY – determination in previous proceedings that power of attorney irrevocable by reason of Powers of Attorney Act 2003 (NSW), s 15 – construction of power of attorney – consideration of whether attorneys owed fiduciary duties to principal – held that attorneys owed duties not to obtain unauthorised benefits (or confer such benefits on third parties) and not to act in circumstances of conflict between attorneys’ interests (or interests of third parties) and principal’s interests FIDUCIARY DUTIES – breach of fiduciary duties by attorneys in entering into a series of deeds dealing with the proceeds of the principal’s rights and interests in respect of which the attorneys had been appointed to act on behalf of the principal – alleged conspiracies – whether third party induced or procured breaches of fiduciary duties – whether third party knowing recipient of property obtained by breaches of fiduciary duties – whether breaches of fiduciary duties were a dishonest and fraudulent design in which third party was a knowing assistant – use of power of attorney to retain solicitor to act in name of principal but for benefit of third party a fraud on the power remedies as against attorneys and third parties LAND LAW – Torrens title – indefeasibility of title – fraud exception to indefeasibility LEGAL PRACTITIONERS – consideration of what constitutes engaging in legal practice within the meaning of s 10 of the Legal Profession Uniform Law (NSW) – consequences of attorneys appointed under power of attorney undertaking work that amounted to engaging in legal practice in circumstances where the attorneys were not qualified entities within the meaning of the Uniform Law
JUDICIAL REVIEW – Assessment of whole body impairment – Extension of time – UCPR 59.10 –Failure to respond to a substantial and clearly articulated argument – Duty to provide reasons – Jurisdictional error – Error on the face of the record – Denial of procedural fairness – Decision of Review Panel set aside
CRIMINAL LAW – murder – sentence after trial – single stab wound – assessment of objective criminality – unplanned attack – no intention to kill – where offender armed with knife – deterrence – offender motivated by anger – blamed victim for theft of property – where offender previously convicted of wound with intent – relevance of criminal history – mitigating factors – where based on history provided by offender – offender unreliable and self-serving historian – hearsay evidence not accepted on balance – facilitation of the course of justice – small reduction in sentence
INTERNATIONAL ARBITRATION – whether proceedings commenced in this Court involved the determination of a matter that, in pursuance of an arbitration agreement, is capable of settlement by arbitration – construction and scope of arbitration agreement – consideration of characters of matter to be determined in these proceedings, including plaintiffs’ claims and defendant’s proposed defence – whether claims and proposed defence one matter for the purpose of s 7(2)(b) of the International Arbitration Act 1974 (Cth) – where defendant precluded from relying on proposed defence in proceedings in this Court by reason of anti-suit injunction issued by the High Court of Singapore – where plaintiffs had exercised right of election under arbitration agreement to commence proceedings in this Court rather than have their claim determined by arbitration – where plaintiffs also relied on anti-suit injunction to prevent defendant from pleading its proposed defence to plaintiffs claims in these proceedings – abuse of process.
SUCCESSION – Family Provision – Claim by adult child of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – No provision made for Plaintiff in the last Will of the deceased – Significant competing claim of the Defendant, the widow of the deceased – Long marriage - Written agreement made in 2005 for mutual Wills made by the deceased and the Defendant which constituted a binding promise made which would be breached if the deceased had left any of his estate to the Plaintiff. No suggestion that the deceased changed his Will after 2005 or that the Defendant had changed, or intended to change, her Will, which, in terms, reflected her binding promise to the deceased Whether the Plaintiff was left without adequate provision for his proper maintenance and advancement in life – Whether an order for provision ought to be made for his proper maintenance and advancement in life and, if so, in what amount.
ADMINISTRATIVE LAW — Standing — plaintiff sought to challenge public health orders — whether the plaintiff had standing where he had never been charged with and had no intention of breaching directions made under the public health orders — consideration of propositions emerging from authorities on “sufficient interest” — the plaintiff has standing where the law interferes with his private right irrespective of whether other members of the public have the same right and are similarly affected — provisions of the public health orders interfere with the plaintiff’s right to leave his home PUBLIC HEALTH ACT — COVID-19 — public health orders made under s 7 of the Public Health Act 2010 (NSW) — public health orders purporting to authorise police officers to request and require production of evidence from persons of their name and place of residence and vaccination status — amendment to s 112 to include police officers as authorised officers able to direct that a person’s name and address be provided — s 112 is not to be regarded as the exclusive source of police officers’ powers to enforce the Act — s 7 and Part 8 of the Act must be construed in the context of the background of statutory and common law — police officers exercising powers under the Act are bound by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — consideration of the effect of Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 on the question of privilege against self-incrimination — no relevant distinction between the clauses considered in Kassam, which were found not to infringe the privilege against self-incrimination, and those impugned in this case — directions specifically providing that “required evidence” be carried and produced on request expressly overrides the privilege and the right to freedom of movement —amended summons dismissed
COSTS – where party to which subpoenas directed produced documents with redactions – where Court’s authority to make redactions not hitherto sought – where party issuing the subpoenas sought declaration that producing party in contempt – where party producing documents sought orders confirming the redactions – where Court declined to make declaration of contempt but ordered that many such documents be produced without redaction – what costs orders should be made in relation to the applications
LAND LAW – easements – right of carriageway – actionable nuisance – plaintiff’s land has the benefit of a right of carriageway 48.645m long over the defendants’ land – right of carriageway used as a driveway to access public road – defendants constructed fence along the right of carriageway with 7.4m gap to permit plaintiff access to his land – plaintiff constructed large shed north of the gap and has a barn south-west of the easement area – plaintiff owns numerous vehicles including 11m long bus – whether fence with only 7.4m gap obstructs the plaintiff’s enjoyment of rights under the easement – held that fencing impedes or restricts ability of dominant owner to move large vehicles from easement to large shed and from easement to south-western area of the land – real substantial interference with enjoyment of rights – held appropriate to grant injunctive relief to remedy continuation of interference
PUBLIC HEALTH ACT – COVID-19 – public health orders made under s 7(2) of the Public Health Act – orders designate certain areas of concern and restrict movement out of the home and out of the area –authorised workers able to leave area of concern but only if vaccinated – orders allow residents of area of concern to enter and remain on construction sites but only if vaccinated – orders allow persons to enter and remain upon premises that operate aged care facilities but only if vaccinated – orders preclude persons from working at school and early education facilities unless vaccinated – scope of power to make orders giving such broad directions – whether power limited by reference to other powers conferred by the Public Health Act as a whole – whether principle of legality engaged by impugned orders – effect on personal freedoms – orders affect freedom of movement and capacity to work – orders do not violate right to body integrity – rule restricting freedom of movement for unvaccinated persons does not vitiate consent to vaccination – requirement for persons who leave areas of concern, enter building sites or work at schools or aged care centre to produce vaccination requirement on request – requirement does not infringe privilege against self-incrimination – privilege protects against production of incriminating not exonerating material. ADMINISTRATIVE LAW – proof of basis upon which Minister for Health acted – Minister did not give evidence – part of documents relied on subject of public interest immunity claim as documents produced to sub-committee of cabinet - whether Jones v Dunkel inference or Blatch v Archer reasoning available against Minister and State – position of Ministers with competing responsibilities – no adverse inference available – Blatch v Archer reasoning not available ADMINISTRATIVE LAW – grounds of challenge – relevant considerations – how derived and how framed – procedural fairness – no obligation to afford procedural fairness in making public health orders affecting a vast number of persons – not proven that making of orders was not a genuine exercise of the Minister’s power – unreasonableness – adducing of evidence to undermine factual basis for making of orders – decision to make orders informed by policy considerations – whether differential treatment of unvaccinated persons consistent with objects of Public Health Act – all grounds of review rejected. CONSITUTIONAL LAW – whether orders and section 7 of the Public Health Act rendered invalid by s 51(xxiiiA) of the Constitution – orders do not create any form of civil conscription in the provision of medical and dental services – s 51(xxiiiA) does not limit legislative power of the States – no joint scheme with Commonwealth to effect civil conscription – neither orders or Public Health Act dependent for its operation on any joint scheme with Commonwealth – argument untenable – no inconsistency between orders, Public Health Act and Australian Immunisation Register Act 2015
COSTS – incidence of costs – family provision claim – amount of provision within District Court’s jurisdictional limit – whether plaintiff to be deprived of costs under UCPR r 42.34 COSTS – incidence of costs – family provision claim – informal offer – whether plaintiff’s rejection of offer reasonable
SUCCESSION – family provision – applicant and deceased living together in six and a half year de-facto relationship prior to deceased’s death – both parties in their mid-to-late forties – relationship ending four months prior to deceased’s death – deceased’s will provided for applicant to receive one of his investment properties with a net value of $200,000 – whether adequate provision made for applicant – violence towards deceased as a disqualifying factor – application refused
BUILDING AND CONSTRUCTION – Design and Building Practitioners Act 2020 (NSW) – statutory duty under s 37 – application to amend Technology and Construction List Statement – whether sufficient merely to identify the alleged defects – whether necessary to plead the risks the builder was required to manage and the precautions the builder should have taken to manage those risks
CONTRACTS — Construction of default fees and charges clause — Whether clause is unenforceable as a penalty GUARANTEE AND INDEMNITY — Contract of guarantee — deeds — whether guarantor is liable under Deed of Agreement to indemnify the plaintiff for borrower’s failure to repay loan sum and interest
CIVIL PROCEDURE – Cross-claims – against plaintiff – application to amend Commercial List Cross-Claim List Statement to add claim for relief against forfeiture – where clause in lease obliged lessees to pay rent without any deduction or set-off whatsoever – where lessees allege unconscionability on the part of the lessor – whether leave should be refused on basis claim bound to fail EQUITY – relief against forfeiture – where clause in lease obliged lessees to pay rent without any deduction or set-off whatsoever – whether such a clause effective without more to deny relief against forfeiture
CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — Whether proceedings ought to be transferred to the Federal Court (Victoria Registry) where separate proceedings that raise related issues are on foot
CORPORATIONS – company operates profitable business in leased premises – shareholders in dispute – voluntary liquidator appointed – liquidator advertises business for sale – one shareholder has “very strong relationship” with landlord – landlord proposes to terminate lease and grant new lease to shareholder – shareholder makes offer for plant and equipment only – company likely insolvent due to unlodged BAS – liquidator appointed as administrator – moratorium on landlord – shareholders submit competing DOCAs – other shareholder submits better offer – approved by creditors – conditional on transfer of shares – shareholder will not consent – s444GA, Corporations Act – principles at [26]-[33] – only applies to administrators under a DOCA – s447A(1), Corporations Act – principles and application at [44]-[56] – modification of operation of s 444GA to apply to administrator – transfer ordered. COSTS – r. 2.13(2) Supreme Court (Corporations) Rules – whether interested party should pay costs – application strenuously opposed – substantial evidence irrelevant or abandoned – hearing prolonged – in interests of creditors – shareholder ordered to pay liquidator’s costs.
COSTS — Gross sum costs order — plaintiffs seeking order following attempts to enforce judgment — whether counsel’s fees were appropriate and reasonable — whether any discount should be made to legal fees including counsel’s fees
FAMILY LAW – Children – Adoption – Interim care order – Whether an interim care order can be made under s.84(2) of the Adoption Act 2000 (NSW) in the absence of a formal application for adoption in favour of a specific adoptive parent or parents
DUST DISEASES – proceedings commenced against deregistered company in Dust Diseases Tribunal – claim for damages for non-economic loss – claimant died after commencement of those proceedings – s 2(2) Law Reform (Miscellaneous Provisions) Act 1944 (NSW) and s 12B Dust Diseases Tribunal Act 1989 (NSW) – reinstatement of company pursuant to s 601AH Corporations Act 2001 (Cth) – insurer itself deregistered - resort to the Insurers' Guarantee Fund CORPORATIONS – reinstatement and ancillary orders under s 601AH Corporations Act 2001 (Cth) – ancillary order appointing liquidator to company on reinstatement
CIVIL PROCEDURE – plaintiff sued first and second defendant for injuries arising out of medical negligence – Calderbank offer accepted by plaintiff – approval of settlement – where three statutory deductions must be made from amount of settlement – where defendants propose term to be included in consent judgment withholding interest payable until certificates received from Commonwealth entities – whether such term should be implied in consent judgment CONTRACTS – construction -- whether proposed term was a standard term in consent judgments – where implying term into judgment would have effect of varying s 101 of the Civil Procedure Act – where term does not fall within any of categories of implied terms identified in relevant case law – where no basis for implication of term
ESTOPPEL — Proprietary estoppel — Encouragement — Where the plaintiff was a sharefarmer on property owned by the deceased for approximately 40 years — Where the defendants are the executors of the deceased’s estate — Where the plaintiff claimed the deceased made an oral representation to him years ago that she would leave the property to the plaintiff — Where the deceased failed to do so — Where there was no witness to the representation and it was not in writing — Where the Court considered the credibility of the witness and circumstantial evidence to determine whether the representation was made — Where the Court found the plaintiff to be an exceptionally credible witness who was both truthful and reliable — Where the Court found on the balance of probabilities and on the basis of both credibility and circumstantial evidence that the representation was made — Where the defendant argued that the deceased did not know that the plaintiff was relying on the assumption — Where the Court found the deceased had constructive knowledge — Where the defendants argued that even if the representation was made, the representation was not the sole reason why the deceased stayed on the property and continued share farming — Where the Court held that it was sufficient for the plaintiff to have established that the representation was a significant factor in his decision to stay and continue share farming — Where the defendants argued that if the Court found the representation had been made, it would also have to make a finding that the deceased was dishonest — Where the Court held that it did not have to make a finding of dishonesty in order to find that the deceased acted unconscionably ESTOPPEL — Proprietary estoppel — Encouragement — Where the defendants raised defences as to why the plaintiff’s conduct disentitled him to equitable relief — Where the defences raised were to the effect that the plaintiff deceived the deceased in relation to accounting matters, that the plaintiff failed to conduct the share farming operation in a proper and workmanlike manner, that the plaintiff had received rent-free accommodation for the period in which he performed the share farming agreement, that the plaintiff failed to maintain his house on the farm, that the plaintiff received loans from the deceased which were forgiven over time, and that the deceased made a considerable monetary gift to the plaintiff in her will — Where the Court dismissed all defences raised by the defendants
ADMINISTRATIVE LAW – Judicial review – Motor Accident Injuries Act 2017 – State Insurance Regulatory Authority – Dispute Resolution Service – Medical Assessor’s Certificate – Review Panel’s Certificate – Minor injury – Denial of procedural fairness – Jurisdictional error – Failure to exercise jurisdiction – Failure to conduct new assessment – Irrelevant consideration – Failure to respond to a clearly articulated argument – Failure to provide reasons – Failure to inquire
CORPORATIONS – application for leave to bring proceedings on behalf of company – Corporations Act, s 237 – equitable proprietary claim against trustees in bankruptcy – company willing to pursue claim but impecunious – applicant proposing to conduct claim in person – serious question to be tried – good faith – best interests of company – conditions that applicant provide security and proceedings be conducted by a qualified person
CIVIL LAW – proceeds of crime – freezing orders – orders for disclosure of assets and liabilities – whether appropriate to deal with applicant ex parte – no question of principle
CHILD WELFARE – Parental responsibility – Order allocating parental responsibility – where the Children’s Court made orders in June 2021 allocating parental responsibility for the child to the Minister until the child turns 18 – where the applicant mother has appealed that decision in the District Court of New South Wales pursuant to Children and Young Persons (Care and Protection) Act 1998 (“Care Act”), s 91 – where a final hearing was set for November 2021 before the District Court, and Olsson SC DCJ appointed a Guardian ad litem for the applicant mother pursuant to Care Act, ss 98(2A) and 101 – where the applicant mother has sought to challenge that decision in the Supreme Court’s parens patriae jurisdiction. CHILD WELFARE – Jurisdiction – Supreme Court of New South Wales – Parens patriae – where the Court has informed the applicant mother the appropriate forum to challenge Olsson SC DCJ’s appointment of a Guardian ad litem would be the Court of Appeal – where the applicant mother expressed she did not want the case referred to the Court of Appeal – whether there are exceptional circumstances warranting the Court’s exercise of its parens patriae jurisdiction. CHILD WELFARE – Care proceedings – Guardian ad litem – whether the Children’s Court may appoint a Guardian ad litem for an applicant parent pursuant to Care Act, ss 98(2A) and 101 where that parent is self-represented and does not wish to be legally represented – observations on the construction of Care Act, ss 98(2A) and 101.
CIVIL LAW – criminal assets recovery - restraining orders – ex parte – restraining orders made – ancillary orders – compulsory examination – whether such orders should be made ex parte – realism of plaintiff’s solicitor – discretionary considerations – where orders for examination can be made at a later stage – where pending criminal proceedings - ancillary orders refused
COSTS — Party/Party — applications for costs orders — plaintiff obtained judgment for nominal damages only following a finding that defendant breached contract — parties bear their own costs up to 1 September 2021 and plaintiff to pay defendant’s costs on an indemnity basis thereafter COSTS — Security for costs — whether money paid by way of security for costs ought be released — in the absence of evidence to establish quantum of defendant’s costs on an indemnity basis from 2 September 2021 it is not yet appropriate to order the release
PUBLIC HEALTH ACT — COVID-19 — public health orders made under s 7 of the Public Health Act 2010 (NSW) — health care workers required to be vaccinated by particular dates as a condition of being permitted to provide health care services — whether it was open to the Minister to make the public health orders having regard to the risk to public health posed by COVID-19 — consideration of the width of the power in s 7 by reference to Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 — Chief Medical Officer gave evidence of her advice to the Minister to make the orders, the rationale for the orders and available data — concern to protect categories of persons at greater risk of severe COVID-19 illness who are over-represented in health facilities and to prevent disruption to the delivery of public health services — reasonably open to the Minister to make the orders PUBLIC HEALTH ACT — Time-limited orders — the Minister is not permitted to make an order which has an effect beyond 90 days — the direction requiring health care workers to be double-vaccinated by 30 November 2021 could not become operative since the 90-day period would expire on about 24 November 2021 — the direction does not render the order invalid in circumstances where the Minister’s purpose was to put staff on notice of his intention to prohibit staff who had not been double-vaccinated from performing duties — the potentially permanent effects of the orders are the inevitable consequence of the width of the power in s 7, risk posed by the virus and the Minister’s decision as to how to deal with the risk HUMAN RIGHTS — International law — the public health orders are not inconsistent with the International Covenant on Civil and Political Rights — freedom of religion and religious expression and freedom of thought and expression may be subject to limitations necessary to protect public health — obligation under the International Covenant on Economic, Social and Cultural Rights to prevent, treat and control epidemics — not necessary to address whether Australia’s international obligations can be used to construe State legislation ADMINISTRATIVE LAW — Remedies — plaintiff seeks declarations that two public health orders were, and are, invalid and associated relief by way of injunctions — whether the plaintiff had a reasonable excuse to fail to comply with the directions cannot be determined in the absence of a charge under s 10 of the Public Health Act 2010 (NSW) and concrete facts
SUCCESSION – administration of estate – judicial advice – Trustee Act 1925, s 63 – continuation of proceedings by executors seeking repayment of amounts paid to a beneficiary of the estate prior to the deceased’s death – defence of cross-claim alleging maladministration, including by instituting those proceedings
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CORPORATIONS – leave to bring derivative action – company’s only asset is shares in trading company – derivative suit seeks to appoint liquidator to trading company – trading company profitable – family dispute – not satisfied as to good faith – not satisfied in best interests of company – value destructive of sole asset – oppression suit on foot – issues may be ventilated in existing proceedings.
CIVIL PROCEDURE – notice of motion – no appearance by the plaintiff – adjournment – further determination of notice of motion to be dealt with on the papers
CONTRACT OF INSURANCE – co-insured parties – insurance claim – part payment of claim – statement of claim – claim for damages – breach of contract – circumstantial evidence – two elements of defence of fraud – s 56 Insurance Contracts Act 1984 (NSW) – Fraud in the Claim – value of the stock and equipment claimed significantly and deliberately exaggerated – Arson – fire deliberately lit – means of entry – no alarm or security cameras – use of accelerants – opportunity – attendance at the warehouse – motive – financial difficulty – debts – Proof of Loss – double counting and inflation of claim – duty of good faith – cross-claim – further amended statement of claim failed – amended statement of cross claim succeeded – orders made
FAMILY PROVISION – interim family provision orders – Succession Act 2006, s 62 – no contest that an interim family provision order should be made – issue concerning the timing of the interim family provision order – whether any interim provision should be paid on 30 December 2021 or in late January 2022 – capacity of the estate to pay interim provision in the short term – whether interim family provision order can be made against notional estate.
INSURANCE — claim for indemnity — warehouse fire — theft of goods prior to fire — whether insured knew fire was to be started and consented to it — identification of the insured’s active and directing mind — fraud of individuals attributed to insured company — insured disentitled from indemnity INSURANCE – claim by owner of goods – not a party to warehouse operator’s policy — construction of policy — interpretation of “interests of other parties” clause — s 48(1) of the Insurance Contracts Act 1984 (Cth) BAILMENT – Bailee — Duties — Breach of obligation to return goods or their value — where bailed goods destroyed by fire — failure to take reasonable care —bailee liable for loss — Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd applied EVIDENCE — Standard of proof — Civil case — where fraud sought to be inferred — circumstantial evidence — Bradshaw v McEwans Pty Ltd applied
HIGH RISK OFFENDER – application for interim supervision order – defendant on parole – statutory pre-conditions conceded – conceded that an order for assessments by qualified psychiatrist/psychologist should be made – form of conditions proposed by plaintiff opposed – conditions imposed identical to parole conditions.
COURTS AND JUDGES — Bias — Application for recusal – Apprehended bias – the Court delivers an interlocutory judgment in August 2021 – that judgment deals with two motions relating to monies paid into Court – the applicants alleged that the judgment demonstrated apprehended bias against them – an oral application for recusal was made and refused – on an adjourned date, a further application for recusal was made concerning the conduct of the Court on the day that the first recusal application was made and in the proceedings generally – need for separation out of issues for determination on the first and second recusal applications – what issues should be considered in the second recusal application and what issues have already been dealt with in the first recusal application – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions to be decided.
CONTRACTS – discharge by frustration – parties entered into Put and Call Option Deed – Deed contemplated a purchase of a subdivided portion of the defendant’s land to facilitate road access to plaintiff’s development land – envisaged subdivision precluded upon commencement of Pittwater Local Environmental Plan 2014 – options under the Deed could nonetheless be exercised in absence of development consent or registration of subdivision – contract formed upon exercise of either option provided that the defendant would grant a right of carriageway over its land to benefit the plaintiff’s land if subdivision not registered for any reason 3 years after date of the contract – whether Pittwater Local Environmental Plan 2014 gave rise to a fundamental commercial difference between contemplated and actual performance – held that conveyance of portion of defendant’s property not the only purpose of the transaction – held that the grant of the right of carriageway could be seen as an alternative means of achieving road access to plaintiff’s land – Deed not discharged by frustration
CIVIL PROCEDURE — Application for stay of proceedings — Concurrent civil and criminal proceedings — Not necessary to direct the defendant to seek particulars of plaintiff’s statement of claim prior to conclusion of criminal proceedings — Notice of motion dismissed and directions made COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs in the cause
CRIME – sentence – murder – plea of guilty entered – offender charged with five others who have pleaded not guilty – offender and deceased both attendees at a 16th birthday party – offender and co-offenders observed punching kicking and stomping on deceased – apparently random attack – deceased died at scene – offender under influence of drugs and alcohol – objective seriousness slightly below the mid-range – young offender – importance of general deterrence – reasonable prospects of rehabilitation and low risk of reoffending – offender remorseful – relevance of Covid-19 to custodial conditions – no finding of special circumstances - 10% discount for plea entered after committal for trial
CORPORATIONS – Winding up – Practice and procedure – Application for stay – Where satisfactory explanation for why winding up order made in absence of company – Where, however, company not solvent – Where no prospects of disturbing costs orders which constitute part of company’s debts – Where other causes of action available to the company are highly speculative – Application refused CORPORATIONS – Winding up – Statutory demand – Defect in demand – Defect in address for service – No utility in setting aside when company plainly insolvent
HIGH RISK OFFENDERS – extended supervision orders – preliminary hearing – appointment of psychiatrists or psychologists – where defendant convicted of shoot with intent to murder in 2008 – previous non-compliance with medication for schizophrenia – successful completion of one year on parole – interim test satisfied – interim supervision order granted
EQUITY — Trusts and trustees — Court’s supervision — Powers, duties, rights and liabilities — Breaches of trust — Court’s power to excuse — Remuneration
PARTNERSHIPS AND JOINT VENTURES — Dissolution — Where panoply of claims and cross-claims — Proust’s In Search of Lost Time EQUITY — Equitable fraud — Sham transactions — Bribes EQUITY — Fiduciary duties — Breach RESTITUTION — Nature of restitutionary liability — Availability of restitution — Quantum meruit and quantum valebat BANKING AND FINANCE — Banks — Duties — Duty to adhere to mandate of customer OCCUPATIONS — Solicitors — Professional negligence
PROCEDURE – dismissal of proceedings for want of prosecution – where one plaintiff deceased and no information available as to his estate – where the second plaintiff is under legal incapacity – where no tutor has been appointed
INSURANCE — Insurance Contract — jewellery shop owner claiming for stolen and damaged stock after robbery — construction — whether policy imposed obligation to keep proper records — what information insured was obliged to provide about claim — whether obligations breached INSURANCE —Bilateral duty of utmost good faith — whether duty breached — whether claim for stolen jewellery substantiated — whether claim for damaged jewellery substantiated — whether insurer breached contract — failure to pay for admitted loss — what loss was substantiated EVIDENCE — Credibility and reliability of witnesses and reliability of business records — consequences of failure to plead fraud — consequences of failure to call witnesses and tender documents
CIVIL PROCEDURE – Appeals requiring leave – UCPR 50.12 – Interlocutory judgments – Whether dismissal of notice of motion to set aside default judgment interlocutory – Effect of failure to seek leave – Effect of failure to provide reasons for delay – Appeal dismissed as incompetent
CRIMINAL LAW – review of conviction – allegation that plea of guilty was improperly procured – allegation that trial transcript doctored – no factual basis for contentions – no question of principle – application dismissed.
CORPORATIONS – directors in dispute on matters unrelated to company – plaintiff makes threats to harm the company’s project – no indemnity offered – not satisfied as to good faith – plaintiff’s claims may largely be brought in oppression suit on foot – not satisfied derivative suit in company’s best interests –leave refused.
CIVIL PROCEDURE — medical examinations — claim for damages for psychiatric injury due to alleged assaults — application seeking that plaintiff be required to submit to examination by a psychologist — Uniform Civil Procedure Rules 2005 (NSW), rr 23.4 and 23.5 — evidence sufficient to establish psychometric testing as part of the examination capable of producing evidence relevant to matters in issue — limitation on examination so as not to include challenging the veracity of the plaintiff in relation to alleged assaults or generally — presence of psychologist under r 23.5 as support person during psychometric testing — limitation on duration of examination — splitting of examination so that interview and psychometric testing on different days but not exceeding six hours in total — order for examination made subject to conditions
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meetings are satisfied. CORPORATIONS – Managed investments – Application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – Whether responsible entity would be justified in propounding resolutions to implement the proposed trust scheme – Whether proposed amendments are within the constitutional powers of alteration and s 601GC of the Corporations Act.
SPECIFIC PERFORMANCE – form of orders – orders for specific performance of heads of agreement to settle litigation and to grant an easement – orders for specific performance already made in a 2020 judgment which was upheld on appeal in 2021 – matter remitted to the trial judge to settle the final form of orders – dispute about whether caveats lodged by the proposed dominant tenement holder of the agreed easement over the proposed servient tenement should be withdrawn before a Conveyancing Act 1919, s 88B instrument lodged and deed of settlement executed – disputes about the form of instrument under Conveyancing Act 1919, s 88B – ascertainment of what was required by the original heads of agreement – scope of the Court’s discretion to settle additional terms to achieve that specific performance of an agreement.
JURISDICTION – supervisory jurisdiction – applicant commenced proceedings in Supreme Court impugning validity of certain COVID-19 Public Health Orders – related prosecution afoot in Local Court – where magistrate refused application to vacate hearing date – where both defence to Local Court prosecution and proceedings in Supreme Court raise constitutional issue – applicant seeks order staying Local Court proceedings – whether stay or injunctive relief sought – balance of convenience
JUDGMENTS AND ORDERS – Amending, varying and setting aside – Correction under slip rule – Uniform Civil Procedure Rule 2005, r 36.17 – first and second defendants apply to amend the orders entered on 5 October 2021 under the slip rule – whether the proposed amendment is an accidental slip or omission which may be corrected under the slip rule.
COSTS – application for costs against non-parties – principles at [4]-[15] – company wound up as woefully insolvent -$35M – defence of winding up proceedings funded by secured creditors – proceedings protracted as a consequence – 17 months under application heard – 4 day hearing –serious, unsubstantiated allegations made by secured lenders’ representative and then withdrawn – unsatisfactory witnesses – costs sought against director installed by secured creditors, secured creditors who funded the defence, representatives of secured creditors – non-party costs order made against some.
CIVIL PROCEDURE – pleadings – form and content of pleading – inconsistency of pleading – claim for possession of land – alleged default under mortgage – where mortgagor admitted signing mortgage but denied allegation that mortgage entered into – where cross-claim by mortgagor sought relief under the Contracts Review Act – where defence of non est factum unavailable – whether inconsistent pleadings permitted to stand – pleadings struck out
CRIME – murder – defence of mental health impairment – special verdict where prosecutor and defence agree that defence available – consideration of ss.4, 28 and 31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 – accused drove motor vehicle over deceased causing death – unanimous medical evidence that accused subject to mental health impairment at time of act causing death – schizoaffective disorder – schizophrenia, paranoid type – special verdict entered under ss.30 and 31 of Act of “act proven but not criminally responsible” – orders made under ss.33 and 34 of Act
COSTS – specified gross sum costs order – risk that a costs assessment would be unnecessarily complex and costly relative to modest amount claimed – court in a position to make a logical, fair and reasonable estimate of costs likely to be recovered on an assessment – gross sum costs order made
CIVIL PROCEDURE – Strike out defence – Want of due despatch – Discloses no defence – Strike out pleadings – No reasonable cause of action – Summary judgment CIVIL PROCEDURE – Jurisdiction – Dismissal of claim due to lack of jurisdiction – Arbitration clause – Optional arbitration
CORPORATIONS — Contracts — Formalities — Statutory assumptions — Whether documents were properly executed to bind the defendant company — Where the plaintiffs argued that they were entitled to rely upon the assumptions in s 129 of the Corporations Act with respect to the purported proper execution of documents by two directors of the defendant — Where the apparent signatures of the two directors had been forged and every apparent communication between the plaintiffs, their agent and the defendant had been fraudulently undertaken by a person who had no authority to act in any way on behalf of the defendant — Whether the plaintiffs had dealings with the defendant for the purpose of s 128 of the Act — Where the Court found that the plaintiffs were not entitled to rely on the assumptions in s 129 because the plaintiffs had no dealings with the defendant — Where the Court held that the plaintiffs have failed to establish that the defendant is precluded from denying that it is bound by the documents EQUITY — Equitable interests in property — Priority disputes — Earlier legal interest — Where the plaintiffs claimed that they had an equitable interest in property in circumstances where their registered mortgage did not on its proper construction and in the events which had happened secure the advance made by the plaintiffs — Where the plaintiffs’ interest in the defendant’s property was created by the fraud of a third party — Where the plaintiffs argued that the defendant’s conduct disentitled it from asserting its priority as the registered proprietor of the property over the plaintiffs’ equitable interest — Whether the earlier legal interest of the defendant would lose its priority to the later equitable interest of the plaintiffs — Where the Court found that the plaintiffs have not established that the defendant lost its entitlement to priority as the registered proprietor LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the plaintiffs claimed that, in the event the Court found that the registered mortgage was not effective to secure the amount advanced and that their later equitable interest did not have priority over the defendant’s legal interest, they are entitled to be paid compensation from the Torrens assurance fund on the basis of s 129(1)(e) of the Real Property Act — Whether the loss or damage that the plaintiffs would suffer would be as a result of the operation of the Act — Where the Registrar-General submitted that the plaintiffs are not entitled to compensation because the loss or damage would arise from the plaintiffs conduct rather than as a result of the operation of the Act — Where the plaintiffs argued that the Court should conclude that the plaintiffs will suffer loss as a result of fraud in that they will be deprived of an estate or interest in the property as a consequence of fraud — Where the Court found that the loss or damage that the plaintiffs will suffer is not as a result of the Act — Where the Court held that the plaintiffs’ claim for compensation from the Torrens assurance fund must be dismissed LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud — Where the plaintiffs claimed that they had a registered mortgage over the defendant’s property — Where the registered mortgage was procured by the fraud of a third party — Whether the plaintiffs’ registered mortgage was indefeasible — Where the Court found that the mortgage in effect did not secure any money — Where the Court held that the plaintiffs’ registered mortgage was indefeasible but that because it secured nothing, the defendant is entitled to an order that the mortgage be discharged
COSTS – interlocutory applications – amendments to pleadings – by Notice of Motion the plaintiff sought to amend its Statement of Claim to reflect evidence served – Motion resolved by consent except as to costs – amendment resulted in deletion of certain claims against defendant – defendant sought order for costs thrown away by reason of the amendment on the indemnity basis and payable forthwith – held that the plaintiff did not act unreasonably in amending its pleadings – order that the plaintiff pay the defendant’s costs thrown away by the amendment on the ordinary basis – forthwith costs order declined
CIVIL PROCEDURE — Application to set aside a subpoena and notice to produce — Subpoena to the Minister for Health and Medical Research to give evidence at the substantive hearing — No reasons sought under Uniform Civil Procedure Rules 2005 (NSW), r 59.9 — Evidence would not be relevant in a substantial way as the plaintiff’s challenge is confined to the result (alleged legal unreasonableness) and not the process — Weight of competing demands in Parliament on the day on which the matter is listed for hearing — Subpoena and one paragraph of the notice to produce set aside — Notice to produce largely resolved by co-operation
COSTS — Party/Party — General rule that costs follow the event — Where the plaintiff contended that the defendant should pay her costs essentially on the basis that she achieved a level of success on the application and as such costs should follow the event — Where the defendant contended that the plaintiff should pay his costs on the basis that the issues on which the plaintiff failed should be treated as the dominant aspect of her claim — Where the Court found that it would not be fair or just for the Court to order either party to pay the other party’s costs — Where the Court made no order for costs with the intent that each party pay their own costs
CIVIL PROCEDURE — Hearings — Suppression and non-publication — Orders — Where the applicant sought suppression orders pursuant to ss 7 and 8(1)(a), (c), and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of her identity on the basis that she is a well-known figure within her profession and to the media — Where the orders sought would suppress the publication of information concerning proceedings in the Supreme Court and also separate criminal proceedings in the Local Court — Where the Court found that it did not have power to make the orders sought in respect of the Local Court proceedings — Where the Court held that even if it did have power, it would not be appropriate for the Court to have exercised that power in this case — Where the Court did not find that a suppression order was “necessary to prevent prejudice to the proper administration of justice” or that it was “otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice” — Whether the order is “necessary to protect the safety of any person” — Where the Court found that there was sufficient evidence on a cumulative basis that a suppression order was necessary to protect the physical and psychological safety of the applicant — Where the orders were made for a limited time fixed by reference to the conclusion of the criminal proceedings in the Local Court and any appeals in those proceedings
MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagees — Mortgagors complain about difference between market price and price achieved by receivers but make no criticism of sale process — Receivers file evidence about sale process as on a final hearing — Whether mortgagors’ claim of breach of duty by receivers should be summarily dismissed or struck out
PRACTICE AND PROCEDURE —— Application for court-appointed barrister — further application for referral to pro-bono panel for assistance— whether special reasons for referral established — application dismissed — belated application for adjournment of hearing — plaintiff not ready to proceed — plaintiff’s failure to adhere to Court’s orders — alleged evidence tampering — disagreement over court book contents — application refused
CIVIL PROCEDURE — court administration — sittings and vacations — application to vacate and relist hearing opposed by plaintiff on account of delay — whether hearing to be vacated and relisted to allow defendants to retain counsel acquainted with proceedings involving a degree of complexity — application to vacate and relist hearing allowed
HIGH RISK OFFENDER – Costs – Whether the defendant should have the benefit of an order for the costs of the proceedings including the costs of the preliminary hearing – Where the plaintiff brought proceedings pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) seeking an Interim Supervision Order and an Extended Supervision Order – Where the defendant was made the subject of an Interim Supervision Order following a preliminary hearing – Where that order was made largely upon a documentary risk assessment in which the defendant declined to participate – Where the Court made an order for psychiatric and psychological assessments of the defendant and the provision of expert reports detailing the results of those assessments – Where those assessments were conducted with the defendant’s co-operation – Where the proceedings were ultimately dismissed following a final hearing taking into account those assessments – Where the defendant sought an order for his costs of the proceedings – Where the plaintiff accepted that it should pay the defendant’s costs associated with the final hearing but argued against a costs order in respect of the preliminary hearing – Exercise of discretion – Consideration of relevant statutory provisions – Onus on the plaintiff to establish that the Court should exercise its discretion to depart from the general rule that costs follow the event – Where proceedings brought in the public interest – Extent to which the defendant’s failure to co-operate in the initial assessment should disentitle him to an order for costs in his favour – Scheme of the Act – Majority of preparatory work undertaken for the purposes of the preliminary hearing – Where it would operate unfairly to the defendant if he were not given the benefit of an order for the costs of the proceedings – Where the defendant had offered to resolve the matter on the basis that no costs would be sought if the proceedings were discontinued – Where the plaintiff rejected that proposal – Order made requiring the plaintiff to pay the defendant’s costs of the proceedings including the costs of the preliminary hearing
EVIDENCE – Exclusion of evidence – Improperly or illegally obtained evidence – where non-party recorded a conversation between parties without their knowledge or consent – whether recording unlawful under s 7(1)(b) of the Surveillance Devices Act 2007 (NSW) – whether probative value of recording outweighs undesirability of its admission into evidence – recording admitted EQUITY – Undue influence – where elderly parents’ making of directors’ resolutions, authorities, directions, powers of attorney, guardianships and revocations challenged by eldest son but not by the parents – where independent legal advice received on some of the documents – where unconscionable conduct and dishonest misrepresentations also alleged – whether actual undue influence established – whether presumption of undue influence rebutted – whether lack of capacity by undue influence – where dealings not objectively improvident – undue influence established in relation to one power of attorney but not established for other documents ESTOPPEL – Estoppel by convention – Mutual assumption – where party asserting estoppel over right to hold share in family company gave up right of appointment of trustee and undertook management of properties – where said party continued holding voting share on trust – whether parties adopted common assumption that beneficiary would not call for share transfer during his lifetime – whether detrimental reliance established – beneficiary estopped from calling for share transfer ESTOPPEL – Equitable estoppel – Proprietary estoppel – Encouragement – Detrimental reliance – where alleged promise or representation to leave property to in a will – where promisee and representee continued to manage property and did not seek reimbursement of other costs – whether detrimental reliance established – no estoppel found EQUITY – Trusts and trustees – Court’s supervision of – Appointment and removal of trustees – where director of trustee company procured entry into agreement for lease against wishes of some beneficiaries – where breakdown of relations between two of three directors and between one director and the beneficiaries of trustee company – whether director breached duties or procured trustee company to breach duties – trustee not removed
PRACTICE AND PROCEDURE – Application for referral to pro-bono panel for assistance – Third application following two earlier referrals – Whether special circumstances – Plaintiff in receipt of a disability support person – Special circumstances justifying a further referral not made out – Inference that plaintiff refused advice given pursuant to one of the earlier referrals and would not provide proper instructions – Application dismissed WORDS AND PHRASES – “special”
LAND LAW – Mortgages – where second unregistered mortgage granted by guarantor to secure loan debt owed to plaintiff – where property subject to first registered mortgage and subsequent caveat – where guarantor currently located in China offered to repay but did not participate in proceedings – where unclear whether third party occupies property – whether orders for judicial sale and ancillary orders for possession appropriate
EVIDENCE — Privileges — Self-incrimination privilege — Application for a certificate pursuant to section 128A of the Evidence Act 1995 (NSW) by the Second Defendant for evidence to be adduced by affidavit in compliance with an order of the Court — Consideration of whether there is a real and appreciable risk of prosecution of the Second Defendant — Consideration of whether the Court is required to read the privileged affidavit — Held: the Court is satisfied that there is a real and appreciable risk of prosecution — Certificate granted — Court not required, on the present application, to read the privileged affidavit
EQUITY — Equitable remedies — Injunctions — Application to prevent, by injunction, the execution of a contract of sale of a property — Plaintiff claims an interest in the property on the terms of a purported agreement between his mother, the Defendant, and his late father — Plaintiff also claims an equitable interest in the property on account of his financial and non-financial contributions in respect of the property — Previous proceedings dealing with the subject matter of these proceedings — The parties settled the previous proceedings by a deed of settlement, by which they provided various releases to each other — Plaintiff contends that the releases do not cover the present claims — Failure by the Plaintiff to disclose to the Court the contents of a caveat previously lodged on the property but since withdrawn — Held: Injunctive relief refused having regard to the weakness of the Plaintiff’s case by reason of the deed of settlement and additionally the considerable delay in bringing the application for injunctive relief, coupled with doubt as to the need for retention of the property
CIVIL PROCEDURE – Judicial Review - Uniform Civil Procedure Rules – Frivolous and vexatious proceedings – No reasonable cause of action – Abuse of process – Proceedings dismissed
EVIDENCE – documentary evidence – subpoenas – public interest immunity – where subpoena issued to Commissioner of Police seeking documents relevant to accused’s defence for murder charge – where email chain provided in redacted form – claim of public interest immunity over unredacted form of email chain – whether harm would be done by disclosure of the information as part of the proceedings – where examination of confidential material reveals sound basis for claim of immunity – where public interest in producing information outweighed by public interest in preserving confidentiality of unredacted email chain – Commissioner of Police excused from producing unredacted form of the emails
COSTS – Party/Party – Exceptions to general rule that costs follow the event – where parties experienced mixed success across two proceedings – where claims abandoned and discontinued at late stage – where unsuccessful claims of dishonesty, undue influence, duress and fraud – whether defendants invited litigation – whether successful defendant should be deprived costs – whether indemnity costs appropriate – whether global costs order appropriate
CIVIL PROCEDURE – standing – application to set aside previous judgment of the court – plaintiff bankrupted – whether application “property” which vested in trustee – whether proceedings automatically stayed – exception for “personal injury or wrong” done to bankrupt CIVIL PROCEDURE – res judicata – application to set aside previous judgment of the court – previous application dismissed by consent – whether dismissal final and “on the merits” – abuse of process CIVIL PROCEDURE – pleadings – application to set aside previous judgment of the court – whether statement of claim viable – defendants’ responsibility for alleged fraud – materiality of alleged fraud – where previous judgment of the court had been appealed
CIVIL PROCEDURE – pleadings – notice of motion – application for defendant to have separate solicitors appear for separate parts of the one Statement of Claim - separate determination of the claim could give rise to inconsistent judgments and inconsistent findings – notice of motion refused
CRIMINAL LAW – bail – where applicant charged with failing to comply with reporting obligations designed to protect children and with intentional sexual touching without consent – where applicant has intellectual and physical disabilities that justify his removal from continued detention – where there is no prospect of trial arising in near future due to delay – rehabilitation facility available with professional adult supervision on 24 hour basis – bail granted with conditions
CRIMINAL LAW – bail – applicant charged with sexual intercourse without consent – sole issue for trial is consent – where available material suggests that Crown case is strong – where there is risk of applicant approaching complainant if released – where applicant has history of committing offences while on bail – where applicant has history of domestic violence offences including breaches of apprehended domestic violence orders
NEGLIGENCE – work injury damages – coal-miner – where plaintiff received injury to right shoulder and neck while operating dump truck – whether bulldozer created hazard in the road – whether injury caused by ditch in road or rough surface – no liability DAMAGES – assessment – statutory thresholds for workers compensation – question of later exacerbation of injury at work
MENTAL HEALTH – high risk offender – preliminary hearing – forensic patient – defendant on community treatment order at time of index offence – preliminary trial of index offence whereupon defendant found to be unfit – consequent detention in prison hospital facility – offence made out in special hearing – resultant detention in mental health facility – extension orders made twice thereafter – interim orders sought to extend status of defendant as a forensic patient – interim orders not opposed – making of final order opposed – potentially limited efficacy of community treatment order – continued oversight of Tribunal determined to be preferable course of risk management – statutory conditions for making of interim orders satisfied – orders made
CIVIL LAW - high risk terrorism offender - preliminary hearing - whether defendant an eligible offender - “convicted NSW terrorism activity offender” - whether unacceptable risk of serious terrorism offence - where defendant committed no acts of violence - where defendant mentally unstable - where grave threats made but not carried out - male supremacy - misguided paranoid misogynist - stupid things on Facebook - “manosphere” - involuntary celibates - neutered dogs - extreme right wing philosophy - personal grievances - fraught relationship with Walgett Police - capacity to manufacture explosives - fanciful and grandiose
ADMINISTRATIVE LAW – judicial review – where proper officer of the State Insurance Regulatory Authority refused application for review of medical assessment – whether proper officer fell into jurisdictional error by misconstruing the nature of the jurisdiction committed to her under s 63(3) of the Motor Accidents Compensation Act
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meetings are satisfied. CORPORATIONS – Managed investments – Application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – Whether responsible entity would be justified in propounding resolutions to implement the proposed trust scheme – Whether proposed amendments are within the constitutional powers of alteration and s 601GC of the Corporations Act.
HIGH RISK OFFENDERS — extended supervision orders — preliminary hearing — appointment of psychiatrists or psychologists — protracted criminal history — history of non-compliance with orders and therapeutic regimes — index offences of recklessly inflicting grievous bodily harm and take and drive conveyance without consent — grievous bodily harm offence committed by co-offender — order made — resolution of conditions
EQUITY — Payment received from partnership fund — Whether plaintiffs should account for payment — Nature of payment — Whether repayment or loan RESTITUTION — Restitution for wrongdoing — Equity — Account of profits
PROFESSIONAL NEGLIGENCE – solicitors – retained to act for company on sale of business including assignment of lease – company had granted a right of first refusal to Woolworths – sophisticated client – urgent transaction – client in financial distress – solicitor gave ‘high level comments’ – comprehensive instructions not sought until shortly before exchange – enquired by email on number of matters including whether there were any “side deeds” – client’s instructions non-responsive – contracts exchanged – Woolworths injuncts sale – proceeds of sale received 6 months later – company goes into administration. WORDS AND PHRASES – ‘side deed’ – see [70]. DAMAGES – loss of chance at [508]-[515] – time at which damages should be assessed at [627] – non-binding indicative offers as evidence of value at [635] – costs as damages at [646] – whether onus on plaintiff to show reasonableness of settlement – whether necessary for law firm to plead failure to mitigate. CONTRIBUTORY NEGLIGENCE – corporate memory and document storage – client failed to take reasonable care by checking records in respect of an asset before, or while, instructing solicitors on sale of the asset – damages reduced by 20%. CONCURRENT WRONGDOERS – whether breach of director’s duties in expanding the company – principles at [684] – no breach of director’s duties. DUTY OF CARE TO THIRD PARTIES – whether solicitor also owed duty of care to client’s directors – principles and case law review at [705]-[711] – client and directors’ interests coincident – client and directors’ liability to disappointed purchaser was the same – directors entitled to be reimbursed by company had it not gone into external administration – directors’ liability alone arose from company going into external administration MISLEADING AND DECEPTIVE – whether law firm liable to directors in misleading and deceptive conduct – principles at [729]-[733] – whether incomplete advice is “conduct”.
CIVIL PROCEDURE – claim against guarantors under commercial loan agreement – late application by defendant to amend Defence – proposed amendment relying upon principles in Ankar Pty Ltd v National Westminster Finance (Australia) Pty Ltd (1987) 162 CLR 549; [1987] HCA 15 – plaintiff notified of amendment application on eve of hearing – late realisation by defendant that Ankar defence may be available – one letter in a sea of documents - application of ss 56-58, 64 Civil Procedure Act 2005 – belated application – consideration of dictates of justice – leave to amend granted on conditions
CIVIL LAW – high risk violent offender – extended supervision order – application for revocation and variation – where application met with mixed success – appropriate orders as to costs
MENTAL HEALTH – forensic patient – extension of status as forensic patient - aggravated break and enter and commit larceny – whether defendant poses an unacceptable risk of causing serious harm to others that cannot be managed by less restrictive means – reasonably serious drug problem – extensive criminal history increasing in seriousness - numerous offences committed while on conditional liberty – intellectual disability and poor insight into behaviour – no present proposal for management by less restrictive means – interim order made
ADMINISTRATIVE LAW – judicial review – motor accident – review of certificate of medical assessor – review of decision of proper officer to refuse referral to review panel – certificate does not clearly state degree of permanent impairment attributable to motor accident – failure to conform with regulatory requirements – error of law on face of record – proper officer ought to have suspected that certificate incorrect in material respect – certificate and decision set aside and matter remitted
PROPERTY — Priority of Interests — Personal Property Securities Act 2009 (NSW) — s 55(3) — s 55(4) — Evidentiary basis for priority given to plaintiff under the chattel mortgage agreement — Declaratory relief granted MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Security interest — Interest in personal property — Where party claiming an interest in the property is bankrupt — Where party has not taken any steps to advance a claim in the proceedings or register a security interest — Where trustee in bankruptcy has not exercised any right to be joined in the proceedings and has not asserted any interest in the property MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Possession
APPEALS — Leave to appeal — Whether leave to appeal is necessary and should it be granted COSTS — Appeal from a costs assessment — Application to set aside judgement entered in Local Court to enforce a costs certificate issued under the Legal Profession Uniform Law Application Act 2014 — Whether the Local Court had power to set aside the judgement — Rules 36.15 and 36.16 Uniform Civil Procedure Rules 2005 (NSW) — Legal foundation for the entry of the judgment — Onus on the applicants to establish a basis for the just exercise of the power to set aside a judgment — Appeal dismissed APPEALS — Procedure — Time limits — Application to set aside a judgement after it is entered
CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court — Special federal matter — Motion for an order under s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) to transfer Supreme Court and Federal Court proceedings back to the latter court — in circumstances where the proceedings engage the jurisdiction in bankruptcy within the meaning of s 27 of the Bankruptcy Act 1966 (Cth) and therefore special federal matters arise