FAMILY LAW AND CHILD WELFARE — Adoption of 9 year old child where the birth parents have not provided consent — Whether the birth parents had been provided with the required notice pursuant to ss 72(1) and 88(1)(a) Adoption Act 2000 (NSW) (“Adoption Act”) through email communications FAMILY LAW AND CHILD WELFARE — Notice — Requirements for giving of “notice” discussed — Review of the legislative history and subsequent amendments to s 197(1) Adoption Act, which specifies the manner of giving notice under the Act — Held that notice via email will only fulfil the requirements of s 197(1)(b) if, prior to the notice giver attempting to give notice to the intended recipient by email to a particular email address, the intended recipient confirmed that such email address may be used for the service of documents of that kind — Held that the required notice was not effected FAMILY LAW AND CHILD WELFARE — Dispensing with consent — Whether consent of the birth parents should be dispensed with pursuant to s 67(1)(d) Adoption Act — In circumstances where the child had been placed with the proposed adoptive parents for close to 90% of her life (including the last eight years), there had been little engagement from the birth parents and there was no realistic prospect of the child being able to return to both or either of her birth parents, held that a consent dispense order in respect of the birth parents should be made FAMILY LAW AND CHILD WELFARE — Considerations bearing upon orders dispensing with the requirement for birth parents’ consent identified and discussed — Whether notice of the application for a consent dispense order in respect of the birth parents should be dispensed with pursuant to s 72(2)(c) Adoption Act — While formal notice had not been effected, the birth parents had been made aware of the fact that an adoption order was being sought and progressed in this Court by email correspondence with the applicant — Consideration of the best interests of the child — In the circumstances, held that it was desirable to make the consent dispense order without notice of the application having been given to the birth parents FAMILY LAW AND CHILD WELFARE — Requirements for notice of the application for adoption on the birth parents — Apparent overlap of notification provisions and dispensation powers as between ss 54(3) and 88(1) and (4) Adoption Act discussed and explained FAMILY LAW AND CHILD WELFARE — Whether notice of the application for an adoption order should be dispensed with pursuant to s 88(4) Adoption Act — Despite several unsuccessful attempts to give formal notice of the application to each of the birth parents, both had been made aware that an adoption order was being sought by email correspondence with the applicant — Considered that it would not be in the child’s best interests for any adoption order to be stymied by difficulties with the applicant being able to formally give notice of the application to her birth parents — Held that the giving of notice of the application to the birth parents be dispensed with FAMILY LAW AND CHILD WELFARE — Whether the adoption order should be made — In all the circumstances, held that the adoption order should be made FAMILY LAW AND CHILD WELFARE — Change of name of child under 12 years of age — Whether the Court should approve proposed change to the child’s surname to align with that of her proposed adoptive parents (who shared the same surname) — Consideration of the wishes of the child, the proposed adoptive parents and the birth parents, as well as the assessor’s opinion — Proposed change of surname approved
BAIL – Applicant 14 year old Aboriginal child – operation of s 22C of the Bail Act 2013 (NSW) – whether high degree of confidence requires certainty that the applicant will not reoffend – application of s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) to the bail proceedings – consideration of unacceptable risk – prosecution failed to establish that bail should be refused – conditional bail granted
CRIMINAL LAW – special hearing – murder – Crown case based on joint criminal enterprise or extended joint criminal enterprise – no dispute that deceased shot but not by accused – where accused suffers from schizophrenia, intellectual disability and a hearing impairment – dispute at to whether the accused was present at the time plans to kill the deceased were discussed and his ability to comprehend such statements – dispute as to whether the accused ever left the car which he travelled to the deceased’s property in – multiple witnesses criminally concerned in the events and already convicted
SUCCESSION — executors and administrators — application by executor and trustee of estate to be substituted by the NSW Trustee and Guardian — where beneficiary seeks termination of trust and the funds held on trust — Saunders v Vautier — whether trustee acted unreasonably by failing to obtain judicial advice
SENTENCING – Manslaughter – Intentionally damaging property by means of fire in company – Guilty pleas – Joint criminal enterprise to assault the deceased with a co-perpetrator – Did not foresee the possibility that the co-perpetrator would use force to intentionally kill, or inflict grievous bodily harm on the deceased – Offender present when co-perpetrator rendered the fatal assault – attempt to cover up crime by burning deceased’s apartment – whether Bugmy and De La Rosa reduce moral culpability
NEGLIGENCE – work accident – where plaintiff subcontractor fell three metres through an open penetration at a construction site sustaining injury – where head contractor owed the plaintiff a duty of care to keep the work site safe – where head contractor installed a timber cover over the penetration as a precaution against falls – whether the head contractor failed to take reasonable care to ensure adequate protection against a risk of falling remained in place whenever the timber cover was removed NEGLIGENCE – contributory negligence – where the plaintiff removed plywood timber covering an open penetration – where the plaintiff then covered the open penetration with a plastic sheet – where the plaintiff stepped onto the plastic and fell through the penetration – whether the plaintiff’s inadvertence or inattention amounted to contributory negligence
COSTS – application for costs order to be paid in gross sum – no question of principle – where proceedings dismissed on appeal from Associate Justice – gross sum costs order made in respect of proceedings including costs of proceedings giving rise to the appeal
EVIDENCE – expert evidence – admissibility of expert reports – whether expert possessed specialised knowledge – whether expert report inadmissible because of expert’s opinion being based upon facts not independently proved – evidence admitted
CIVIL PROCEDURE — jurisdiction — where parts of the plaintiffs amended statement of claim allege breaches of a development consent which would fall within the exclusive jurisdiction of the Land and Environment Court — where the amended statement of claim also alleges nuisance — whether the alleged nuisance is dependent upon a finding of breach of the development consent — held the nuisance was pleaded as a separate issue and the Supreme Court has jurisdiction to deal with a cause of action in nuisance TORTS — private and public nuisance — interference with use and enjoyment of land — whether vehicles parked alongside both sides of the road leading from the Farm and past the plaintiff’s property constitutes nuisance — where plaintiff alleges inability to safely egress from property and interference with enjoyment of their land TORTS — nuisance — remedies — whether injunction should be granted requiring defendants to modify website booking process and place a restriction on the number of vehicles allowed to book — where wording of injunction sought is not a practical means of achieving abatement of the nuisance — where injunction would have a minor or meaningless effect — injunction not ordered
TORTS – intentional tort – claim of historical child sexual abuse – whether the second defendant groomed the plaintiff – whether on balance of probabilities the abuse by the second defendant in October 2005 occurred – held grooming had not been established – held incident of abuse in October 2005 occurred EVIDENCE – sexual assault – complaint evidence in civil proceedings – delay in complaint – where detail of complaints is generally consistent EVIDENCE – admissions – civil proceedings – whether letter offering counselling services amounted to an admission – held the letter was not an admission NEGLIGENCE – vicarious liability – agent and principal – where vicarious liability arises in church context – where second defendant was a Sub-Deacon of the first defendant but not an employee – whether the position of power and intimacy and nature of the second defendant’s acts were connected to his role in the church – where abuse occurred whilst the second defendant was driving the plaintiff home in his car – discussion and application of Bird v DP [2023] VSCA 66 – held the first defendant is vicariously liable for the second defendants actions DAMAGES – assessment of damages – historical child sexual assault – past and future economic loss – damages by way of buffer – past and future out of pocket expenses – future care and treatment – aggravated damages
HIGH RISK OFFENDERS – Final Hearing – application for an extended supervision order – sexual offender – risk factors of substance abuse and impulsivity – history of offences committed shortly after release to parole – limited time spent in community – consideration of statutory criteria – application granted
PROCEDURE – application for separate questions under UCPR 28.2 – where plaintiff seeks orders under Part 1C of the Civil Liability Act 2002 to set aside settlement agreements which may otherwise preclude the plaintiff from maintaining the balance of the proceedings – claimed benefit to defendants of plaintiff’s promise to “take no action”– statutory right to commence proceedings subsequently enacted – construction of s 7D(1) of the Civil Liability Act 2002 – overlap in issues and credit for hearing of separate questions and the balance of the proceedings – application for separate questions rejected.
LAND LAW — Easements — Rights of way – Substantial interference with easements – Remedies for substantial interference – plaintiffs hold the dominant tenement of a right-of-access over rural land of the defendant – the right-of-access provides the primary vehicular access to the plaintiff’s land – the plaintiffs constructed a gravel road over the right-of-access 2018 – the plaintiffs complain in their Summons that the defendant has substantially interfered with their rights of access over the right-of-access by various actions including the placing of obstacles on the easement, the tightening of gate chains the planting of trees – plaintiffs further allege that the defendant engaged in threatening conduct to deter them from using the easement – whether this conduct amounts to an actionable nuisance – whether injunctive relief should be granted or damages assessed in respect of any proven nuisance – the defendant’s Cross Summons complains that the plaintiffs’ construction of the gravel road over the right-of-access over his land has been undertaken improperly and has caused more than as little damage as is practicable to the lot burdened and claims that the burdened lot should be restored to its former condition before the construction of the road – what order should be made in relation to the remediation of the road.
CORPORATIONS – winding up – where plaintiff sought winding up of company on just and equitable ground – where company was a closely held family company – where plaintiff contended that winding up order should be made because the relationship with her other family members had broken down and she was unable to sell her shares and end her involvement of company – where subsequent to initial hearing of application plaintiff accepted a buy-back offer and ceased to be a member of the company – where parties unable to agree on form of orders resolving proceeding – application dismissed
CIVIL PROCEDURE – where directions made to prepare short minutes to give effect to reasons for judgment, including calculation of interest – where determination had been made in reasons for judgment regarding date from which interest was to be calculated – where defendants sought to reagitate that issue – where the defendants had the opportunity to address that issue at the hearing – public interest in finality of litigation – application to reopen issue refused
PRACTICE AND PROCEDURE — pleadings —applications in related proceedings — whether plaintiffs should have leave to amend their respective commercial list statements — where proposed changes meet the essential requirements of an acceptable pleading — where defendants on notice of the cases they have to meet — HELD — leave to amend commercial list statement in each set of proceedings granted
COSTS — party/party — multiple claims in which plaintiff was primarily, but not totally, successful — costs follow the event on a claim-by-claim basis — apportionment based on costs solely referable to each claim — informal offers of compromise made by both parties — refusal of offers not unreasonable in the context of the claims being pursued at the time — respective applications for special and indemnity costs orders failed — plaintiff entitled to ordinary costs of proceedings apart from costs solely referable to unsuccessful or abandoned claims
ADMINISTRATIVE LAW – judicial review – motor accident injury – whole person impairment based on PTSD – where President’s Delegate refused plaintiff’s application for medical assessment and medical assessment certificate to be referred to a review panel for review – whether failure to consider a substantial and clearly articulated argument – whether Delegate erred in decision to not allow a review of the medical assessment certificate
ADMINISTRATIVE LAW – Judicial review of decision of Local Court Magistrate to dismiss application under s 50(1) of the Fines Act 1996 (NSW) – Where first defendant accepts that the Local Court Magistrate mistook the scope of the Court’s function and committed a jurisdictional error – Where Court must satisfy itself that the orders sought should be made – Jurisdictional error established – Decision of the Local Court quashed
ADMINISTRATIVE LAW – judicial review – jurisdictional error – procedural fairness – decision of medical appeal panel – psychological injuries – failure of appeal panel to examine worker before rejecting findings of medical assessor and making unfavourable findings as to the worker’s veracity and credibility ADMINISTRATIVE LAW – judicial review – decision of medical appeal panel – failure to give proper, genuine and realistic consideration to worker’s case – lengthy reasons of appeal panel made only one brief reference to worker’s submissions WORKERS’ COMPENSATION – determination of degree of whole person impairment – psychological injury – challenge by employer to findings of medical assessor – assessment of reliability and veracity of worker – proper function of medical appeal panel – varying assessment of psychological injury without examining the worker
COSTS — Security for costs — Legal nature of the plaintiff — Plaintiff is a company — Where defendant’s claim for costs meets the threshold requirement that plaintiff would be unable to pay the costs of the defendant if ordered to do so — Plaintiff had not advanced discretionary grounds for a refusal of security — Security for costs ordered COSTS — Security for costs — Quantum and form — Costs ordered to cover whole of the proceedings but payable across three tranches
ESTOPPEL — equitable estoppel — proprietary estoppel — estoppel by representation — where plaintiffs/cross-defendants and mother owned family property as tenants in common in unequal proportions — where defendant/cross-claimant permitted to occupy the property for an extended period of time without paying rent — alleged representations by first plaintiff/cross-defendant to defendant/cross-claimant of right of sole occupancy of studio on non-subdivided property — alleged promise by mother to bequeath defendant/cross-claimant one-third of mother’s share in the property — findings of fact that form of studio representations made but mother’s promise not — asserted acts of reliance including remaining at the family property instead of moving into properties owned by defendant/cross-claimant at different times — lack of detrimental reliance in circumstances where defendant/cross-claimant benefitted financially and otherwise from purported acts of reliance and insufficient evidence that those acts were done in reliance on studio representations as opposed to expectation of ongoing tenancy at will — lack of unconscionability — HELD — no estoppel arising in favour of defendant/cross-claimant SUCCESSION — family provision — claim by adult daughter for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — application made out of time — significant and largely unexplained delay — mere change of mind insufficient — where beneficiaries would be materially and substantially prejudiced by the delay — sufficient cause not shown — where estate already distributed — notional estate —where order designating family property as notional estate needed to give effect to any provision made — where such order would disrupt reasonable expectations of registered proprietors and deceased and occasion substantial injustice — no “other special circumstances” for the purposes of s 90(2)(b) established — consideration of general s 60(2) matters including applicant’s financial circumstances and deceased’s testamentary intentions — where applicant owns unencumbered property — no evidence or assertion of future needs or material dependency on the deceased — HELD — application for extension of time refused — notional estate order and family provision order would also be refused LAND LAW — possession of land — possession sought by registered proprietors from tenant at will —no defence to claim for possession — judgment for possession
BUILDING AND CONSTRUCTION — adjudication — construction contract — payment claim by defendant — adjudication determination stipulating payment of adjudicated amount — application by plaintiffs seeking declaratory relief, order quashing determination or order restraining enforcement — where defendant failed to prove service of payment claim — where defendant filed adjudication application prematurely — adjudicator’s findings as to timing of service and making of application — application of Brodyn v Davenport — HELD — determination not void merely by virtue of non-compliance with more detailed requirements of Building and Construction Industry Security of Payment Act 1999 (NSW) BUILDING AND CONSTRUCTION — adjudication — construction contract — application of Home Building Act 1989 (NSW) — contract for “residential building work” — whether ss 10 and/or 94 bar enforcement of right to progress payments under Building and Construction Industry Security of Payment Act 1999 (NSW) — consideration of phrase “right of action” — right of action does not encompass statutory remedy to receive progress payments under Building and Construction Industry Security of Payment Act 1999 (NSW) — HELD — defendant entitled to enforce adjudication determination
COSTS – security for costs – quantum and form – whether security should be ordered against plaintiff owners corporation – where plaintiffs accept that there is reason to believe they will be unable to meet a costs orders – where plaintiffs have failed to explain prejudice suffered by reason of delay in bringing application for security
COSTS — where successful party seeks indemnity costs — purported Calderbank offer — whether unreasonable for unsuccessful party to reject offer — HELD — offer not take effect as a Calderbank offer — not unreasonable for unsuccessful party to reject offer — variation to costs order to correct naming of first defendant COSTS — unsuccessful application for indemnity costs — costs follow the event — HELD — first defendant to pay the plaintiffs’ costs of application
SUCCESSION – Family provision – Claim by adult child and grandchildren of deceased – Where deceased cared and provided for plaintiffs for most of their lives – Whether there were “factors warranting the making of an application” – Whether deceased had duty to provide ongoing accommodation for plaintiffs
CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 – forensic patient – extension order – final hearing – history of child abuse material offending – index offences of use carriage service to access and possess child abuse material and contravene prohibition order and fail to comply with reporting obligations – where experts of opinion that patient should remain a forensic patient – whether Court satisfied to high degree of probability that there is unacceptable risk of causing serious harm to others – where serious harm includes psychological harm – where there is an unacceptable risk of serious psychological harm to child participants in child abuse material that is viewed or copied or shared or accessed – where accessing child abuse material perpetuates a market and creates an unacceptable risk of causing serious harm to children used in the creation of new child abuse material – where risk cannot be adequately managed by less restrictive means – extension order granted for period of two years
ESTOPPEL – Equitable estoppel –– Conventional estoppel –– Where estoppel claims founded on representations allegedly made by first defendant and assumption allegedly induced by those alleged representations prior to plaintiff and first defendant entering into contracts –– Where proof of at least one of two of those alleged representations is necessary for the plaintiff’s estoppel claims to succeed –– Where those alleged representations are inconsistent with the terms of the contracts –– Where the plaintiff’s evidence of those alleged representations is unreliable and inherently improbable –– Held that the plaintiff failed to prove either of those two alleged representations –– Estoppel claims dismissed. MISLEADING OR DECEPTIVE CONDUCT –– Where the plaintiff’s claim of misleading or deceptive conduct depended on proof of the representations that were essential to its estoppel claims – Where the plaintiff failed to prove those alleged representations –– Misleading or deceptive conduct claims dismissed.
CIVIL PROCEDURE – preliminary discovery – where plaintiffs may have cause of action against financial adviser – where plaintiffs seek non-party discovery – where defendant does not oppose orders sought
CIVIL PROCEDURE – pleadings – amendment – where defendants seek to bring cross-claim against plaintiffs – where there has been delay, but delay explained – where defendants could, in any event, bring separate proceedings which would inevitably be heard together with these proceedings
LAND LAW — Easements — Construction of easements — Whether building a crowned unsealed road and drains is reasonably necessary for the dominant owner’s enjoyment of his rights under the easement — Whether servient owner is entitled to plant crops over right of carriageway LAND LAW — Easements — Extinguishment of easements — Extinguishment by statute — Whether continued existence of right of carriageway would impede the reasonable user without securing a practical benefit to dominant owner — Whether extinguishment of right of carriageway would not substantially injure the dominant owner LAND LAW — Easements — Modification of easements — Statutory modification of easements — Whether width of right of carriageway should be narrowed TORTS — Nuisance — Private nuisance — Whether obstructions to the right of carriageway caused by the servient owner amounted to a nuisance — Whether grading of the right of carriageway by the dominant owner was excessive user so as to constitute a nuisance and/or trespass
CRIMINAL PROCEDURE – fitness inquiry – expert’s previous opinion accused unfit to plead and stand trial – expert’s revised opinion accused fit – fitness inquiry not mandatory – Court to determine the necessity of a fitness inquiry under s 40(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
CRIMINAL PROCEDURE – practice and procedure – trial – change of venue – trial aborted on second day – limited availability of court space in Wollongong in 2025 – accused in custody since December 2022 – interests of justice – “expedient” in the interests of justice to fix the trial to commence in Sydney in May 2025
CONTRACTS — Formation — Acceptance of offer — Correspondence with offer CONTRACTS — Formation — Agreement — Uncertainty and incompleteness CONTRACTS — Formation — Contracts requiring written evidence — Contracts for sale of land or interest in land CONTRACTS — Formation — Conditional promises — Subject to finance CONTRACTS — Construction and interpretation — Parol evidence rule — Prior negotiations CONTRACTS — Construction — Extrinsic evidence — Prior negotiations CONTRACTS — Unconscionable conduct — Special disadvantage CONTRACTS — Undue influence — Actual undue influence CONTRACTS — Misrepresentation — Fraudulent misrepresentation CONTRACTS — Remedies — Damages — Proof of loss or damage EQUITY — Equitable charges and liens — Vendor’s lien
ESTOPPEL — Proprietary estoppel — Encouragement — Where the plaintiff was a farmer who worked in the family partnership on the family farms — Where the plaintiff and the defendants are siblings — Where the plaintiff claimed his father made oral representations to him over many years that certain farms would be his — Whether the representations were made — Whether the plaintiff acted to his detriment in reliance of the representations — What the appropriate relief is in the circumstances PARTNERSHIPS AND JOINT VENTURES — Winding up — Distribution of assets on settlement of accounts — Whether there was an agreement to divide profits of the family partnership after death of one of the partners in proportions different to the continuing partners’ interests in the partnership PARTNERSHIPS AND JOINT VENTURES — Partnership property — Identification — Whether family farm that was held between the partners as tenants-in-common in equal shares was partnership property
CIVIL PROCEDURE – summary dismissal – striking out paragraphs from second cross-claim – where mortgage was procured through a broker – where allegation of forgery in the underlying loan agreement – where mortgage subsequently registered – whether registered annexure to the mortgage incorporates the loan agreement – whether interlocutory issue is a question of law with only one correct answer – whether plaintiff’s cross-claim is statute barred
BUILDING AND CONSTRUCTION – contract – defects – where first defendant builder and second defendant developer entered building contract – where plaintiff owners corporation alleges general and fire safety defects – where principal claim arises from contention that the “effective height” of building exceeds 25 metres – whether inadequate fire safety measures for building – construction of the Building Code of Australia – meaning of “effective height” – meaning of “storey” – whether garbage collection area, or, in the alternative, car park entry, is the “lowest storey” of the building BUILDING AND CONSTRUCTION – contract – where plaintiff owners corporation alleges a building contract between the second defendant developer and third defendant – where no written contract – where third defendant not licensed to perform residential building works – whether contract may be inferred by circumstances
COMMERCIAL LEASE – lease of common property of commercial leasehold strata scheme – construction of definition of “Market Value of the Stratum” – no issue of principle
PROCEDURE – criminal proceedings – evidence sought to be adduced from a witness in Vietnam – whether a certificate should be issued pursuant to s 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth)
PRACTICE AND PROCEDURE – UCPR 1.21 – Reconsideration of the Court’s conclusion that an order for determination of a separate question be revoked - Application for removal of proceedings on the separate question to the Court of Appeal – Where Court is of the view that the separate question is inappropriate – Application refused
SUCCESSION – testamentary capacity – knowledge and approval – deceased made wills in 2021, 2019, 2018 and 2014 and a codicil in 2019 – where deceased’s brother challenges 2021, 2019 and 2018 testamentary instruments and seeks a grant of probate for the 2014 will – where deceased’s de facto partner’s interest in deceased’s estate increased under each testamentary instrument – whether deceased had testamentary capacity – where deceased was a long term alcoholic, suffering the effects of frequent falls, and was undergoing chemotherapy treatment – suggestion of issues with cognition related to Wernicke Korsakoff encephalopathy syndrome by eminent neurologist – onus on propounder of will to prove the deceased had testamentary capacity – where deceased did not have capacity to make the 2021 will – where a copy of the 2019 will should be admitted to probate SUCCESSION – undue influence – whether 2021 or 2019 wills were made as a consequence of undue influence by de facto partner – requirement of actual coercion which must overpower the volition of the deceased – not necessary to consider undue influence in relation to 2021 will where it was found that deceased did not have testamentary capacity - no undue influence found in relation to 2019 will SUCCESSION – claim for further provision by de facto partner – whether deceased adequately provided for the proper maintenance, support and advancement in life of claimant – where claimant has substantial personal assets – whether claimant is entitled to be maintained in the manner to which they were accustomed and expected had the deceased “not gotten cancer and died” – a large estate does not provide a basis for a blank cheque exercise EVIDENCE – where deceased’s long term general practitioner is deceased – where deceased’s long term lawyer and drafter of testamentary instruments is deceased – where the propounder of will is an interested person – reliance placed on contemporaneous materials including medical history notes, legal file notes, email communications and lay evidence of friends and family of deceased – Court to assess the evidence as a whole to determine testamentary capacity
CONTRACTS — breach of contract — biomedical invention developed in government-funded health research institute — commercialisation agreement between institute and one of the four inventors — conditional obligation to re-assign patents if “suitable commercialisation deal” not reached within specified period — re-assignment offer from inventor — whether conditions satisfied — failure to re-assign — loss of opportunity — proof of damages — obligation to use best endeavours to arrange continuing employment of inventor — breach — damage
CONTRACT – Formation – Whether Plaintiff and Defendant entered into an oral contract in respect of the transfer of the Plaintiff’s property to the Defendant – Whether there was an intention to enter legal relations – Where terms uncertain. EQUITY – Unconscionable conduct – Whether unconscionable for daughter to retain property transferred to her by elderly father – Where transfer registered by father without daughter’s involvement, three years after earlier discussion – Where father sought to have the property reconveyed to him, nine years after the transfer was registered –Whether unconscionable for the daughter not to reconvey the property to the father without any compensation for the outgoings that she had paid in respect of the property in the nine years between the registration of the transfer and the demand for reconveyance. EQUITY – Equitable estoppel – Whether pleaded representations were made. EQUITY – Undue influence – Whether Plaintiff’s transfer of the property was due to undue influence – Where Plaintiff independently registered the transfer of the property – Where the Defendant asserted no pressure and had no involvement in the registration of the transfer. EQUITY – Trusts and Trustees – Express Trust – Where the terms of the purported trust are uncertain – Where there is no intention to create a trust.
ADMINISTRATIVE LAW – Where plaintiff the subject of a pseudonym order made by the State Coroner during coronial inquest into the deaths arising from the Lindt café siege – Where plaintiff has applied to the Coroner’s Court for an order discharging the pseudonym order and where the State Coroner considers that she does not have power to do so – Where plaintiff seeks to challenge that holding – Jurisdictional error in failing to exercise jurisdiction established – Order in the nature of a writ of mandamus that the State Coroner exercise jurisdiction issued
CORPORATIONS – application for curative orders pursuant to s 1322(4)(a) of the Corporations Act 2001 (Cth) – where issue or transfer or shares is potentially void due to the operation of s 259C of the Corporations Act – where transactions sought to be validated span a period of almost 30 years and it is not possible to identify all of the relevant transactions or all of the counterparties involved – application granted
CRIMINAL LAW – Manslaughter – application for Judge alone trial – whether it is in the interests of justice to grant the orders sought – whether the nature and extent of pre-trial publicity were such as to render it in the interests of justice that the order be granted – whether the complexity of the issues are such that it is in the interests of justice that the order be granted – where the Crown case relies upon criminal negligence and in the alternative, unlawful and dangerous act – where it is assumed that appropriate judicial directions will be given to the jury – application for a Judge alone trial dismissed
CONTRACTS — Formation — Agreement — Whether an oral agreement of accord and satisfaction formed that the plaintiff agreed to extinguish a $1.2 million debt owed by the first and second defendants if they paid $500,000 and made a non-binding promise to pay an unidentified sum of money if possible in the future — no agreement found EQUITY — Equitable remedies — Orders for judicial sale out of court — Whether court should make an order for judicial sale out of court
CIVIL PROCEDURE — order for appointment of trustees for sale of property jointly owned by brother and sister made in 2018 — long and unfortunate procedural history consisting of many appeals and further hearings in this Court — writ of possession granted to trustees in respect of property — writ due to be executed tomorrow morning at 9 am — “urgent” application for stay pending further appeal and “related” criminal proceedings now on foot — no satisfactory justification proffered for making application at eleventh hour — critical problems with originating process documentation and notice to defendant which makes contested hearing prior to writ execution date impossible — documentation not permitted for filing
DETENTION APPLICATION – Bail Act 2013 s 22B – limitation regarding bail during period following conviction and before sentencing – policeman found guilty of manslaughter by jury for causing death of elderly woman tasered in a nursing home – whether satisfactory evidence of suitable safeguards in place concerning incarceration of serving policeman – whether special or exceptional circumstances exist – whether the offence is one for which the offender will be sentenced to imprisonment to be served by full-time detention
ORDERS – restraining defendant from retaining a solicitor– whether plaintiff previously a client of the solicitor – whether plaintiff provided solicitor with relevant confidential information – whether discretion to restrain solicitor being retained should be exercised – what the due administration of justice requires EVIDENCE – affidavit evidence – exception to the hearsay rule – second hand hearsay – proper construction of s 75 of the Evidence Act 1995 (NSW) – whether orders excluding the evidence should be made under s 135 – evidence admitted
CONTRACTS – construction – interpretation – deed of indemnity – where deed made provision for advances of the plaintiff’s reasonable costs of defending proceedings – whether deed obliged defendant to pay such costs on request
PRACTICE AND PROCEDURE – application for summary dismissal/strike out pursuant to rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW) – whether proceedings have reasonable prospects of success – whether proceedings frivolous and vexatious – proceedings dismissed
CRIME – murder – defence of mental illness – accused fit to plead and stand trial – special verdict – act proven but accused not criminally responsible – orders made under ss 31, 33, and 34 of Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) MENTAL HEALTH – criminal proceedings – where agreement on defence of mental health impairment – special verdict entered
ADMINISTRATIVE LAW – judicial review of serious corrupt conduct findings made by Independent Commission Against Corruption – where the person who presided over the hearings did not write the Report – Report not materially affected by errors of law on the basis of apprehended bias where the asserted bias was of a person who was not a decision maker – Report did not involve a denial of procedural fairness where the Commission made credibility findings based on its own assessment of evidence
MENTAL HEALTH – preliminary hearing – forensic patient – appointment of psychiatrists and/or psychologists to conduct examination of the defendant – extension of status as forensic patient – whether defendant poses an unacceptable risk of serious harm to others if he ceases to be a forensic patient – whether defendant cannot be managed adequately by less restrictive means
HIGH RISK OFFENDER – application for interim supervision order – whether the offender poses an unacceptable risk of committing another serious offence – appropriate conditions – striking a balance between conditions that ensure the safety and protection of the community without being onerous or unnecessarily intrusive – conditions imposed largely similar in effect to those agreed to by the defendant
CONTRACTS – possession of land – family provision – settlement of all issues agreed to at mediation – one party subsequently refused to consent to agreed orders – s 73 of the Civil Procedure Act 2005 – no point of principle
APPEALS – Appeal from the decision of the Local Court – question of law – whether magistrate erred in failing to extend time to file notice of motion under r 12.11(2) of the Uniform Civil Procedure Rules 2005 (NSW)
CIVIL PROCEDURE – Application to transfer proceedings from the District Court to the Supreme Court – Application to cross-vest proceedings from the Supreme Court to the Federal Circuit and Family Court of Australia to join existing proceedings in that Court – Where the District Court proceedings involve allegations of factual matters which are said to arise in Family Court matters – Whether the Federal Circuit and Family Court of Australia has jurisdiction to hear and determine the common law claims raised in the District Court proceedings – Whether it is in the interests of justice to transfer the proceedings.
EVIDENCE – credibility evidence – accused – ERISP evidence denying the use of a baseball bat – where accused admits to using the baseball bat in the same interview – whether prior inconsistent statement – probative value of evidence – not unfairly prejudicial – evidence allowed
COSTS – whether costs should be apportioned, principles at [22]-[25] – late abandonment of claims and cross-claims – costs apportioned based on parties’ relative success – no issue of principle.
TORTS – Trespass to the person – assault and battery – sexual assault – where plaintiff alleges she was physically and sexually abused by one of her foster carers whilst a ward of the State CIVIL PROCEDURE – Abuse of process – where the alleged perpetrator of the abuse had been convicted of the conduct alleged by the plaintiff at a criminal trial – whether allowing the estate of the alleged perpetrator to deny that the abuse occurred would give rise to an abuse of process NEGLIGENCE – Duty of care – where the plaintiff alleges the State breached its duty of care to her by failing to take steps to have her adopted in a timely manner and failing to exercise reasonable care for her health and well-being – whether the State’s duty of care to a ward of the State is non-delegable – whether the State is vicariously liable for the conduct of the plaintiff’s former foster carers
BUILDING AND CONSTRUCTION – Design Act ss 36 and 37 - Certifiers Act ss 13 and 14 – Proceedings by Owners Corporation against the third defendant accredited certifier for breach of the duty of care imposed by s 37 of the Design Act on the footing that the third defendant carried out construction work in or related to a residential strata apartment complex – Third defendant denies that it carried out construction work and denies that the Design Act can apply by virtue of the existence of a Practice Standard under the Certifiers Act - PRACTICE AND PROCEDURE – UCPR r. 28.2 – Civil Procedure Act 2005 (NSW) ss 56(1)-(2) – Parties frame the following separate question “Did the Third Defendant carry out “construction work” within the meaning of Part 4 of the Design and Building Practitioners Act 2020 (NSW) in respect of the development of the Complex?” – Where during argument on the question it emerges that the question will not conduce the just, quick and cheap disposition of the real issues in the case because it is likely to cause delay and the answer lacks utility – Order for determination of separate question revoked
COSTS — security for costs — representative proceedings — where proceedings funded from the outset by litigation funder and funding agreement terminated by funder on the basis of alleged breaches of it by the lead plaintiffs — where lead plaintiffs suing for the benefit of others — impecuniosity of the lead plaintiffs and inability to meet an adverse costs order — no causal connection between plaintiffs’ impecuniosity and defendants’ conduct — whether proceedings likely to be stultified if an order for security is made — lead plaintiffs’ failure to provide precise information of financial position of those standing to benefit from successful outcome of the litigation — insufficient evidence upon which to base finding of inability as opposed to unwillingness of group members to contribute towards an order for security — risk of injustice to the defendants in incurring substantial costs without having appropriate security — quantum of security determined adopting broad brush approach — HELD — security ordered to be paid in instalments
CIVIL PROCEDURE – default judgment – setting aside – where first defendant defaulted in serving evidence – where list response and cross claim struck out and judgment entered – liberty granted to apply to set aside those orders – liberty exercised – whether orders should be set aside CIVIL PROCEDURE – service – time for service of notice of motion – where notice of motion must be served three days before return date – where notice of listing issued – time for service of notice of listing – whether notice of listing should also be served three days before return date
EVIDENCE – documentary evidence – dash-cam footage – where the Crown superimposed red squares on the accused’s and deceased’s hands to draw the jury’s attention to contents or otherwise – permissible for the purpose of assisting the jury
LAND LAW – Easements – Extinguishment of easements – Extinguishment by order of court – Where all persons entitled to the easement consent to extinguishment
BUILDING AND CONSTRUCTION – claim for breach of statutory warranties under Home Building Act 1989 (NSW) – proceedings on foot for 8 years – before the Court on 52 occasions – parties reach agreement ‘in principle’ for builder to rectify defects but no final agreement reached more than a year later – owner refuses access to builder to rectify defects – referral to engineer/barrister – 13-day reference – referee provides liability and quantum reports totalling 440 pages. REFEREE – reference made to facilitate just, quick and cheap resolution – principles at [5]-[9] – whether to adopt report – principles at [10]-[14] – whether interests of justice served. MITIGATION – obligation on plaintiff to act reasonably – principles and case law review at [38]-[53] – Owners v Di Blasio Constructions considered – whether plaintiff owes duty to allow builder to minimise its damages. SCOTT SCHEDULES – history and purpose – amendment, at [114]-[118] – whether referee made ruling that defects not in Scott Schedule would not be considered – whether referee denied natural justice by considering defects not in Scott Schedule.
CIVIL PROCEDURE — Stay of proceedings — Where defendants seek stay of proceedings against several plaintiffs that are corporate entities with receivers appointed — Stay not granted CORPORATIONS — Statutory derivative action — Whether plaintiffs entitled to advance claims on behalf of corporate entities — Sections 236 and 237 Corporations Act 2001 (Cth) — Where s 236 cannot apply because plaintiffs did not seek leave of the Court CORPORATIONS — Practice and procedure — Whether natural person plaintiffs entitled to advance claims on behalf of other corporate entity plaintiffs — Application of Deangrove Pty Ltd (Receivers and Managers Appointed) and Another v Commonwealth Bank of Australia (2001) 108 FCR 77 — Natural person plaintiffs entitled to advance claims on behalf of corporate entity plaintiffs — Whether natural person plaintiffs need to provide security for indemnities they are required to give — No security required
CRIMINAL PROCEDURE – trial – jury – application to discharge jury – discharge of whole jury – Crown’s service of lay witness and expert statements on the second day of trial – where parties have already opened their cases – where the new materials are at odds with the accused’s case theory based on evidence previously served – interests of justice to discharge the jury and adjourn the trial
TORTS – Negligence – where plaintiff with pre-existing osteoarthritis in left knee slipped and fell on spilled food in commercial kitchen – where plaintiff subsequently underwent a total knee replacement – where plaintiff working pursuant to labour hire agreement – occupier’s liability – non-delegable duty of plaintiff’s employer – whether system and place of work made spillage reasonably foreseeable – whether occupier breached duty of care in failing to place non-slip mats in areas in which food spillages were most likely to occur – whether defendants’ tortious conduct caused the need for surgery – finding that plaintiff’s fall caused material aggravation of her pre-existing osteoarthritis resulting in the need for a total knee replacement.
CORPORATIONS – application to wind up in insolvency – where failure to comply with statutory demand after dismissal of application to set it aside – presumption of insolvency – where expert evidence led regarding solvency – presumption rebutted CORPORATIONS – application to bring derivative action – where company agreed to pay substantial sum to managing director following successful completion of a trade of securities, contingent on his entry into a standstill agreement and following completion of two-year standstill period – where company advanced the amount of the prospective payment to a foreign company owned by the managing director by way of an unsecured and undocumented loan – grant of leave to bring derivative suit not opposed – conditions for grant of leave established CORPORATIONS – application to wind up on just and equitable ground or alternatively by reason of oppressive conduct – where company is solvent and profitable – whether grant of leave to bring derivative suit is sufficient remedy – whether ongoing risk of mismanagement and of dissipation of assets – winding up application rejected
APPEALS – appeal from Local Court to Supreme Court – claim in detinue for the failure of the defendant to return an emerald – plaintiff entrusted defendant to sell an emerald in China in 2014 – defendant failed to sell the emerald – plaintiff demanded return of emerald from 2015 – whether the plaintiff’s demands were unequivocal – no requirement for demands to identify a particular time or place – where plaintiff could only attend on the defendant to require the return of the emerald – held that demands were clear, specific, unequivocal and unconditional LIMITATION OF ACTIONS – detinue – where demands made in 2015 and 2016 – proceedings commenced in 2023 – whether defendant’s actions amounted to a refusal – where a refusal can be demonstrated by the passing of a reasonable period of time without response – evidence indicated defendant went to China but did not return with the emerald – where more than a reasonable time had elapsed – defendant’s inaction a clear refusal of demand – where time commenced to run from refusal – claim statute-barred
CIVIL PROCEDURE – pleadings – striking out – where defendant/cross-claimant has joined wrong cross-defendant to cross-claim – where defendant/cross-claimant has arguable case on his cross-claim – where cross-claim, in its current form, is nonetheless insufficiently pleaded
JUDGMENTS AND ORDERS – reasons – publication – application for restriction on publication of judgment – where application for restriction on basis of asserted confidentiality of commercial information – where that case failed but plaintiff contemplating appeal – whether there would be prejudice to administration of justice – whether appeal might be rendered nugatory if information published pending appeal
EVIDENCE – tendency evidence – tendency rule – murder – self-defence – accused’s reliance on the deceased’s tendency evidence – tendency to opportunistically deploy as a weapon any object readily available – tendency insufficient to provide significant probative value as to the deceased’s tendency to arm himself with a knife under s 97(1)(b)
CIVIL PROCEDURE – Subpoenas – Application to set aside subpoena and Notice to Produce – Representative proceedings – Where the defendant sought production of documents which would identify individuals who had become clients of the plaintiff’s solicitor or who had registered as group members – Where the plaintiff brings an application to set aside the subpoena on the basis that there was no legitimate forensic purpose for the personal identification details of the group members to be provided to the defendant – Subpoena and Notice to Produce set aside on the basis that there is no legitimate or other proper purpose.
CRIMINAL PROCEDURE – application for trial by judge alone – where earlier jury was hung – whether trial by judge alone is in the interests of justice – complainant suffering from an intellectual disability – where expert report on the condition of the complainant served after trial – where Crown indicated not all of report would be relied upon – evidence not complex – report does not require complex jury directions – finality not a sufficient reason for finding that a judge alone trial is in the interests of justice – credibility of witness being a central issue favours a jury trial – application for trial by judge alone refused
CONTRACTS – breach of contract – where agreement formed between plaintiff customer and defendant manufacturer for the manufacture of protein water beverages in accordance with identified specifications – whether defendant manufacturer overcharged plaintiff customer concerning identified ingredients – whether defendant manufacturer in breach of alleged certification agreement concerning supply to ALDI stores CONTRACTS – construction – interpretation – meaning of “clear protein beverage” – whether defendant manufacturer breached obligations of exclusivity by manufacturing for third parties “clear” protein water beverages CONTRACTS – implied terms – terms implied in fact – where ‘mould’ issue was found in the protein water beverages manufactured by the defendant manufacturer for the plaintiff customer – where cause of the ‘mould’ issue in dispute – whether ‘mould’ issue caused by environmental factors at the defendant manufacturer’s factory or by reason of spores in ingredient supplied by plaintiff customer – whether an implied term of the agreement that the product would be suitable and safe for human consumption and free from contamination, regardless of whether mould caused by spores in ingredient supplied by plaintiff customer – whether implied term would be reasonable and equitable – whether defendant manufacturer otherwise breached express term concerning quality control procedures EQUITY – breach of confidence – necessary quality of confidence – material in public domain – whether defendant manufacturer breached obligations of confidence by manufacturing for and assisting third parties to make protein water beverages – whether an identified “formula” was confidential information – where each element in that “formula” was in the public domain – whether combination of those elements was nonetheless confidential – whether the “formula” was a ”formula” for the purposes of the agreement
CRIME – sentence – manslaughter – excessive self-defence – offender a young person at the time of the offence – trial by judge alone – fatal stabbing – confrontation between young people – KFC restaurant – melee – tragic loss of life – where deceased exhibited hostility towards offender –deceased armed with knuckledusters – offender did not initiate confrontation – offender had no interest in fighting the deceased - offender outnumbered by adversaries – offender believed he was going to be killed – chaos – clamorous noise – extreme situation – real threat to the offender – no intention to kill – where offender suffers from cognitive impairment – FASD – ADHD – youth and lack of maturity – moral culpability significantly reduced – unblemished criminal record – very good prospects of rehabilitation – whether sentence to be served as a juvenile offender – convicted – sentence imposed
CRIMINAL LAW – murder – wounding with intent to inflict grievous bodily harm – trial by judge alone – where the accused a young person at the time of the alleged offences – stabbing – Beef Week – melee at a KFC restaurant – numerous young persons involved – where the event is captured by CCTV and mobile phone – where the deceased exhibited significant animus towards the accused – where the accused suffers from a cognitive impairment – Foetal Alcohol Spectrum Disorder (FASD) – defence of substantial impairment – self-defence – knuckledusters – guitar capo – whether the accused believed his conduct was necessary in order to defend himself – whether the conduct of the accused was a reasonable response to the circumstances as he perceived them – excessive self-defence – accused not guilty of murder but guilty of manslaughter on the basis of excessive self-defence – accused not guilty of wounding with intent to cause grievous bodily harm – orders made
CRIME – sentencing – manslaughter – joint criminal enterprise – where offender went with two other men to where the deceased lived – where offender knew one of the men would “bash people for money” – jury verdict consistent with conclusion there was no intent to kill or cause grievous bodily harm but that offender knew an assault would occur – rejection of account (via gaol calls) that the offender only pointed out the house and did not know why the men wanted to go there – callous and cowardly failure to assist the deceased – moral culpability significant in the circumstances
CIVIL PROCEDURE – Application by the plaintiff for adjournment of a final hearing set down three months earlier – Where the plaintiff has failed to comply with orders and directions of the Court without any explanation – Where the plaintiff was given the option of a later hearing if it agreed to defer a bankruptcy application it had issued against the defendant and these proceedings are possibly relevant to the bankruptcy proceedings – Where the plaintiff declined to agree to defer – Where the plaintiff’s reasons for seeking an adjournment otherwise have no merit – Where the defendant has complied with orders of the Court for preparation of the matter and is ready to proceed – HELD – Application for adjournment refused PARTNERSHIPS AND JOINT VENTURES – Existence of partnership – Where the plaintiff asserts that the defendant established a partnership with two other (both bankrupt and one now deceased) persons to provide legal and consultancy services and claims that the defendant is obliged as a partner to account to their estates, the plaintiff having taken an assignment of their claims – HELD – No such partnership was established
SUCCESSION — Administration of estates – judicial advice – Trustee Act 1925 (NSW), s 63 – deceased’s will divides his property among his four children after appointing one of those children, the defendant, as his executor – delay by the defendant in the administration of the estate due to a dispute in relation to subdivision of the deceased’s real property and other matters – the plaintiff, a beneficiary applies for removal of the defendant – Court appoints an independent administrator but temporarily stays the orders – in June 2024 the Court declines to give judicial advice to the executor to accept an offer for $850,000 for one of the estate properties but upon terms that the plaintiff must indemnify the estate against the shortfall arising from a lower offer being received later – offer for $850,000 not renewed and an offer for $785,000 made – whether judicial advice should now be given over the plaintiff’s objection that the defendant would be justified in accepting the offer for $785,000 – other issues have arisen in relation to the administration of trusts of works of art created by the deceased – what directions should be given to resolve those other issues and to further the better administration of the estate.
BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) (‘SOPA’) — adjudication of payment claims — adjudicator’s obligation to give reasons — adjudicator’s obligation to consider respondent's submissions — “legal unreasonableness” — jurisdictional error BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) (‘SOPA’) — adjudication of payment claims — scope of adjudication proceedings — respondent calls bank guarantees and allows credit against set-off claims in payment schedule — claim for restitution in adjudication application — jurisdiction BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) (‘SOPA’) — adjudication determination — application for stay of enforcement proceedings pending arbitration — alleged risk of non-repayment — whether stay available where judgment creditor not in liquidation — SOPA, s 32B — whether expert evidence required as to risk of non-repayment —– degree of risk — stay refused
LAND LAW — withdrawal of caveat under Real Property Act 1900, s 74MA — defendant lodged caveat on land claiming “equitable interest” on basis of an allegedly exchanged contract of sale with plaintiffs to purchase it — application by plaintiffs to have caveat withdrawn to enable imminent completion of sale of portions of the recently subdivided land to third parties — no contract ever exchanged between the parties — caveat has no substance — plaintiffs succeed
COSTS – security for costs – where proceedings are funded and plaintiffs are both resident outside of Australia – where dispute as to form and quantum of security – where plaintiff proposed deed of indemnity in favour of second and third defendants from overseas insurer – where second and third defendants seek security by payment into court – whether deed of indemnity is adequate – security for costs ordered in the form of proposed deed of indemnity – no question of principle
FINAL ORDERS – proposed orders – where parties disagreed about proposed orders – usual costs order – costs follow the event – whether claim was dominant or separable – costs thrown away order
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed EQUITY — Equitable interests in property — Nature of equitable interests — Birth certificate does not evidence or create any type of property or interest in property
CIVIL PROCEDURE – subpoenas – application to set aside – subpoena issued to the plaintiff’s solicitor – plaintiff applied to set aside subpoena – where subpoena, in part, sought communication between the solicitor and the plaintiff’s father and agents – where the solicitor did not know the plaintiff or his family prior to his retainer – the solicitor only communicated with the plaintiff’s agents about the plaintiff for the purpose of purpose of providing legal advice and services – client legal privilege applied – subpoena set aside in respect of paragraph 2(a)-(d) CIVIL PROCEDURE – subpoenas – objection to production of documents or things – client legal privilege – where the subpoena issued to the plaintiff’s solicitor sought, in part, communication with three health care professionals who treated the plaintiff – health care professionals also subpoenaed –plaintiff sought to claim client legal privilege – whether client legal privilege was waived by the service of reports produced by the health professionals – client legal privilege waived in respect of communications related to the reports CIVIL PROCEDURE – subpoenas – whether correspondence between the solicitor and the health care professionals subsequent to the preparation of the reports would be subject to client legal privilege and/or protected confidence under s 126B of the Evidence Act – where plaintiff submitted that determination of privilege should be conducted analogously to public interest immunity claim – where defendant submitted that the appropriate course was that of NRMA v Whitlam – wholly different situation to Whitlam – releasing documents to other side’s lawyers would undermine the purpose of s 126B – plaintiff’s approach accepted – further hearing necessary for judge to inspect documents prepared by the health care professionals over which privilege is claimed
OCCUPATIONS – legal practitioners – solicitors – duty of care – proceedings for damages from two firms of solicitors – where both firms acted successively for the plaintiffs in respect of a contract to purchase a commercial property – where clause 33.2 of the contract allowed for rescission if either party died prior to completion – where the vendor of the property died before the contract settled – the vendor’s executor rescinded the contract – whether the first defendant breached his duty of care by failing to advise the first plaintiff of the presence and effect of clause 33.2 – where the first defendant told the first plaintiff about the terms of clause 33.2 but did not recommend that the clause be modified or deleted – first defendant had an obligation to provide advice about clause 33.2 in the unusual circumstances – first defendant breached his duty of care OCCUPATIONS – legal practitioners – solicitors – duty of care – where clause 49 of the contract and a deed of life estate document granted the vendor a life estate over a house constructed on top of the six garages on the property – where the form of transfer prepared by vendor’s solicitor mistakenly caused the whole of the property to be transferred to the vendor for life with the remainder to the purchaser – whether the first defendant breached his duty of care by failing to advise the first defendant that it was not possible to give effect to the agreed upon life estate – where the first defendant failed to identify the discrepancy between the contract and deed and the transfer – where the first defendant failed to advise of the difficulties of giving legal effect to the agreement in clause 49 and the deed – first defendant breached his duty of care NEGLIGENCE – causation – factual causation – whether the first defendant’s breach caused any loss suffered by the plaintiffs – burden of proof on the plaintiffs to prove, on the balance of probability, any fact relevant to causation – where the evidence strongly suggest that no agreement to alter or delete clause 33.2 would have been reached with the vendor – where the evidence did not establish that the vendor would have agreed not to require the life estate over the house – where the first plaintiff was not in a position to settle the contract regardless – held that the cause of any loss suffered by the plaintiffs was not any breach by the first defendant OCCUPATIONS – legal practitioners – solicitors – duty of care – where third defendant commenced to act after contract entered into - whether the third defendant breached his duty of care by failing to advise the first plaintiff of the presence of clause 33.2 – whether the third defendant breached his duty of care by failing to arrange settlement prior to the vendor’s death – the first plaintiff had been made aware of clause 33.2 and its effect by the first defendant prior to retaining the third defendant – where the evidence discloses that the first plaintiff did not have the funds to complete the settlement –– the third defendant did not breach his duty of care to the plaintiffs
CRIMINAL LAW – trial proceedings – murder – application for trial by judge alone – partial defence of substantial impairment – self-defence – prejudicial material relevant to expert evidence – prejudice inherent in evidence of lay witnesses – application of community standards – whether in the interests of justice to make trial by judge order
BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) (‘SOPA’) — adjudication of payment claims — adjudicator’s obligation to give reasons — adjudicator’s obligation to consider respondent's submissions — “legal unreasonableness” — jurisdictional error COSTS — party/party — multiple claims with mixed success by plaintiff — costs follow the event on a claim-by-claim basis — apportionment based on costs solely referable to each claim — plaintiff to pay first defendant’s costs solely referable to unsuccessful or not-pressed claims — first defendant to pay plaintiff’s costs of proceedings
CIVIL LAW – urgent interim application for property preservation orders – matter listed for hearing on less than one days’ notice – where defendants not opposing making of orders in the short term – dispute as to the form of the orders – where evidence suggests transfer of defendant’s assets to his wife or ex-wife – duelling forms of order – unconvincing arguments about non-specific carve outs for sums up to twenty thousand dollars – “something a little bit different” – orders proposed by plaintiff providing greater clarity and certainty – whether orders should be made requiring defendant to disclose assets – not warranted in view of proximity of hearing – order directing defendant to provide information not made
CORPORATIONS — Voluntary administration — Deed of company arrangement — Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to DOCA — Whether residual equity in company — Whether shareholders unfairly prejudiced — where shareholder(s) have foreshadowed potential claims — Where shareholder(s) have delayed in bringing any application to set aside deed of company arrangement.
CORPORATIONS – Shares – Rectification of share register – Application for rectification of register kept by Australian Securities and Investments Commission incorrectly value of ordinary shares issued on incorporation of Plaintiff – Where incorrect information given as to value of shares – Whether order for rectification of register should be made – Whether order validating registration of company should be made.
COPORATIONS – Application for order under s 588FGA of the Corporations Act 2001 (Cth) – Where preference by liquidator against the Commissioner of Taxation.
CORPORATIONS – Whether transaction is an unreasonable-director related transaction under s 588FDA of the Corporations Act 2001 (Cth) – where director transferred relevant company funds to personal account – where the transfer caused detriment and had no corporate benefit to the company.
CHILD WELFARE – adoption – adoption plan – where birth parents oppose adoption but have disengaged from proceedings – where birth parents have indicated, if children not restored to their care, that they will not participate in post-adoption contact – whether proposed adoption plan is in children’s best interests and proper in the circumstances
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CIVIL LAW – want of due despatch – defence struck out – default judgment entered for part of total sum claimed in statement of claim – unnecessary to deal with alternative relief based on application for summary judgment – noted that plaintiff did not abandon remainder of sum claim – no question of principle
CORPORATIONS – winding up – insolvent trading – where company was a special purpose vehicle incorporated for management of a property development – where company entered into construction contract with builder and was unable to pay progress claims – where common ground that company was insolvent before it went into administration, but dispute about date by which the company became insolvent – whether company incurred debt in respect of each progress claim – whether builder agreed to extend payment terms – whether reasonable grounds to suspect insolvency – quantum of loss or damage suffered in relation to debts because of insolvency – whether payments to related party were unfair preference payments
CIVIL PROCEDURE — pleadings — amendment — application to amend defence — amendment to defence allowed CIVIL PROCEDURE — application for summary judgment — judgment on admissions — whether to grant summary judgment where amended defence contains an arguable case on consideration — application dismissed
COSTS – proceeds of crime – award of costs – general principles – costs follow the event – compensatory nature of costs – variety of approaches taken by applicants as to costs orders sought – substantial costs incurred by some applicants – question as to against whom a costs order should be made – whether against the defendants, the plaintiff or the Commonwealth – costs against a public authority – s 323 of the Proceeds of Crime Act 2002 (Cth) – s 98 of the Civil Procedure Act 2005 (NSW) – whether the Commissioner an “unsuccessful party” – indemnity costs – whether power to award costs extends to award of costs in separate but related proceedings – meaning of “costs” – statutory interpretation – proposed cap – a superficial attraction – costs awarded as agreed or assessed
CIVIL PROCEDURE — subpoenas — objection to production of documents — client legal privilege — whether the documents had the dominant purpose of legal advice — where the only evidence to establish claim for privilege was an affidavit of a director of the Plaintiff — held the evidence did not permit the drawing of inferences that the documents were created for the dominant purpose of the provision of professional legal services — access allowed
ADMINISTRATIVE LAW — procedural fairness —decisions of a NSW government agency made in respect of a non-statutory scheme – whether decisions involved exercise of non-statutory executive power - decisions to suspend account of provider registered under Creative Kids scheme and to refuse payment claimed under scheme — whether provider was entitled to procedural fairness —— whether procedural fairness was denied — where provider was not given reasonable opportunity to deal with matters adverse to its interest before decisions were made ADMINISTRATIVE LAW — remedies — certiorari —exercise of discretion to set aside agency’s decision — whether remedy available — where there was no statutory basis for scheme and agency not subject to statutory duties ESTOPPEL — estoppel by representation — against public authorities —— whether claimed assumption induced by agency and provider acted reasonably in relying on assumption
MENTAL HEALTH – criminal proceedings – person unfit to be tried – special hearing – domestic violence – murder – obsessive and delusional jealousy – whether mental health impairment – whether condition was such that the defendant did not know that the act was wrong – mental health impairment defence not made out for Counts 1 to 3 – partial defence under s 23A Crimes Act 1900 (NSW) made out for the charge of murder – verdict of on the limited evidence available, the defendant committed an available alternative of manslaughter
LAND LAW — Encroachment of Buildings Act 1922 (NSW) — Whether defendant should be ordered to remove encroaching metal beams and concrete footings which support garage wall in circumstances where encroachments inhibit plaintiff from developing his land TORTS — Nuisance — Private nuisance — Whether stormwater ingress from neighbouring property a nuisance — Whether cross-defendant has continued or adopted the nuisance
ADMINISTRATIVE LAW – judicial review – Children’s Court Magistrate - bias – apprehended bias – application for disqualification of Magistrate – fair-minded lay observer – error of law on the face of the record – adequacy of reasons
ADMINISTRATIVE LAW — judicial review — review of orders made by NCAT under s 187 of the Residential Tenancies Act 2010 (NSW) — whether Court should exercise its discretion to conduct judicial review where an alternative remedy is available — whether NCAT made orders in excess of power — where money orders exceeded the monetary limit imposed on NCAT — significance of the fact that the impugned orders were made by consent — whether Local Court Judgment based on NCAT orders should also be set aside
SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow — Whether deceased suffering from delusions that affected the provisions of the will SUCCESSION — Probate and administration — Rectification of wills SUCCESSION — Family provision — Claim by de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made LAND LAW — Co-ownership — Severance of joint tenancy EQUITY — Trusts and trustees — Resulting trusts ESTOPPEL — Proprietary estoppel — Encouragement
COSTS – Party/Party – General rule that costs follow the event – Offers of compromise/Calderbank offers – indemnity costs – a beneficiary of a deceased estate (the first estate) filed a motion in December 2017 seeking the passing of estate accounts after the death of the original executor of the first estate – orders made in February 2018 for the filing and passing of estate accounts in the estate against its first executor – estate accounts not filed by the first executor of the first estate – the first executor of the first estate dies in 2020 – the second executor of first estate (being the executor of the first executor’s estate) does not file and pass accounts in the first estate – in June 2023 the beneficiary of the first estate filed a motion, as applicant, in the estate of the first executor (second estate) seeking the filing and passing of accounts in the first estate – at a probate directions hearing, the Court determines that the real issue in dispute is not one of the passing of accounts but as to the identification of the assets and liabilities of the first estate and orders a final hearing on that issue – the contentions of the beneficiary of the first estate as to the assets of the estate fails – what order for costs should be made – whether the parties have disproportionately incurred costs – whether the applicant have unreasonably failed to follow the advice of the Registrar in probate as to the correct procedure for the conduct of the present dispute – whether the beneficiary has conducted herself so unreasonably as to warrant an order for indemnity costs against her – whether a Calderbank offer has been made – what is the appropriate exercise of the costs discretion.
CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether child is of sufficient maturity to understand effect of giving consent to adoption – whether declaration of parentage should be made – where sole adoptive parent seeks orders - whether change of name should be approved
REVIEW – personal injury claim – security for costs – where plaintiff resides overseas – reasonable prospects of success – delay in seeking security order – where plaintiff now suffers chronic psychiatric illnesses – no estimate of defendant’s likely costs – where there is no litigation funding arrangement – where order would unjustly stifle pursuit of the claim –
MAREVA ORDER – application to discharge or vary – principles at [77]-[78] – uncontested freezing order made against trustee of superannuation fund given $770,000 in “unexplained withdrawals” – defendant then participates in proceedings and gives an account – defendant alleges that withdrawals have now been explained by his account – plaintiff challenges account – whether freezing order should be reduced to balance of unpaid costs order – discharge does not accord with dictates of justice where plaintiff continues to have good arguable case and risk of asset disposal remains. EQUITY – common form of account – procedure at [81]-[83] – proceedings not concluded – the defendant having given an account, the Court must still take an account having regard to the plaintiff’s challenge to that account.
HIGH RISK OFFENDERS – extended supervision order – preliminary hearing – interim orders sought – appointment of psychiatrists or psychologists – risk assessment – supporting documentation, if proved, justify the making of an order – discretion – conditions – orders made
EQUITY — equitable remedies — interlocutory injunctions — where employment agreement contains provisions in relation to preserving confidential information and restraints of trade — where plaintiff alleges defendant breached employment agreement and seeks interlocutory and final injunctions to enforce negative contractual stipulations — where defendant is no longer working for employer and says that he has no immediate plans to work in the future — HELD — serious question to be tried — real risk of non-compliance with restraints — no hardship to the defendant — balance of convenience favours granting of interlocutory injunctions
CRIMINAL LAW – admissibility of evidence – covert recording by surveillance device of three juveniles in police truck – six hours of recordings – around twenty portions to which objection is taken pressed by prosecution – remainder of recording not to be played to the jury – a mercy – where accused charged with murder – where accused provided with lengthy fact sheet – discussion relating to the same – consciousness of guilt – admissions – assessment of probative value – danger of unfair prejudice – seventeen evidentiary rulings made – no question of principle
CRIMINAL LAW – evidence – admissibility of portion of Macquarie Dictionary – where evidence of listening device admitted over objection – where one accused threatens “to smoke” the other if he speaks to police – where Prosecutor seeks to rely on dictionary to prove meaning – where trial riddled with idiosyncratic idioms – probative value of evidence wafer-thin – potential for prejudice significant – evidence rejected
EVIDENCE – telephone intercept – conversation between 17-year-old accused and his sister – consciousness of guilt – accused musing as to the prospects of being sent to gaol – where accused charged with affray in which another young person was killed – accused subsequently charged with murder – intractable neutrality – evidence excluded
CRIMINAL LAW – bail – where bench warrant executed on witness who failed to appear on subpoena – where witness appeared earlier in the trial – bail granted to appear the next day – condition that witness travel directly to and from their home to the court complex
CRIMINAL LAW – criminal trial – discretionary discharge of individual juror – notice of surgery provided to the Court in week three of trial proper – no fault of juror – day surgery – medical advice provided to the Court after surgery – juror likely to be incapacitated as to be unable to serve until the jury returns its verdicts – likely further delay of trial – discharge of individual juror not opposed – discretionary factors – jury reduced to 13 in lengthy trial – trial to continue
CRIME – murder – defence of mental health impairment – where parties agree defence available – Court satisfied that defence established – special verdict of act proven but defendant not criminally responsible
ADMINISTRATIVE LAW – police – search warrant – application for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) – application to file summons out of time – whether search warrants were invalid – whether police had reasonable grounds to believe that there was on the premises a thing connected with an indictable offence – whether police relied upon false and/or misleading material – whether the issuing officer had reasonable grounds to issue the warrant – where there was an error in recording time of application for warrant
CRIME – bail – release application – young person – conspiring to engage in an act in preparation for or planning a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth) – show cause – unacceptable risk – extremist ideology – co-conspirators – risk of re-radicalisation – bail concerns – community supports – risk mitigated – bail granted subject to conditions
COSTS – application for indemnity costs – offer of compromise – whether offer to resolve interlocutory proceeding was reasonable in the circumstances – whether leave sought by plaintiff to amend statement of claim was unreasonably resisted – whether relevance of “indulgence principle” – indemnity costs ordered
SUCCESSION — Contested probate and family provision — Plaintiff (the deceased’s wife) brought separate proceedings seeking (inter alia) revocation of the defendant’s grant of probate in respect of a 2022 Will and further provision out of the deceased’s estate — In probate proceedings, the plaintiff seeks to prove that the 2022 Will and other documents relating to the deceased’s personal and corporate affairs were executed at a time proximate to the deceased’s death when he did not have sufficient mental capacity — Parties agreed to have a parties’ single expert regarding the issue of capacity but could not agree on the terms of the joint letter of instruction — Parties applied to the Court to settle the terms of the joint letter of instruction to the expert, providing their competing versions — Terms of the joint letter of instruction settled in the form provided in the Schedule to the reasons for judgment SUCCESSION — Contested probate — Capacity — Discussion of the law’s view of capacity as time- and task-specific, as pronounced by the High Court in Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 — Specific discussion of the nature of the task involved in making a Will, appointing an enduring power of attorney and issuing shares and appointing directors/secretaries in respect of a sole director and sole shareholder company PROBATE — Opinion evidence — Exceptions — Expert opinion — “Retrospective” medical expert —Discussion of purposes and role of expert witnesses, as well as the necessary content in letters of instruction and expert reports — Considered that useful “retrospective” medical expert evidence in probate capacity cases (a) details the medical conditions from which the instrument maker was suffering, (b) details the medications which the instrument maker was taking or being administered and (c) explains how each medical condition and medication (if any) would have affected the instrument maker’s capacity in the sense of impairing or compromising the matters relevant to the task EVIDENCE — Opinion evidence — Letters of instruction — Where multiple instruments executed — Letter of instruction to expert ought to be nuanced to reflect what capacity is required by the instrument maker in understanding the nature of what he or she is doing or effecting in relation to signing each different instrument CORPORATIONS — Means by which a company may make decisions — Effect of lodgement of ASIC Form 484 recording change of directorship, secretaryship and issue of shares CORPORATIONS — Functions of directors and secretary and means of appointment — Nature of such appointments
CIVIL LAW – litigation privilege – legal advice privilege – whether privilege “lost” or waived – whether conduct inconsistent with maintenance of privilege – where plaintiff seeks to set aside settlement deed entered in 2011 – application to set aside deed based on changes to the law following Royal Commission – affidavits filed in support of motion to set aside deed - where plaintiff asserts legal advice led him to settle for compromised sum – where solicitor offers opinion based on review of legal file from 2011 case – issue of waiver not determined by general notions of fairness – affidavits raise directly issues to be ventilated on motion to set aside deed – privilege lost
CRIMINAL LAW – evidentiary ruling – telephone intercept – dispute over words used – whether accused said “I dig it” in reference to the murder – where word sounds like “deep” – whether used as a verb – possible antiquated judicial understanding of modern Australian usage – possible interpretation that accused ruminating on events – comparison with other evidence in case – assessment of probative value – taking the evidence at its highest – whether evidence tendency evidence – use as circumstantial evidence going to state of mind – consideration and application of authorities – significant potential for misuse – possible remedies to cure prejudice – Pulp Fiction
CRIMINAL LAW – Whack-A-Mole pre-trial hearing – application for inspection of scene – relevant considerations – large area over which various incidents occurred – physical evidence scattered over several suburban blocks – perspective and distances – location of CCTV cameras – material alteration to one area of scene – shower can identify – inspection likely to be of significant assistance
REMITTAL – business sale agreement – plaintiffs sell 2 smash repair businesses to large company with over 100 such businesses – “earn out” provision based on earnings before interest and tax (EBIT) “for the Businesses” – whether rebates and JobKeeper payments received by the corporate group should be included as earnings “for the Businesses” – whether accounting standards apply – whether generally accepted accounting principles apply. WORDS AND PHRASES – “for the business” at [47].
EVIDENCE – tendency evidence – tendency rule – murder – defence of self-defence – accused’s reliance on tendency evidence of the deceased – whether the tendency evidence has “significant probative value” under s 97(1)
COSTS –indemnity costs – Calderbank offer – offer of compromise – whether time open for acceptance of offer was reasonable in the circumstances – where offer to settle claims about alleged abuse many years ago open for only a short period – whether it was unreasonable for the defendant not to accept offer – indemnity costs orders refused
CRIMINAL LAW – application for separate trial – unusual possibly unique case – where Prosecutor agrees to tender statement of co-accused based on understanding the accused will give evidence in joint trial – where statement makes substantial admissions – where statement also implicates co-accused – where statement not tendered against co-accused and not admissible against them – where length of trial estimated to be 2-3 months – where four accused in custody for more than 2 years – dire consequences if basis of tender proves invalid – length of remand – relevance of Senior Counsel’s indication of accused intention to give evidence – acting on hope rather than an understanding of the fluidity and unpredictability of the criminal trial process – counsel and Court unable to find precedent – assessment of prejudice – consideration of possible jury directions – extent to which the accused giving evidence may alleviate the prejudice – summary of relevant principles – whether positive injustice established CRIMINAL PROCEDURE – accused person’s decision to give evidence – decision for accused not counsel – accused not bound by counsel’s current understanding – many reasons accused may change his mind about decision to give evidence
ESTOPPEL – Promissory estoppel – Where plaintiff and her deceased former husband separated and divorced in 1992 – Where plaintiff claims to have relied to her detriment on representations allegedly made by the deceased in conversations over many years to the effect that he would leave the whole or the bulk of his estate to her in his will if she did not pursue a property settlement – Where the plaintiff sought unsuccessfully for 10 years to negotiate a final property settlement with the deceased, but did not commence property settlement proceedings – Where the deceased controlled the assets and funds generated during their marriage, and refused to disclose relevant financial information and threatened the plaintiff with violence during the property settlement negotiations – Where the deceased’s last will made no provision for the plaintiff – Held that the Court is bound by authority that the doctrine of promissory estoppel operates as a restraint on the enforcement of legal rights and does not operate as a source of an obligation for the deceased to provide for the plaintiff in his will – Held that the plaintiff failed to prove most of the alleged representations, and failed to prove that she relied to her detriment on those representations which were proved – Promissory estoppel claim dismissed. SUCCESSION – Family provision – Claim by plaintiff for provision out of the estate of her deceased former husband – Where plaintiff made significant financial and non-financial contributions to the assets that were the genesis of the assets comprising the deceased’s estate – Where the plaintiff sought unsuccessfully for 10 years to negotiate a final property settlement with the deceased, but did not commence property settlement proceedings – Where the deceased controlled the assets and funds generated during their marriage, and refused to disclose relevant financial information and threatened the plaintiff with violence during the property settlement negotiations – Where the deceased failed to pay the plaintiff even a half share of the net sale proceeds of their jointly owned assets following their separation and divorce – Where the plaintiff is aged 82 years, owns no real property, has no superannuation, and is forced to live frugally due to her lack of financial resources – Where the deceased made no provision for his former wife in his will – Where an order for provision will reduce the benefits to paid to named beneficiaries – Held: There are factors warranting the plaintiff’s application for provision, and the plaintiff has a superior claim on the deceased’s estate than the beneficiaries named in the will – Order for provision in favour of the plaintiff in a lump sum of $600,000.
CIVIL PROCEDURE – pleadings – striking out – where defendant/cross-claimant has arguable case on his cross-claim – where cross-claim, in its current form, is nonetheless insufficiently pleaded
CRIMINAL LAW – bail – detention application – where court satisfied respondent will be sentenced to full-time imprisonment – section 22B Bail Act – “special or exceptional circumstances” – where offender under 18 at the time of the offences – where kept in juvenile detention centre before bail granted – where offender now an adult – where legislation provides no power or discretion in bail court for offender to be detained in detention centre on remand – possible lacuna in legislation – where sentencing court has power to order offender to be detained in juvenile institution upon sentence – threats from other accused – where sentencing proceedings to occur in the next 6 weeks – prosecution of detention application fairly and properly muted – special or exceptional circumstances established – application refused
CRIMINAL PROCEDURE – confidential submissions made by Crime Commission – whether should be disclosed to the accused – where based on documents in the possession of the accused – whether exhibit list should be redacted
CRIME – Murder – Trial by judge alone – Verdict – Where accused had a car accident with the deceased – Where accused failed to stop after the accident – Where deceased followed the accused home – Where accused caused fatal injury or injuries during the physical confrontation at the accused’s home – Where accused pleaded guilty to manslaughter on the basis of excessive self-defence – Where manslaughter plea not accepted by Crown in satisfaction of murder count – Where accused conceded the conduct was not a reasonable response in the circumstances as he perceived them – Whether reasonable possibility that the accused believed it was necessary to apply the force that caused the death in order to defend himself
COSTS – competing motions – usual order follow the event – discretion to depart – apportionment sought –_ costs orders should reflect practical outcome of motions heard – no departure from usual order
CRIMINAL LAW – application for review of conviction and sentence – sexual touching – common assault – “groping” – three separate victims – offences committed on the dancefloor of nightclub – associated offences of assaulting security staff and resisting police – two separate incidents – second incident occurred when applicant on bail for the first incident – applicant with psychological issues – no previous convictions – offences out of character – whether case should have been diverted under mental health legislation – whether convictions should have been recorded – where matter considered carefully by Magistrate – where appeal to District Court succeeded in part – rejection of ambitious submission made by lawyer in District Court that objective seriousness less because nightclubs “sexually charged arenas” – where solicitor “struggled to find the words” to articulate submission – whether appearance of doubt or question around conviction or sentence – nature of jurisdiction – whether Court should refuse to consider application because issues fully considered in courts below – discretionary decision to consider case on its merit – application dismissed
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.
CRIMINAL LAW – release application – second application – requirement to establish charge of circumstances – where Judge who refused bail acted on information that applicant’s medical condition would receive treatment – where medical care inadequate – assessment of risk – stringent bail conditions – home detention enforced by electronic monitoring – victim’s legitimate concerns considered – bail granted
CRIME – Sentence – manslaughter – excessive self-defence – findings of fact after trial – whether the offender intended to kill the deceased as opposed to inflict grievous bodily harm – whether the offender’s complex post-traumatic stress disorder materially contributed to the offence – disadvantaged and deprived background – youth – reduction in moral culpability – very good prospects of rehabilitation – unlikely to reoffend
REMEDIES – breach of statutory and fiduciary duties by officers of corporation – election between equitable compensation and account of profits – time for making election – where further information required to make election
LEASES AND TENANCIES – LICENCE - Plaintiff sold a rural property to the defendant subject to a Licence Agreement that the plaintiff was entitled to occupy a part of the property for his lifetime for a $1 yearly fee – It was a term of the Licence Agreement that the defendant could terminate the licence if it was of the reasonable opinion that the plaintiff did not permanently reside at the property – The defendant purported to terminate the Licence Agreement – HELD that the plaintiff continues to reside permanently at the property – If the defendant did, in fact, hold an opinion otherwise, it was neither arrived at reasonably nor reasonably based on available material – The defendant was not entitled to issue a Notice of Termination under the Licence Agreement
CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether there is a genuine dispute about the existence or amount of the debt — Whether there is a defect in the demand — Whether the demand should be set aside on other grounds.
ADMINISTRATIVE LAW — standing — judicial review proceedings brought under the Supreme Court Act 1970 (NSW) — whether plaintiff has interest in proceedings beyond that of ordinary member of the public — where plaintiff pursues relief in public interest — where plaintiff pursues no personal right in proceedings — where plaintiff does not seek to gain advantage from proceedings — plaintiff does not have standing CIVIL PROCEDURE — summary disposal — dismissal of proceedings — whether plaintiff’s claims are so obviously untenable that they cannot possibly succeed — where plaintiff did not put on submissions or evidence to advance its case — where this Court not empowered to grant some of the relief sought by the plaintiff — where plaintiff’s judicial review application is misconceived CIVIL PROCEDURE — hearings — adjournment — where plaintiff requested adjournment by email to associate — where plaintiff had not complied with timelines for filing evidence and submissions — where plaintiff did not file submissions — where no explanation for failure to comply with court orders was given — where plaintiff was self-represented — adjournment application refused at hearing COSTS — gross sum costs order — whether discretion to order gross sum costs ought be exercised — whether costs assessment likely to be protracted and expensive — where it is unlikely plaintiff can pay defendants’ costs COSTS — security for costs — where plaintiff corporation produced no bank statements or tax returns or list of assets — plaintiff impecunious COURTS AND JUDGES — bias — where plaintiff alleged bias at hearing — where plaintiff was self-represented — where plaintiff disagreed with judge’s decisions — bias not established JUDGMENTS AND ORDERS — amending, varying and setting aside —— where parties had filed written submissions pursuant to order of the Court — where submissions did not come to the attention of the Court — where judgment delivered without regard to those submissions — original judgment set aside and new judgment issued
CONTRACTS — Construction — Two commercial agreements govern the relationship between co-owners of a large suburban shopping centre – They contain pre-emptive rights clauses and provisions affecting certain disposals of shareholdings or voting rights in a co-owner – Breaches of various terms constitute a default which enlivens machinery for the valuation of the defaulting party’s interest in the property and an entitlement in the non-defaulting co-owners to purchase the defaulter’s interest – One such breach is a prohibited disposal, which occurs when a co-owner ceases to be a member of a co-owner’s group – Whether such a prohibited disposal took place – Whether non-defaulting party has entitlement to acquire whole of defaulting party’s interest in the property – Whether notice requirements for the acquisition by the non-defaulting party were complied with – HELD – A prohibited disposal took place, notice requirements were complied with and non-defaulting party is entitled to acquire whole of defaulting party’s interest in the property
CIVIL PROCEDURE – discovery – whether necessary for resolution of real issues in dispute – issues and relevance to be identified by reference to the pleadings
ADMINISTRATIVE LAW — judicial review — review of decision by an Appeal Panel of the Workers Compensation Division of the Personal Injury Commission — whether the Appeal Panel erred in their reasons when rejecting the appeal — where the plaintiff had provided an updated statement as to the deterioration of her condition — where Appeal Panel draws an inference that the Medical Assessor had reviewed the document as he had updated the history previously obtained — whether the appeal panel was correct in applying the presumption of regularity to the Medical Assessors failure in commenting on the updated statement of the plaintiff — held the appeal panel incorrectly applied the presumption of regularity — held there is an error on the face of the record and jurisdictional error
COSTS – dispute concerning production of documents said to be required by experts to conclude their reports – appropriate course to seek pre-evidence disclosure and demonstrate exceptional circumstances for the purposes of Practice Note SC Eq 11 – combative correspondence exchanged leading instead to service of notice to produce – production ultimately agreed on limited basis – appropriate costs order
ADMINISTRATIVE LAW – judicial review – where magistrate refused to direct plaintiff to appear by audiovisual link rather than in person for sentencing hearing – whether magistrate misapprehended duty under s 5B(2)(b) of Evidence (Audio and Audio Visual Links) Act 1998 (NSW) by excluding consideration of inconvenience to the plaintiff – where court warrant for plaintiff’s arrest subsequently issued pursuant to s 25(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) – whether magistrate required to take into account plaintiff’s willingness and capacity to attend hearing by audiovisual link
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Non-appearance of plaintiff — Plaintiff resident in China — Following the plaintiff’s legal representatives ceasing to act for him immediately following a pre-trial directions listing, and despite only recently paying into Court security for costs in the sum of $350,000, the plaintiff failed to comply with pre-trial directions or attend several mentions of the matter (either in person or by audio-visual link, or by engaging a representative on his behalf) in the lead up to the final hearing, despite continued correspondence from the remaining active defendants — Defendants made separate applications for dismissal of the plaintiff’s proceedings against them — Plaintiff’s proceedings dismissed CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Civil Procedure Act 2005 (NSW), s 61(3)(a) — By notice of motion filed five days before the final hearing was due to commence, the third defendant sought to have the proceedings against her dismissed pursuant to s 61(3)(a) — Plaintiff failed to appear when the motion was heard two days before the final hearing was due to commence — Being satisfied that the plaintiff had sufficient notice of the application for dismissal and considering the dictates of justice and guiding principles of case management, determined that the proceedings against the third defendant be dismissed CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Uniform Civil Procedure Rules 2005 (NSW), r 29.7(4) — Upon the plaintiff’s non-appearance on the final hearing, the seventh defendant (appearing in person) made an application to have the proceedings against him dismissed — Being satisfied that the plaintiff had ample notice of the hearing and in light of his continued “radio silence” in respect of correspondence from the Court and the parties, considering the dictates of justice, determined that the proceedings against the seventh defendant be dismissed
CRIME – SENTENCE – murder – accessory before the fact – not present at the scene – plea of guilty – deceased lured onto street and shot on pretext of drug deal – where offender’s extent of involvement disputed – where offender diagnosed with ADHD – Bugmy factors – delay in prosecution – limited remorse demonstrated – some prospects of rehabilitation – onerous conditions throughout COVID-19 pandemic – totality
CRIMINAL LAW – contempt in the face of the court – where witness refuses to answer questions when directed to do so – alternative procedures for dealing with contempt – unusual circumstances – witness charged with unrelated murder – where witness seeking to traverse a plea of guilty based on trauma response to watching death of victim of current killing – where witness directed to answer questions with the protection of a certificate under s 128 of Evidence Act – preferable not to deal with contempt by summary procedure – preferable for a different judge to deal with contempt proceedings – whether witness should be afforded opportunity to be heard
CIVIL LAW – criminal contempt in the face of the court – refusal to answer questions – where contemnor a juvenile – applicability of sentencing legislation – whether “criminal” or “civil” proceedings – Children (Criminal Proceedings) Act held not to apply CIVIL LAW – punishment for contempt – assessment of seriousness – relevant considerations – where refusal to answer selective and sustained – motive unclear – possible reflection of underworld policy of non-cooperation – serious example of contempt – youth of contemnor resulting in little weight to retribution or denunciation – general deterrence also of less weight – where contemnor due to give evidence in separated murder trial – personal deterrence of significant weight – principles stated in other cases – consideration of comparable cases – somewhat lame apology – order for detention as a juvenile offender – order suspended on condition that contemnor be of good behaviour
CRIMINAL LAW – contempt – refusal to answer questions when directed to do so – where court determined provisionally to refer the matter to the Prothonotary for institution of charges – where contemnor submits contemnor should not be prosecuted – contemnor submits alternatively that the alleged contempt should be dealt with summarily – where contemnor to be called in subsequent trial having refused to answer questions in related trial – where Prosecutor also urges contempt to be dealt with summarily due to likely delay in alternative procedure
CRIME – sentence – joint criminal enterprise – murder – manslaughter – assault with intent to rob in company – armed robbery – deceased stabbed multiple times during robbery – aggravated break and enter with intent to steal – assault occasioning actual bodily harm in company – where offender has limited reduced moral culpability – where delay in trial being heard to finality – where offenders experienced hardship in custody – where two offenders were on conditional liberty at the time of the offending – where failure to confirm guilty plea offer – whether guilty plea offer was withdrawn
CONTRACTS – Remedies – Specific performance – Where vendor and purchaser entered into contract for sale of land which failed to complete – Where purchaser claimed specific performance of sale contract, and vendor claimed specific performance of an alleged novated and varied sale contract – Where vendor abandoned claim and consented to orders for specific performance of sale contract relied on by purchaser – Orders made for specific performance of that sale contract in terms consented to by the parties CONTRACTS – Construction and interpretation of sale contract to be specifically performed – Where vendor, after entering into the contract for sale of land, applied and was granted an exploration licence over a large area of land, including the land that is the subject of the sale contract, in respect of Group 5 minerals including clay – Whether the sale contract, properly construed, expressly requires the vendor to transfer its clay exploration licence to the purchaser upon completion or contains an implied term to that effect – Held: no express or implied term requiring transfer of clay exploration licence to purchaser on completion LAND LAW – Non-derogation from grant – Whether the vendor has derogated from the grant of property made to the purchaser under the contract for sale of land by refusing to transfer its clay exploration licence upon completion – Where evidence does not support imputing to the parties a common intention that the purchaser acquired the land for the purpose of gaining access to, and an entitlement to use, clay deposits – Held: no derogation from grant
MENTAL HEALTH – criminal proceedings – defence of mental illness – where the accused was charged with six offences, including the murder of Steven Tougher - where the parties agreed that the proposed evidence established a defence of mental health impairment –– enquiry under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 - whether the proposed evidence established a defence of mental health impairment – where there was no doubt the accused committed the physical acts – where two psychiatrists agreed that the accused suffered from a mental health impairment, namely schizophrenia – where both experts agreed that the accused did not know that this acts were wrong – where there was nothing to cast doubt on the opinions of the psychiat-rists – accepted that the accused suffered from a mental health impairment and that as a result he did not know that his acts were wrong – special verdict of act proven but not criminally responsible returned
EQUITY – Trusts and trustees – Resulting trusts – Presumption of resulting trust – Unequal contributions to purchase price PRACTICE AND PROCEDURE – Application for appointment of representative of deceased’s estate pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW)
CONTRACTS – Construction – Interpretation – Where one party assumed royalty obligations under a historical deed – Where royalty obligations calculated by reference to defendant’s proportionate share or interest in mining tenements as varied from time to time
CONTRACTS — Breach of contract — Remedies — Damages — Remoteness of damage — Rule in Hadley v Baxendale (1854) 156 ER 145 — Koufos v Czarnikow Ltd [1969] 1 AC 350 — Where loss or damage claimed is too remote from breach of contract CONTRACTS — Unconscionable conduct — Australian Securities and Investments Commission Act 2001 (Cth) s 12CB — In connection with financial services — Meaning of “in connection with” — Where meaning given a wide operation to include acquisition of shares — Where conduct complained of not sufficiently connected to antecedent unconscionable dealings CONTRACTS — Unconscionable conduct — Australian Securities and Investments Commission Act 2001 (Cth) s 12CA — Unconscionable conduct within the meaning of the unwritten law — Whether circumstances of vulnerable parties amounted to special disadvantage — Where Plaintiffs found not to have suffered from some special disadvantage CORPORATIONS — Members’ rights and remedies — Oppression — Relief sought under Corporations Act 2001 (Cth) ss 232, 233 for conduct they believe is contrary to the interests of the members as a whole — Where Plaintiffs have not identified in final submissions what relief they seek, nor established that the conduct was contrary to the interests of the members as a whole EQUITY — Fiduciary duties — Fiduciary relationships — Construction — Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 — Where fiduciary duties are owed EQUITY — Fiduciary duties — Fiduciary relationships — Partners and joint venturers — Where relationship between parties is as a joint venture or some similar commercial arrangement — Fiduciary relationship found pursuant to broader characterisation of parties’ relationship
COSTS — No question of principle COSTS — Payable out of a fund — Deceased estate COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers
PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – proposed land assembly and on-water blockade of shipping channel – whether an order prohibiting the assembly should be made – whether orders required to enable police to give directions and make arrests in the course of extended protests – risks to the safety of protestors and police officers – where civil disobedience likely – importance of police retaining full extent of powers to deal with risks – prohibition order made
CRIMINAL LAW – trial proceedings – application to discharge the jury – information received as to conduct of jurors – question of whether juror conduct requires the jury to be discharged
CRIMINAL PROCEDURE – trial – jury – offences related to conspiracy to import border controlled drugs – three conspiracies alleged – Crown opening address to jury – proposed use of documents by Crown as aide-mémoires – whether documents would prejudice the trial – use of visual and documentary aid in jury trials generally – documents amended and provided to jury