CIVIL PROCEDURE – commencement of proceedings – leave to commence action – nunc pro tunc – ancient and foreign tongue – Felons (Civil Proceedings) Act 1981 (NSW) – sad history – historic sexual assault – plaintiff in Minister’s care – a harrowing read – duty list – patent absurdity
CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – allegations of sexual abuse against a priest – post-traumatic stress disorder – leave granted – no question of principle
CORPORATIONS — winding up — substitution of applicant for company to be wound up — where substitute applicant might otherwise have applied for an order winding up the company
CIVIL PROCEDURE – allegation of sexual abuse – legitimate concern that defendant divesting assets – realism concerns current cost of living – hearing date set in May – interim freezing orders made – case management orders made
CRIME – sentencing – juvenile offender – manslaughter – plea of guilty – youth gang bashing of child – assault captured on video and posted on social media – serious example of manslaughter – reduced moral culpability on account of age, immaturity of youth and background of profound deprivation – remorseful – good prospects of rehabilitation – special circumstances for parole flexibility as offender matures – sentence to be served as a juvenile offender
CRIME – sentencing – juvenile offender – murder – plea of guilty – youth gang bashing of child – assault captured on video and posted on social media – serious offence – reduced moral culpability on account of immaturity of youth and background – remorseful – reasonable prospects of rehabilitation and avoiding reoffending – special circumstances to allow for parole flexibility as offender matures – special circumstances for serving sentence as a juvenile offender
CIVIL PROCEDURE – separate determination of question – action in trespass in relation to underground gas infrastructure – alleged defence of statutory authority – whether that defence apt for separate determination
CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) – blackmail – Plutus Payroll tax fraud – hung jury – legal aid refused for retrial – stay refused – discontinuation of proceedings by CDPP – credibility of witness – history as investigative journalist – whether if prosecution had all relevant facts it would have been reasonable to institute proceedings – application refused
COSTS – solicitor/client – costs agreement – costs assessed under Legal Profession Act 2004 (NSW) – binding costs certificate issued – unsuccessful appeal on questions of law – costs judgment entered – application to set aside costs judgment under r 36.15 of Uniform Civil Procedure Rules 2005 (NSW) – whether costs judgment was entered irregularly or in bad faith – whether plaintiff liable to pay assessed costs – application based on claimed misconduct considered on both assessment and appeal – plaintiff liable to pay assessed costs – costs judgment not entered irregularly or in bad faith – order refused and proceedings dismissed CIVIL PROCEDURE – jurisdiction – supervisory jurisdiction of legal practitioners – order setting aside the costs judgment where plaintiff is bound by costs agreement and proven judgment debt application to set aside costs judgment under r 36.15 having been refused
CRIMINAL PROCEDURE – Whether court should be closed to hear confidential evidence and submissions – motion to be excluded from producing documents under subpoena – public interest immunity
CIVIL PROCEDURE — Pleadings — Amendment — Allowance of proposed amendments — Where proposed amendments address some minor deficiencies in existing pleadings CIVIL PROCEDURE — Pleadings — Amendment — Disallowance of amendment — Where proposed amended pleadings are delayed, vague and expand the purported issues in dispute
CIVIL LAW – compulsory examination before Crime Commission – requirement for leave by Supreme Court – ex parte application – constant guardian – where defendant foreign nation – charged with related offences – imposition of strict conditions on grant of leave – hybrid of competing considerations
LIMITATION OF ACTIONS – Limitation Act 1969 (NSW), ss 11, 52 – suspension of limitation period – whether plaintiff under relevant disability – restraint of plaintiff’s person – mental impairment – whether impairment rendered plaintiff incapable of, or substantially impeded in, managing his affairs in relation to initiating proceedings to initiate cause of action – whether statement of claim statute-barred
LAND LAW – possession of land – judgment given in favour of bankruptcy trustee against bankrupt – where bankrupt has commenced proceedings in the Federal Circuit and Family Court challenging the inclusion of the land as property divisible amongst creditors – stay sought on writ of possession pending determination of bankruptcy proceeding
CRIME – sentence – murder – guilty verdict by jury – stabbed in the front upper right side of the chest – where jury rejected defence of self-defence – where no intention to kill – where significant degree of pre-trial disclosure – discount for facilitating the administration of justice – background of substance abuse and violence – sentence imposed
CIVIL PROCEDURE – stay of proceedings – concurrent civil and criminal proceedings – prejudice to the defendants – whether defendants may be permitted to decline to admit or deny allegations in the Commercial List Statement
LAND LAW – possession of land – claim by trustee in bankruptcy against the bankrupt – where trustee now registered proprietor in lieu of the bankrupt – where bankrupt recently filed proceedings in the Federal Circuit and Family Court challenging the inclusion of the land as property divisible amongst creditors – where defendant claimed declaration that he had equitable rights in the land – where such claim did not constitute a defence to the claim for possession – defence struck out – judgment given for possession
EQUITY — Equitable remedies — Specific performance — Land — Where defendant unlikely to comply with Court orders — Whether consequential orders empowering Registrar in Equity to execute necessary documentation ought to be made COSTS — Party/Party — Where plaintiff seeking gross sum costs order — Whether sufficient evidence to make gross sum costs order — Whether proposed discount to gross sum amount sufficient
HIGH RISK OFFENDERS – high risk sex offender – offender with long history of violent sexual offending - application for interim supervision order – continuing detention order previously imposed on defendant – no opposition to preliminary orders – orders made
TORTS — Private nuisance — Interference with use and enjoyment of land — Where stormwater and pool water flowing over and through retaining wall — Whether material and unreasonable interference — Whether natural and reasonable user — Whether injunctive relief appropriate
SUCCESSION — construction — gifts to class SUCCESSION — construction — legacies and devises SUCCESSION — construction — general principles — meaning of phrase ‘survive me’
HIGH RISK OFFENDERS – supervision and other orders under the Crimes (High Risk Offenders) Act 2006 (NSW) – application for extended supervision order (ESO) – ESO not opposed – appropriate duration of ESO – conditions to be imposed as part of the ESO – no point of principle
SUCCESSION — Dispute between the plaintiff and the defendant who are the only two children of the deceased, who died in 2021, regarding their entitlements to valuable farming land in Dungog region, which at her death comprised 21 lots — Plaintiff claims that in teenage years the deceased (his mother) and his father (who died in 2005) made initial promises of inheritance of “half of the farm” on which he acted in various ways including forgoing the study of medicine and forgoing an opportunity of postdoctoral studies overseas to remain on the farm and provide assistance in respect of the farming operations which initially involved dairying operations — Subsequent to his father’s death the plaintiff claims the deceased, who ceased dairying operations and leased 13 of the 21 lots and part of another lot (predominantly north of a road dividing the farming property) (the “leased lots”), gave encouragement to the plaintiff to continue work he had engaged in maintaining the leased areas on the promise of receiving the leased lots — Plaintiff continued the work — Deceased made a Will relevantly giving the plaintiff only 2 of the leased lots and the balance of her real property to the defendant — Plaintiff sought relief that the reference by name to the gifted lots should be properly construed as being a reference to most of the lots north of the dividing road — Plaintiff in addition to the construction claim sought rectification of the Will to the above effect — Plaintiff alternatively to the construction claim and rectification claim sought entitlement to the 14 lots by means of an estoppel — Held construction and rectification claims to be dismissed but estoppel claim succeeds WILLS — Construction — Principles — Discussion of appropriate method for describing landholding — The appropriate method will depend upon various factors including context — Generally use of the words “more particularly described (as)” followed by a distinct title reference, is a useful and appropriate drafting technique to remove doubt about what land is precisely the subject of a gift SUCCESSION — Wills — Rectification — Whether always necessary to construe document first — Discussion of rectification principles – Consideration of requirements of ‘clerical error’ — Consideration of conjunction ‘because’ in s 27(1) Succession Act 2006 (NSW) EVIDENCE — Presentation of evidence regarding complex landholdings — Forensic assistance to the Court, and to witnesses, of having a large map version of the deceased’s landholdings to identify the disputed landholding by reference to a single document, so that the evidence of the many witnesses could be comparable and comprehensible by reference to a fixed or standard reference point — Practitioners commended for thoughtful presentation of maps EVIDENCE — Assessment of evidence of witnesses where estoppel claims based on some conversations in the decade prior to the deceased’s death and some many decades ago — Assessment of evidence of professionals engaged by the deceased including evidence of a solicitor regarding instructions for a will made over a decade prior to the deceased’s death where the solicitor’s electronic file is lost ESTOPPEL — Estoppel by encouragement — Farming properties — Plaintiff’s case for detriment presented holistically, with all of the elements of foregoing opportunities and work carried out sharing the common thread that the plaintiff (for the most part) remained living and working in or around the family farm secured by the promises that he would inherit, under the initial promises, “half of the farm” and, by the subsequent promises, the “leased lots” ESTOPPEL — Discussion of issues including whether career choices may constitute detrimental reliance — Discussion of ‘counterfactual case’, significance of countervailing benefits and proportionality of relief — Held choices made by the plaintiff involved life changing decisions with irreversible consequences of a profoundly personal nature, beyond the measure of money — Held relief claimed not “wholly disproportionate” or “out of all proportion” to his detriment
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.
CORPORATIONS – Directors – Duties under Corporations Act 2001 (Cth), ss 180, 181, 182 – Involvement of third parties in contraventions of ss 180, 181, 182 CORPORATIONS – Directors - Fiduciary duties owed to company during directorship – Circumstances in which former director continues to owe fiduciary duties to company after resigning as a director EQUITY – Fiduciaries – Conflict rule – Profit rule – Liability of fiduciaries and third parties under the rule in Barnes v Addy – Alter ego doctrine PROPERTY – Conveyancing Act 1919 (NSW), s 37A – alienation of property with intent to defraud creditors CORPORATIONS – Whether affairs of company conducted in a manner that is contrary to interests of members as a whole, and oppressive to, unfairly prejudicial to, or unfairly discriminatory against a member
CIVIL PROCEDURE — subpoena to produce — seeks Court documents from Victorian proceedings — consent orders made on settlement of Victorian proceedings — whether order was under r 28.05 Supreme Court (General Civil Procedure) Rules 2015 (Vic) or Open Courts Act 2013 (Vic) — not a suppression order — order under r 28.05 limits access to non-parties to files in registry — does not absolve party in possession of documents which happen to be on the court file from compliance with subpoena.
CIVIL PROCEDURE — Pleadings — Where r 9.1(1) of Uniform Civil Procedure Rules 2005 (NSW) has not been complied with — Application of s 63 of the Civil Procedure Act 2005 (NSW) — Where applicant seeks that cross summons and cross list statement be taken, nunc pro tunc, to have been validly filed and validly served CIVIL PROCEDURE — Pleadings — Striking out — Tendency to cause prejudice — Where cross defendant seeks that cross summons and cross list statement be struck out due to prejudice caused by delay
EQUITY – Injunctions - Where parties seek an urgent final hearing of whether the plaintiff is in lawful possession of premises as a tenant – Where the plaintiff has an injunction restraining the defendant landlord from entering the premises – Where the plaintiff no longer contends that it has any right to occupy the premises other than by way of a monthly holding over and the monthly holding over will not extend beyond 15 May 2024 – Where the landlord has entered into a registered lease with an alternate tenant which is to commence on 1 May 2024 – Where the final hearing will therefore only relevantly determine whether a maximum period of two weeks’ occupation is lawful – HELD balance of convenience does not favour continuation of the injunction and it is discharged – HELD an urgent hearing on a final basis is not needed
SUCCESSION — Construction — General principles — Structure and scheme of will — Where share of son under will reduced by unpaid loan amount SUCCESSION — Family provision — Claim by adult son — Whether inadequate and proper provision — Where adult son able-bodied and in comparable financial position to beneficiary resisting further provision
MORTGAGES — Payment of funds into Court — Application for payment out of surplus funds by persons claiming to be registered proprietors of the property — Requirements as to payment out of funds specified — Importance of applicants for payment out identifying themselves not merely as persons having the same name as the registered proprietor, but also connection with the property — Order made for payment out of funds after supplementary evidence as to identity provided EVIDENCE — means of proof of identity briefly discussed WORDS — “skip tracing”
COSTS – whether usual costs order should be made – whether circumstances warrant a departure from ordinary rule that costs follow the event – usual order made
STATUTORY INTERPRETATION – application to set aside restitution order made under s 59(2)(b) of the Victims Rights and Support Act 2013 (NSW) – whether proceedings in which plaintiff was convicted and sentenced for assault were civil or criminal – section 3 of the Civil Procedure Act 2005 (NSW) – definition of “civil proceedings” – definition of “criminal proceedings” – proceedings were correctly characterised as criminal – challenged order cannot be set aside – proceedings dismissed
LAND LAW – Strata title – By-laws – Whether By-law granting exclusive use rights conditional on four critical obligations had been complied with – Whether clause of By-law ceasing exclusive use rights unless critical obligations were complied with is unjust – Whether clause of By-law ceasing exclusive use rights unless critical obligations were complied with is unconscionable, harsh or oppressive – Whether special levies are unreasonable – Award as to damages- reasonableness of costs – quantum as to monies owing for strata levies or pursuant to By-law 30 EQUITY – Equitable remedies – Declaration – Remittance to tribunal for orders arising out of the declaration
PRACTICE AND PROCEDURE – application for leave to appeal from an interlocutory decision refusing to set aside default judgment – leave to appeal granted – whether primary judge erred in taking into account absence of draft defence – whether short affidavit advancing defence disclosed facts which established a bona fide defence on the merits – evidence insufficient to establish bona fide defence – appeal dismissed
SUCCESSION — construction — general principles — presumption against intestacy SUCCESSION — construction — general principles — structure and scheme of will SUCCESSION — construction — use of extrinsic evidence — ambiguity on the face of the will SUCCESSION — construction and effect — validity of gift — conflicting instructions to executor
ASSOCIATIONS AND CLUBS — domestic and private tribunals — interpretation of rules governing domestic sporting tribunal CONTRACTS — construction — interpretation — natural and ordinary meaning
APPEALS – jurisdiction of appellate court – Supreme Court – NSW Civil and Administrative Tribunal – Health Practitioner Regulation National Law – cancellation of registration order – whether the Tribunal erred in its application of the appropriate standard of proof – whether the Tribunal erred in its alleged failure to give adequate reasons for its findings – Tribunal’s judgment to be read in the context provided by the whole of its reasons – Tribunal gave comprehensive reasons without placing reliance on undisclosed materials – appeal dismissed HEALTH – practitioner – pharmacist – professional misconduct – alcohol misuse disorder
CORPORATIONS — winding up — just and equitable ground — where the relationship between members of the corporations has irretrievably broken down — appointment of liquidators with consent
CORPORATIONS — winding up — substitution of applicant for company to be wound up — where substitute applicant might otherwise have applied for an order winding up the company
CRIMINAL LAW – jury request for transcripts of addresses – no provision in Jury Act – discretion to provide – long and complex trial – careful and thorough addresses – discretion exercised to comply with jury request
CRIMINAL LAW – subpoena to NSW Crime Commission – whether legitimate forensic purpose – claim for public interest immunity – balancing exercise – no question of principle.
CRIMINAL LAW – Bail – release application – half a tonne of cocaine – importation – show cause – where accused discharged at committal – surprising decision – strong prosecution case – medical condition – whether treatment available – where accused voluntarily attended Court – powerful combination of circumstances satisfy show cause requirement – risk of flight mitigated by large security
CIVIL LAW – habeas corpus – urgent application – where plaintiff subject to orders under Mental Health Act – involuntary patient – whether appropriate to hear application ex-parte – where plaintiff a barrister – Court constituted on a Saturday evening – other parties not present – application heard by telephone link – technical difficulties – plaintiff present at hospital in presence of nurses – no documentation before court – urgency arising due to threats of harm to plaintiff – extensive history provided – one side of story – irresponsible to make orders – directions made for urgent hearing
CIVIL LAW – plaintiff injured at work – where expert witness changes opinion – whether plaintiff should be allowed to rely on additional evidence – where trial date imminent – trial date vacated – no question of principle
ADMINISTRATIVE LAW – judicial review – whether the Medical Assessor erred in the treatment of causation of the injury – whether the Delegate erred when considering the Medical Assessor’s treatment of causation of the injury – where the Delegate committed jurisdictional error – the Delegates decision is set aside
CONTRACTS — terms — exclusion clauses — construction — insurance — where insurance policy covers property damage — where exclusion clause purports to exclude asbestos related damage — whether the negligence arose only from the act of spraying a high pressure hose or the spraying of the hose on a roof that likely contained asbestos – HELD — the liability arose not only from the spraying but included the spraying of a roof likely to contain asbestos — where business efficacy is a relevant consideration to construction
CONTRACTS — Remedies — Damages — Whether party is entitled to recover damages for breach of contract CONTRACTS — Remedies — Specific performance — Where contract is part of parties’ larger commercial relationship ESTOPPEL — Promissory estoppel — Relief — Application of legal principles
EVIDENCE — documentary evidence — legal professional privilege — fraud or other illegal purpose exception — application of s 125 of the Evidence Act — whether the relevant document was produced in furtherance of a deliberate abuse of power — where no direct evidence of improper purpose or motive
CIVIL LAW – cross-vesting – class action in Victoria – proceedings in negligence arising out of novel procedures in the course of IVF treatment – similar issues raised in proceedings in NSW District Court – whether appropriate to remove District Court proceedings to this Court – whether proceedings in each state related to each other – whether more appropriate proceedings be dealt with by the Supreme Court of Victoria – remote duty list – notice of motion in the midst of duty list – colour and movement – misericordious development – consent! – alas, not a consent jurisdiction – thorough and helpful submissions – matter transferred to Victoria
RECTIFICATION — commercial contract — common intention — proof — internal communication between plaintiff and solicitor — relevance and significance — defendant’s intention — whether Jones v Dunkel inference should be drawn CONTRACT — interpretation of commercial contract for sale of land — right of recission — interpretation by reference to context — potentially contaminated land — contaminated land legislation and Environmental Protection Authority guidelines — relevance of expert opinion evidence
SENTENCING – murder – young mother suffocated her 11-month-old daughter – early plea of guilty – facilitated the administration of justice – mental impairment and objective seriousness – mental impairment and moral culpability – special circumstances
REAL PROPERTY — caveats — solicitor’s costs agreement providing for client’s property to be charged as security for fees — caveat by solicitor — lapsing notice issued — application for extension of caveat — final relief not claimed — originating process defective CIVIL PROCDURE — service — application for interlocutory relief — respondent inmate of correctional centre — ex parte order for “service in the first instance” on respondent’s then solicitor by email — originating process and other court documents not delivered to respondent — no valid service — application dismissed
ADMINISTRATIVE LAW – judicial review of decision of medical appeal panel – medical dispute under Workplace Injury Management and Workers Compensation Act 1998 – where medical assessor’s assessment upheld by appeal panel – where appeal panel erred by misunderstanding the applicable legal test – whether panel failed to exercise its statutory functions according to law – whether same conclusion would have been arrived at regardless of error – matter remitted for reconsideration by different Appeal Panel
PRACTICE AND PROCEDURE – service of Notice of Motion initiating contempt proceedings – whether service in New Zealand should be effected under the Uniform Civil Procedure Rules 2005 (NSW) or the Trans-Tasman Proceedings Act 2010 (Cth). PRACTICE AND PROCEDURE – service outside of Australia – whether leave should be granted for service of originating process outside Australia under r 11.5(4) of the Uniform Civil Procedure Rules 2005 (NSW).
CORPORATIONS – Winding up - Whether winding up on the just and equitable ground should be ordered - Where common ground that there has been a failure in the relationship between shareholders – Where the Company has no assets and its business is apparently now operated by another entity.
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CORPORATIONS — winding up — practice and procedure — application to transfer proceedings to the Federal Court of Australia — where related Federal Court proceedings are on foot — where the same issues arise and the same primary outcome is sought in both the Supreme Court and Federal Court proceedings — where the transfer of proceedings is in the interests of justice
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.
CORPORATIONS – external administration – liquidators – supervisory jurisdiction – whether inquiry into the conduct of liquidator should be ordered – where the liquidator failed to comply with a subpoena for production of documents – where liquidator has now agreed to regime for production.
CONTRACT — breach — total failure of consideration — agreement for loan of a specified amount — whether entire contract — whether obligations of borrower under agreement unenforceable where part only of loan amount advanced REAL PROPERTY — whether contract contained agreement of a registered proprietor and that a caveat may be lodged — whether implied creation of a caveatable interest in land INSURANCE — rectification — loan agreement — whether mutual intention of parties creates a separate charge over real property GUARANTEE AND INDEMNITY — circumstances in which surety discharged — where creditor advanced less than the full amount to be loaned under the agreement that was guaranteed — whether the principle of Ankar Pty Ltd v National Westminster Finance applied — onus on principal creditor to prove that change of lending arrangement with borrower was not detrimental to guarantor
PRIVATE INTERNATIONAL LAW – Foreign Judgments Act 1991 (Cth) s 7(2)(a)(v) – Section requires the Court to set the registration of a foreign judgment aside where the judgment debtor did not receive notice of the proceedings in sufficient time to enable him to defend the proceedings and he did not appear - Application to set aside registration of a judgment of the High Court of the Hong Kong Special Administrative Region, Court of First Instance – Where defendant did not receive notice of the Hong Kong proceedings until after judgment was given – Where defendant did not appear in the Hong Kong Court to defend the judgment – Where defendant moved the Hong Kong Court to set aside its judgment before making the application to this Court – Whether by doing so defendant appeared (or did not not appear) within the meaning of the section – HELD defendant did not appear – Registration of the foreign judgment set aside CIVIL PROCEDURE – Application by plaintiff for monies paid by consent order into Court by defendant to be paid by the Court into the Hong Kong Court – Alternatively to be kept in Court pending determination of a proposed claim in the Court by plaintiff against defendant – HELD application refused on various grounds including that the monies were paid into Court under a consent order to abide orders of this Court, not orders of the Hong Kong Court, and defendant’s entitlement to have the registered judgment set aside is not susceptible to the condition that monies stay in Court pending plaintiff’s proposed proceedings
BUILDING AND CONSTRUCTION – whether adjudication determination under Building and Construction Industry Security of Payment Act 1999 should be quashed – adjudicator determined that the payment schedule did not contain valid reasons for withholding payment and that the adjudication response advanced new reasons which the adjudicator was not permitted to consider – whether the adjudicator failed to comply with mandatory requirements of Act – whether there was a substantial denial of procedural fairness – jurisdictional error not established
CIVIL PROCEDURE – summary disposal – application seeking judgment entered against first defendant – where first defendant has disengaged from proceedings – proceedings set down for the assessment of damages
CIVIL PROCEDURE – summary disposal – application for dismissal of proceedings for want of due despatch – where first defendant/cross-claimant has disengaged from proceedings – whether gross sum costs order should be made against first defendant/cross-claimant in favour of third cross-defendant
SUCCESSION — Dispute regarding costs payable consequent upon contested hearing relating to construction and rectification of the deceased’s last Will and estoppel claim — Approximately 9 months after commencement of proceedings defendant appointed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 7.10(2)(b) to represent the deceased’s estate — Estoppel claim successful having practical effect of giving the plaintiff property to which he would not otherwise be entitled having regard to the dismissal of the construction and rectification claims SUCCESSION — Interaction between the costs orders and statutory order under the Probate and Administration Act 1898 (NSW) (“PAA”) for payment of testamentary expenses — Court’s exercise of discretion under s 93(3) of the Trustee Act 1925 (NSW) and s 98 of the Civil Procedure Act 2005 (NSW) (“CPA”) displaces (to the extent described in the costs order) the statutory order provisions of s 46C(2) of the PAA concerning how testamentary expenses are to be borne COSTS — Offers of compromise — UCPR r 42.14 — Principles discussed — Whether offers contained element of ‘real’ or ‘genuine’ compromise (on facts – Yes) — Whether defendant acted reasonably in rejecting offers (on facts – No) — Whether there are other factors beyond the defendant’s reasonableness capable of supporting an ‘otherwise’ order — On facts plaintiff proposed a partial ‘otherwise’ order — Held partial order otherwise made ordering plaintiff to pay defendant’s costs of construction and rectification claims up to the time of the first offer SUCCESSION — Costs — Discussion of means of appraising whether the cost or expense which is the focus of the indemnity sought is ‘properly’ or ‘reasonably’ incurred SUCCESSION — Representative orders — Nature and scope of an estate representative’s role bearing upon costs — Discussion of sources of a representative’s obligations and entitlements — Discussion of options for representatives in estate proceedings to protect themselves as to costs liability, specifically by seeking indemnity and judicial advice — Discussion of jurisdiction (equitable and statutory) to provide for representation of an estate — Discussion of various UCPR Part 7 representation orders and choices, and the connection and interaction between them — Specific discussion regarding representative orders under UCPR r 7.10(2)(b) SUCCESSION — Representative appointment pursuant to UCPR r 7.10(2)(b) — Reference to historical background — Requirements for consent and independence — Discussion of terms of appointment — Discussion regarding nature and scope of a UCPR r 7.10(2)(b) appointee’s obligations and entitlements — Discussion regarding availability of indemnity and judicial advice to UCPR r 7.10(2)(b) appointee COSTS — Indemnity — Discussion regarding how one assesses whether a party is substantively acting in his or her own interest as opposed to acting in a representative capacity COSTS — Set-off of costs orders favouring either side LAW REFORM — It is timely that there be an amendment (or at least consideration of an amendment) to the CPA and UCPR to clarify the position of whether a r 7.10(2)(b) representative may be given judicial advice
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Whether circumstances warrant departure from principle that costs follow the event
CRIME – murder – specially aggravated kidnapping – judge alone trial –extremely violent bashing of 16-year-old in two phases by multiple assailants – multiple bases of liability alleged – witness credibility issues – consistent theme supported by objective evidence – murder proved for one accused and conceded by other – defence of substantial impairment by cognitive impairment not established
LIMITATION OF ACTIONS — Discoverability — Personal injury — Knowledge of fault of defendant CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — Whether cause of action “clearly” statute barred under the Limitation Act 1969 (NSW) such that no reasonable cause of action disclosed CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Frivolous or vexatious proceedings — Whether cause of action “clearly” statute barred under the Limitation Act 1969 (NSW) such that no reasonable cause of action disclosed
INSURANCE – motor vehicle – fraud – s 118 of the Motor Accidents Compensation Act 1999 TORTS – miscellaneous torts – deceit – state of mind of defendant – whether the defendant knowingly or recklessly made false representations to the plaintiff and others to obtain a benefit to the detriment of the plaintiff – whether the plaintiff was induced by the representations of the defendant STANDARD OF PROOF – civil standard – application of Briginshaw EVIDENCE – tendency evidence – where credibility evidence cannot be used for tendency purposes – evidence properly adduced for credibility purposes DAMAGES – whether true value or settlement value theory applies – parties agree that value would be the same in either case – damages assessed
ADMINISTRATIVE LAW – Judicial review – whether time should be extended to allow judicial review of the first of three decisions – extension of time not granted – where judicial review of the following two decisions also fails
HIGH RISK OFFENDER – preliminary hearing – application for Interim Supervision Order pursuant to s 10B of the Act – whether defendant is a “supervised offender” – whether index offence is a “serious violence offence” as defined in s 5A – whether a court ought to consider the evidence and circumstances constituting the elements of the offence in determining whether the index offence is a “serious violence offence” – “what matters” is the elements of the offence said to constitute a “serious violence offence” – summons dismissed
COSTS — indemnity basis — where successful party seeks indemnity costs — where unsuccessful party seeks capped costs order pursuant to s 98(4)(d) Civil Procedure Act 2005 (NSW) — where unsuccessful party had ulterior motive and no chance of success — where no principled or evidential basis for capped costs — HELD — indemnity costs payable and no cap imposed
CIVIL PROCEDURE – Civil Procedure Act 2005 (NSW) ss 149B, 149E – Application for transfer of proceedings instituted in this Court to the Land and Environment Court of New South Wales for the predominant purpose, not of seeking the substantive relief claimed in this Court, but of transferring the proceedings to that Court to have the outcome that that Court will have jurisdiction with respect to issues having arisen in proceedings in that Court in respect of which it may not have jurisdiction – Where no application is made to that Court to transfer the proceedings, or any part of them, in that Court to this Court – HELD the application for transfer should be refused because it is an abuse of the processes of this Court – HELD FURTHER that it is in any event not more appropriate for the proceedings to be heard in that Court than this one
CRIME – appeal and review – appeal from Local Court to Supreme Court – where appeal directed towards decision of Local Court magistrate to refuse leave to withdraw guilty pleas – whether plaintiff has been “convicted” by the Local Court for the purposes of ss 52(1) and 53(1) of the Crimes (Appeal and Review) Act 2001 (NSW) – where plaintiff is a person against whom an interlocutory order has been made in relation to summary proceedings and can only proceed under s 53(3)(b), requiring a “question of law alone” and leave of the Supreme Court – no “question of law” arising – no basis to grant leave – leave to appeal refused – conviction appeal pursuant to ss 52(1) or 53(1) – prosecution proceeding on agreed basis – no “question of law” arising – no basis to grant leave – leave to appeal refused
CRIMINAL LAW — sentence — joint criminal enterprise where agreement was to shoot the deceased with at least an intention to inflict grievous bodily harm — planning — where deceased shot while lying in his bed — deceased President of the Bandidos Central West Chapter — where offender has serious health issues — poor prognosis
ADMINISTRATIVE LAW – summons seeking judicial review of decisions made under the Australian Harness Racing Rules – where plaintiff was issued with directions to produce his mobile phones to stewards of Harness Racing NSW – where plaintiff contends that directions ultra vires to the extent they infringe legal professional privilege ADMINISTRATIVE Law – Remedies – Equitable remedies – Injunction – where plaintiff seeks interlocutory injunction to restrain the stewards from imposing a penalty for his refusal to comply with the direction to produce his mobile phone – whether the summons raises a serious issue to be tried – where plaintiff has available other avenues of appeal against any penalty to be imposed – whether an injunction should be granted in such circumstances – where impugned decisions relate to matters of public interest – application of principles discussed in New South Wales Bar Association v Stevens
CIVIL PROCEDURE – Pleadings – Amendment – Plaintiff sought to add further defects to existing cause of action – Whether Second Defendant would be irremediably prejudiced if amendments allowed – Whether Second Defendant has established viable and realistic cross-claims in respect of defects – Whether order should be made for amendments to take effect from date of commencement of proceedings
BUILDING AND CONSTRUCTION – Contract – cost plus contract for construction of residence – alleged breach of contract – whether builder entitled to claim payment of outstanding invoices – whether builder entitled to claim damages for loss of profits BUILDING AND CONSTRUCTION – Australian Consumer Law – whether misleading or deceptive conduct – whether builder represented that cost of building would be around and not substantially more than $550,000 or $750,000 – whether owners relied on any such representation when deciding to enter the contract BUILDING AND CONSTRUCTION – Contract – damages – whether “alternative transaction” case or “no transaction” case available – where damages claimed “because” of the alleged misleading or deceptive conduct BUILDING AND CONSTRUCTION – Contract – variation – oral variation – whether owners agreed to substitute blockwork for Rediwall construction – whether builder can rely on oral variation in defence of claim by owner
LAND LAW — easements — constructions of easements — general principles of construction LAND LAW — easements — creation of easements — creation by express grant LAND LAW — easements — substantial interference with easements
COSTS – third party costs order – whether majority shareholders of plaintiff companies should pay costs of unsuccessful application for interim injunction – whether majority shareholders and plaintiffs should be jointly and severally liable for costs – whether those costs should be assessed and payable forthwith
CIVIL PROCEDURE – default judgment – where defendant is bankrupt – whether leave from the Federal Court is needed to proceed – where plaintiff’s claim satisfies exception under s 82(2) in the Bankruptcy Act 1999 (Cth) – claim for unliquidated damages arising from an intentional tort or negligence – judgment entered for damages to be assessed and for costs
COSTS – Courts discretion – Application for alternative costs order – Offer of compromise – Change in plaintiff’s case on filing of amended statement of claim – Alternative costs order granted – No costs order up to 11 May 2023 – Costs thereafter in plaintiffs favour to be assessed on an indemnity basis
APPEALS – appeal from the Local Court to the Supreme Court – appeal as of right “only on a question of law” – no leave to appeal on a question of mixed fact and law sought – whether question of law raised BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – payment claim – claimant’s entitlement to recover “the unpaid portion of the claimed amount” – whether relying on payment made which reduced the unpaid portion amounted to “bringing a cross-claim” which was prohibited – whether a payment not made to the claimant which was found to reduce the unpaid portion was not to be taken into account in determining the unpaid portion
BUILDING & CONSTRUCTION — Adjudication — Application to have adjudication determination made void — Whether parties had entered a ‘construction contract’ as defined in s 4(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) CONTRACTS — Formation — Incompleteness — Executed contracts — Whether contract was signed and agreed to by all essential parties
COSTS – application for maximum costs order limiting costs recoverable by other party – factors to consider in making maximum costs order – whether litigation in public interest – inadequate and deliberately incomplete revelation of applicant’s true financial situation – maximum costs order not made
CORPORATIONS — trustees and receivers — whether trustees and receivers are entitled to recover further receivership costs — HELD — further receivership costs to be paid to trustees and receivers
CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — cy-près scheme — In 1981, a charitable unincorporated association, “the Our Lady of Snows Society” (OLOSS), was formed by two now deceased siblings — Various administrative issues emerged over time and other issues became manifest consequent upon the siblings’ deaths in respectively February 2009 and late March 2016 — The son and executor of last surviving trustee of the trust applied to the Court for a first tranche of relief relating to OLOSS addressing identification of trust purposes and also financial and administrative issues — Various orders were made including a declaration as to the OLOSS’ trust purpose and new trustees appointed (Hickey v Attorney General of the State of New South Wales [2021] NSWSC 772) — Following investigations and enquiries the trustees shortlisted a number of charitable organisations which are regarded by the trustees as having purposes and operations most like that of the OLOSS trust — Following further communications with the shortlisted charities, a single charity, the Rev. Bill Crews Foundation Ltd (the Foundation), was proposed to be the recipient in accordance with a scheme the trustees (with the consent of the Foundation) sought to have approved by the Court CHARITABLE GIFTS AND TRUSTS — cy-près scheme — Distinction between administrative schemes and cy-près schemes — Reference to widening of the cy‑près jurisdiction in New South Wales brought about by the enactment of s 9 Charitable Trusts Act 1993 (NSW) (CTA) — General observations regarding the effect of ss 9 and 10 CTA including contrast of general law and statutory cy-près provisions — Approach to construction of s 9 CTA and identification of the “spirit of the trust” CHARITABLE GIFTS AND TRUSTS — cy-près scheme — Discussion of legal provisions bearing upon duration of trusts and expenditure of permanent endowment capital CHARITABLE GIFTS AND TRUSTS — Considerations regarding “spirit of the trust” in relation to services provided, geographic focus and choices as between proposals which would exhaust the trust capital and a proposal permitting the trust (real estate) property to be kept in specie and having an enduring operation
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
EVIDENCE – tendency evidence – criminal proceedings – admissibility – whether evidence relevant – whether evidence has significant probative value – whether the probative value substantially outweighs any prejudicial effect it may have – evidence excluded
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – abuse of process – where plaintiff sought judicial review of a decision of a judge of the Supreme Court – application for summary dismissal granted
COSTS – Costs assessment – Determination – Mixed results – Parties succeeding and failing in both claims and cross claims – Intent to find just and equitable costs solution to whole of the proceedings
CIVIL PROCEDURE — Pleadings — Amendment — Leave granted to file proposed amended pleadings exclusive of specific paras due to inadequate particularisation CIVIL PROCEDURE — Discovery — General discovery — Where plaintiff is unable to properly particularise claim without discovery COSTS — Party/Party — Costs orders in interlocutory proceedings – Gross sum costs order — Unnecessarily and unreasonably causing legal expenses to be incurred — Where plaintiffs have persisted in seeking to advance a cause which has limited factual foundation COSTS — Party/Party — Costs orders in interlocutory proceedings — Whether classification as interlocutory or final costs orders affects question of gross sum costs order
INSURANCE – professional indemnity insurance – plaintiff was design and construct contractor – claim made relating to external sandstone tiling designed and installed by plaintiff – insured activities included design but not installation – whether the liability resulted from the design or installation of the tiling system INSURANCE – professional indemnity policy underwritten by first defendant for three consecutive years – exclusion clause in respect of prior known circumstances – whether failure to disclose prior known circumstances – consequences of failure to disclose prior known circumstances after entry into the first of the three consecutive policies – application of continuous cover provision – application of ss 21 and 28 of the Insurance Contracts Act 1984 (Cth) INSURANCE – whether plaintiff failed to comply with s 21 of the Insurance Contracts Act 1984 by failure to disclose that plaintiff performed external tiling or cladding works – whether the first defendant would have entered into policy if relevant failure had not occurred INSURANCE – construction of contract of insurance – exclusion clauses INSURANCE – brokers – claims for negligence and misleading or deceptive conduct – premises for claims not established BUILDING AND CONSTRUCTION – scope of rectification works – cost of rectification works
CIVIL PROCEDURE – division of issues for determination – need to avoid conflicting factual findings between judges asked to address the same questions in different context
PRACTICE AND PROCEDURE – application by accused for trial by judge alone – COVID-19 pandemic – business of the court to continue – Crown witness located overseas and subject to extradition request – prior trial listings vacated due to no fault of accused – application granted
ADMINISTRATIVE LAW – Whether reviewable error of law – where plaintiff alleges various errors of law on the face of the record and jurisdictional error in decisions of NCAT ADMINISTRATIVE LAW – Particular administrative bodies – Ombudsman – where plaintiff makes allegations of discrimination and victimisation against the Ombudsman
CRIMINAL LAW – second application for evidence to be given by Ms Tairi from New Zealand by audio visual link – first application rejected - evidence given from location outside Australia – compellability of witness located outside Australia – critical eye witness – credibility issues – multiple versions given – witness relevant to self-defence issue and thus potential acquittal
CRIMINAL LAW – procedure – search warrant – whether decision to make application for a search warrant invalid – whether decision to issue a search warrant invalid – whether insufficient connection between items named in warrant and searchable offences listed in warrant – whether police should be restrained from accessing items seized ADMINISTRATIVE LAW – prerogative writs and orders
CRIMINAL LAW – Non-Publication Order – prejudice to the proper administration of justice – proper administration of justice – public interest in open justice – key eye witness – witness not located in Australia – witness giving evidence by audio visual link
PRACTICE AND PROCEDURE – Notice to Produce documents – whether document or thing referred to in pleadings or affidavits – whether document sought is relevant to fact in issue in the proceeding
ADMINISTRATIVE LAW – judicial review – motor accident compensation – submitting appearances by the defendants – error of law on the face of the record – inadequate reasons
LAND LAW – easements – substantial interference with rights under easements – neighbouring properties have reciprocal benefits and burdens under easements to enable shared use of an inclinator and rights of foot access – previous judgment determines that the first defendant has engaged in excessive use of easements and has trespassed beyond the boundaries of the designated easement and obstructed or interfered with use of the easement, occasioning nuisance to the plaintiff in four out of eight alleged incidents – conduct of the first defendant found to amount to a substantial interference with the rights of the plaintiff under the easement and a trespass upon a servient tenement – whether damages should be awarded and whether aggravated or exemplary damages should be awarded – assessment of the quantum of damages. COSTS – Party/Party – Court’s discretion – proceeding not complete – whether a costs order should be made at this stage- plaintiff is successful in respect of four out of eight incidents at final hearing and in respect of some issues at earlier hearings – what overall costs orders should be made in the circumstances – what costs orders should be made in respect to a decision of a judge to grant restraining orders with respect to the conduct of the first defendant on one occasion – whether costs orders should be made now or at the conclusion of the proceedings.
CIVIL PROCEDURE – application to vacate procedural orders – application for hearing liability of defendant as to specified employee – application for concurrent hearing temporary employment claim – directions and orders
LAND LAW – easements – substantial interference with rights under easements – neighbouring properties have reciprocal benefits and burdens under easements to enable shared use of inclinator and rights of foot access – instrument creating easements adopts the definitions provided for in Conveyancing Act 1919 Schedule 8, Part 11 – Easement for Services and Part 14 – Right of Access – complex and protracted dispute in relation to the use of easements for the use of the inclinator, the supply of services, and rights of pedestrian access – allegations of excessive use of easements and trespass beyond the boundaries of the designated easements and obstruction of or interference with the use of easements occasioning nuisance, in a series of eight incidents – whether the conduct of the parties amounts to a substantial interference with the rights of the other parties under the easements or a trespass upon the servient tenement. LAND LAW – EASEMENTS – Particular easements – right of access – easement for services – construction of easements – general principles of construction – instrument creating easements adopts the definitions provided for in Conveyancing Act 1919 Schedule 8, Part 11 – Easement for Services and Part 14 – Right of Access – whether these statutory easements permit the dominant tenement owner to enter the servient tenement outside the boundary of the easement for any purpose, and if so to what extent.
EVIDENCE – tendency evidence – MR charged with murder – MR raising self-defence – MR seeks to adduce evidence of previous conduct by the deceased as tendency evidence – objection by the Crown – whether evidence has significant probative value
CRIMINAL LAW – evidence – admissibility of evidence captured on CCTV recording – representations of one accused being used against another accused for a hearsay purpose – exception to the hearsay rule – admissibility of an admission by MR – admissibility of words of a witness BS for a non-hearsay purpose
PRACTICE AND PROCEDURE – pleadings – amendment of defence – late application of second defendant seeking leave to amend defence and adduce further evidence – necessity to vacate final hearing dates in the interests of justice – no question of principle
PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – expulsion – interpretation of agreement – whether resolution for expulsion was valid – where partnership deed required seven days written notice and 80% of whole partnership votes – where variation resolution came after expulsion resolution – held that expulsion was not valid by reason of breaches of partnership deed PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – fiduciary relationship – good faith obligations – whether expulsion power was exercised for an improper purpose – held that this purpose was not established PARTNERSHIP AND JOINT VENTURES – dissolution – dissolution by court of partnership between plaintiff and defendants – dissolution for just and equitable reasons
LEASES AND TENANCIES — Renewals and options — Exercise of option — Validity of exercise — Whether email correspondence a sufficiently absolute and unqualified exercise of option
MENTAL HEALTH – criminal proceedings – fitness to be tried – where accused suffering from severe chronic treatment resistant schizophrenic illness – where experts agree that the accused is unfit to be tried under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and will not become fit to be tried within 12 months – finding that the accused is not fit to be tried and will not become fit to be tried within 12 months
COSTS — Application to vary costs order — Where unsuccessful party rejected offer of compromise made by successful party — Whether indemnity costs should be ordered from date offer made COSTS — Security for costs — Application to release security monies paid into court by plaintiff — Where plaintiff successful at trial — Where defendant filed notice to appeal — Whether grounds of appeal arguable — Whether reason to doubt financial position of plaintiff seeking release of security
SENTENCING – Murder – Context of organised criminal activity – Where offender and deceased known to each other through mutual involvement in outlaw motorcycle gang – Where offender shot deceased with an intention to kill – Where circumstances of killing contested
CORPORATIONS — trustees and receivers — where trustees and receivers seek to be fully indemnified for the reasonable costs and expenses incurred in, and to receive remuneration in respect of, the performance of their duties — where fourth defendant raises issue of proportionality — HELD —remuneration and disbursements sought are appropriate
APPEALS – appeal from Local Court to Supreme Court – where pending criminal charges against applicant in the Local Court – subpoenas sought for documents from NSW police and local hospital – where refusal by Local Court Registrar to issue subpoenas – where application for review dismissed by Magistrate – prerogative relief sought – in the alternative, leave to appeal refusal by Magistrate in the Local Court – whether error of law on the face of the record – whether applicant denied procedural fairness – whether findings by Magistrate incapable of being supported – whether decision affected by actual or apprehended bias – arguments by applicant rejected – various costs orders made APPEALS – review of various interlocutory decisions of Registrar – certain costs orders impugned – submission that informant in criminal proceedings in Local Court should not be a party in application for prerogative relief and leave to appeal in Supreme Court ill-conceived – notice of motion substantively dismissed – various costs orders made
CONSTITUTIONAL LAW — The Judiciary — Notice of constitutional matter — whether the Proceeds of Crime Act 2002 (Cth) ‘otherwise provides’ for law within the meaning of Judiciary Act 1903 (Cth) s 79(1) — whether application of the Uniform Civil Procedure Rules excluded
COSTS – Where real estate agent employed by the owner of a property negligently causes it to be burnt down – Where tenants of the owner and the owner sue the agent in tort and succeed – Where in addition the tenants bring an unmaintainable claim against the owner for alleged breach of their tenancy agreement which is successfully defended by the owner – Whether the real estate agent should pay the owner’s costs of resisting the tenants’ contractual claim – HELD that justice does not dictate that the real estate agent bear the owner’s costs of defeating a manifestly untenable claim even though the litigation as a whole was caused by the conduct of the real estate agent – The tenants should pay the owner’s costs, if any, attributable exclusively to his defence of the contractual claim on the ordinary basis as agreed or assessed.
DAMAGES — assessment of damages — termination of contract for the sale of land following purchaser’s failure to complete — subsequent sale of land for lower price — interest payable for delayed settlement – costs of re-sale — pre-judgment interest — judgment entered in round figure
COSTS – Party/Party – Court’s discretion – Where the plaintiff has had a measure of success JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Where plaintiff seeks interest on a loan – Whether to grant interest under s 100 of the Civil Procedure Act 2005 (NSW)
EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts – Where purchase price was paid using the funds obtained from a loan which was eventually paid by the legal owner EQUITY — Trusts and trustees — Express trusts — Declaration of trust – Where there was no writing EQUITY — Trusts and trustees — Express trusts — Declaration of trust over land – Writing requirement - Whether an affidavit sworn in the proceedings in which satisfaction of the writing requirement is in issue can constitute sufficient compliance with s 23C of the Conveyancing Act 1919 (NSW) ESTOPPEL — Proprietary estoppel — Encouragement — Detrimental reliance – Whether sufficient evidence that circumstances amounted to detrimental reliance – Whether remedy would be proportional to detriment suffered. EQUITY — Subrogation — Requirements – Where mortgage not yet discharged – Whether a declaration should be made that a third party has a right to be subrogated to the position of the mortgagee once discharge has occurred – Where there is no evidence that funds were intended to be repaid – Where there was no expectation of subrogation CONTRACTS — Performance — Discharge by performance – Whether the confiscation of money paid in satisfaction of a loan agreement “revives” the repayment obligation under the loan agreement.
OCCUPATIONS – legal practitioners – misconduct and discipline – barrister apparently practising without current practising certificate – injunction to restrain contraventions of Legal Profession Uniform Law
CIVIL PROCEDURE – time – extension of time – notice of motion seeking leave to rely upon expert report – duplication with report of a separate expert – limited leave granted
CIVL PROCEDURE – Parties – Representation – Appointment of person to represent defendant in proceedings – Where one defendant has died – Order made under UCPR rule 7.10 that proceedings continue in the absence of a representative of the deceased person’s estate
ORDERS — Determination of total amount of judgment sum based on findings in principal judgment regarding various monetary claims ORDERS — Interest — Claim for pre-judgment interest — Interest allowed COSTS — Calderbank offer — Principles — Assessment of offer from a mathematical perspective in terms of the value of benefit ultimately derived at a final hearing and from the nature of the relief sought — Indemnity costs refused COSTS — Indemnity costs sought on basis of defendant’s conduct in allegedly prolonging the proceedings and unsuccessful defence — Indemnity costs refused COSTS — Specified gross sum sought under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) — Potential for a cost assessment process to be stymied or prolonged in light of foreshadowed application of first defendant to file for her bankruptcy — Specified gross sum allowed and determined PAYMENT INTO COURT — Request made for the Court to order payment into Court of funds the subject of mortgagee or proposed mortgagee sales — Request declined as plaintiffs’ interests safeguarded by leave to apply in respect of working out of orders and direction to the first defendant to provide contact details for mortgagee contact person
LAND LAW – possession of land early and regular default – previous judgment for possession but subsequent agreements and forbearance – no payments since October 2019 – defence arguments have no merit – possession granted and judgment for the lender
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – where defendant alleges the plaintiff is an employee of the defendant – where it is agreed that “pre-filing requirements” under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) have not been complied with – triable issue of fact found – application for summary dismissal dismissed CIVIL PROCEDURE – separate determination of questions – application for separate determination of whether the plaintiff is a worker employed by the defendant within the meaning of ss 4 and 5 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – application for separate determination dismissed
ADMINISTRATIVE LAW — judicial review of two guidelines issued by the Medical Board of Australia (Medical Board) under 39 of the Health Practitioner Regulation National Law (National Law) — whether the guidelines are properly characterised as rules (and not guidelines) and are therefore ultra vires the Medical Board’s functions and powers under ss 35 and 39 of the National Law — whether the guidelines were issued for an improper or unauthorised purpose — whether the Medical Board failed to take into account mandatory relevant considerations
JUDGMENTS AND ORDERS - enforcement – garnishee order – attachment of debts – Civil Procedure Act 2005, s 117 the plaintiff, a managing agent holds funds collected from the tenants of the second defendant, the owner of units in a residential and commercial building, on trust for the second defendant pursuant to a management agency agreement – the owners corporation of the strata plan of the building, the third defendant, obtains a money judgment in the District Court against the second defendant and serves a garnishee notice on the second defendant seeking to attach debts owed by the plaintiff to the second defendant pursuant to the management agreement – the plaintiff pays funds in its possession at the time of service of the garnishee order and thereafter to the third defendant – the second defendant defaults to its mortgagee and the mortgagee appoints a receiver, the first defendant – the receiver contends that the plaintiff wrongly paid monies under the garnishee order to the third defendant after the date of service of the garnishee order – whether the third defendant is entitled to retain the monies so received or whether those monies should be repaid to the plaintiff – construction of the expression “due and payable”.
CORPORATIONS – winding up – application based on failure to comply with creditor’s statutory demand – whether creditor’s statutory demands were served – whether presumption of insolvency displaced – whether discretion should be exercised not to make winding up order to avoid risk of commercial disadvantage to a secured creditor.
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CIVIL PROCEDURE – application for a trial by jury of interlocutory matter pursuant to Supreme Court Act s 85 – whether trial by jury can be ordered for interlocutory matter – whether the Court is satisfied that the interests of justice require a trial by jury in the proceedings
COMMERCIAL ARBITRATION — Court’s inherent jurisdiction — Commercial Arbitration Act 2010 (NSW) ss 8(1), 16 — Whether court or tribunal should construe arbitration agreement COMMERCIAL ARBITRATION — Stay of proceedings — Whether arbitration agreement is null, void, inoperative or incapable of being performed CONTRACTS — Construction and interpretation — Principles — Literal or strict approaches — Interpretation of dispute resolution clause / arbitration agreement
CIVIL PROCEDURE – application for leave under s 4 Felons (Civil Proceedings) Act 1981 (NSW) – claim for damages following alleged sexual assault by officer in juvenile detention – leave granted nunc pro tunc
CIVIL PROCEDURE – application for leave to institute proceedings nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) – leave granted nunc pro tunc
MENTAL HEALTH – forensic patient – extension of status as forensic patient – final hearing – where defendant has been diagnosed with an intellectual disability and paedophilic disorder – whether the risk of causing serious harm to others can be adequately managed by other less restrictive means – where defendant subject to guardianship order, obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) and in receipt of NDIS funding – application for final extension order granted
SUCCESSION – family provision – claim by widow for provision from the deceased’s estate under Succession Act 2006 (NSW) Ch 3 – adequacy of provision – obligation of the deceased to the surviving spouse after 31 years of relationship – provision of financial resources where deceased and surviving spouse entered into a Binding Financial Agreement
CIVIL PROCEDURE – default judgment where no appearance by defendant – damages proved – no need for declaratory relief CONTRACT – breach of contract – employment contract – misleading or deceptive conduct by former employee – breach of contractual, fiduciary and statutory duties DAMAGES – assessment – damage to reputation COSTS – gross sum costs order – where sufficient information before the Court to enable the grant of a gross sum costs order
SUCCESSION – trusts and trustees – judicial advice – application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) – no question of principle
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of shareholders to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CONTRACTS – breach of contract – breach of lease – breach of agreement – maintain herd profile – whether there is a shortfall of cattle – onus of proof – Briginshaw principles - probability of a shortfall CONTRACTS – construction of a contract – falsa demonstratio non nocet – rectification – error – absurdity – objective intention CONTRACTS – formation of a contract – offer and acceptance – failure to unequivocally accept CONSUMER LAW – s 18 of Australian Consumer Law – misleading or deceptive conduct – reliance on representation – loss suffered from sale of cattle - whether relived of obligations otherwise under contract – damages
CRIME – sentence – murder and wounding with intent to murder – guilty verdicts by jury – “Hand of Death” – targeting the “less dead” – senseless, brutal murder – admissions made by offender – offender’s mental health – history of homicidal ideation – conflicting views of the offender’s mental health – dispute between experts as to diagnosis of bipolar disorder – relevance of offender’s mental health impairment to sentence - imprisonment for life? – applicable discounts – assistance to law enforcement authorities - totality – victim impact statement – sentence imposed
BUILDING AND CONSTRUCTION – whether adjudication determination under Building and Construction Industry Security of Payment Act 1999 should be quashed – whether the determination was outside the scope of the payment claim – whether the determination lacked a legal or factual basis, and was illogical or unreasonable – Jurisdictional error not established
PERSONAL PROPERTY – Personal Property Securities Act 2009 (Cth) – personal property securities register – charge registered on the basis of an agistment agreement which never came into existence – whether defendant had any interest in the Arabian mares capable of being registered as a security interest – no security interest ever came into existence TORTS – interference with goods – detinue
LAND LAW – possession of land – default under loan agreement and mortgage – where second defendant had been bankrupted but bankruptcy annulled – where trustee held funds of bankrupt – where second defendant intended to use funds held by trustee to satisfy debt to mortgagee – where no arrangements made for application of funds - where no defence to mortgagee’s claim – summary judgment given
COSTS — interlocutory costs — application for asset preservation orders – orders obtained ex parte against defendants and third party – application abandoned following service of evidence by respondents – incidence of costs – reasonableness of application – costs follow the event – applicants ordered to pay costs – applicants ordered to pay lump sum on account of costs liability
CONTRACTS – Sale of Land – Where defendant Vendor repudiates contract by purporting to terminate it without valid grounds and plaintiff accepts repudiation – Plaintiff entitled to damages
CLIENT LEGAL PRIVILEGE – s 118, Evidence Act 1995 (NSW) – onus – means of proof – dominant purpose – ruling on ‘sample’ documents – efficacy questioned – privilege over communications with in-house lawyers – principles at [13]-[14] – privilege over communications between non-lawyers – principles at [15].
APPEALS – appeal from Local Court to Supreme Court – Local Court determined parties did not have a binding agreement – whether plaintiff’s offer was subject to contract – how offer should be categorised in accordance with Masters v Cameron CONTRACTS – formation – agreement – counter-offer – whether purported acceptance complied with mirror image rule – taking into account parties’ conduct in interpreting intention – purported acceptance was a counteroffer – decision of Local Court affirmed
COSTS – indemnity costs – where plaintiff was self-represented at hearing of notices of motion – whether relevant misconduct in the proceedings warranting indemnity costs order established –unreasonableness of plaintiff’s application for summary judgment and resistance of defendants’ application for leave to amend defence and file a cross claim contrary to obligations under the Civil Procedure Act 2005 (NSW) warrants indemnity costs order –– costs ordered on indemnity basis
CIVIL PROCEDURE – default judgment – application for default judgment – requirements of UCPR r 16.6 met – default judgment entered – declarations sought provided to assist with repossession process
COSTS – where gross sum costs order made – quantification of costs – order for further costs incurred in respect of quantification submissions and hearing.
HIGH RISK OFFENDER – application for extended supervision order – where extended supervision order previously made by same judge – history of sexual offending against developmentally delayed women and girls – determination of risk – lack of insight or change in attitude towards offending – concerning contact with intellectually disabled woman whilst subject to order – lack of compliance with conditions leading to community correction order – failure to discontinue risky personal relationships – some evidence of defendant’s efforts to reintegrate into community – formation of some pro-social contacts – expert evidence of average risk of committing a further serious sex offence – extended supervision order imposed – dispute regarding scheduling conditions resolved
COSTS – specified gross sum costs order instead of assessed costs – Civil Procedure Act 2005, s 98(4)(c) – defendant, the Deputy Commissioner of Taxation, successfully opposes the plaintiff’s appeal against a Departure Prohibition Order issued under the Taxation Administration Act 1953 (Cth), s 14S – plaintiff ordered to pay the defendant’s costs of the proceedings – plaintiff has few assets in his own name – plaintiff advanced evidence of doubtful provenance in support of his claim – whether the conduct of a costs assessment would be aggravating or oppressive to the defendant in the circumstances – what is the appropriate specified gross sum to be fixed instead of assessed costs – whether a discount should be applied from the costs claimed by the defendant – consideration of the effect of proceedings being brought in vacation reducing the cost efficiencies that might otherwise have been employed by the legal representatives of the defendant.
COSTS – party/party – exercise of costs discretion – contested probate suit – plaintiff is the executor of an estate – final orders made by consent in September 2023 – plaintiff’s notice of motion of January 2024 sought to vary the final orders – plaintiff’s January 2024 motion is resolved by agreement except as to the costs of the motion – the Court foreshadows the making of orders that the contest about the costs of the motion be capped at a maximum of $5,000 – which party should bear the costs of motion – application of Lai Qin principles – whether one party was almost certain to have succeeded, if the matter had been fully tried – whether one party has conducted itself unreasonably – whether the plaintiff should be entitled to indemnify himself out of the estate for his costs of the contest and any liability for costs he bears.
CONSUMER LAW – Australian Consumer Law misleading or deceptive conduct – principles – misleading or deceptive conduct by silence, non-disclosure or fraudulent concealment amounting to a positive representation – sale of contaminated land for residential development purposes – whether purchaser has a “reasonable expectation” for certain disclosures to be made by vendor – whether vendor did not disclose information in light of purchaser’s “reasonable expectation” – whether vendor had requisite knowledge CONSUMER LAW – Australian Consumer Law – sections 237 and 243 – meaning of “loss and damage” CIVIL PROCEDURE – privileges – Evidence Act 1995 (NSW) s 131 – without prejudice privilege – meaning of “in connection with” – proximity of conversations to resolution of dispute CIVIL PROCEDURE – pleadings – construction of pleadings – scope of pleadings
CRIMINAL PROCEDURE – stay of proceedings – plaintiff charged by future Court Attendance Notice (“CAN”) with two driving offences – where original CAN charged negligent driving occasioning grievous bodily harm – four further CANs added dangerous driving, combined two offences and added further details – plaintiff sought a permanent stay of the proceedings on two bases – Magistrate dismissed application – whether prosecutor needed leave to amend CAN – held s 20 of the Criminal Procedure Act 1986 (NSW) requiring leave to amend an indictment after it is presented does not apply to a CAN – prosecutor entitled to issue further CANs – if leave had been sought to amend, leave would have been granted – greater degree of particularity with successive CANs – no abuse of process by service of five successive CANs – whether the particulars were inadequate – CAN identifies precisely the time and date, place, act and harm suffered – CAN complies with relevant legislation and matters discussed in Johnson v Miller – plaintiff in no doubt about the case she has to meet – both bases for a permanent stay rejected – no error in the Magistrate’s determination – summons dismissed
CONTRACTS – formation – whether the Loan Agreement is a deed – whether forbearance to sue is sufficient consideration – whether the deceased had mental capacity to create the Loan Agreement – whether the deceased was under undue influence when creating the Loan Agreement – whether the plaintiff engaged in unconscionable conduct – whether the interest component of the Loan Agreement is a penalty – whether the reference to $300,000 in the Loan Agreement is a reference to the $300,000 bequeathed to the plaintiff in the deceased’s will – held the Loan Agreement is valid and enforceable
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – want of due dispatch – delay occasioned by the plaintiff’s repeated non-compliance with case management court orders – delay attributable to (i) plaintiff’s failure to put his solicitor in funds and (ii) solicitor’s pressing personal circumstances – plaintiff desirous of further progressing the proceedings – inappropriate to dismiss proceedings. CIVIL PROCEDURE – occupations – legal practitioners – application for leave to file notice of intention of ceasing to act – relationship between plaintiff and solicitor irretrievably broken down – cause shown – leave granted.
CIVIL PROCEDURE – leave to discontinue proceedings under UCPR r 12.1 – leave granted COSTS – where proceedings discontinued by the plaintiff – whether plaintiff established basis for departure from ordinary costs order under UCPR r 42.19(2) – whether parties to bear own costs – plaintiff ordered to bear defendant’s costs of the proceedings
CIVIL PROCEDURE – jurisdiction – judicial review – supervisory jurisdiction of State Supreme Court – where Council relied on its own legal interpretation of proposed contracts in refusing registration of financial interest – Court well equipped to make such an evaluation – no absolute rule that a public law remedy after judicial review must be refused in favour of merits review or appeal available in lower court or tribunal – Court’s power to make binding declarations of right irrespective of whether consequential remedy is available CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – where only relief sought is a declaration of right – commencement of second proceedings when proceedings pending in NCAT – where remedies are different in nature and purpose – where determination of these proceedings will not finalise NCAT proceedings – no abuse of process
CIVIL PROCEDURE — Notices to produce in civil proceedings — Application to set aside — Proper approach to assessing whether notice to produce should be set aside — Interaction of principles of abuse of process and legitimate forensic purpose CIVIL PROCEDURE — Notices to produce — Consideration of power of the Court to regulate production of documents — Distinction between subpoenas to persons or entities who are not parties to proceedings and notices to produce as between parties to proceedings — In the context of case management as between parties to proceedings, once an issue regarding production of documents comes before the Court, the issue of what may be permissible is not restrained by the parties’ contentions but in a sense becomes ‘at large’ in that it is subject to the Court’s power to actively manage cases to achieve the overriding objective — In the context of appropriate case management and the Court’s dispensing power, the Court is not bound to binary outcomes of whether the notice to produce in its existing form and content should be set aside or not — Nor is the Court necessarily bound by historical distinctions between whether the notice to produce identifies a particular document or thing or requires an obligation in the nature of discovery — The Court may modify the form and/or content of a notice to produce to require production of documents having apparent relevance consistent with the overriding purposes of case management NOTICES TO PRODUCE — Whether the documents are likely to materially assist the issuing party’s case is not the decisive determinant of legitimate forensic purpose — If the documents materially assist the issuing party’s case that will generally suffice as demonstration of legitimate forensic purpose — However the converse is not the case, and inability to demonstrate that it is ‘on the cards’ that the documents sought will materially assist the issuing party’s case will not necessarily deprive the notice to produce of a legitimate forensic purpose if ‘apparent relevance’ is shown NOTICES TO PRODUCE — In general, it will be sufficient, and prima facie evidence of a legitimate forensic purpose, if the documents sought to be produced have an apparent relevance to the issues in the case, including if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are, or might be, inadmissible according to the rules of evidence NOTICES TO PRODUCE — Discussion of meaning of requirement that the issuer of the notice ‘specify’ a document or a thing — Examples of ‘specification’ PRELIMINARY DISCOVERY — Elements for enlivening the discretion to order preliminary discovery — Consideration of element that the applicant may be entitled to make a claim for relief against the prospective defendant
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
LAND LAW — caveats — formal requirements —particulars of estate or interest claimed — where caveat claimed an estate in fee simple but by virtue of facts giving rise to security interest — whether caveat, read as a whole, “really” claimed a security interest — Real Property Act 1900, s 74L — application for extension of caveat dismissed
CIVIL LAW – high risk sexual offender – application for continued detention order – complex diagnostic challenge – uncertainty over diagnosis – where psychotic illness complicated by personality disorder – tirades of abuse – mental condition masked by nasty and aggressive abuse of authority figures – where court appointed experts disagree on management of risk legislative or administrative hole – crossroads of mental health and high risk offender legislation – uncertainty over accommodation – defendant not engaging with assessments for appropriate accommodation – cheeky and unrealistic demands regarding accommodation – two bedder by the seaside – plaintiff’s reluctant applications for adjournment – defendant incarcerated – “Parkinson’s Law" – cycle – application for adjournment refused – community safety – continued detention – superficially preferable – protective purpose better achieved by supervision and rehabilitation – conditions of extended supervision order – relevant principles – orders made
HIGH RISK OFFENDER – Final hearing – High risk sex offender – Application for extended supervision order – Where parties accept defendant poses unacceptable risk of committing serious offence if not kept under supervision – Where dispute as to appropriate duration and conditions of supervision
APPEALS — Leave to appeal — Whether leave required — Interlocutory decisions — Principles governing — Application of Section 127(1) of the District Court Act 1973 (NSW) APPEALS — From exercise of discretion — Disregard of relevant considerations — Whether Judicial Registrar of District Court failed to take into account relevant considerations APPEALS — From exercise of discretion — Procedural decisions — Whether several cases with overlapping facts should be heard together
CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Want of due despatch – Where in principle settlement has been agreed between the parties for judgment in favour of the defendants – Where plaintiffs have failed to progress applications for infant approval