Cases and authorities

CORPORATIONS – voluntary administration – creditors’ meeting – application for extension of time fixed by s 439A of the Corporations Act 2001 (Cth) for convening of the second meeting of creditors – where administrator requires further time to obtain valuation of assets and to complete investigations – extension granted

CIVIL PROCEDURE – amendment – leave sought to amend defence – Limitation Act 1969 (NSW) – application refused

Oppression — Members’ rights and remedies — whether company should be wound up on just and equitable ground – whether binding agreement for sale of shares and units in trust established - quantification of loss – compensation for breach of trust – valuation of land.

CRIMINAL LAW – murder – trial by judge alone – alleged stabbing by the accused of his cousin – whether it was a deliberate act of the accused that caused the fatal wound – whether the accused intended to cause grievous bodily harm – manslaughter by unlawful and dangerous act as an alternative to murder – whether the prosecution has excluded the reasonable possibility that the accused acted in self-defence – not guilty of murder – guilty of manslaughter

CIVIL PROCEDURE – Court of Appeal – application for stay – Burgandy Royale test – limited stay granted APPEAL — Security provided in form of bank guarantees — order that guarantees be released – limited stay of order

NEGLIGENCE — personal injury — worker injured on building site when lifting a concrete hose with another worker — identification of risk of harm — whether findings of fact permitted elements of negligence of other worker to be established — identity of other worker undisclosed — uncertainty whether other worker was employee or supplied under labour hire agreement — whether employer vicariously liable for negligence of other worker — whether sufficient that other worker performed tasks “as if” an employee - whether transfer of control — whether evidence permitted finding that other worker was employee — assessment of contributory negligence NEGLIGENCE — damages — personal injury damages — assessment of future economic loss —plaintiff suffered from degenerative spine condition prior to incident — assessment of future domestic assistance — appropriate hourly rate

ESTOPPEL – proprietary estoppel – encouragement – nature of promise – where parents promised to build house for son on farming property 30 years ago – whether the promise included skirt of land surrounding the house (the Lot) – detrimental reliance – in reliance on the promise the son forewent the parents’ offer to buy him another block of land and father-in-law’s financial contribution to the son’s marriage in favour of expenditure on improvements on the Lot – whether it would have been unconscionable for the parents to resile from the promise ESTOPPEL – Proprietary estoppel – encouragement – relief – where land jointly owned – where buy-out order made instead of appointing trustees for sale – whether sufficient evidence of value of land – where single joint expert appointed by the parties had valued the Farm and the Lot – whether procedural unfairness in ordering updated valuation after trial LAND LAW – real property – indefeasible title – in personam exception – whether personal equity in respect of unregistered interest in part of farming property (the Lot) – Farm owned by parents – where parents made promise to older son to build house on the Lot and “it will be yours” – where parents later transferred the Farm to older son and his brother as tenants in common in equal shares for nil consideration – transfer of land subject to conditions that the two sons continue the farming business as partners, not sell the Farm and parents have right of management veto – whether assurances of conduct by the brother that would have preserved older son’s interest in the Lot – where assurances given in knowledge that parents were giving the Farm to both sons subject to older son’s existing rights and interests COSTS – party / party – exceptions to general rule that costs follow the event – Calderbank offers – where split trial of partnership proceedings – where partnership accounts not yet finalised – whether premature to make special costs order – whether exercise of costs discretion miscarried

BUILDING AND CONSTRUCTION – adjudication – judicial review – whether adjudication affected by jurisdictional error – principles of jurisdictional error under Building and Construction Industry Security of Payment Act 1999 (NSW) ADMINISTRATIVE LAW – Judicial review – content of obligation “to consider” – whether failure specifically to refer to a matter reveals failure to consider that matter – scope of obligation to consider under Building and Construction Industry Security of Payment Act 1999 (NSW), s 22(2) – whether procedural unfairness established – whether decision legally unreasonable

CRIME - appeals - appeal against conviction – application of proviso - joint criminal enterprise – directions to jury as to elements of offence – Crown conceded that trial judge misdirected the jury – miscarriage of justice established – whether no substantial miscarriage of justice actually occurred – where there was no substantial miscarriage of justice and the proviso should be applied CRIME - appeals - appeal against conviction - unreasonable verdict – if manslaughter was excluded as having been the appropriate verdict – where evidence before the jury amply supported a verdict of murder

CRIME – appeals – appeal against conviction – where the appellant was found guilty of one count of using a carriage service to groom a person under 16 years of age – where the jury was directed that in the absence of evidence to the contrary it was established that the appellant believed the person to be under 16 years of age – where the jury was directed that it was a defence to the charges if the appellant established a reasonable possibility that he believed the recipient was at least 16 years of age – whether the trial judge erred in his directions to the jury – where s 474.28(3) of the Criminal Code (Cth) was found to be means of proof only in the event there is no evidence to the contrary – where the appellant gave evidence that he believed he was talking to someone over the age of 18 years – where the appellant’s evidence was held to be “evidence to the contrary” – where s 474.28(3) was found to involve a question of law to be determined by the trial judge not the jury – where the impugned directions should not have been given– where leave was granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) due to the error resulting in a miscarriage of justice – appeal allowed, conviction quashed and new trial ordered

CIVIL PROCEDURE — Subpoenas — To produce documents or things — Where legal professional privilege claimed — Whether privilege waived over correspondence with expert witness

EVIDENCE — Witness evidence — Compellability — Spouses, parents and children — where Crown witness is in a de facto relationship with the accused — where evidence is likely to adversely affect relationship — whether there is a likelihood that harm will be caused to witness and children if required to give evidence

CIVIL PROCEURE – stay of proceedings – where the plaintiff obtained default judgment for possession of estate property – where there is an order for a mediation to take place in related family provision proceedings – stayed granted

COSTS – party/party – general rule that costs follow the event – application of the rule and discretion – where plaintiff had mixed success on multiplicity of issues – where plaintiff failed against first and third defendants, but no order made as to costs because of role played by those defendants

CHILD WELFARE – parentage – declaration of parentage – where child’s father not recorded at birth – where mother subsequently applied to vary birth certificate to record first defendant as father – where mother made various representations as to child’s paternity – where on the evidence there is no doubt that second defendant is child’s father – declaration of non-parentage made – declaration of parentage made

CRIMINAL PROCEDURE – suppression and non-publication orders – closed court orders – restricted retention orders – where orders sought protect disclosure of monetary amounts paid to witnesses for co-operation – public interest in open justice a primary objective of the administration of justice – meaning of “necessary” – whether reasons for orders sought contained in confidential affidavit should be protected – reasons disclosed – orders made CRIME – murder – destroy or damage property intending to endanger life of another – maliciously wound – maliciously inflict grievous bodily harm

COSTS – Party/Party – Orders when proceedings involve multiple parties – the plaintiff fails in proceedings against the defendant – the defendant cross claims against the plaintiff and another party – the defendant/cross claimant fails against the other party but succeeds against the plaintiff on the Cross-Claim and on the Defence – what costs orders should be made between the parties – whether a pre-hearing letter sent by the defendant cross claimant has Calderbank letter consequences – what specified gross sum costs order should be made instead of assessed costs.

SUCCESSION – Executors and administrators – Proceedings against executors and administrators – Application for removal – administrators of two estates in contest concerning the proper accounting between the two estates – earlier proceedings in relation to the accounting between the two estates were settled in 2018 upon terms including a formula that a percentage of “further assets” discovered after the settlement as belonging to one of the estates and not disclosed in the inventory of assets lodged with the probate of that estate, would be paid to the administrator of the other estate – issue arises as to how the terms of the formula for determining “further assets” should be interpreted – how the formula applies to the finding of more cash in a bank account – whether in calculating the payments to be made under the formula the assets declared in the probate inventory should be deducted before the percentage is applied.

SUCCESSION — Family provision — Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 SUCCESSION — Family provision — Modest estate

HIGH RISK OFFENDER – preliminary hearing – conditions – least intrusive conditions consistent with risk – what conditions are likely to be effective – interim supervision order made – effect of possible extradition to serve criminal sentence and/or parole interstate

ADMINISTRATIVE LAW — judicial review of decision of medical Appeal Panel — where Appeal Panel revoked a “medical assessment certificate” on the basis of “demonstrable error” and issued a new certificate — where plaintiff experienced psychological “permanent impairment” — where dispute about degree of impairment — consideration of Travel under the Psychiatric Impairment Rating Scale classes — whether examples in guidelines prescriptive

CORPORATIONS – winding up – winding up in insolvency – application for leave under s 459S of the Corporations Act – where company seeks to rely on dispute as to the existence of the debt the subject of a statutory demand – whether requirements for leave under s 459S are satisfied

CORPORATIONS – Shares – Transfer – shares in the First Defendant were equally owned by First Plaintiff and Second Defendant – Second Defendant had loaned funds for purchase of shares by First Plaintiff secured by a mortgage over the shares, pursuant to the terms of a joint venture agreement – whether there was an “insolvency event” within the meaning of the joint venture agreement – whether Second Defendant had a contractual right to demand immediate repayment from First Plaintiff – whether Second Defendant was entitled to complete and register a transfer of First Plaintiff’s shares in the event of non-payment – whether there was oppressive or unconscionable conduct by Second Defendant MORTGAGES AND SECURITIES – Mortgages –equity of redemption – share mortgage – First Plaintiff sought an order for redemption of shares – value of shares depended, in part, on value of the First Defendant’s rights in respect of the retirement village which it operated – whether value of shares exceeded the amount owing to the Second Defendant in respect of the loan made to First Plaintiff for the purchase of those shares LIMITATION OF ACTIONS – Mortgages – Actions by mortgagee for principal, possession or foreclosure – actions to recover interest – where loan by Second Defendant to Second Plaintiff was secured by mortgage over real property – where term of mortgage that interest was payable upon repayment of principal – whether there was an agreement between the Second Plaintiff and the Second Defendant that the principal was not repayable until the realisation of the First Plaintiff’s interest in the joint venture - whether loan was repayable on demand – whether claim for recovery of principal or interest is statute barred.

CONTRACTS – breach – claim by financial services licensee against corporate authorised representative – claim for unpaid monthly fees, expenses, and indemnity for costs under terms of corporate authorised representative agreement – whether individual representative personally liable for authorised representative’s obligations CONTRACTS – construction – where parties entered into “loan agreement” for repayment of compromised pre-existing debt under corporate authorised representative agreement – where terms of loan agreement refer to the payment of a loan in future – no alternative claim or claim for rectification brought – court not at liberty to rewrite the terms of the loan agreement CONTRACTS – construction – contractual indemnity – whether indemnity extends to costs other than party/party costs – principles relevant to construing purported indemnity

SUCCESSION – Costs of plaintiff’s successful family provision claim – Notional estate order for the purpose of an order that the plaintiff’s costs of the proceedings be paid from the notional estate of the deceased.

HIGH RISK OFFENDER – final hearing –assessment of unacceptable risk – where the defendant has made some progress in the community – paramount consideration is the safety of the community – when conditions need to strike a balance between mitigating risk and not impeding the progress made by the defendant

CIVIL PROCEDURE – respondent’s application for security for costs – applicant sought recusal – reasonable apprehension of bias – judge on court which dismissed separate appeal proceedings 15 years ago – previous judgment not concerned with merits of current proceeding – no findings as to credibility

TAXES AND DUTIES — land tax — liability —principal place of residence — unoccupied land concession — where multiple strata lots are claimed as principal place of residence — where strata lots are intended to be consolidated into a single lot — where taxable land does not exactly correspond to future lot intended to be occupied — whether subject matter of concession is existing land or future lot — whether substantial coincidence between existing land and future land is required

APPEALS — leave to appeal — whether leave required LAND LAW — easements — construction of easements — general principles of construction — admissibility of information beyond the register — relevance of physical characteristics of land — range of physical characteristics which may be considered and as at what time, in light of Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 — whether account may be taken of physical characteristics revealed on building plans which can be accessed by the public LAND LAW — easements — validity of easements — whether easement capable of forming subject matter of grant — whether the right conferred under an easement would amount to right of joint occupation or would substantially deprive the servient owner of proprietorship or legal possession — consideration of effect on both the servient tenement as a whole and the burdened area — consideration of effect on the rights, positive and negative, of the servient owner

CRIME — appeals — appeal against conviction — miscarriage of justice — tendency evidence — where applicant convicted of seven counts of sexual offending against his daughter — where applicant convicted of two counts of possession of child abuse material — whether failure to give anti-tendency direction occasioned miscarriage of justice — whether objectively reasonable for defence counsel at trial not to seek anti-tendency direction — whether alleged errors in tendency direction occasioned miscarriage of justice CRIME — appeals — appeal against conviction — miscarriage of justice — tendency evidence — whether alleged irregularities in treatment of tendencies and supporting evidence at trial occasioned miscarriage of justice CRIME — appeals — appeal against conviction — miscarriage of justice — whether proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) applies CRIME — duties of prosecutor — tendency evidence

CIVIL PROCEDURE – subpoenas – to give evidence – where plaintiff seeks to cross-examine defendant on his affidavits of discovery

CORPORATIONS – winding up – creditor’s statutory demand – application to set aside – whether there is a genuine dispute about the existence of the debt – costs – whether indemnity costs should be ordered

CRIME – evidence – murder – two co-accused – joint criminal enterprise – application to release evidence given before the Crime Commission – ss 45(4) and 45(5) of the Crime Commission Act 2012 (NSW) – whether disclosure in the interests of justice – factors weighing for and against disclosure – two stage approach to disclosure to give witness opportunity to be heard

CRIME – sentencing – wrongful death – manslaughter by criminal negligence or unlawful and dangerous act – 95 year old woman with frail disposition and symptoms consistent with a form of cognitive impairment – armed with a knife in her home – death caused by injuries sustained as the result of a fall following deployment of taser – where offender deployed taser in the course of his work as a police officer – verdict of guilty – where jury could have been satisfied on either basis of manslaughter – whether custodial sentence warranted – where offence is at the lower end of objective seriousness – letter of apology – where a Community Correction Order is appropriate

PRACTICE AND PROCEDURE — Adjournment — application for adjournment of application for recusal

PRACTICE AND PROCEDURE — application for recusal —apprehended bias — application declined

PRACTICE AND PROCEDURE — application for recusal —apprehended bias — application declined

PRACTICE AND PROCEDURE – urgent application for stay pending as yet unfiled application for special leave to appeal to the High Court – application of Burgundy Royale test – no substantial prospect of special leave being granted – stay refused

COSTS — Application to vary costs order — Where application to vary order brought out of time — Where application lacked merit

COURTS AND JUDGES – significant delay in providing reasons for judgment by primary judge – where primary judge delivered written reasons three months after making final orders in proceedings – whether delay in providing reasons amounts to error – whether a retrial is required as a consequence of the delay – whether UCPR r 36.2 applies where reasons for judgment are not yet reduced to writing – whether a common law duty compels District Court judges to give written reasons for judgment contemporaneously with judgment or very soon thereafter – where common law rule in Palmer v Clarke (1989) 19 NSWLR 158 has evolved – no such common law duty – retrial not required TORTS – malicious prosecution – whether the tort is available in respect of the procuring of an Apprehended Domestic Violence Order (ADVO) – where ‘prosecutor’ for the purposes of the tort is the complainant – where provisional ADVO was issued by a police officer – where interim ADVO was consented to by respondent on a no admissions basis – where application for final ADVO was rejected by Magistrate – tort does not apply TORTS – trespass – where appellant claimed to suffer PTSD resulting from the trespass – where the appellant claimed the trespass damaged his house – where primary judge found trespass occurred – where appellant failed to establish that he suffered damage as a consequence of the trespass – where primary judge declined to award damages for trespass – nominal damages payable APPEALS – leave to appeal – where six instances of alleged battery occurred – where primary judge implicitly rejected the alleged battery – where damages not assessed by primary judge – whether failure to assess damages constituted error – where damages would likely be nominal and fall below $100,000 – whether leave should be granted – leave refused

LAND LAW — Severance of joint tenancy by registration of unilateral transfer — Plaintiff (wife) sought to restrain registration of a transfer by the defendant (husband) LAND LAW — Very urgent ex-parte application to restrain NSW Land Registry Services from registering a transfer to sever a joint tenancy — Basis for claim to prevent registration said to arise from mutual Wills — Husband’s Will contains no promise regarding not severing joint tenancy — However there is some evidence, though not in ideal form, suggesting there existed some understanding between the parties that they would hold the relevant property indefinitely as joint tenants so that the survivor would inherit the property on the other’s death, supported by some consideration or detriment — Injunction sought until further order — Temporary injunction granted in the exigent circumstances

EVIDENCE – application to give evidence by audio visual link – no contest that one witness may give evidence by that means – where defendants oppose second witness giving evidence by that means – where second witness is crucial witness giving evidence about central issue in dispute

HIGH RISK OFFENDERS – extended supervision orders – violent offender – whether there is an unacceptable risk that the defendant will commit a serious offence – where defendant has recently relapsed into drug use and lost stable employment, accommodation and prosocial relationship – recent developments post-date reports of Court appointed experts – unacceptable risk found – dispute as to conditions – no issue of principle – extended supervision order imposed

CONTRACTS – construction – interpretation – natural and ordinary meaning – definition of “secured money” – whether debt for unpaid interest under a mortgage, legal fees and costs judgment debt liability constitute “secured money” under written loan agreement

LAND LAW — Adverse possession — Documentary owner reclaiming possession —Whether Defendant's possession was adverse — Where Defendant originally used property for storage LAND LAW — Adverse possession — Documentary owner reclaiming possession —Whether Defendant intended to possess — Where Defendant left the front-facing property in a derelict state to avoid attracting intruders — Where occupancy not apparent LIMITATION OF ACTIONS — Operation of bar — Defendant pleading the limitation period — ss 27-28 Limitation Act 1969 (NSW) — Whether twelve year limitation period had passed — Where the Defendant's possession was not adverse — Limitation period had not expired

BUILDING AND CONSTRUCTION — RSL club engages builder under ‘cost plus’ contract to replace bowling green with carpark — subcontractor encounters asbestos on day 1 — subcontractor obtains adjudication determination against builder for delay costs — builder includes adjudicated amount for subcontractor’s delay costs in payment claim under head contract — adjudicator allows delay costs — Building and Construction Industry Security of Payments Act 1999 — jurisdictional error — procedural fairness — principles at [41]-[48] — adjudicator rejected RSL club submission by reference to ss 22(4), to which neither party referred — adjudicator said to have misconstrued the provision.

COSTS – Whether ordinary costs should be apportioned – Whether indemnity costs to be awarded for whole of proceedings – Where offer of compromise – Whether offer warrants indemnity costs order from the time of the offer – Where notice to admit – Deliberately and knowingly giving false evidence – Indemnity costs order COSTS – Security for costs – Application to release security monies paid into court by plaintiff – Where plaintiff successful at trial and awarded costs – Where defendant intends to submit notice of appeal – Whether prospects of appeal relevant issue – Whether arguable case – Security returned

SUCCESSION – informal wills – where deceased amended will leaving estate to children but did not comply with formalities required for a valid legal will – where deceased emailed “new will” to new executor – where deceased dies in boating accident in 2023 – where former de facto partner seeks probate of earlier signed will leaving estate to her – whether primary judge erred in determining that deceased intended for the amended will to form his will for purpose of requirements in s 8 of the Succession Act 2006 (NSW) – whether primary judge erred in concluding that deceased was not aware that will had to be executed and witnessed to be valid – whether primary judge erred in finding that relationship between the appellant and deceased had been definitively terminated in May 2019 – whether primary judge erred in inferring that deceased had told the appellant about the amended will immediately after it was made COSTS – whether costs of proceedings at first instance be paid of out of deceased’s estate – whether primary judge erred in determining that appellant pay 75% of respondent’s costs

CIVIL PROCEDURE — Court of Appeal — review of decision of single judge of appeal — Supreme Court Act 1970, s 46(4) — Uniform Civil Procedure Rules 2005, r 51.58 —whether applicants demonstrated error of principle or that the decision was plainly wrong

CRIME – Appeals – interlocutory appeal – sexual assault communications privilege – application for leave to appeal against a refusal of leave to the accused to access documents counsellors had produced to Court under subpoena – Criminal Procedure Act, Ch 6, Pt 5, Div 2 – whether trial judge erred by not determining the probative value of the documents to which access was sought – whether trial judge erred by not engaging in the weighing exercise required by s 299D(1)(c) of the Act