Cases and authorities

PROCEDURE – costs – general rule that costs follow the event – where orders made by consent.

CIVIL PROCEDURE — notice of motion seeking to set aside notice to produce issued by the plaintiffs — Uniform Civil Procedure Rules 2005 (NSW) rr 21.9 and 21.10 — extensive and expensive discovery already provided by defendants — documents sought not relevant to fact in dispute in pleaded case — documents being sought in attempt to lead expert evidence not properly in reply — relevance of overriding purpose and other considerations in ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) — repeated non-compliance by plaintiffs with case management and timetabling orders and directions leading to procedural delays — where production in compliance with notice would involve substantial burden in terms of time, effort and expense — injustice to defendants — HELD — notice to produce set aside

HIGH RISK OFFENDER – final hearing – whether the index offence is a “serious violence offence” – the meaning of the words “of a kind” in s 5A(1)(b) – whether the elements of the index offence “contemplate” the elements of s 33(1)(b) of the Crimes Act 1900 (NSW) – summons dismissed

CORPORATIONS — voluntary administration — deed of company arrangement — application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to DOCA — whether residual equity in company — whether sole shareholder unfairly prejudiced — no issue of principle

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 – 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 – possession of land – urgent application to stay execution of writ of possession – previous application for temporary stay had been granted and stay then expired – no adequate explanation for lack of action by applicant

TORTS – Economic torts – Injurious falsehood – Injunctions – ex parte application for interim relief – balance of convenience found to be in favour of granting relief sought – interim orders made CIVIL PROCEDURE – Hearings – Suppression and non-publication – application for suppression order – interim order made on terms sought TORTS – Economic torts – Injurious falsehood – application to dispense with requirement to provide concerns notice before initiating proceedings – concern that serving of concerns notice would prompt publication and defeat purpose of application for urgent interim relief – leave to proceed granted

APPEALS — Procedure — Stay pending appeal

ANIMALS – application under the Companion Animals Act 1998 (NSW) – interlocutory relief – whether dangerous dog declaration valid – whether procedural fairness afforded in making declaration.

COSTS – Whether costs should be made on an indemnity and gross sum basis

TAXES AND DUTIES — Administration — Collection and recovery — Joint and several liability – review of decision not to set aside s 46 notice

GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Challenge to guardianship order of NCAT through prism of the Court’s parens patriae jurisdiction – Factors warranting an exercise of parens patriae jurisdiction – Decision of NCAT affirmed

REAL PROPERTY – Easements – Construction of the definition of the statutory terms of an easement for services – Where applicant had installed a CCTV camera to monitor passageway outside storage area – Where CCTV cables traversed benefited lot – Whether on proper construction of statutory terms of easement the CCTV camera was a “domestic service” “to or from” the benefited lot – Whether necessary that service provided by a third party provider – Appeal allowed

TRUSTS – judicial advice – scheme established to compensate victims of asbestos-related diseases – two victims claimed damages for personal injury based on exposure to asbestos – victims obtain judgments – victims had previously received workers compensation payments from Queensland workers compensation insurer – WorkCover Queensland asserted an entitlement to reimbursement and a charge over the judgments – whether trustee justified in not making payments to discharge judgment debts of liable entity to the extent that they were subject to reimbursement by WorkCover Queensland

SUCCESSION — Family provision — Succession Act 2005, s 59 – in her will the deceased divides her estate into five equal parts, giving one part to each of her four children and one part to her granddaughter, the plaintiff – the plaintiff lived in the deceased’s household for part of her life – the plaintiff seeks further provision out of the deceased’s estate – whether the plaintiff is an “eligible person” under Succession Act – whether there are factors warranting the making of an order for provision to the plaintiff – whether an order for provision should be made and if so in what amount. EQUITY — Unconscionable conduct — Special disability or disadvantage — Undue influence — Actual undue influence – the estate cross claims against the plaintiff to set aside a gift made by the deceased to the plaintiff/cross-defendant shortly before the deceased’s death – the plaintiff/cross claimant attended a bank with the deceased and caused the transfer of a term deposit to the value of approximately $200,000 from the name of the deceased into the name of the plaintiff/cross-defendant – whether the deceased was in a position of special disadvantage in relation to the plaintiff/ cross-defendant at the time of making the gift – whether the plaintiff/ cross-defendant exercised actual undue influence over the deceased at the time of making the gift.

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.

ORDERS – Whether declarations should be made – Date from which removal of receiver should take effect – Compensatory damages – Availability of and quantum of exemplary damages – Costs.

HIGH RISK OFFENDER – final hearing – serious sex offender – application for extended supervision order – making of order and nature of some conditions contested by defendant – whether there is high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order – extended supervision order imposed for two years with conditions – discussion about appropriate conditions

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch

COSTS – No question of principle.

CORPORATIONS – Statutory derivative action – Application to bring proceedings on behalf of company – Whether leave to bring derivative action should be granted.

CRIME – sentencing – murder – joint criminal enterprise to inflict grievous bodily harm – where offender fled to Thailand shortly after commission of the offence – offender subsequently convicted of further offences in Thailand – parity with co-offender – special circumstances

CORPORATIONS – application for leave to bring a derivative action – where orders made requiring First and Third Defendants to pay $1.5m to the company – where Plaintiffs sought leave to bring action in name of company to enforce judgment debt – where First and Third Defendants claimed judgment debt had been paid in full by set-off – whether serious question to be tried – whether Plaintiffs acting in good faith – leave granted

HIGH RISK OFFENDER – interlocutory hearing – Whether existing conditions of an extended supervision order ought be deleted or modified – Some conditions amended – No point of principle

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.

EQUITY — Breach of confidence — Concurrent confidentiality obligation in contract EMPLOYMENT AND INDUSTRIAL LAW — Contract — Breach EQUITY — Equitable remedies — Injunctions

CIVIL PROCEDURE – application to strike out amended statement of claim – application for claim to be summarily dismissed – no reasonable cause of action pleaded – no reasonable cause of action disclosed – fifth iteration of statement of claim struck out – proceedings untenable and futile – proceedings dismissed

COSTS – determination of final orders – where each party has had some measure of success – no question of principle

EQUITY — trusts and trustees — powers, duties, rights and liabilities — trustees appointed for sale of commercial properties pursuant to s 66G of Conveyancing Act 1919 (NSW) — maximum remuneration amount fixed at time of appointment, subject to application for increase — maximum fixed by reference to estimate provided by trustees before appointment — actual fees greatly exceeded estimate - application by trustees for increase to remuneration limit and legal costs of application — trustees were directors of a proprietary company providing accountancy services — remuneration claimed for services provided by employees — whether part of trustees’ remuneration or a disbursement — estimate inadequate — application for increase in fees only partially successful — application for legal costs of application refused

NEGLIGENCE – duty of care – whether breach of duty of care – historical child sexual abuse – where defendant did not appear – where plaintiff sexually abused by assistant priest in 1970s – where sexual abuse occurred inside church and in private rooms of presbytery – whether risk of harm foreseeable – whether other priests knew or ought to have known

COSTS – Application for indemnity costs – Whether conduct of litigation by plaintiff in relation to trust claims (the Equity Proceeding) unreasonable where claims had been subject of release and where proceedings barred by issue estoppel and or Anshun estoppel or Anshun estoppel – Where allegations of fraud made without evidentiary foundation whether relevant delinquency on part of plaintiff – Where unreasonable rejection by plaintiff of Calderbank offer made by second defendant in Equity Proceeding and first defendant in Family Provision Proceeding for settlement of both proceedings

CIVIL PROCEDURE — Application for transfer of proceedings from the Local Court to the Supreme Court — Where Local Court proceedings related to a motor vehicle accident and claim was only for property damage — Where Local Court proceedings were set down for hearing to commence in just over two months — Whether jurisdictional limit of the Local Court would be exceeded — Whilst the first plaintiff provided some figures of what he asserted he would claiming as hire costs for a replacement vehicle, in circumstances where the pleadings on which the Local Court proceedings were based were not before the Court, there was no real clarity as to the amount actually being claimed and the Court was not satisfied that the jurisdictional limit of the Local Court would be exceeded — Even if the jurisdictional limit of the Local Court could be exceeded, it was accepted between the parties that the claim was well within the jurisdictional limit of the District Court — Consideration of prejudice that would be suffered by the defendant in the loss of an impending hearing date — Consideration of purported complexity of the claim — Consideration of the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) — Transfer application dismissed

HIGH RISK OFFENDER – application for Extended Supervision Order – forensic patient – Interim Supervision Order – unacceptable risk

CRIMINAL LAW – sentencing – offences of violence – violent melee in a suburban street – six people stabbed – one child killed – manslaughter – attempted murder – wound with intent – animosity between groups of young men – an art form known as drill rap music – where offenders’ group initiated violence by attending with knives – where victims’ group emerged from house and attacked – zombie knife and golf clubs – where jury rejects proposition that joint criminal enterprise abandoned – dispute over content of joint criminal enterprise – relevance of self-defence – fact finding on sentence – finding that subjective component established but objective component rejected – relevance of extent to which conduct exceeded what was reasonable – different findings in relation to each offence – devastating impact on victims – eloquent and moving victim impact statement – subjective circumstances of offenders – requirement for stern punishment – balancing competing considerations – a place for leniency – assessment of moral culpability – different findings in each case – where one offender contended subjective factors fed into assessment of moral culpability – application of cases – submission rejected – parity and proportionality in sentencing co-offenders – different considerations – varying assessment of objective criminality – individualised justice – application for direction that three offenders serve sentences as juvenile offenders – Prosecutor chooses to oppose – direction made – special circumstances

HIGH RISK OFFENDERS – Preliminary hearing – Urgent application for interim detention order – Violent index offence – Where defendant opposes the imposition of an interim detention order – Where defendant subject to interim detention order previously made pending finalisation of outstanding sentence proceedings – Where defendant subject to an extended supervision order which is suspended while the defendant is in custody – Where defendant’s current interim detention order will expire on the following day – Whether an interim detention order should be made

HIGH RISK OFFENDER – final orders hearing – serious sex offence – whether the defendant poses an unacceptable risk – where defendant is a forensic patient – whether residual discretion should be exercised – whether community safety addressed through the forensic health process – application granted – Extended Supervision Order made

CIVIL PROCEDURE – forensic decisions – lost documents – non-compliance with subpoena to defendant filed in 2021 – pursued repeatedly to produce contemporaneous statements and investigation reports – not a new issue – ss 56 to 60 Civil Procedure Act not empty incantations – compliance with Practice Note SC CL 1 not optional – defendant too late to re-engineer its case – trial by ambush not permitted

COSTS — Party/Party — Bases of quantification — Ordinary basis — Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 — Whether issues subject to costs are clearly dominant or separable — Where claims are separate in a sense, but arise out of same factual matrix — Not appropriate to attempt apportioning of costs between different claims — Plaintiffs awarded 90% of costs to recognise failed or abandoned claims JUDGMENTS AND ORDERS — Interest — Award of as damages — Where fiduciary relationship — Where appropriate for interest to be calculated from date Court delivered principal judgment

LEASES AND TENANCIES – Construction and interpretation of rent clause in commercial lease between the plaintiff, as lessor, and defendant, as lessee – Where the rent clause provides that the yearly rent payable under the lease is to be calculated as 8% of “the then current land value” as at 1 June, “as determined pursuant to the Valuation of Land Act 1916 or any Act amending or in substitution of the same … or otherwise pursuant to this Lease” – Whether a valuation made by the Valuer-General of New South Wales pursuant to s 14A of the Valuation of Land Act 1916 (NSW) of the “land value” of the land, as defined in s 6A of that Act, which is current as at the date on which the forthcoming yearly rent falls to be calculated, is a determination of the "then current land value" within the meaning of the rent clause, properly construed – Held: answered affirmatively. CONTRACTS – Implied terms – Terms implied in law or fact – Construction of indemnity clauses. LEASES AND TENANCIES – Construction and interpretation – Terms implied in law or fact – Construction of indemnity clauses.

COSTS – Party/party – Costs orders in interlocutory proceedings – Defendant to pay the plaintiff’s costs.

EVIDENCE – Whether a document contains “restricted information” within the meaning of the Transport Safety Investigation Act 2003 (Cth) – Whether the document and its contents are inadmissible – Whether the document and its contents breach the restriction on the disclosure of restricted information under the Transport Safety Investigation Act 2003 (Cth).

CIVIL PROCEDURE — Court of Appeal — application for pro bono referral — where appellant terminated previous pro bono representation and has not been responsive to directions from the Court

ADMINISTRATIVE LAW — judicial review — application to Local Court to revoke apprehended domestic violence order (ADVO) — where application brought before order expired — where extension of ADVO sought to enable it to be revoked — where Local Court allowed both applications — where Supreme Court dismissed summons seeking judicial review. STATUTORY INTERPRETATION — improper purpose — whether purported extension of ADVO for improper purpose where not for purpose of protecting a person — whether purported revocation of order for improper purpose where for purpose of disengaging prohibition in s 11(5)(c) of the Firearms Act 1996 (NSW) — Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 73. COSTS — appeals — whether proceeding seeking judicial review a “proceeding in the nature of an appeal” — Suitors’ Fund Act 1951 (NSW), s 6.

EVIDENCE — documentary evidence — proof of contents of documents — where parties agreed that certain specified documents would be treated as evidence of the contents, but not the truth of the matters set out in those documents — whether the primary judge erred in using those documents when making factual findings — where primary judge used those documents to corroborate or confirm other available evidence — where primary judge’s fact finding process not inconsistent with the agreement between the parties BUILDING AND CONSTRUCTION — Australian Consumer Law — misleading or deceptive conduct

CIVIL PROCEDURE — stay of order to distribute estate sought pending appeal — where question of stay already determined — notices of motion impermissibly used to appeal from decision — no material change in circumstances — notices of motion dismissed

NEGLIGENCE - breach – discrete or hidden risk – where risk of a non-operational smoke alarm was foreseeable and highly significant – where precautions were not onerous NEGLIGENCE – intoxication – where relevant conduct or activity was being asleep in home – whether there was impairment of capacity to exercise reasonable care and skill due to intoxication APPEALS - from finding of fact - credibility of witnesses – where primary judge observed the appellant giving evidence - primary judge entitled to make adverse credibility findings

COSTS – Application for gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – Whether appropriate to make such an order – Quantification of sum to be awarded

NEGLIGENCE – Duty of care – Public authorities – Police officers owe duty to take reasonable care to avoid risk of harm to class of persons in immediate vicinity of operational response during protest march – Risk of harm in police actions inflicting physical injury on identified class of persons – s 43A of Civil Liability Act 2002 (NSW) inapplicable NEGLIGENCE – Breach – Regard to be had to police obligations to take actions to prevent breaches of the peace even in crowded situations –Reasonable to effect arrest in the way done – No breach made out NEGLIGENCE – Causation – Novus actus interveniens – Third party actions leading to respondent’s injury not occurring in ordinary course of things which might flow from police actions – Issue of fact and degree in all circumstances – Distinct and significant criminal action of third party led to arrest leading up to injury – Chain of causation broken TORTS – Trespass to the person – Battery – Police “utterly without fault” in colliding with respondent – Battery not made out

APPEALS – apprehension of bias – procedural fairness – whether the trial judge’s interventions gave rise to apprehension of bias or procedural unfairness – whether excessive judicial questioning or comments – whether real danger that trial was unfair TORTS – malicious prosecution – where criminal proceedings result in acquittal – where police officer instituted proceedings by charging the accused – where proceedings taken over by Director of Public Prosecutions – whether police officer maintained the proceedings – whether in charging the accused police officer acted without reasonable and probable cause – whether officer acted with malice TORTS – misfeasance in public office – whether malice proved TORTS – false imprisonment – where plaintiffs detained for purpose of investigation – whether unlawfully detained beyond the maximum investigation period – whether permitted timeouts extended the investigation period – whether trial judge erred in findings as to period of false imprisonment – whether false imprisonment ended when respondents charged and refused bail APPEALS – damages for false imprisonment – whether trial judge failed to apply correct counterfactual scenario – whether error in awarding compensatory damages – whether nominal damages appropriate – whether error in awarding aggravated and exemplary damages APPEALS – from finding of fact – credibility of witnesses – whether primary judge erred in credibility and reliability findings