Cases and authorities

CONTRACTS – construction – where plaintiffs and defendants have entered irrevocable offers deed concerning land at Campbelltown – where deed provides call and put options – whether plan of subdivision based on plan annexed to deed – whether plaintiffs have lost right to call for remaining lots EQUITY – equitable remedies – injunctions – mandatory – where plaintiffs make application for interlocutory mandatory injunction requiring defendants to lodge plan of subdivision with local council – where final hearing fixed for March 2025 – where plaintiffs seek interlocutory relief to same effect as final injunctive relief – whether serious question to be tried – nature of degree of satisfaction required as to plaintiffs’ prospects of success where plaintiffs seek to require defendants to take fresh steps rather to compel them to revert to prior course of conduct

ADMINISTRATIVE LAW – jurisdictional error – where Residential Tenancy Agreement terminated by consent orders – where plaintiff alleged Residential Tenancy Agreement had already been terminated prior to consent orders being made ADMINISTRATIVE LAW – remedies – discretionary factors – where judicial review proceedings lack utility – relief refused APPEALS – right of appeal – relationship with judicial review – where plaintiff had the available and effective alternative remedy of a right of appeal – relief refused COURTS AND JUDGES – bias – apprehended bias – application for recusal – where plaintiff alleged association with Attorney General – application rejected

CORPORATIONS – Winding up – Application for the adjournment of winding up application. CORPORATIONS – Winding up – Whether the Court should extend period within which winding up application must be determined nunc pro tunc. CORPORATIONS – Winding up – Presumption of insolvency arising from non-compliance with statutory demand – Where presumption of insolvency not rebutted.

CORPORATIONS — where plaintiff is director of corporate defendants – where plaintiff sought access to specified books and records of corporate defendants for herself and for nominated professional advisers on the basis of a confidentiality undertaking — whether access should be conditional on the giving of an undertaking that any advice by the advisers would be directed to the performance of plaintiff’s role as director – whether plaintiff should be prevented from seeking any advice on issues arising in relation to the books and records from her current solicitors

HIGH RISK OFFENDERS – extended supervision orders – application for a second extended supervision order – application for interim supervision order – preliminary hearing – appointment of psychiatrists or psychologists – schizophrenia – continued lack of insight into own risk factors – unacceptable risk of committing a serious offence

CIVIL PROCEDURE — interim preservation — freezing orders —whether freezing order should be discharged — where terms of the freezing order are such that the money resides in defendant’s solicitors’ trust account pending the determination of the proceedings — where an application for default judgment has been made — where no application for extension of freezing orders was made — no variation to freezing order permitted

HIGH RISK OFFENDERS – preliminary hearing – application for extended supervision order – dispute about whether such an order is justified – risk of further serious offending notwithstanding recent progress – dispute about electronic monitoring condition resolved

CRIME – sentence – joint criminal enterprise – murder – assault with intent to rob in company – armed robbery – deceased stabbed multiple times during robbery – aggravated break and enter with intent to steal – assault occasioning actual bodily harm in company – where trial separated from co-accused – where offender was on conditional liberty at the time of the offending – where offender has limited reduced moral culpability – where offender has experienced hardship in custody – where delay in trial being heard to finality – where special circumstances

CHILD WELFARE – Adoption – Best interests of the child

EVIDENCE – admissions – pre-trial hearing to determine admissibility of evidence of admissions – where accused made admissions to undercover operative in police custody – where improperly and unfairly obtained information used to elicit admissions – evidence of admissions excluded

COSTS — party/party — protracted proceedings arising out of terminated partnership — multiple claims between various parties — general costs follow the outcome of the partnership claim — other costs follow the event on a claim-by-claim basis — purported “Calderbank” offers made by defendant’s solicitors rejected as a matter of form and substance — application for indemnity costs refused

ADMINISTRATIVE LAW — correct application of s 150 of the Health Practitioner Regulation National Law 2009 (NSW) — whether the council impermissibly duplicated matters in both limbs of s 150 — whether the council combined its concerns expressed under both limbs to decide it was appropriate to suspend the plaintiff’s registration — whether an error of law was made — whether the error was material — held summons dismissed

JUDGMENTS AND ORDERS – application for orders setting aside orders made by this Court in 2009 – where substantive proceedings finalised some time ago – substantial lapse of time – restraining orders – NSW Crime Commission –equitable mortgage – request for Court to revisit and review original proceedings – claimed loss to the applicant as a result of the failure to recognise him as a secured creditor – where applicant seeks documentation with respect to the substantive proceedings to “ascertain a clear picture of what exactly happened” – whether Crime Commissioner acted in a manner such that the orders were obtained irregularly, illegally or against good faith – motion dismissed – costs awarded

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Circuit and Family Court of Australia or Federal Court of Australia — Defendant seeks to file cross-claim for relief under Fair Work legislation for which Supreme Court does not have jurisdiction

COSTS – costs of motion – competing claims for indemnity costs and order that each party bear their own costs – whether circumstances warrant a departure from usual order for costs – no justification for departure – usual order made

TORTS –– claimed historical child sexual abuse –– where defendant denies abuse and alleges plaintiff and witnesses have conspired to give false evidence about claimed abuse –– credibility –– abuse established –– assessment of damages –– unchallenged expert evidence –– damages including aggravated and exemplary damages awarded

CIVIL PROCEDURE – UCPR 10.14 (substituted and informal service generally) – defendants located in a Hague Convention country – practicability of personal service of the originating process – application for an order under UCPR 10.14(3) that originating process be taken to have been served – no inconsistency with UCPR 11A – orders made

LAND LAW – Easements – Creation of easements – Creation under statute – Application under s 88K of the Conveyancing Act 1919 (NSW) – Where the plaintiff and defendant are residential neighbours – Where the plaintiff’s land and the defendant’s land front directly onto a public road – Where a driveway was constructed along and on either side of the boundary between the two properties in 2000 by agreement between the plaintiff and a previous owner of the defendant’s land, but no easement was registered – Where that driveway was used by the owners and occupants of, and visitors to, both properties for about 23 years prior to the commencement of these proceedings – Where that driveway presently provides the only vehicular means of access from the road to the dwelling on the plaintiff’s land – Whether an easement burdening the defendant’s land in relation to the part of the driveway constructed on his land is reasonably necessary for the effective use of the plaintiff’s land within the meaning of s 88K(1) – Where the proposed easement would expose the present and future owners and occupants of the defendant’s land to an ongoing risk of interference with their reasonable use and enjoyment of their land due to noise, light and vibration caused by vehicles using the driveway which abuts the dwelling on the defendant’s land narrow block of land – Where there is an alternative means of vehicular access to the plaintiff’s dwelling available by constructing a driveway wholly on the plaintiff’s land Held: The plaintiff failed to discharge his onus of establishing reasonable necessity within the meaning of s 88K(1).

COSTS – offer of compromise – expedited hearing – offer open for 4 business days – whether offer open for a reasonable time – whether Court should “order otherwise” – indemnity costs order made.

CONTRACTS – sale of business – businessman in need of cash sells one of his businesses to his bookkeeper – bookkeeper pays for business and begins operations – parties sign Heads of Agreement while more detailed transaction documents are prepared – businessman changes his mind, fires the bookkeeper and re-takes possession of the business – whether businessman bound by his agreement – absolutely. CONTRACTUAL CONSTRUCTION — ascertaining parties to contract — principles at [125]-[127] — vendor described by business name and ABN – both registered to the businessman – signature block assumed vendor was a corporation – drafting error corrected through contractual construction, at [135]. UNCONSCIONABLE CONDUCT – special disadvantage – principles at [154]-[162] – English not first language of businessman – bookkeeper translated some words into Arabic – businessman was the more experienced of the two. MISREPRESENTATIONS – principles at [139]-[140] – not persuaded that bookkeeper represented that the Heads of Agreement was a licence – not satisfied bookkeeper gave the businessman only one page and represented it comprised the entire agreement, where page clearly part of a larger document on its face. NON EST FACTUM – principles at [147], [150] – not established.

CIVIL LAW – high risk offender – interim supervision order – statutory requisites – disputes over conditions – where defendant subject to guardianship orders – various difficulties concerning compliance – disputes resolved after argument – no question of principle

ESTOPPEL — Proprietary estoppel by encouragement — Plaintiffs (husband and wife) claimed an interest in a residential property at Illawong on the basis of a proprietary estoppel, based upon various representations made by the defendant and his wife (the first plaintiff’s parents) to them over several decades — Representations evolved over time and formed part of a larger “family arrangement” requiring the first plaintiff to get married and have a family, after which the plaintiffs were required to work and care for the defendant and his wife at home and in the defendant’s property investment business in Mullumbimby, in return for income, security and (eventually) inheritance — Held that the representations as to occupation and inheritance, employment and care were made, but the estoppel case was not made out ESTOPPEL — Reliance — Discussion of requirements of reliance and counterfactual reasoning — Plaintiffs’ evidence of reliance included making certain life decisions (including the first plaintiff sacrificing his art career to an extent, the second plaintiff moving to Australia from North Macedonia, and both starting a family together), financial contributions, a forgone investment opportunity and caretaking duties — Held that reliance in respect of certain matters was made out, but not to the extent claimed by the plaintiffs ESTOPPEL — Detriment and countervailing benefits — Discussion of onus of proving detriment and accounting for countervailing benefits — Whether the plaintiffs suffered detriment in circumstances where they received significant countervailing benefits which accrued to them by reason of the single “family arrangement” encouraged by the representations (including rent-free accommodation, caretaking income and proprietary interests in valuable commercial and residential investment properties) — Whether the countervailing benefits in effect subsumed or sufficiently made good the representations of the defendant so as to make it not unconscionable for him to depart from the expectation that the plaintiffs could occupy and the first plaintiff would inherit the Illawong property — Held that onus was on the plaintiffs to account for countervailing benefits in proving detriment, and that no real or substantial detriment was made out EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions (s 63 Evidence Act 1995 (NSW)) — Whether the defendant was not available to give evidence — Discussion of meaning of “not available” in context where the defendant had a tutor in the proceedings EVIDENCE — Jones v Dunkel inferences — Whether inference can be drawn that the defendant’s evidence would not have assisted his case in circumstances where, between the defence being verified by him and a consent to act as tutor being filed, the defendant failed to serve any affidavit evidence despite having court directions to do so — Held that no such inference ought to be drawn ISSUE ESTOPPEL — Orders made by consent — Whether orders made by consent in the NSW Civil and Administrative Tribunal can raise an issue estoppel

EQUITY – Fiduciaries – where First Defendant received $20m from Plaintiff following discussions between Plaintiff and Third Defendant – where 30% of shares in First Defendant were transferred by Third Defendant to Plaintiff’s wife, who was appointed a director of First Defendant – where money received from Plaintiff was transferred by First Defendant to Fourth Defendant, in which First Defendant owned 95% of shares, and was used by Fourth Defendant for purchase of shopping centre as development project – where development project was subsequently sold at substantial profit and no amount of profit was distributed to Plaintiff – whether sum of $20m was advanced by Plaintiff as a loan to First Defendant or was contributed as investment in joint commercial endeavour between Plaintiff and Third Defendant, on basis that Plaintiff was entitled to a share of profits from the development project – whether Third Defendant owed fiduciary obligations to Plaintiff – whether Third Defendant breached fiduciary obligations – whether Fourth Defendant liable as knowing participant or as alter ego of Third Defendant EQUITY – whether Third Defendant agreed to hold a further 30% of shares in First Defendant on trust for Plaintiff – where shares held by Third Defendant were transferred to Second Defendant – whether Second Defendant holds shares on trust for Plaintiff EQUITY – Remedies – equitable compensation – account of profits – where Fourth Defendant failed to discover relevant documents – whether Plaintiff entitled to discovery prior to making election between remedies CONTRACT – oral loan agreement – where Plaintiff paid $16.8m to First Defendant following conversation with Third Defendant – whether the money was paid as a loan to First Defendant, or as a loan to Third Defendant which was guaranteed by First Defendant –whether term of loan that interest payable at rate of 24% per annum – whether payments received by Plaintiff were repayments made in respect of loan – whether loan was repayable on demand – whether recovery of outstanding balance is statute-barred

CONTRACTS — Remedies — Liquidated damages — Penalty — Whether penalty doctrine engaged by obligation to pay compensation, determined by an expert valuation process, following plaintiff’s non-fulfilment of promise to construct and dedicate a public road and defendant’s issuance of notice demanding payment — Whether compensation clause protects defendant’s legitimate interests — Whether compensation clause is out of all proportion with impact on plaintiff’s legitimate interests — Appropriate remedy if clause properly characterised as penal VALUATION — Valuer — Whether valuation in conformity with agreement — Whether experts did not comply with contractual valuation process by failing to consider relevant information and/or failing to “state the basis” of their determination — Appropriate relief if valuers erred CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Whether plaintiff represented that defendant entitled to compensation as determined by valuation or that it would not challenge compensation clause as penal — Whether alleged representations misleading or deceptive

COURTS AND JUDGES — Application for recusal — Whether apprehended bias — Claim of lack of independence — Based on association with family member or other judges of Supreme Court — Claim of prejudgment — Based on conduct during the hearing — Recusal application made 10 weeks after judgment reserved and after notice of listing for judgment — Whether waiver of any right to object

ASSOCIATIONS AND CLUBS — Council of the NSW Bar Association — Whether Bar Council has standing to institute and prosecute disciplinary proceedings in Tribunal and Supreme Court — Where Bar Council is not a separate legal entity to NSW Bar Association ADMINISTRATIVE LAW — NSW Civil and Administrative Tribunal — Occupational Division — Disciplinary decisions — Whether Tribunal erred in finding professional misconduct and unsatisfactory professional conduct — Whether Tribunal erred in recommending barrister be removed from the roll — Where practitioner instituted and maintained proceedings against another practitioner without reasonable justification on material available — Where deemed judgment upon lodgment of costs certificate in Supreme Court not paid by practitioner — Whether denial of procedural fairness — Whether apprehension of bias — Whether delegation of complaint by NSW Commissioner to Bar Council valid — Whether application for disciplinary findings and orders valid OCCUPATIONS — Legal practitioners — Disciplinary proceedings — Barristers — Application for removal from roll of barristers — Where unsuccessful appeal from Tribunal decisions finding professional misconduct and recommending removal from the roll — Where prior adverse findings against practitioner — Where lack of insight and absence of contrition for breach of Barristers Rules — Where practitioner not held practising certificate for over 6 years — Whether practitioner fit to practise — Whether removal from roll warranted in all the circumstances

CRIMINAL APPEAL – unreasonable verdict – circumstantial case – correct approach to review on appeal – armed robbery of private poker game – Texas Hold’em – whether trial judge erred in refusing to direct acquittal – relevance of trial judge’s “inclination” expressed in argument that prosecution case not strong – joint criminal enterprise – where applicant alleged to be “inside man” – participation in card game a ruse – evidence that applicant entered the building with robber – Honda Jazz – analysis of prosecution’s case on appeal – forensic evidence and timing of events – erroneous piecemeal approach to circumstantial evidence – unwarranted criticism of concessions made by trial counsel – whether inferences consistent with non-participation excluded beyond reasonable doubt CRIMINAL LAW – “in company” – joint criminal enterprise – proper direction to jury – where no objection to directions at trial – where directions fashioned to issues litigated at trial – sole issue whether applicant joined and participated in joint criminal enterprise – where enterprise alleged was to commit armed robbery in company – no error in circumstances of the case – leave granted but ground not sustained CRIMINAL LAW – requirements of summing up – whether trial judge failed to explain elements and legal principles – whether trial judge failed to summarise cases of the parties – no complaint at trial – no substance in ground of appeal – leave to rely on ground refused

CRIME — appeals — appeal against sentence — by Crown against inadequacy — two unrelated sets of offences — where no patent error in sentencing remarks — indicative sentences did not reflect objective seriousness — accumulation of sentences — aggregate sentence manifestly inadequate — respondent re-sentenced

CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Where applicant charged with single count of sexual intercourse without consent – Where sole issue in trial was whether the sexual intercourse was consensual – Where applicant’s trial counsel consented to the admission of inadmissible evidence contained within the body worn videos of police and ERISP – Unfair prejudice to the applicant through admission of evidence contained in body worn video established – Slight forensic advantage to the applicant outweighed by significant forensic disadvantage – Miscarriage of justice established – Conviction and sentence quashed

CRIME – application for leave to appeal against sentence – appeal against sentence – casting upon a person an explosive substance, namely petrol, with intent to burn, maim, disfigure or disable the person – whether sentence manifestly excessive – ground not made out – appeal dismissed

SENTENCING – objective seriousness – whether judge erred in finding that offender was a “trusted middle-man” in a hierarchy in the absence of details of the hierarchy – sentencing judge’s finding open on evidence SENTENCING – whether aggregate sentence manifestly excessive – whether indicative sentences were individually excessive leading to the aggregate sentence being manifestly excessive – indicative sentences not individually excessive – aggregate sentence reflected totality of criminality involved and was not unreasonable or plainly unjust – aggregate sentence not manifestly excessive

CORPORATIONS – Winding up – where not proved that creditor’s statutory demand was served by post, absent evidence that proper postage applied – presumption of insolvency arising from non-compliance with statutory demand not established.

CIVIL PROCEDURE – where plaintiff has served expert evidence – where that expert evidence based upon inspection of some but not all units allegedly affected by defects – where plaintiff belatedly seeks leave to adduce expert evidence in respect of defects alleged to exist in remaining units

CIVIL PROCEDURE – pleadings – amendment – late application for amendment to Summons and List Statement – where hearing date recently vacated and matter referred out for determination – where no explanation offered for belated application to amend – where amendment would significantly expand plaintiff’s case – where defendant would be obliged to engage in factual investigation to meet proposed amended claim

CIVIL PROCEDURE — Commencement of proceedings — Proceedings carried on by corporation — Necessity for solicitor to act CONSTITUTIONAL LAW — Commonwealth and State relations — Inconsistency of laws CORPORATIONS — Limits on the rights and powers of a company as an artificial legal person

MENTAL HEALTH – preliminary hearing – forensic patient – extension of status as forensic patient – schizophrenia – whether unacceptable risk of causing serious harm to others – consideration of other adequate, less restrictive management regimes – extension of status as forensic patient granted

CIVIL PROCEDURE — Interim preservation — Freezing orders — continuation of freezing orders made by Duty Judge — where both elements for the making of a freezing order are satisfied — where matters taken into account which allow the Court to infer that the defendants are dishonestly dealing with assets

COSTS — party/party — general rule that costs follow the event — proceedings discontinued against eighth and ninth defendants after appointment of receivers to second plaintiff – whether costs should be payable in accordance with r 42.19 UCPR - whether appointment of receivers to second plaintiff was a supervening event – where appointment of receivers due to default by second plaintiff – appointment not a supervening event – plaintiffs to pay eighth defendant’s costs COSTS – where Calderbank offers served by eighth defendant at various stages of proceedings – where indemnity costs sought after discontinuance - where plaintiffs did not act unreasonably in refusing Calderbank offer prior to appointment of receivers – plaintiffs to pay eighth defendant’s costs on the ordinary basis COSTS - agreements as to costs – whether costs of the proceedings include costs of mediation – no evidence of any agreement about costs at mediation – costs of mediation form part of costs of the proceedings

COSTS – application for gross sum costs order – where gross sum already agreed between the parties – application refused

Estoppel – Equitable estoppel – Proprietary estoppel – Proprietary estoppel by encouragement – Where promisor made promise to bequeath property to promisee – Where promisor did not further encourage promisee to rely on promise after making promise – Where promisee acted to his detriment in reliance on promise – Where promisor did not bequeath property to promisee – Whether promisee required to prove promisor undertook subsequent acts of encouragement after initial promise – Whether promisee required to prove promisor had actual knowledge that promisee would act or had acted in reliance on promise to promisee's detriment. Words and phrases – "actual knowledge", "clear and unequivocal promise", "constructive knowledge", "detriment", "detrimental reliance", "encouragement", "encouragement from a promise", "equitable estoppel", "estoppel", "estoppel by acquiescence", "estoppel by encouragement", "estoppel by encouragement from a promise", "imperfect gift", "proprietary estoppel", "proprietary estoppel by encouragement", "reliance", "subsequent encouragement", "unconscionable".

Damages – Undertaking as to damages – Where interlocutory injunction obtained to prevent manufacture or sale of generic pharmaceutical products – Where compensation sought for loss suffered as result of generic products not being listed on Pharmaceutical Benefits Scheme ("PBS") – Whether generic products would have been listed on PBS but for interlocutory injunction – Counter-factual approach – Whether onus of proof discharged. Appeals – Standard of review – Ultimate appellate court – Where concurrent factual findings of lower courts – Whether special or exceptional circumstances – Whether plain injustice or clear error – Whether concurrent findings not clearly wrong – Whether concurrent findings open and compelling. Onus of proof – Shifting evidential onus – Whether rigid legal rule applied for proof of loss arising from undertaking as to damages. Words and phrases – "clear error", "concurrent findings", "counter-factual", "evidential onus", "interlocutory injunction", "onus of proof", "plain injustice", "special or exceptional circumstances", "standard of review", "ultimate appellate court", "undertaking as to damages". National Health Act 1953 (Cth), ss 99ACB, 99

CRIME — appeals — appeal against conviction — miscarriage of justice — where trial judge allowed witness to refresh memory in court in the absence of jury — where witness was in custody prior to hearing and did not have opportunity to read his statement — where applicant’s counsel did not oppose this course — whether this process was so irregular that it constituted a miscarriage of justice — whether witness was pressured to give evidence in accordance with his prior statements — whether applicant was prejudiced — whether outcome of trial was capable of being affected CRIME — appeals — appeal against sentence — error in commencement date — commencement date backdated to reflect all of applicant’s time in custody

CRIMES – appeals – appeal against conviction – trial not according to law – majority verdict – failure to examine juror under oath on the likelihood of reaching a unanimous verdict pursuant to s 55F(2)(b) Jury Act 1977 (NSW) – appeal allowed

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.

MENTAL HEALTH – forensic patient – interim extension order due to expire – application for an order extending status as forensic patient – extension order appropriate – duration of extension order – order that status as a forensic patient be extended for 3 years and 6 months.

CIVIL PROCEDURE – Application to use three documents for the purpose of the preparation and presentation of the plaintiff’s case – Grant leave for the plaintiff to use the documents and contact certain individuals for the preparation of his case.

COSTS — party/party — application of the rule and discretion under Civil Procedure Act 2005 (NSW) s 98 — indemnity costs application by representative plaintiffs in class action as successful party on motion— where plaintiffs submit interlocutory application brought in a representative capacity in fulfilment of duties to group members analogous to fiduciary duties and to progress the main proceedings — where plaintiffs submit second defendant’s conduct necessitated the application — whether conduct of second defendant was unreasonable — HELD — plaintiffs should not be left out of pocket for making an application protective of the interests of group members — costs ordered on indemnity basis COSTS — application for gross sum costs — no evidence of second defendant’s ability to meet adverse costs order — where costs assessment likely to involve further expense, delay and aggravation — broad brush approach based on informed assessment of actual costs incurred by plaintiffs — no discount necessary where accurate and reliable costs evidence provided — HELD — costs awarded as gross sum COSTS — timing — costs payable forthwith — application of Morningstar factors — HELD — costs payable forthwith

COSTS – general rule that costs follow the event – whether successful party failed on a separable issue – whether any basis for award of indemnity costs

ADMINISTRATIVE LAW – judicial review – determination of medical appeal panel – claim for workers’ compensation lump sum payment – answering application of request for referral for reconsideration – response to application not within functions of the appeal panel – determination of deduction for pre-existing injury – availability turned on issue of statutory construction – error of law on face of record (reasons of appeal panel) WORKERS’ COMPENSATION – medical dispute – demonstrable error – failure to address part of dispute (scarring) – request for reconsideration not determined – request referred to appeal panel – scarring not part of appeal – calculation of deduction for pre-existing injury – injury caused by nature and conditions of work – determining date of injury occurring by a gradual process

COSTS – security for costs – impecunious plaintiffs –undertaking offered by a third party to the proceedings – adequacy of undertaking – ability to realise assets – effect of delay on the plaintiffs – plaintiffs to provide security