Cases and authorities

HIGH RISK OFFENDERS – Interim detention orders – Application – Where defendant is in custody awaiting sentencing – Interim detention order made for as short a period as practicable.

COSTS — where successful party seeks indemnity costs — purported Calderbank offer — whether unreasonable for unsuccessful party to reject offer — HELD — offer not take effect as a Calderbank offer — not unreasonable for unsuccessful party to reject offer — variation to costs order to correct naming of first defendant COSTS — unsuccessful application for indemnity costs — costs follow the event — HELD — first defendant to pay the plaintiffs’ costs of application

CIVIL PROCEDURE – preliminary discovery – where plaintiffs may have cause of action against financial adviser – where plaintiffs seek non-party discovery – where defendant does not oppose orders sought

COSTS – security for costs – quantum and form – whether security should be ordered against plaintiff owners corporation – where plaintiffs accept that there is reason to believe they will be unable to meet a costs orders – where plaintiffs have failed to explain prejudice suffered by reason of delay in bringing application for security

ESTOPPEL — Proprietary estoppel — Encouragement — Where the plaintiff was a farmer who worked in the family partnership on the family farms — Where the plaintiff and the defendants are siblings — Where the plaintiff claimed his father made oral representations to him over many years that certain farms would be his — Whether the representations were made — Whether the plaintiff acted to his detriment in reliance of the representations — What the appropriate relief is in the circumstances PARTNERSHIPS AND JOINT VENTURES — Winding up — Distribution of assets on settlement of accounts — Whether there was an agreement to divide profits of the family partnership after death of one of the partners in proportions different to the continuing partners’ interests in the partnership PARTNERSHIPS AND JOINT VENTURES — Partnership property — Identification — Whether family farm that was held between the partners as tenants-in-common in equal shares was partnership property

CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 – forensic patient – extension order – final hearing – history of child abuse material offending – index offences of use carriage service to access and possess child abuse material and contravene prohibition order and fail to comply with reporting obligations – where experts of opinion that patient should remain a forensic patient – whether Court satisfied to high degree of probability that there is unacceptable risk of causing serious harm to others – where serious harm includes psychological harm – where there is an unacceptable risk of serious psychological harm to child participants in child abuse material that is viewed or copied or shared or accessed – where accessing child abuse material perpetuates a market and creates an unacceptable risk of causing serious harm to children used in the creation of new child abuse material – where risk cannot be adequately managed by less restrictive means – extension order granted for period of two years

CIVIL PROCEDURE – summary dismissal – striking out paragraphs from second cross-claim – where mortgage was procured through a broker – where allegation of forgery in the underlying loan agreement – where mortgage subsequently registered – whether registered annexure to the mortgage incorporates the loan agreement – whether interlocutory issue is a question of law with only one correct answer – whether plaintiff’s cross-claim is statute barred

ESTOPPEL — equitable estoppel — proprietary estoppel — estoppel by representation — where plaintiffs/cross-defendants and mother owned family property as tenants in common in unequal proportions — where defendant/cross-claimant permitted to occupy the property for an extended period of time without paying rent — alleged representations by first plaintiff/cross-defendant to defendant/cross-claimant of right of sole occupancy of studio on non-subdivided property — alleged promise by mother to bequeath defendant/cross-claimant one-third of mother’s share in the property — findings of fact that form of studio representations made but mother’s promise not — asserted acts of reliance including remaining at the family property instead of moving into properties owned by defendant/cross-claimant at different times — lack of detrimental reliance in circumstances where defendant/cross-claimant benefitted financially and otherwise from purported acts of reliance and insufficient evidence that those acts were done in reliance on studio representations as opposed to expectation of ongoing tenancy at will — lack of unconscionability — HELD — no estoppel arising in favour of defendant/cross-claimant SUCCESSION — family provision — claim by adult daughter for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — application made out of time — significant and largely unexplained delay — mere change of mind insufficient — where beneficiaries would be materially and substantially prejudiced by the delay — sufficient cause not shown — where estate already distributed — notional estate —where order designating family property as notional estate needed to give effect to any provision made — where such order would disrupt reasonable expectations of registered proprietors and deceased and occasion substantial injustice — no “other special circumstances” for the purposes of s 90(2)(b) established — consideration of general s 60(2) matters including applicant’s financial circumstances and deceased’s testamentary intentions — where applicant owns unencumbered property — no evidence or assertion of future needs or material dependency on the deceased — HELD — application for extension of time refused — notional estate order and family provision order would also be refused LAND LAW — possession of land — possession sought by registered proprietors from tenant at will —no defence to claim for possession — judgment for possession

ESTOPPEL – Equitable estoppel –– Conventional estoppel –– Where estoppel claims founded on representations allegedly made by first defendant and assumption allegedly induced by those alleged representations prior to plaintiff and first defendant entering into contracts –– Where proof of at least one of two of those alleged representations is necessary for the plaintiff’s estoppel claims to succeed –– Where those alleged representations are inconsistent with the terms of the contracts –– Where the plaintiff’s evidence of those alleged representations is unreliable and inherently improbable –– Held that the plaintiff failed to prove either of those two alleged representations –– Estoppel claims dismissed. MISLEADING OR DECEPTIVE CONDUCT –– Where the plaintiff’s claim of misleading or deceptive conduct depended on proof of the representations that were essential to its estoppel claims – Where the plaintiff failed to prove those alleged representations –– Misleading or deceptive conduct claims dismissed.

COMMERCIAL LEASE – lease of common property of commercial leasehold strata scheme – construction of definition of “Market Value of the Stratum” – no issue of principle

BUILDING AND CONSTRUCTION – contract – defects – where first defendant builder and second defendant developer entered building contract – where plaintiff owners corporation alleges general and fire safety defects – where principal claim arises from contention that the “effective height” of building exceeds 25 metres – whether inadequate fire safety measures for building – construction of the Building Code of Australia – meaning of “effective height” – meaning of “storey” – whether garbage collection area, or, in the alternative, car park entry, is the “lowest storey” of the building BUILDING AND CONSTRUCTION – contract – where plaintiff owners corporation alleges a building contract between the second defendant developer and third defendant – where no written contract – where third defendant not licensed to perform residential building works – whether contract may be inferred by circumstances

CIVIL PROCEDURE – appeal – purported appeal from District Court judgment on appeal from Local Court – no right of appeal – whether proceedings should be treated as seeking judicial review – no grounds to support reasonably arguable case for review – summons dismissed CIVIL PROCEDURE – appeal – costs – incompetent appeal – no notice of motion filed by respondent objecting to competency – no order as to costs

CONTRACTS — Formation — Acceptance of offer — Correspondence with offer CONTRACTS — Formation — Agreement — Uncertainty and incompleteness CONTRACTS — Formation — Contracts requiring written evidence — Contracts for sale of land or interest in land CONTRACTS — Formation — Conditional promises — Subject to finance CONTRACTS — Construction and interpretation — Parol evidence rule — Prior negotiations CONTRACTS — Construction — Extrinsic evidence — Prior negotiations CONTRACTS — Unconscionable conduct — Special disadvantage CONTRACTS — Undue influence — Actual undue influence CONTRACTS — Misrepresentation — Fraudulent misrepresentation CONTRACTS — Remedies — Damages — Proof of loss or damage EQUITY — Equitable charges and liens — Vendor’s lien

PRACTICE AND PROCEDURE – UCPR 1.21 – Reconsideration of the Court’s conclusion that an order for determination of a separate question be revoked - Application for removal of proceedings on the separate question to the Court of Appeal – Where Court is of the view that the separate question is inappropriate – Application refused

PROCEDURE – criminal proceedings – evidence sought to be adduced from a witness in Vietnam – whether a certificate should be issued pursuant to s 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth)

CIVIL PROCEDURE – appeal – application for order for determination of issue by way of a separate question – application by respondent – grounds to be resisted – strength of appellants’ case not conceded – likelihood that other grounds will need to be addressed – separation likely to be neither efficient nor cost-effective

CIVIL PROCEDURE – appeal – application for costs capping order – need to show reason to anticipate disruptive or obstructive conduct by other party – insufficient to seek to protection from reasonable costs of other party to unsuccessful appeal CIVIL PROCEDURE – appeal – requirements for leave – challenge to interlocutory orders and costs orders – challenge to orders in working out of final judgment interlocutory

ADMINISTRATIVE LAW — bias rule — actual or apprehended — apprehended bias — where bias alleged by reference to reasons for judgment — sole reliance on reasons inverts proper inquiry — transcript did not disclose bias ADMINISTRATIVE LAW — procedural unfairness — where applicant alleged denial of adjournment to obtain evidence — where primary judge informed applicant of relevant procedure — no application for adjournment made by applicant — procedural fairness did not require primary judge to independently adjourn hearing

CRIME – appeals – appeal against conviction – miscarriage of justice – s 165(1)(d) of the Evidence Act 1995 (NSW) – where the Applicant contended that the Crown did not exclude the reasonable possibility his brother had committed the attack on the victim – whether the evidence of the Applicant’s brother was “evidence of a kind that may be unreliable” in the sense that it was given by a witness “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding” CRIME – appeals – appeal against conviction – unreasonable verdict – whether there was a reasonable possibility that a person other than the Applicant was responsible for the attack on the victim – where the DNA of the Applicant, the victim and a third person found on nunchucks used in the attack which were located in the Applicant’s room – where the Crown case relied on a large body of circumstantial evidence CRIME – appeals – appeal against sentence – manifest excess – whether sentence was unreasonably or plainly unjust

CRIME – appeal against sentence – aggregate sentence – sexual offending with minor – producing child abuse material – findings as to objective seriousness – whether sufficiently identified – whether sentence manifestly excessive

CRIME — Application for leave to appeal against convictions — Unreasonable verdicts — Black direction — Markuleski direction

EQUITY — Equitable remedies — Receivers — Appointment in aid of execution of judgment — Whether all remedies at law should be exhausted

CRIMINAL PROCEDURE – practice and procedure – trial – change of venue – trial aborted on second day – limited availability of court space in Wollongong in 2025 – accused in custody since December 2022 – interests of justice – “expedient” in the interests of justice to fix the trial to commence in Sydney in May 2025

CIVIL PROCEDURE – settlement approval – proceedings brought by person under legal incapacity – Court approval

CIVIL PROCEDURE – pleadings – amendment – where defendants seek to bring cross-claim against plaintiffs – where there has been delay, but delay explained – where defendants could, in any event, bring separate proceedings which would inevitably be heard together with these proceedings

JUDGMENTS AND ORDERS – Default judgment – Cross-claim brought by the defendant/cross-claimant against the cross-defendant – Where the defendant/cross-claimant settled the claim brought by the plaintiff – Where no defence to the cross-claim has been filed and no appearance has been made by the cross-defendant – Whether the Court should order complete indemnity by the cross-defendant of the cross-claimant – Judgment for the defendant/cross-claimant against the cross-defendant – Order that the cross-defendant indemnify the defendant/cross-claimant.

CONTRACTS — breach of contract — biomedical invention developed in government-funded health research institute — commercialisation agreement between institute and one of the four inventors — conditional obligation to re-assign patents if “suitable commercialisation deal” not reached within specified period — re-assignment offer from inventor — whether conditions satisfied — failure to re-assign — loss of opportunity — proof of damages — obligation to use best endeavours to arrange continuing employment of inventor — breach — damage

COSTS — Party/Party — Bases of quantification — Indemnity basis — Offer of compromise or Calderbank offer COSTS — Lump or gross sum costs order

ADMINISTRATIVE LAW – Where plaintiff the subject of a pseudonym order made by the State Coroner during coronial inquest into the deaths arising from the Lindt café siege – Where plaintiff has applied to the Coroner’s Court for an order discharging the pseudonym order and where the State Coroner considers that she does not have power to do so – Where plaintiff seeks to challenge that holding – Jurisdictional error in failing to exercise jurisdiction established – Order in the nature of a writ of mandamus that the State Coroner exercise jurisdiction issued

CIVIL PROCEDURE — order for appointment of trustees for sale of property jointly owned by brother and sister made in 2018 — long and unfortunate procedural history consisting of many appeals and further hearings in this Court — writ of possession granted to trustees in respect of property — writ due to be executed tomorrow morning at 9 am — “urgent” application for stay pending further appeal and “related” criminal proceedings now on foot — no satisfactory justification proffered for making application at eleventh hour — critical problems with originating process documentation and notice to defendant which makes contested hearing prior to writ execution date impossible — documentation not permitted for filing

EVIDENCE — Privileges — Client legal privilege — No issue of principle

DETENTION APPLICATION – Bail Act 2013 s 22B – limitation regarding bail during period following conviction and before sentencing – policeman found guilty of manslaughter by jury for causing death of elderly woman tasered in a nursing home – whether satisfactory evidence of suitable safeguards in place concerning incarceration of serving policeman – whether special or exceptional circumstances exist – whether the offence is one for which the offender will be sentenced to imprisonment to be served by full-time detention

ADMINISTRATIVE LAW – judicial review – parties agree – Court satisfied of basis for relief – no question of principle

APPEALS — leave to appeal — decision involving a matter of practice and procedure — orders setting aside subpoena and Notice to Produce served by the applicant — where applicant has failed to identify a principle of general application or a question of public importance or any substantial injustice — where leave to appeal is refused

STATUTORY INTERPRETATION – definitions – Child Protection (Offenders Registration) Act 2000 (NSW), ss 3 and 3A – “sentence” – where s 3A(1) provides that a person sentenced in respect of a “registrable offence” is a “registrable person” – where appellant convicted of an offence under Criminal Code (Cth) which constituted a “registrable offence” – where conditional release order made under s 20(1)(a) of Crimes Act 1914 (Cth) – whether that order was a “sentence” so as to render appellant a “registrable person”

COSTS – Party/Party – exceptions to general rule that costs follow the event – whether issues based costs orders should be made

PROFESSIONS AND TRADES — health care professional — psychologist — complaints referred to NCAT constituted by legally-qualified member, two psychologists and one lay member — “Stage 1” hearing found complaints of unsatisfactory professional conduct and professional conduct established — prior to “Stage 2” hearing, one psychologist member advised she was unable to participate further — Deputy President ordered inquiry to continue and determination made by the remaining three members — respondent appealed — whether s 165C of National Law empowered such an order — whether “inquiry” had completed for purposes of s 165C — whether if order not authorised by s 165C findings of unsatisfactory professional conduct and professional misconduct should be set aside

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Manifest excess — Whether sentence plainly unjust in all the circumstances of the case

JUDGMENTS AND ORDERS – Appeal raising issue materially indistinguishable from co-accused’s earlier appeal – No compelling reason shown for departure from the earlier decision APPEALS – Procedure – Time limits – Delays not to be held against applicants in the circumstances

EQUITY – Trusts and trustees – Court’s supervision of – Appointment and removal of trustees – matrimonial dispute – in March 2023 the Family Court of Australia upon the making of final property in relation to matrimonial property appoints a wife as trustee for sale of two jointly owned matrimonial properties – continuing conflict between the wife and the husband and neither property sold by November 2024 – wife has an AVO against the husband – wife occupies one of the two properties – wife tries to sell the other property and the couple’s daughter claims to have purchased it – husband places caveat on titles to the properties – wife seeks removal of the caveat – continuing conflict likely – whether the wife should be removed as trustee for sale – whether the husband should be appointed in place of the wife – whether independent trustees for sale should be appointed. COURTS AND JUDGES – Bias – Apprehended bias – self represented litigants – husband seeks judge’s disqualification from further involvement in the proceedings – whether the judge conducted the proceedings in a manner such that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

CONTRACT – Formation – Whether Plaintiff and Defendant entered into an oral contract in respect of the transfer of the Plaintiff’s property to the Defendant – Whether there was an intention to enter legal relations – Where terms uncertain. EQUITY – Unconscionable conduct – Whether unconscionable for daughter to retain property transferred to her by elderly father – Where transfer registered by father without daughter’s involvement, three years after earlier discussion – Where father sought to have the property reconveyed to him, nine years after the transfer was registered –Whether unconscionable for the daughter not to reconvey the property to the father without any compensation for the outgoings that she had paid in respect of the property in the nine years between the registration of the transfer and the demand for reconveyance. EQUITY – Equitable estoppel – Whether pleaded representations were made. EQUITY – Undue influence – Whether Plaintiff’s transfer of the property was due to undue influence – Where Plaintiff independently registered the transfer of the property – Where the Defendant asserted no pressure and had no involvement in the registration of the transfer. EQUITY – Trusts and Trustees – Express Trust – Where the terms of the purported trust are uncertain – Where there is no intention to create a trust.

CRIME – murder – defence of mental illness – accused fit to plead and stand trial – special verdict – act proven but accused not criminally responsible – orders made under ss 31, 33, and 34 of Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) MENTAL HEALTH – criminal proceedings – where agreement on defence of mental health impairment – special verdict entered

MENTAL HEALTH – preliminary hearing – forensic patient – appointment of psychiatrists and/or psychologists to conduct examination of the defendant – extension of status as forensic patient – whether defendant poses an unacceptable risk of serious harm to others if he ceases to be a forensic patient – whether defendant cannot be managed adequately by less restrictive means

BUILDING AND CONSTRUCTION – Design Act ss 36 and 37 - Certifiers Act ss 13 and 14 – Proceedings by Owners Corporation against the third defendant accredited certifier for breach of the duty of care imposed by s 37 of the Design Act on the footing that the third defendant carried out construction work in or related to a residential strata apartment complex – Third defendant denies that it carried out construction work and denies that the Design Act can apply by virtue of the existence of a Practice Standard under the Certifiers Act - PRACTICE AND PROCEDURE – UCPR r. 28.2 – Civil Procedure Act 2005 (NSW) ss 56(1)-(2) – Parties frame the following separate question “Did the Third Defendant carry out “construction work” within the meaning of Part 4 of the Design and Building Practitioners Act 2020 (NSW) in respect of the development of the Complex?” – Where during argument on the question it emerges that the question will not conduce the just, quick and cheap disposition of the real issues in the case because it is likely to cause delay and the answer lacks utility – Order for determination of separate question revoked

TORTS – Trespass to the person – assault and battery – sexual assault – where plaintiff alleges she was physically and sexually abused by one of her foster carers whilst a ward of the State CIVIL PROCEDURE – Abuse of process – where the alleged perpetrator of the abuse had been convicted of the conduct alleged by the plaintiff at a criminal trial – whether allowing the estate of the alleged perpetrator to deny that the abuse occurred would give rise to an abuse of process NEGLIGENCE – Duty of care – where the plaintiff alleges the State breached its duty of care to her by failing to take steps to have her adopted in a timely manner and failing to exercise reasonable care for her health and well-being – whether the State’s duty of care to a ward of the State is non-delegable – whether the State is vicariously liable for the conduct of the plaintiff’s former foster carers

COSTS – whether costs should be apportioned, principles at [22]-[25] – late abandonment of claims and cross-claims – costs apportioned based on parties’ relative success – no issue of principle.

HIGH RISK OFFENDER – application for interim supervision order – whether the offender poses an unacceptable risk of committing another serious offence – appropriate conditions – striking a balance between conditions that ensure the safety and protection of the community without being onerous or unnecessarily intrusive – conditions imposed largely similar in effect to those agreed to by the defendant

COSTS — security for costs — representative proceedings — where proceedings funded from the outset by litigation funder and funding agreement terminated by funder on the basis of alleged breaches of it by the lead plaintiffs — where lead plaintiffs suing for the benefit of others — impecuniosity of the lead plaintiffs and inability to meet an adverse costs order — no causal connection between plaintiffs’ impecuniosity and defendants’ conduct — whether proceedings likely to be stultified if an order for security is made — lead plaintiffs’ failure to provide precise information of financial position of those standing to benefit from successful outcome of the litigation — insufficient evidence upon which to base finding of inability as opposed to unwillingness of group members to contribute towards an order for security — risk of injustice to the defendants in incurring substantial costs without having appropriate security — quantum of security determined adopting broad brush approach — HELD — security ordered to be paid in instalments

PRACTICE AND PROCEDURE – application for summary dismissal/strike out pursuant to rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW) – whether proceedings have reasonable prospects of success – whether proceedings frivolous and vexatious – proceedings dismissed

ADMINISTRATIVE LAW – judicial review of serious corrupt conduct findings made by Independent Commission Against Corruption – where the person who presided over the hearings did not write the Report – Report not materially affected by errors of law on the basis of apprehended bias where the asserted bias was of a person who was not a decision maker – Report did not involve a denial of procedural fairness where the Commission made credibility findings based on its own assessment of evidence