Cases and authorities

SUCCESSION – testamentary capacity – knowledge and approval – deceased made wills in 2021, 2019, 2018 and 2014 and a codicil in 2019 – where deceased’s brother challenges 2021, 2019 and 2018 testamentary instruments and seeks a grant of probate for the 2014 will – where deceased’s de facto partner’s interest in deceased’s estate increased under each testamentary instrument – whether deceased had testamentary capacity – where deceased was a long term alcoholic, suffering the effects of frequent falls, and was undergoing chemotherapy treatment – suggestion of issues with cognition related to Wernicke Korsakoff encephalopathy syndrome by eminent neurologist – onus on propounder of will to prove the deceased had testamentary capacity – where deceased did not have capacity to make the 2021 will – where a copy of the 2019 will should be admitted to probate SUCCESSION – undue influence – whether 2021 or 2019 wills were made as a consequence of undue influence by de facto partner – requirement of actual coercion which must overpower the volition of the deceased – not necessary to consider undue influence in relation to 2021 will where it was found that deceased did not have testamentary capacity - no undue influence found in relation to 2019 will SUCCESSION – claim for further provision by de facto partner – whether deceased adequately provided for the proper maintenance, support and advancement in life of claimant – where claimant has substantial personal assets – whether claimant is entitled to be maintained in the manner to which they were accustomed and expected had the deceased “not gotten cancer and died” – a large estate does not provide a basis for a blank cheque exercise EVIDENCE – where deceased’s long term general practitioner is deceased – where deceased’s long term lawyer and drafter of testamentary instruments is deceased – where the propounder of will is an interested person – reliance placed on contemporaneous materials including medical history notes, legal file notes, email communications and lay evidence of friends and family of deceased – Court to assess the evidence as a whole to determine testamentary capacity

APPEALS – Appeal from the decision of the Local Court – question of law – whether magistrate erred in failing to extend time to file notice of motion under r 12.11(2) of the Uniform Civil Procedure Rules 2005 (NSW)

CIVIL PROCEDURE – Application to transfer proceedings from the District Court to the Supreme Court – Application to cross-vest proceedings from the Supreme Court to the Federal Circuit and Family Court of Australia to join existing proceedings in that Court – Where the District Court proceedings involve allegations of factual matters which are said to arise in Family Court matters – Whether the Federal Circuit and Family Court of Australia has jurisdiction to hear and determine the common law claims raised in the District Court proceedings – Whether it is in the interests of justice to transfer the proceedings.

CONTEMPT — Criminal contempt — Sentence — Griffiths remand — compliance with conditions of remand — declarations made

NEGLIGENCE – causation – where appellant slipped on steps in respondent’s factory – where changes to case as pleaded and at trial – where cause of slip alleged to be either potato debris on steps or slipperiness of steps when wet due to wear and tear – whether primary judge erred in failing to be satisfied that appellant had established cause of slip

CIVIL PROCEDURE – amendments – extension of time previously granted for statute-barred claim – whether proposed amendment pleaded the same cause of action – whether proposed amendment pleaded new cause of action arising out of the same or substantially the same facts – consideration of Civil Procedure Act 2005 (NSW), ss 64 and 65 – consideration of principles relevant to determining whether a proposed amendment arises out of substantially the same facts – whether further extension of time should be granted

CIVIL PROCEDURE – Hearings – Adjournment – Application by defendant to vacate hearing date on medical grounds – Application refused

COSTS – no order for the costs of the notices of motion – parties to pay own costs

CIVIL PROCEDURE – default judgment – setting aside – where first defendant defaulted in serving evidence – where list response and cross claim struck out and judgment entered – liberty granted to apply to set aside those orders – liberty exercised – whether orders should be set aside CIVIL PROCEDURE – service – time for service of notice of motion – where notice of motion must be served three days before return date – where notice of listing issued – time for service of notice of listing – whether notice of listing should also be served three days before return date

CONTRACTS — Formation — Agreement — Whether an oral agreement of accord and satisfaction formed that the plaintiff agreed to extinguish a $1.2 million debt owed by the first and second defendants if they paid $500,000 and made a non-binding promise to pay an unidentified sum of money if possible in the future — no agreement found EQUITY — Equitable remedies — Orders for judicial sale out of court — Whether court should make an order for judicial sale out of court

CORPORATIONS – application to wind up in insolvency – where failure to comply with statutory demand after dismissal of application to set it aside – presumption of insolvency – where expert evidence led regarding solvency – presumption rebutted CORPORATIONS – application to bring derivative action – where company agreed to pay substantial sum to managing director following successful completion of a trade of securities, contingent on his entry into a standstill agreement and following completion of two-year standstill period – where company advanced the amount of the prospective payment to a foreign company owned by the managing director by way of an unsecured and undocumented loan – grant of leave to bring derivative suit not opposed – conditions for grant of leave established CORPORATIONS – application to wind up on just and equitable ground or alternatively by reason of oppressive conduct – where company is solvent and profitable – whether grant of leave to bring derivative suit is sufficient remedy – whether ongoing risk of mismanagement and of dissipation of assets – winding up application rejected

TORTS – Negligence – where plaintiff with pre-existing osteoarthritis in left knee slipped and fell on spilled food in commercial kitchen – where plaintiff subsequently underwent a total knee replacement – where plaintiff working pursuant to labour hire agreement – occupier’s liability – non-delegable duty of plaintiff’s employer – whether system and place of work made spillage reasonably foreseeable – whether occupier breached duty of care in failing to place non-slip mats in areas in which food spillages were most likely to occur – whether defendants’ tortious conduct caused the need for surgery – finding that plaintiff’s fall caused material aggravation of her pre-existing osteoarthritis resulting in the need for a total knee replacement.

APPEALS – appeal from Local Court to Supreme Court – claim in detinue for the failure of the defendant to return an emerald – plaintiff entrusted defendant to sell an emerald in China in 2014 – defendant failed to sell the emerald – plaintiff demanded return of emerald from 2015 – whether the plaintiff’s demands were unequivocal – no requirement for demands to identify a particular time or place – where plaintiff could only attend on the defendant to require the return of the emerald – held that demands were clear, specific, unequivocal and unconditional LIMITATION OF ACTIONS – detinue – where demands made in 2015 and 2016 – proceedings commenced in 2023 – whether defendant’s actions amounted to a refusal – where a refusal can be demonstrated by the passing of a reasonable period of time without response – evidence indicated defendant went to China but did not return with the emerald – where more than a reasonable time had elapsed – defendant’s inaction a clear refusal of demand – where time commenced to run from refusal – claim statute-barred

COURTS AND JUDGES – Supreme Court – Jurisdiction – Whether Supreme Court lacked jurisdiction to make declaration that condition of by-law unjust – Where statute conferred function of finding condition unjust on NSW Civil and Administrative Tribunal LAND LAW – Strata title – By-laws – Whether condition of by-law that exclusive use rights cease unless obligations complied with unjust – Whether condition harsh, oppressive or unconscionable – Whether respondents liable in damages under by-law for failure to comply with obligations under by-law – Whether respondents liable for reasonable costs and expenses incurred in recovering outstanding levies – Whether respondents liable for costs and expenses incurred in claiming damages under by-law

CONTRACTS – Interpretation – no question of principle – where right of rescission engaged if Environmental Report “indicates that the property does not fall within the NSW Environment Protection Authority guidelines in relation to the contamination levels in, on or under the property and which permits the property to be used as a Service Station” – whether necessary to engage right of rescission that there be indication in Environmental Report that land could not be used as a service station

BAIL – application to vary conditions of bail granted by Court of Criminal Appeal – self-represented litigant – application to dispense with bail – submissions inviting the court to review the applicant’s original conviction – court lacking in jurisdiction – applicantion to bring to an end all extant prosecutions for breaches of child protection register – court lacking such broad reaching power – application to dispense with bail rejected BAIL – where Court of Criminal Appeal granted bail on conditions – where Local Court judge added a condition later that the applicant report to police each week – condition added days after this court settled on conditions – no explanation for Local Court’s decision to impose more onerous condition – statutory requirements as to conditions – necessary and appropriate – proportionate to circumstances of offence – reporting condition deleted

CRIME – appeals – appeal against sentence – denial of procedural fairness – whether sentencing judge rejected applicant’s evidence of childhood abuse – whether any indication was given to applicant that issue was to be taken CRIME – appeals – appeal against sentence – denial of procedural fairness – where sentencing judge rejected applicant’s evidence in psychological report CRIME – appeals – appeal against sentence – re-sentence

CRIME — Appeals — Application for leave to appeal against sentence — Assault offence in custody by young offender — Previous sentence being served — Failure to provide reasons — Totality — Manifest excess — No point of principle

ADMINISTRATIVE LAW – Judicial review of decision of Local Court Magistrate to dismiss application under s 50(1) of the Fines Act 1996 (NSW) – Where first defendant accepts that the Local Court Magistrate mistook the scope of the Court’s function and committed a jurisdictional error – Where Court must satisfy itself that the orders sought should be made – Jurisdictional error established – Decision of the Local Court quashed

SUCCESSION – Family provision – Claim by adult child and grandchildren of deceased – Where deceased cared and provided for plaintiffs for most of their lives – Whether there were “factors warranting the making of an application” – Whether deceased had duty to provide ongoing accommodation for plaintiffs

EVIDENCE – credibility evidence – accused – ERISP evidence denying the use of a baseball bat – where accused admits to using the baseball bat in the same interview – whether prior inconsistent statement – probative value of evidence – not unfairly prejudicial – evidence allowed

CONTRACTS – construction – interpretation – deed of indemnity – where deed made provision for advances of the plaintiff’s reasonable costs of defending proceedings – whether deed obliged defendant to pay such costs on request

EVIDENCE – documentary evidence – dash-cam footage – where the Crown superimposed red squares on the accused’s and deceased’s hands to draw the jury’s attention to contents or otherwise – permissible for the purpose of assisting the jury

CORPORATIONS – application for curative orders pursuant to s 1322(4)(a) of the Corporations Act 2001 (Cth) – where issue or transfer or shares is potentially void due to the operation of s 259C of the Corporations Act – where transactions sought to be validated span a period of almost 30 years and it is not possible to identify all of the relevant transactions or all of the counterparties involved – application granted

LAND LAW – Easements – Extinguishment of easements – Extinguishment by order of court – Where all persons entitled to the easement consent to extinguishment

JUDGMENTS AND ORDERS – reasons – publication – application for restriction on publication of judgment – where application for restriction on basis of asserted confidentiality of commercial information – where that case failed but plaintiff contemplating appeal – whether there would be prejudice to administration of justice – whether appeal might be rendered nugatory if information published pending appeal

BUILDING AND CONSTRUCTION – claim for breach of statutory warranties under Home Building Act 1989 (NSW) – proceedings on foot for 8 years – before the Court on 52 occasions – parties reach agreement ‘in principle’ for builder to rectify defects but no final agreement reached more than a year later – owner refuses access to builder to rectify defects – referral to engineer/barrister – 13-day reference – referee provides liability and quantum reports totalling 440 pages. REFEREE – reference made to facilitate just, quick and cheap resolution – principles at [5]-[9] – whether to adopt report – principles at [10]-[14] – whether interests of justice served. MITIGATION – obligation on plaintiff to act reasonably – principles and case law review at [38]-[53] – Owners v Di Blasio Constructions considered – whether plaintiff owes duty to allow builder to minimise its damages. SCOTT SCHEDULES – history and purpose – amendment, at [114]-[118] – whether referee made ruling that defects not in Scott Schedule would not be considered – whether referee denied natural justice by considering defects not in Scott Schedule.

CIVIL PROCEDURE — Stay of proceedings — Where defendants seek stay of proceedings against several plaintiffs that are corporate entities with receivers appointed — Stay not granted CORPORATIONS — Statutory derivative action — Whether plaintiffs entitled to advance claims on behalf of corporate entities — Sections 236 and 237 Corporations Act 2001 (Cth) — Where s 236 cannot apply because plaintiffs did not seek leave of the Court CORPORATIONS — Practice and procedure — Whether natural person plaintiffs entitled to advance claims on behalf of other corporate entity plaintiffs — Application of Deangrove Pty Ltd (Receivers and Managers Appointed) and Another v Commonwealth Bank of Australia (2001) 108 FCR 77 — Natural person plaintiffs entitled to advance claims on behalf of corporate entity plaintiffs — Whether natural person plaintiffs need to provide security for indemnities they are required to give — No security required

CIVIL PROCEDURE — Court administration — Court powers — Power of court to determine questions about compromises and settlements CONTRACTS — Duress — Illegitimate pressure — Whether settlement deed was affected by duress

CRIMINAL PROCEDURE – trial – jury – application to discharge jury – discharge of whole jury – Crown’s service of lay witness and expert statements on the second day of trial – where parties have already opened their cases – where the new materials are at odds with the accused’s case theory based on evidence previously served – interests of justice to discharge the jury and adjourn the trial

Administrative Law - Judicial Review – Judicial Review of an Appeal Panel of the NSW Civil and Administrative Tribunal Council – Relief sought

CIVIL PROCEDURE — Court of Appeal — application for pro bono referral — where no appearance by applicant

JUDGMENTS AND ORDERS – gross costs order – stay of orders

JUDGMENTS AND ORDERS – application to set aside orders under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) – the slip rule – no basis established to set aside orders

CIVIL PROCEDURE – pleadings – striking out – where defendant/cross-claimant has joined wrong cross-defendant to cross-claim – where defendant/cross-claimant has arguable case on his cross-claim – where cross-claim, in its current form, is nonetheless insufficiently pleaded

CIVIL PROCEDURE – Application by the plaintiff for adjournment of a final hearing set down three months earlier – Where the plaintiff has failed to comply with orders and directions of the Court without any explanation – Where the plaintiff was given the option of a later hearing if it agreed to defer a bankruptcy application it had issued against the defendant and these proceedings are possibly relevant to the bankruptcy proceedings – Where the plaintiff declined to agree to defer – Where the plaintiff’s reasons for seeking an adjournment otherwise have no merit – Where the defendant has complied with orders of the Court for preparation of the matter and is ready to proceed – HELD – Application for adjournment refused PARTNERSHIPS AND JOINT VENTURES – Existence of partnership – Where the plaintiff asserts that the defendant established a partnership with two other (both bankrupt and one now deceased) persons to provide legal and consultancy services and claims that the defendant is obliged as a partner to account to their estates, the plaintiff having taken an assignment of their claims – HELD – No such partnership was established

ORDERS – restraining defendant from retaining a solicitor– whether plaintiff previously a client of the solicitor – whether plaintiff provided solicitor with relevant confidential information – whether discretion to restrain solicitor being retained should be exercised – what the due administration of justice requires EVIDENCE – affidavit evidence – exception to the hearsay rule – second hand hearsay – proper construction of s 75 of the Evidence Act 1995 (NSW) – whether orders excluding the evidence should be made under s 135 – evidence admitted

COSTS – application for indemnity costs – offer of compromise – whether plaintiff gave proper consideration to limitation problems with her claims

CRIMINAL PROCEDURE – application for trial by judge alone – where earlier jury was hung – whether trial by judge alone is in the interests of justice – complainant suffering from an intellectual disability – where expert report on the condition of the complainant served after trial – where Crown indicated not all of report would be relied upon – evidence not complex – report does not require complex jury directions – finality not a sufficient reason for finding that a judge alone trial is in the interests of justice – credibility of witness being a central issue favours a jury trial – application for trial by judge alone refused

CRIME – sentencing – manslaughter – joint criminal enterprise – where offender went with two other men to where the deceased lived – where offender knew one of the men would “bash people for money” – jury verdict consistent with conclusion there was no intent to kill or cause grievous bodily harm but that offender knew an assault would occur – rejection of account (via gaol calls) that the offender only pointed out the house and did not know why the men wanted to go there – callous and cowardly failure to assist the deceased – moral culpability significant in the circumstances

LEGAL PRACTITIONERS — Disciplinary proceedings — misappropriation of trust money — practitioners convicted of offences under s 192E(1)(b) of the Crimes Act 1900 (NSW) —declarations that practitioners not fit and proper persons to remain on the Roll of Australian Lawyers – practitioners’ names removed from roll

CONTRACTS — Construction — parties agreed to restructure ownership of family business — parties intended to negotiate a longer form agreement — where agreement outlines how shares of the business may be sold — where applicants argues there is a right to buy out other owners — whether the terms of the agreement properly construed confer on the applicants a right to purchase — whether every term of a legally binding agreement must be capable of enforcement

CRIME – Appeal against sentence – One count of cause grievous bodily harm with intent to cause grievous bodily harm – Whether sentencing judge failed to give legally sufficient reasons for declining to find that the applicant’s mental health conditions contributed to the offending – Where opinion of forensic psychologist is based upon facts favourable to the applicant not found by the sentencing judge – Whether sentencing judge erred in failing to find that the applicant was provoked and/or whether she provided legally sufficient reasons – Whether sentencing judge made “material factual error” – No error by sentencing judge established – Leave to appeal granted – Appeal dismissed

CRIME – Appeals – interlocutory appeal – decision to refuse a permanent stay – whether the primary judge made interlocutory orders about the availability of defences – difference between indicative rulings and interlocutory orders – criteria for leave to appeal from interlocutory decision in criminal proceedings – whether there was an error of principle and possibility a likelihood of substantial injustice – leave to appeal refused

SUCCESSION — Administration of estates – judicial advice – Trustee Act 1925 (NSW), s 63 – deceased’s will divides his property among his four children after appointing one of those children, the defendant, as his executor – delay by the defendant in the administration of the estate due to a dispute in relation to subdivision of the deceased’s real property and other matters – the plaintiff, a beneficiary applies for removal of the defendant – Court appoints an independent administrator but temporarily stays the orders – in June 2024 the Court declines to give judicial advice to the executor to accept an offer for $850,000 for one of the estate properties but upon terms that the plaintiff must indemnify the estate against the shortfall arising from a lower offer being received later – offer for $850,000 not renewed and an offer for $785,000 made – whether judicial advice should now be given over the plaintiff’s objection that the defendant would be justified in accepting the offer for $785,000 – other issues have arisen in relation to the administration of trusts of works of art created by the deceased – what directions should be given to resolve those other issues and to further the better administration of the estate.

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed EQUITY — Equitable interests in property — Nature of equitable interests — Birth certificate does not evidence or create any type of property or interest in property

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — No issue of principle

COSTS – security for costs – where proceedings are funded and plaintiffs are both resident outside of Australia – where dispute as to form and quantum of security – where plaintiff proposed deed of indemnity in favour of second and third defendants from overseas insurer – where second and third defendants seek security by payment into court – whether deed of indemnity is adequate – security for costs ordered in the form of proposed deed of indemnity – no question of principle

FINAL ORDERS – proposed orders – where parties disagreed about proposed orders – usual costs order – costs follow the event – whether claim was dominant or separable – costs thrown away order

CIVIL PROCEDURE – subpoenas – application to set aside – subpoena issued to the plaintiff’s solicitor – plaintiff applied to set aside subpoena – where subpoena, in part, sought communication between the solicitor and the plaintiff’s father and agents – where the solicitor did not know the plaintiff or his family prior to his retainer – the solicitor only communicated with the plaintiff’s agents about the plaintiff for the purpose of purpose of providing legal advice and services – client legal privilege applied – subpoena set aside in respect of paragraph 2(a)-(d) CIVIL PROCEDURE – subpoenas – objection to production of documents or things – client legal privilege – where the subpoena issued to the plaintiff’s solicitor sought, in part, communication with three health care professionals who treated the plaintiff – health care professionals also subpoenaed –plaintiff sought to claim client legal privilege – whether client legal privilege was waived by the service of reports produced by the health professionals – client legal privilege waived in respect of communications related to the reports CIVIL PROCEDURE – subpoenas – whether correspondence between the solicitor and the health care professionals subsequent to the preparation of the reports would be subject to client legal privilege and/or protected confidence under s 126B of the Evidence Act – where plaintiff submitted that determination of privilege should be conducted analogously to public interest immunity claim – where defendant submitted that the appropriate course was that of NRMA v Whitlam – wholly different situation to Whitlam – releasing documents to other side’s lawyers would undermine the purpose of s 126B – plaintiff’s approach accepted – further hearing necessary for judge to inspect documents prepared by the health care professionals over which privilege is claimed