Cases and authorities

OCCUPATIONS – legal practitioners – solicitors – duty of care – proceedings for damages from two firms of solicitors – where both firms acted successively for the plaintiffs in respect of a contract to purchase a commercial property – where clause 33.2 of the contract allowed for rescission if either party died prior to completion – where the vendor of the property died before the contract settled – the vendor’s executor rescinded the contract – whether the first defendant breached his duty of care by failing to advise the first plaintiff of the presence and effect of clause 33.2 – where the first defendant told the first plaintiff about the terms of clause 33.2 but did not recommend that the clause be modified or deleted – first defendant had an obligation to provide advice about clause 33.2 in the unusual circumstances – first defendant breached his duty of care OCCUPATIONS – legal practitioners – solicitors – duty of care – where clause 49 of the contract and a deed of life estate document granted the vendor a life estate over a house constructed on top of the six garages on the property – where the form of transfer prepared by vendor’s solicitor mistakenly caused the whole of the property to be transferred to the vendor for life with the remainder to the purchaser – whether the first defendant breached his duty of care by failing to advise the first defendant that it was not possible to give effect to the agreed upon life estate – where the first defendant failed to identify the discrepancy between the contract and deed and the transfer – where the first defendant failed to advise of the difficulties of giving legal effect to the agreement in clause 49 and the deed – first defendant breached his duty of care NEGLIGENCE – causation – factual causation – whether the first defendant’s breach caused any loss suffered by the plaintiffs – burden of proof on the plaintiffs to prove, on the balance of probability, any fact relevant to causation – where the evidence strongly suggest that no agreement to alter or delete clause 33.2 would have been reached with the vendor – where the evidence did not establish that the vendor would have agreed not to require the life estate over the house – where the first plaintiff was not in a position to settle the contract regardless – held that the cause of any loss suffered by the plaintiffs was not any breach by the first defendant OCCUPATIONS – legal practitioners – solicitors – duty of care – where third defendant commenced to act after contract entered into - whether the third defendant breached his duty of care by failing to advise the first plaintiff of the presence of clause 33.2 – whether the third defendant breached his duty of care by failing to arrange settlement prior to the vendor’s death – the first plaintiff had been made aware of clause 33.2 and its effect by the first defendant prior to retaining the third defendant – where the evidence discloses that the first plaintiff did not have the funds to complete the settlement –– the third defendant did not breach his duty of care to the plaintiffs

COSTS – appeal costs – appellant partly successful – Calderbank offer of compromise by appellant – amount of offer substantial – whether reasonable compromise – whether offer unreasonably rejected COSTS – appeal costs – appellant partly successful – application by respondent to apportion costs – whether issue on which respondent succeeded dominant or separable – reduction to apply to portion of costs incurred before rejected offer of compromise COSTS – costs of trial where result varied on appeal – plaintiff (respondent on appeal) partly successful – extent to which conduct of defendant unreasonable – disentangling separable issues

CONTRACTS – possession of land – family provision – settlement of all issues agreed to at mediation – one party subsequently refused to consent to agreed orders – s 73 of the Civil Procedure Act 2005 – no point of principle

EVIDENCE – tendency evidence – tendency rule – murder – self-defence – accused’s reliance on the deceased’s tendency evidence – tendency to opportunistically deploy as a weapon any object readily available – tendency insufficient to provide significant probative value as to the deceased’s tendency to arm himself with a knife under s 97(1)(b)

BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) (‘SOPA’) — adjudication of payment claims — adjudicator’s obligation to give reasons — adjudicator’s obligation to consider respondent's submissions — “legal unreasonableness” — jurisdictional error COSTS — party/party — multiple claims with mixed success by plaintiff — costs follow the event on a claim-by-claim basis — apportionment based on costs solely referable to each claim — plaintiff to pay first defendant’s costs solely referable to unsuccessful or not-pressed claims — first defendant to pay plaintiff’s costs of proceedings

CIVIL PROCEDURE — hearings — application to vacate hearing date

CHILD WELFARE – adoption – adoption plan – where birth parents oppose adoption but have disengaged from proceedings – where birth parents have indicated, if children not restored to their care, that they will not participate in post-adoption contact – whether proposed adoption plan is in children’s best interests and proper in the circumstances

CIVIL PROCEDURE – Subpoenas – Application to set aside subpoena and Notice to Produce – Representative proceedings – Where the defendant sought production of documents which would identify individuals who had become clients of the plaintiff’s solicitor or who had registered as group members – Where the plaintiff brings an application to set aside the subpoena on the basis that there was no legitimate forensic purpose for the personal identification details of the group members to be provided to the defendant – Subpoena and Notice to Produce set aside on the basis that there is no legitimate or other proper purpose.

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.

CIVIL PROCEDURE — pleadings — amendment — application to amend defence — amendment to defence allowed CIVIL PROCEDURE — application for summary judgment — judgment on admissions — whether to grant summary judgment where amended defence contains an arguable case on consideration — application dismissed

CIVIL PROCEDURE — subpoenas — objection to production of documents — client legal privilege — whether the documents had the dominant purpose of legal advice — where the only evidence to establish claim for privilege was an affidavit of a director of the Plaintiff — held the evidence did not permit the drawing of inferences that the documents were created for the dominant purpose of the provision of professional legal services — access allowed

COSTS – proceeds of crime – award of costs – general principles – costs follow the event – compensatory nature of costs – variety of approaches taken by applicants as to costs orders sought – substantial costs incurred by some applicants – question as to against whom a costs order should be made – whether against the defendants, the plaintiff or the Commonwealth – costs against a public authority – s 323 of the Proceeds of Crime Act 2002 (Cth) – s 98 of the Civil Procedure Act 2005 (NSW) – whether the Commissioner an “unsuccessful party” – indemnity costs – whether power to award costs extends to award of costs in separate but related proceedings – meaning of “costs” – statutory interpretation – proposed cap – a superficial attraction – costs awarded as agreed or assessed

MENTAL HEALTH – criminal proceedings – person unfit to be tried – special hearing – domestic violence – murder – obsessive and delusional jealousy – whether mental health impairment – whether condition was such that the defendant did not know that the act was wrong – mental health impairment defence not made out for Counts 1 to 3 – partial defence under s 23A Crimes Act 1900 (NSW) made out for the charge of murder – verdict of on the limited evidence available, the defendant committed an available alternative of manslaughter

ADMINISTRATIVE LAW — judicial review — review of orders made by NCAT under s 187 of the Residential Tenancies Act 2010 (NSW) — whether Court should exercise its discretion to conduct judicial review where an alternative remedy is available — whether NCAT made orders in excess of power — where money orders exceeded the monetary limit imposed on NCAT — significance of the fact that the impugned orders were made by consent — whether Local Court Judgment based on NCAT orders should also be set aside

CORPORATIONS – winding up – insolvent trading – where company was a special purpose vehicle incorporated for management of a property development – where company entered into construction contract with builder and was unable to pay progress claims – where common ground that company was insolvent before it went into administration, but dispute about date by which the company became insolvent – whether company incurred debt in respect of each progress claim – whether builder agreed to extend payment terms – whether reasonable grounds to suspect insolvency – quantum of loss or damage suffered in relation to debts because of insolvency – whether payments to related party were unfair preference payments

PRACTICE AND PROCEDURE – Summary dismissal – Whether the plaintiffs’ claims for breach of statutory duty should not have been summarily dismissed – Where availability of action was a pure question of law involving no questions of fact and admitting of only one correct answer – Whether, in circumstances of particular case, there was utility in determining issue on a summary basis PRIVATE INTERNATIONAL LAW – Stay of proceedings – Exclusive jurisdiction clause – Where jurisdiction clause was elliptical in that its scope or extent was not spelt out – Where not all parties to proceedings bound by clause – Whether stay should still be granted – “Non-parties” and non-parties –Whether strong reasons not to give effect to exclusive jurisdiction clause through a stay of proceedings TORTS – Breach of statutory duty – Entertainment Industry Act 2013 (NSW), s 11 – Whether the legislature intended to create a private cause of action for breach of statutory duty – Where statute provided a range of remedies – No intention to create a private cause of action – Summary dismissal of claims for breach of statutory duty

CRIME – pre-trial hearing to determine evidentiary issues – admissibility of recordings captured under conditional surveillance device warrant – recording made prior to ERISP where accused refused to speak to police – question of mild intellectual disability

LAND LAW — withdrawal of caveat under Real Property Act 1900, s 74MA — defendant lodged caveat on land claiming “equitable interest” on basis of an allegedly exchanged contract of sale with plaintiffs to purchase it — application by plaintiffs to have caveat withdrawn to enable imminent completion of sale of portions of the recently subdivided land to third parties — no contract ever exchanged between the parties — caveat has no substance — plaintiffs succeed

MAREVA ORDER – application to discharge or vary – principles at [77]-[78] – uncontested freezing order made against trustee of superannuation fund given $770,000 in “unexplained withdrawals” – defendant then participates in proceedings and gives an account – defendant alleges that withdrawals have now been explained by his account – plaintiff challenges account – whether freezing order should be reduced to balance of unpaid costs order – discharge does not accord with dictates of justice where plaintiff continues to have good arguable case and risk of asset disposal remains. EQUITY – common form of account – procedure at [81]-[83] – proceedings not concluded – the defendant having given an account, the Court must still take an account having regard to the plaintiff’s challenge to that account.

COSTS — Party/Party — Court’s discretion — Whether there should be apportionment of costs

REVIEW – personal injury claim – security for costs – where plaintiff resides overseas – reasonable prospects of success – delay in seeking security order – where plaintiff now suffers chronic psychiatric illnesses – no estimate of defendant’s likely costs – where there is no litigation funding arrangement – where order would unjustly stifle pursuit of the claim –

CONTRACTS – breach of contract – where agreement formed between plaintiff customer and defendant manufacturer for the manufacture of protein water beverages in accordance with identified specifications – whether defendant manufacturer overcharged plaintiff customer concerning identified ingredients – whether defendant manufacturer in breach of alleged certification agreement concerning supply to ALDI stores CONTRACTS – construction – interpretation – meaning of “clear protein beverage” – whether defendant manufacturer breached obligations of exclusivity by manufacturing for third parties “clear” protein water beverages CONTRACTS – implied terms – terms implied in fact – where ‘mould’ issue was found in the protein water beverages manufactured by the defendant manufacturer for the plaintiff customer – where cause of the ‘mould’ issue in dispute – whether ‘mould’ issue caused by environmental factors at the defendant manufacturer’s factory or by reason of spores in ingredient supplied by plaintiff customer – whether an implied term of the agreement that the product would be suitable and safe for human consumption and free from contamination, regardless of whether mould caused by spores in ingredient supplied by plaintiff customer – whether implied term would be reasonable and equitable – whether defendant manufacturer otherwise breached express term concerning quality control procedures EQUITY – breach of confidence – necessary quality of confidence – material in public domain – whether defendant manufacturer breached obligations of confidence by manufacturing for and assisting third parties to make protein water beverages – whether an identified “formula” was confidential information – where each element in that “formula” was in the public domain – whether combination of those elements was nonetheless confidential – whether the “formula” was a ”formula” for the purposes of the agreement

CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether child is of sufficient maturity to understand effect of giving consent to adoption – whether declaration of parentage should be made – where sole adoptive parent seeks orders - whether change of name should be approved

CIVIL PROCEDURE – application to strike out notice of appeal – parties self-represented – contents of notice of appeal – application to lift stay – application to lift stay in part

PRACTICE AND PROCEDURE – appeals –application to vacate hearing date – trial counsel briefed on appeal – dates fixed to suit applicants’ counsel – change of solicitors – dissatisfaction with legal representatives arose six months before change – delay unexplained – counsel unavailable – counsels’ obligation to appear if funds provided – unavailability likely due to parties not providing funds – earlier dates vacated where counsel available but not solicitor – loss of counsel no justification for vacation of dates

CIVIL LAW – urgent interim application for property preservation orders – matter listed for hearing on less than one days’ notice – where defendants not opposing making of orders in the short term – dispute as to the form of the orders – where evidence suggests transfer of defendant’s assets to his wife or ex-wife – duelling forms of order – unconvincing arguments about non-specific carve outs for sums up to twenty thousand dollars – “something a little bit different” – orders proposed by plaintiff providing greater clarity and certainty – whether orders should be made requiring defendant to disclose assets – not warranted in view of proximity of hearing – order directing defendant to provide information not made

EQUITY — equitable remedies — interlocutory injunctions — where employment agreement contains provisions in relation to preserving confidential information and restraints of trade — where plaintiff alleges defendant breached employment agreement and seeks interlocutory and final injunctions to enforce negative contractual stipulations — where defendant is no longer working for employer and says that he has no immediate plans to work in the future — HELD — serious question to be tried — real risk of non-compliance with restraints — no hardship to the defendant — balance of convenience favours granting of interlocutory injunctions

CRIME – murder – defence of mental health impairment – where parties agree defence available – Court satisfied that defence established – special verdict of act proven but defendant not criminally responsible

COSTS – application for indemnity costs – offer of compromise – whether offer to resolve interlocutory proceeding was reasonable in the circumstances – whether leave sought by plaintiff to amend statement of claim was unreasonably resisted – whether relevance of “indulgence principle” – indemnity costs ordered

ADMINISTRATIVE LAW – police – search warrant – application for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) – application to file summons out of time – whether search warrants were invalid – whether police had reasonable grounds to believe that there was on the premises a thing connected with an indictable offence – whether police relied upon false and/or misleading material – whether the issuing officer had reasonable grounds to issue the warrant – where there was an error in recording time of application for warrant

SUCCESSION — Contested probate and family provision — Plaintiff (the deceased’s wife) brought separate proceedings seeking (inter alia) revocation of the defendant’s grant of probate in respect of a 2022 Will and further provision out of the deceased’s estate — In probate proceedings, the plaintiff seeks to prove that the 2022 Will and other documents relating to the deceased’s personal and corporate affairs were executed at a time proximate to the deceased’s death when he did not have sufficient mental capacity — Parties agreed to have a parties’ single expert regarding the issue of capacity but could not agree on the terms of the joint letter of instruction — Parties applied to the Court to settle the terms of the joint letter of instruction to the expert, providing their competing versions — Terms of the joint letter of instruction settled in the form provided in the Schedule to the reasons for judgment SUCCESSION — Contested probate — Capacity — Discussion of the law’s view of capacity as time- and task-specific, as pronounced by the High Court in Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 — Specific discussion of the nature of the task involved in making a Will, appointing an enduring power of attorney and issuing shares and appointing directors/secretaries in respect of a sole director and sole shareholder company PROBATE — Opinion evidence — Exceptions — Expert opinion — “Retrospective” medical expert —Discussion of purposes and role of expert witnesses, as well as the necessary content in letters of instruction and expert reports — Considered that useful “retrospective” medical expert evidence in probate capacity cases (a) details the medical conditions from which the instrument maker was suffering, (b) details the medications which the instrument maker was taking or being administered and (c) explains how each medical condition and medication (if any) would have affected the instrument maker’s capacity in the sense of impairing or compromising the matters relevant to the task EVIDENCE — Opinion evidence — Letters of instruction — Where multiple instruments executed — Letter of instruction to expert ought to be nuanced to reflect what capacity is required by the instrument maker in understanding the nature of what he or she is doing or effecting in relation to signing each different instrument CORPORATIONS — Means by which a company may make decisions — Effect of lodgement of ASIC Form 484 recording change of directorship, secretaryship and issue of shares CORPORATIONS — Functions of directors and secretary and means of appointment — Nature of such appointments

APPEALS — leave to appeal — interlocutory orders setting substantive matter down for hearing — whether applicants have identified a principle of general application or a question of public importance or any substantial injustice — where leave to appeal denied

CRIME – appeal against sentence – aggregate sentence – whether causal link between mental condition and offending – whether sentence manifestly excessive

CRIMINIAL LAW – sentence appeal – sexual assault – Crimes Act s 61I – knowledge that victim does not consent to sexual activity – recklessness – whether error by sentencing judge in finding that the recklessness was to at least a moderate degree and objective seriousness of the offence fell below the mid-range but not at the bottom of the range – whether error by sentencing judge in not finding that a non-custodial sentence was available due to the offender’s idiosyncratic circumstances

CIVIL LAW – want of due despatch – defence struck out – default judgment entered for part of total sum claimed in statement of claim – unnecessary to deal with alternative relief based on application for summary judgment – noted that plaintiff did not abandon remainder of sum claim – no question of principle

COSTS –indemnity costs – Calderbank offer – offer of compromise – whether time open for acceptance of offer was reasonable in the circumstances – where offer to settle claims about alleged abuse many years ago open for only a short period – whether it was unreasonable for the defendant not to accept offer – indemnity costs orders refused

MENTAL HEALTH – forensic patient – where special verdict entered – consequential orders

Courts – Abuse of process – Permanent stay of proceedings – Where claim for damages for personal injury for alleged sexual abuse occurring in 1959 and 1960 – Where no limitation period in respect of child sexual abuse actions under s 6A of Limitation Act 2005 (WA) – Where deaths of alleged perpetrator and other potential witnesses – Where absence of documentary evidence – Whether trial necessarily unfair – Whether continuation of proceedings an abuse of process justifying permanent stay. Words and phrases – "abuse of process", "child sexual abuse", "exceptional circumstances", "fair trial", "limitation period", "non-delegable duty", "permanent stay", "prejudice", "unfairness". Limitation Act 2005 (WA), s 6

Courts – Abuse of process – Permanent stay of proceedings – Where claim for damages for personal injury for alleged child sexual abuse and serious physical abuse more than 50 years ago – Where no limitation period for claims resulting from child sexual abuse or serious physical abuse under s 11A of Limitation of Actions Act 1974 (Qld) – Where deaths of certain alleged perpetrators and other potential witnesses – Where absence of documentary evidence – Whether trial necessarily unfair – Whether abolition of limitation period changed right to fair trial – Whether continuation of proceedings an abuse of process justifying permanent stay. Words and phrases – "abuse of process", "child sexual abuse", "delay in bringing proceedings", "exceptional circumstances", "fair trial", "forensic disadvantage", "irreducible minimum standards of fairness", "limitation period", "manifest unfairness", "non-delegable duty", "oppressive", "permanent stay", "prejudice", "serious physical abuse", "unfairness". Limitation of Actions Act 1974 (Qld), s 11

Torts – Intentional torts – Vicarious liability – Where priest committed sexual abuse whilst carrying out pastoral duties as representative of Diocese – Where priest not agent or employee of Diocese – Whether Diocese vicariously liable for priest's sexual abuse – Whether vicarious liability extends beyond relationships of employment to relationships "akin to employment". Appeals – Issue not raised at trial – Where respondent sought to rely on non-delegable duty – Where factual basis for duty not pleaded or tested at trial – Prejudice. Words and phrases – "agency", "akin to employment", "course of employment", "negligence", "nominated defendant", "non-delegable duty", "prejudice", "representative", "scope of employment", "sexual abuse", "strict liability", "unincorporated association", "vicarious liability". Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic), ss 1, 5, 7.

CIVIL LAW – judicial review – parties agree – no question of principle

ESTOPPEL – Promissory estoppel – Where plaintiff and her deceased former husband separated and divorced in 1992 – Where plaintiff claims to have relied to her detriment on representations allegedly made by the deceased in conversations over many years to the effect that he would leave the whole or the bulk of his estate to her in his will if she did not pursue a property settlement – Where the plaintiff sought unsuccessfully for 10 years to negotiate a final property settlement with the deceased, but did not commence property settlement proceedings – Where the deceased controlled the assets and funds generated during their marriage, and refused to disclose relevant financial information and threatened the plaintiff with violence during the property settlement negotiations – Where the deceased’s last will made no provision for the plaintiff – Held that the Court is bound by authority that the doctrine of promissory estoppel operates as a restraint on the enforcement of legal rights and does not operate as a source of an obligation for the deceased to provide for the plaintiff in his will – Held that the plaintiff failed to prove most of the alleged representations, and failed to prove that she relied to her detriment on those representations which were proved – Promissory estoppel claim dismissed. SUCCESSION – Family provision – Claim by plaintiff for provision out of the estate of her deceased former husband – Where plaintiff made significant financial and non-financial contributions to the assets that were the genesis of the assets comprising the deceased’s estate – Where the plaintiff sought unsuccessfully for 10 years to negotiate a final property settlement with the deceased, but did not commence property settlement proceedings – Where the deceased controlled the assets and funds generated during their marriage, and refused to disclose relevant financial information and threatened the plaintiff with violence during the property settlement negotiations – Where the deceased failed to pay the plaintiff even a half share of the net sale proceeds of their jointly owned assets following their separation and divorce – Where the plaintiff is aged 82 years, owns no real property, has no superannuation, and is forced to live frugally due to her lack of financial resources – Where the deceased made no provision for his former wife in his will – Where an order for provision will reduce the benefits to paid to named beneficiaries – Held: There are factors warranting the plaintiff’s application for provision, and the plaintiff has a superior claim on the deceased’s estate than the beneficiaries named in the will – Order for ­provision in favour of the plaintiff in a lump sum of $600,000.

LAND LAW — Encroachment of Buildings Act 1922 (NSW) — Whether defendant should be ordered to remove encroaching metal beams and concrete footings which support garage wall in circumstances where encroachments inhibit plaintiff from developing his land TORTS — Nuisance — Private nuisance — Whether stormwater ingress from neighbouring property a nuisance — Whether cross-defendant has continued or adopted the nuisance

CONTRACTS — Oral contract — Where oral agreement admitted but characterisation of agreement disputed — Whether monies transferred as loan or equity investment — Where both parties’ accounts of conversation found unreliable — Whether actual persuasion as to words said giving rise to oral contract required — Where inferences drawn from contemporaneous documents, objective facts and surrounding circumstances — Where findings expressing conclusions on the evidence — Whether plaintiff satisfied burden of proof

CRIME – exercise of summary jurisdiction – nature of appeal – Criminal Appeal Act 1912 (NSW), s 5AA – appeal “in the strict sense” – finding of error necessary for appellate intervention EMPLOYMENT and INDUSTRIAL LAW – scope of health and safety duty – risk assessment – adequacy of safe work procedures – adequacy of information, training and instruction – whether steps not taken were reasonably practicable – worker on livestock feed-lot – stacking of hay bales – moisture testing in vicinity of partly constructed stack – risk of injury from falling bale CRIME – penalty by way of fine – summary criminal proceedings – prosecution by agency of State – prosecutor not police officer – award of moiety of fine to prosecutor

CRIMINAL APPEAL – miscarriage of justice – where evidence adduced concerning an allegation of which the applicant was found not guilty in a previous trial –where prosecutor not at fault – where police officer informed in conference not to refer to allegation – incontrovertibility of acquittal – immediate application for discharge of the jury – initial responses of those in the courtroom – whether judicial directions cured prejudice – short trial – whether proviso should be applied – case of word against word involving questions of credibility

CRIMINAL LAW – appeal – sentence – aggregate sentence – principles concerning aggregate sentencing – ground concerning degree of accumulation between indicative sentences not supportable – whether error in dealing with aggravating circumstance – whether sentence manifestly excessive

CRIMINAL PROCEDURE – Trial – Jury – Discharge of whole jury - Where the NSW Police disclosed a substantial volume of documents on the sixteenth day of the trial – Whether late disclosure of documents has prejudiced the accused’s right to a fair trial

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.

CIVIL LAW – litigation privilege – legal advice privilege – whether privilege “lost” or waived – whether conduct inconsistent with maintenance of privilege – where plaintiff seeks to set aside settlement deed entered in 2011 – application to set aside deed based on changes to the law following Royal Commission – affidavits filed in support of motion to set aside deed - where plaintiff asserts legal advice led him to settle for compromised sum – where solicitor offers opinion based on review of legal file from 2011 case – issue of waiver not determined by general notions of fairness – affidavits raise directly issues to be ventilated on motion to set aside deed – privilege lost