Cases and authorities

CONTRACTS — construction — where term of deed stipulated time for payment of amount owing to plaintiff — where interpretation of that term was disputed — where parties were legally represented at time of entry into deed — where interpretation propounded by defendants commercially nonsensical — where defendants failed to call evidence from their legal representatives about the parties’ claimed common intention — where evidence of surrounding circumstances supports plaintiff’s interpretation CONTRACTS — rectification — alleged common mistake as to time for payment of amount owing under a deed — alleged ambiguity as to time for payment — where express term in deed is clear — where there was no clear and convincing proof of an alternate common intention at time of entry into deed JUDGMENTS AND ORDERS — entry — where parties executed consent judgment for $800,000 — where $600,000 remains outstanding — whether judgment could be entered in favour of plaintiff for $600,000 — whether the conditions for entry of consent judgment provided by parties’ deed satisfied

COSTS – party/party - default judgment – limitation on costs - s 59 of the Legal Profession Uniform Law Application Act No 16 (NSW) and cl 24 of the Legal Profession Uniform Law Application Regulation 2015 (NSW) – effect of Uniform Law on s 98 Civil Procedure Act 2005 – non-contested matters – plaintiff not entitled to costs against the first defendant other than scale costs JUDGMENTS AND ORDERS – interest – post-judgment interest – where plaintiff sought post-judgment interest at the rate referred to in the loan agreement – where loan agreement provided for compound interest – where judgment creditor at common law only entitled to interest on a judgment by virtue of s 101 of the Civil Procedure Act – limitation in s 101(6) - plaintiff only entitled to simple interest on the judgment COSTS – gross sum costs order – whether proceedings are appropriate for making a gross sum costs order – where second and third defendants failed to file a cross-claim referenced in their defence – where second and third defendants failed to appear on multiple occasions despite having a solicitor - where their co-operation in agreeing on an amount for costs is unlikely – plaintiff entitled to a gross sum costs order subject to a discount of 25%

COSTS – party/party – costs orders in interlocutory proceedings – costs in the cause – where judgment entered for the plaintiff – where the defendant seeks its costs in respect of documents produced in answer to plaintiff’s Notice to Produce – where defendant had earlier consented to an order that the costs of its motion seeking to set aside the Notice to Produce be costs in the cause – decline to make costs order sought by defendant

CHILD WELFARE – adoption – best interests – where birth parents oppose adoption – where birth mother opposes adoption due to belief of wrongful removal at birth – where birth mother opposes adoption in circumstances where adoptive parents are a same-sex couple – where birth mother opposes adoption due to fear of birth family contact not being facilitated post-adoption – whether adoption order would be in best interests of the child

JUDGMENTS AND ORDERS – Amending, varying and setting aside – amendments under the slip rule – whether proposed amendments are within the ambit of the slip rule COSTS – variation of costs order – whether no costs should be awarded to the plaintiff having regard to UCPR r 42.34 – whether it was appropriate for the plaintiff to commence and continue proceedings in the Supreme Court – application for indemnity costs by unsuccessful defendant on the basis of principles in Calderbank v Calderbank

LIMITATION OF ACTIONS – where plaintiff sues the defendant for medical negligence alleged to have occurred in 2006 and 2010 – where proceedings not commenced until 2020 – application under s 62A of the Limitation Act 1969 for extension of the 12 year long-stop limitation period – whether the 3 year post discoverability period had expired at the time proceedings were commenced – whether just and reasonable to extend the long-stop limitation period

HIGH RISK OFFENDER – Preliminary hearing – application for Interim Supervision Order pursuant to s 10B of the Act – whether the index offence is a “serious violence offence” as defined in s 5A(1)(b) – appropriate conditions – striking a balance between supervision of the defendant and his personal liberty – interim supervision order is granted – variation of the proposed conditions

LAND LAW — Easements — Construction of easements — Whether building a crowned unsealed road and drains is reasonably necessary for the dominant owner’s enjoyment of his rights under the easement — Whether servient owner is entitled to plant crops over right of carriageway LAND LAW — Easements — Extinguishment of easements — Extinguishment by statute — Whether continued existence of right of carriageway would impede the reasonable user without securing a practical benefit to dominant owner — Whether extinguishment of right of carriageway would not substantially injure the dominant owner LAND LAW — Easements — Modification of easements — Statutory modification of easements — Whether width of right of carriageway should be narrowed TORTS — Nuisance — Private nuisance — Whether obstructions to the right of carriageway caused by the servient owner amounted to a nuisance — Whether grading of the right of carriageway by the dominant owner was excessive user so as to constitute a nuisance and/or trespass

BAIL – release application – alleged conspiracy to traffic cannabis – firearms offence – serious offending – “Ghost” encrypted communications platform – evidence of communications – “Underworld” – question as to admissibility of messages obtained by authorities – show cause test – unacceptable risk test – strong Crown case – potential for delay – applicant’s conditions in custody – family circumstances – strict conditions proposed – electronic monitoring – cause shown – risk mitigated – bail granted subject to conditions

COSTS – Security for costs – Relevant factors – Impecuniosity – risk of stultification – where director offers an undertaking as to costs – whether the primary judge erred in ordering security for costs

NEGLIGENCE – Occupier’s liability – precautions reasonably required to be taken by occupier of retail store – where customer injured by heavy oversized box containing mountain bike falling from another customer’s shopping trolley – where no mandatory system preventing use of standard size shopping trolleys for heavy oversized items implemented by occupier – whether reasonable person would have implemented such a system requiring collection at the loading dock – whether lack of such a system was a necessary condition of the occurrence of harm

SUCCESSION — Family provision — Claim by adult child – notional estate – plaintiff brings a claim for family provision against the estate of her deceased father – the plaintiff’s mother, the deceased’s first wife died in 2006 and the deceased was remarried to the defendant in 2008 – the defendant was divorced with four children – plaintiff lives temporarily with the deceased and the defendant but then goes her own way after family friction – the deceased and the defendant build up assets together and are on the verge of retirement at the time of his death in 2023 – at the time of the deceased’s death the defendant held money on deposit in a joint bank account with the deceased and the defendant and the deceased conducted a self-managed superannuation fund containing real property assets – the plaintiff is married with one child and holds no real estate and wishes to acquire a property in the area where she currently lives, on Sydney’s northern beaches – whether a family provision order should be made against the estate of the deceased in favour of the plaintiff – the estate is inadequate to meet any family provision claim of substance – not in contest that property in the bank account and the superannuation fund of or controlled by the defendant could be designated as notional estate – whether an order for provision should be made against property that could be designated as notional estate.

CORPORATIONS – winding up – where company wound up on the just and equitable ground.

OCCUPATIONS — health care professionals — medical practitioners — Health Practitioner Regulation National Law (NSW) — unsatisfactory professional conduct — professional misconduct — where NCAT made findings that the plaintiff engaged in inappropriate sexual communication and intimate physical touching during treatment of a patient — where the plaintiff’s registration as a chiropractor cancelled — whether NCAT erroneously reversed the normal onus of proof in disciplinary proceedings — whether NCAT erroneously treated disciplinary proceedings as sexual offence proceedings — whether NCAT erroneously considered adverse credit findings made against plaintiff when considering whether plaintiff was “dishonest” for the purpose of determining the appropriate sanction under the National Law APPEALS — leave to appeal — whether leave required — where no question of law identified in amended summons — where further amended summons alleged several errors of law — whether grounds of appeal clearly identified a question of law EVIDENCE — witness evidence — collusion — where NCAT made findings that the plaintiff had colluded with three witnesses — whether there was otherwise unexplained identical evidence of conversations from the relevant witnesses such that a finding of collusion was open to NCAT

CONTRACTS – Formation – Agreement – Acceptance of offer – communication of acceptance – whether agreement executed by both parties CONTRACTS – Formation – Intention to create legal relations – whether agreement indemnified plaintiff for loss occasioned by prior judgment debt EVIDENCE – Credibility of evidence EVIDENCE - s 191 Evidence Act - status of agreed facts – whether agreed facts and issues in dispute constituted an “agreement” – whether evidence before the court warrants displacement or modification of agreed facts – use to which agreed facts may be put PARTNERSHIPS AND JOINT VENTURES – Whether contract of partnership – Interpretation – presumptions – evidence of Chinese law – absence of common law in China – contribution towards losses – no partnership found PROCEDURE – equitable set-off – no basis for set-off or repayment CONTRACTS – penalties – whether interest claimed under agreement is penal – whether different interest rate should apply – interest under contract unenforceable CONTRACTS – Mitigation

ADMINISTRATIVE LAW — procedural fairness —decisions of a NSW government agency made in respect of a non-statutory scheme – whether decisions involved exercise of non-statutory executive power - decisions to suspend account of provider registered under Creative Kids scheme and to refuse payment claimed under scheme — whether provider was entitled to procedural fairness —— whether procedural fairness was denied — where provider was not given reasonable opportunity to deal with matters adverse to its interest before decisions were made ADMINISTRATIVE LAW — remedies — certiorari —exercise of discretion to set aside agency’s decision — whether remedy available — where there was no statutory basis for scheme and agency not subject to statutory duties ESTOPPEL — estoppel by representation — against public authorities —— whether claimed assumption induced by agency and provider acted reasonably in relying on assumption

EVIDENCE — opinion evidence — opinions based on specialised knowledge — scientific discovery of new medical technology subject of multinational intellectual property portfolio — admissibility of expert report valuing portfolio — whether reasons were given for expressed opinions — Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 — “basis rule” — permissibility of delegation by expert to material prepared by third parties — overarching relevance of report — non-compliance with Makita requirement to provide reasons — report inadmissible

CIVIL PROCEDURE – Jurisdiction – Whether the Court has jurisdiction – Court has jurisdiction on the basis that the defendant was present in Australia when the Statement of Claim was filed. CIVIL PROCEDURE – Pleading – Form and content of pleading – Defects – Where plaintiff commenced proceedings using pseudonyms for the plaintiff and the defendant, without leave of the Court – Whether suppression and pseudonym orders should be made – Court not persuaded to make suppression and pseudonym orders. CIVIL PROCEDURE – Service – Personal service – Whether effected – Personal service was effected – No requirement for substituted service.

CIVIL PROCEDURE – Default judgment – Where the defendant sought to have an order for default judgment for possession of land set aside – Where the defendant sought an order that the Sheriff be prohibited from taking action which authorised entry by the Sheriff onto the land the subject of the possession orders – Where the defendant alleges that default judgment occurred in the absence of personal service on the defendant – Where the defendant alleges that there was a basis for an equitable set-off due to proceedings in the Equity division – No basis for the Court to exercise its discretion to stay the eviction – Motion dismissed.

CRIME – Appeals – Appeal against sentence – Manifest excess – where applicant sentenced for 2 counts of aggravated sexual intercourse without consent, in company – where applicant sentenced on a joint criminal enterprise basis but found to be the instigator and organiser of the assault – whether the fact that the conduct was not motivated by sexual gratification lessens the severity of the offending

CRIME – appeals – appeal against sentence – application for leave to appeal – self-representation not a privilege but a disadvantage – leave not ordinarily granted merely because a party is self-represented – applicant unaware no application was made while he had legal representation – leave to appeal granted CRIME – appeals – appeal against sentence – State and Commonwealth offences – accumulation, concurrency and totality – whether sentencing judge erred in wholly accumulating the Commonwealth aggregate sentence on the State sentence – no obligation to import a degree of concurrency – different criminality involved – whether sentencing judge erred by not expressly referring to R v Fernando and Bugmy v The Queen – sentencing judge had regard to the applicant’s subjective case and found reduced culpability – sentence passed necessarily stern to reflect the Commonwealth Parliament’s intention – appeal dismissed

CRIME – Appeals – appeal against sentence – Commonwealth and State offences – large number of child sexual assault offences – child abuse material – multiple victims – whether incorrect maximum penalty applied for some of the Commonwealth offences – whether error in indicative sentences for State offences – whether aggregate sentence for State offences manifestly excessive – no error in indicative sentences – no manifest excess – error by applying incorrect maximum penalty for some indicative sentences for Commonwealth offences – resentence for Commonwealth offences – slight adjustment to effective sentence applying totality principle

JUDGMENTS AND ORDERS – enforcement – application for stay of writ of possession – factors relevant to application for stay – realistic prospect of obtaining refinance – hardship – short stay granted

MENTAL HEALTH – high risk offender – final hearing – forensic patient – extension of status as forensic patient – where defendant poses an unacceptable risk of serious harm to others if she ceases to be a forensic patient – defendant cannot be managed adequately by less restrictive means – dispute as to duration of extension order – order made extending status as a forensic patient for two years

CONTRACTS — construction — interpretation — whether the use of the words ‘and/or’ in cl 4.7 meant that the defendant was bound to consider the best interests of the plaintiff — consideration of the commercial purpose of the clause, agreement and the commercial value an option to renew clause has for either party — application of test in H Lundbeck A/S v Sandoz Pty Ltd; CNS Pharma Pty Ltd v Sandoz Pty Ltd (2022) 276 CLR 170; [2022] HCA 4 — held the terms of cl 4.7 and the agreement as a whole required the defendant to consider the best interests of the plaintiff CONTRACTS — construction — interpretation — where under an alternative interpretation whereby cl 4.7 did not require the defendants to consider the best interests of the plaintiff — whether upon the defendant’s construction of cl 4.7 they breached the contract — where defendant held a board meeting to consider the exercise of renewal and commissioned a report detailing the plaintiff’s breaches to provide justification for the defendant’s decision to refuse the renewal of the agreement — whether the report and board meeting was part of a genuine decision making process — held upon the defendant’s construction of cl 4.7 the defendants actions were not in breach of the term CONSUMER LAW — unconscionable conduct — in connection with goods or services — discussion of principles of unconscionability involving some degree of moral obloquy — whether the defendant’s conduct in allowing the plaintiff to believe that renewal of the agreement was possible constituted sharp practice — held that the defendant by not acting in good faith with the plaintiff engaged in unconscionable conduct CONSUMER LAW — industry codes — Franchising Code of Conduct — where matters raised in the code fall within the substantive claim EVIDENCE — expert evidence — where defendant’s expert was retained to criticise the analysis of plaintiff’s expert — where in oral evidence the defendant’s expert’s adopted a similar value and final damages amount to the plaintiff’s expert — use of defendants valuation accepted CONTRACTS — remedies — damages — after breach — damages awarded for breach of contract using defendant’s expert’s valuation CONSUMER LAW — unconscionable conduct — assessment of damages — damages awarded

CHILD WELFARE – parens patriae jurisdiction – where mother of child in foster care seeking injunction against Minister removing the child from the State of New South Wales – where mother’s application in the Children’s Court for recovery of the child is pending – whether in the best interests of the child

CIVIL PROCEDURE – pleadings – striking out – no reasonable cause of action – tendency to cause prejudice, embarrassment or delay – self-represented litigant – non-compliant pleadings

BUILDING AND CONSTRUCTION – adjudication – adjudicated amount – where first defendant sought stay of these proceedings until plaintiff paid into Court the adjudicated amount – where plaintiff has no present ability to pay amount into Court – where Court ordered that proceedings be stayed until the plaintiff pays adjudicated amount into Court – where defendant has now served bankruptcy notice on plaintiff – where bankruptcy notice represents a change in circumstances sufficient to warrant reconsideration of the stay

EVIDENCE – Admissibility – Evidence contained in audio recordings of phone calls in which the accused was a party while on remand – Relevance of evidence to facts in issue at trial

CORPORATIONS – Directors and officers – Duties under Corporations Act 2001 (Cth), ss 180, 181, 182 – Involvement of third parties in contraventions of ss 180, 181, 182 – Remedies under s 1317H CORPORATIONS – Fiduciary duties owed by director – Fiduciary duties owed by employee – Scope of fiduciary duties of employee – Whether fiduciary duties modified by agreement to “close down” corporation EQUITY – Fiduciaries – Conflict Rule – Profit Rule - Whether director and employee diverted business opportunities from principal to companies which they controlled –Whether informed consent – Liability of third parties under rule in Barnes v Addy CORPORATIONS – Whether affairs of company conducted in a manner that was contrary to interests of members as a whole, and oppressive to, unfairly prejudicial to, or unfairly discriminatory against a member CONTRACT – Whether breach of express term – Whether breach of implied terms EQUITY – Remedies – Constructive trust – Account of profits – Scope of liability to account – Whether liability to account on a “whole of business” basis or by reference to the specific business opportunities which were diverted from the principal EQUITY – Fiduciaries – Whether conveyancer made payments from settlement proceeds without authorisation from principal – Whether payments discharged liabilities of principal

CRIME – appeals – appeal against sentence – failure to take into account a relevant consideration – whether the sentencing judge failed to have regard to critical matters in the evaluation of objective seriousness – where applicant pleaded guilty to several offences of supplying a commercial quantity of prohibited drugs and knowingly dealing with the proceeds of crime – where applicant submitted that he tried to withdraw from the arrangement to possess the drugs – where applicant submitted that the sentencing judge failed to deal with the applicant’s possession of the drugs being highly reluctant – applicant accepted that he was not operating under duress – where the sentencing judge set out the facts from which the seriousness of the offending could be seen – where there was no evidence that the applicant withdrew from the arrangement – where the sentencing judge deal with submissions made on behalf of applicant – where matters raised on appeal were not put to the sentencing judge – no error demonstrated

CRIME – Appeals – Appeals against sentence – Manifest excess – Where sentencing judge failed to make reference to the maximum penalty for one of the offences – Whether the sentencing judge conflated the issues regarding the applicant’s childhood disadvantage and his mental health conditions such that he was deprived of an assessment of moral culpability less than that found – Whether greater concurrency in the aggregate sentence required in applying the principle of totality – No inference of undisclosed error by the sentencing judge found – Leave to appeal granted – Appeal dismissed

CIVIL PROCEDURE – cross-vesting – transfer to another Supreme Court – relevant factors – more appropriate forum – substantive connecting factors with Queensland – transfer granted

CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – settlement approved

HIGH RISK OFFENDER – extended supervision order – preliminary hearing – application for interim supervision order and mandatory psychiatric and/or psychological examinations – interim supervision order and mandatory psychiatric and/or psychological examinations not opposed by defendant – dispute limited to conditions – serious sex offender – where numerous prior convictions for sexual offending – where history of breaching parole and reporting obligations – interim supervision order imposed

COSTS - offer of compromise – where defendant rejected offer of compromise – reasonableness of rejection – held defendant’s rejection of offer of compromise was unreasonable

SUCCESSION – administration of estates – construction of agreement settling probate and family provision proceedings - plaintiffs bring probate proceedings to seek probate of a 2014 will of the deceased – the 2014 will names the two plaintiffs as executors and gives the whole of the estate to them beneficially – four other proceedings brought against the estate of the deceased under Succession Act 2005 s 59 - all proceedings resolved before final hearing, granting probate to the named executors of the 2014 will and agreeing upon the distribution of the estate – a term of the settlement agreement was that “liabilities” and “testamentary expenses” will be shared in specified proportions between the executors/beneficiaries of the 2014 will – a further family provision claim is brought against the executors of the estate after the settlement agreement – whether the cost of defending the family provision claim and the payment made to the family provision claimants are “liabilities” or “testamentary expenses” within the settlement agreement.

CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment — Application dismissed

CIVIL PROCEDURE — pleadings — amendment — application to rely on amended defence — where amended defence asserts that plaintiff’s entitlement to common law damages is barred by his participation in the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) — plaintiff allowed to seek common law damages whilst at the same time being a lifetime participant of Motor Accidents (Lifetime Care and Support) Act 2006 (NSW)

CIVIL PROCEDURE — Pleadings — Competing applications for amendment and strike out of parts of amended statement of claim and reply — Plaintiff alleges that she is a discretionary object of the family trust, despite the fact that the Trustee executed a deed of exclusion by which it purported to exercise its power of exclusion under the trust deed to exclude her as a general beneficiary, and that she has suffered loss by reason of the Trustee failing to appoint income to her over a number of years since her purported exclusion — By her proposed pleadings, the Plaintiff seeks to impugn the validity of the purported exclusion by alleging that, in purporting to exclude her, the Trustee (a) acted under the dictation of the remaining beneficiaries (the “Siblings”), (b) failed to consider whether the purported exclusion was a reasonable and proper exercise of its power, or (c) exercised its power for an improper purpose — Alternatively, the Plaintiff seeks to allege that she is still a discretionary object because, by reason of certain payments made to her by the Trustee after her purported exclusion, (a) the Trustee had determined that the purported exclusion was of no effect or the power of exclusion had not been exercised, or (b) the Trustee acknowledged and affirmed the Plaintiff’s status as a general beneficiary and/or waived its right to rely upon the purported exclusion — Leave to amend given in part, with limited leave also given to re-plead certain aspects of the claim in the ways specified — Leave to plead certain claims refused CIVIL PROCEDURE — Pleadings — Amendment — Discussion of principles of pleading, particulars and amendment CIVIL PROCEDURE — Pleadings — Primary facts and inferences — Discussion of requirements for pleading facts based on inferences from primary facts — Approach adopted similar to that which is taken in cases of conspiracy, as in this case the Plaintiff’s pleading is advanced on the basis she has limited knowledge of the events the subject of her claim CIVIL PROCEDURE — Pleadings — Striking out — Uniform Civil Procedure Rules 2005 (NSW), r 14.28 — Discussion of principles of striking out — Discussion of meaning of “no reasonable cause of action” threshold and impact of overriding purpose in s 56 Civil Procedure Act 2005 (NSW) — Doubt expressed that s 56 has made the test under r 14.28 less strict than previously, in the sense of reducing the conditions for the engagement of the power, as opposed to limiting the circumstances in which the Court, satisfied that the power is available, might be inclined to refuse relief on discretionary grounds CIVIL PROCEDURE — Pleadings — Fraud or dishonesty — Trustee raises by way of defence an exemption clause which precludes its responsibility for (inter alia) any breach of duty or trust unless it was committed in “personal conscious and fraudulent bad faith” by the Trustee, as well as a limitation defence, in response to the allegations that it failed to appoint income to the Plaintiff — Discussion of meaning of “personal conscious and fraudulent bad faith” for the purposes of an exemption clause and “fraudulent breach of trust” for the purposes of limitation provisions — Held that both notions involve dishonesty (although for the latter it may be sufficient that there is at least some knowledge of the impropriety of the conduct involved) CIVIL PROCEDURE — Pleadings — Fraud or dishonesty — Plaintiff by her proposed amended reply seeks to allege that the conduct and alleged breaches by the Trustee in failing to appoint income set out in her proposed further amended statement of claim were committed in personal conscious and fraudulent bad faith and are claims in respect of a fraudulent breach of trust for limitation purposes — Discussion of requirements for pleading dishonesty — Discussion of whether it is necessary to plead facts which tilt the balance to support an inference of dishonesty — Considered that, if the facts, circumstances and relevant context as pleaded might, if established by the evidence, rise to the level of dishonesty, the pleading is sufficient — Held that, while the Trustee’s conduct in relation to the purported exclusion might rise to the level of dishonesty, its alleged subsequent breaches in failing to appoint income to the Plaintiff did not — Held that the allegations made in the reply relating to fraud ought to be struck out CIVIL PROCEDURE — Pleadings — Allegations of knowledge — Whether particulars of knowledge necessary when actual knowledge is alleged — On the basis that the Plaintiff’s case is expressly stated to be one of actual knowledge, and that such knowledge was held by the directors identified, held that the pleaded allegations of knowledge are sufficient PROPER PURPOSE RULE — Discussion of powers generally and the scope of the proper purpose rule — Purpose and motive distinguished — Good faith and proper purpose distinguished — Discussion of possible purposes of a power of exclusion in a trust deed — Whether the Plaintiff is required to plead a proper purpose(s) for the exercise of the Trustee’s power of exclusion — Held that the Plaintiff’s omission of a pleading which states for what purpose or purposes the power of exclusion may properly be exercised does not mean that no complete cause of action is pleaded or that the pleading of the improper purpose is otherwise defective EQUITY — Trusts and trustees — Construction of trust deed — Whether the Plaintiff’s new construction claim that she is a specified beneficiary, having regard to the definition in the trust deed, is arguable — Discussion of meaning of “child” and “parent” in trust deed — Held that proposed construction claim is arguable and leave given to plead it EQUITY — Trusts and trustees — Breaches of trust — Failure to exercise discretion upon real and genuine consideration — Whether the Trustee’s failure to consider results in the exercise of power being void or voidable at the instance of the beneficiary who is adversely affected — Leave given to re-plead the exercise (failure to consider) case such that the purported exclusion is voidable and should be set aside EQUITY — Trusts and trustees — Acknowledgement, affirmation and waiver — Whether the Plaintiff’s alternative case based upon acknowledgement, affirmation and/or waiver by the Trustee is arguable — Leave to plead alternative case refused EQUITY — Trusts and trustees — Breaches of trust — Remedies — Whether the Plaintiff’s claim for equitable compensation as a result of “loss” from the Trustee’s failure to appoint income to her over numerous years is arguable — Held that on the Plaintiff’s proposed pleadings, having regard to the discretionary nature of the Trust and the Trustee’s power to appoint income, the claim is not arguable — Leave to plead equitable compensation claim refused

EQUITY – Equitable charges – Enforceability – Order for judicial sale. CONTRACTS – Formation – Intention to be bound. DURESS – Whether the first defendant signed deed under duress exerted by second defendant – Where the evidence does not establish duress – Where the plaintiffs (being the parties seeking to enforce the deed) did not have actual or constructive knowledge of the alleged duress, – Where plaintiffs did not use the second defendant as their agent to procure the first defendant’s execution of the deed. EQUITY – Undue influence – Whether the first defendant signed the deed as a result of undue influence of the second defendant – Where the evidence does not establish undue influence – Equity – Yerkey v Jones – Where the first defendant was not a volunteer. EQUITY – Unconscionable conduct – Whether the first defendant suffered from a special disadvantage, ­ Whether the plaintiffs had actual or constructive knowledge of any special disadvantage. CONTRACTS – Unjust contracts – Whether the terms of the deed are unjust under the Contracts Review Act 1980 (NSW) – Where the proper law of the deed is the law of Queensland.

Statutes – Construction – Meaning of "purpose" within A New Tax System (Luxury Car Tax) Act 1999 (Cth) ("LCT Act"), ss 9-5(1), 15-30(3) and 15-35(3) – Where appellant carried on business of acquiring and selling luxury and collectable cars – Where appellant displayed cars in "car museum" to attract purchasers – Where appellant objected to amended assessments of net amounts under Pt IVC of Taxation Administration Act 1953 (Cth) – Where amended assessments were premised on use of each car for purpose of holding as trading stock and for additional purpose of display in museum – Where increasing luxury car tax adjustment is applicable if taxpayer uses car for purpose other than quotable purpose – Whether assessment of purpose objective or subjective – Whether appropriate to exclude uses that are merely incidental, subservient, or means to an end to continuing use of car as trading stock – Whether phrase "no other purpose" in s 9-5(1) should be read as excluding alternative, but not additional, purposes. Words and phrases – "additional purpose", "alternative purpose", "characterisation", "collateral purpose", "decreasing luxury car tax adjustments", "for no other purpose", "goods and services tax", "increasing luxury car tax adjustments", "luxury car tax", "means", "motive", "objective purpose", "purpose", "quotable purpose", "quote", "quoting", "single purpose", "subjective purpose", "taxable supply". A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 69-10. A New Tax System (Luxury Car Tax) Act 1999 (Cth), ss 2-5(2), 9-1, 9-5(1), 15-1, 15‑30(3), 15-35(3).

Contract – Interpretation – Relief against penalties – Where appellant operated electronic gaming machines ("EGMs") and automated table games ("ATGs") – Where appellant had "Rewards Program" by which Members received loyalty points – Where Member could "convert" points into electronic gaming credits – Where Member could redeem converted credits for cash under specified circumstances or use converted credits to bet on EGM or ATG – Where Casino Duty Agreement ("CDA") between appellant and Treasurer provides that appellant must pay casino duty in respect of net gambling revenue for financial year – Where CDA defines "net gambling revenue" for period to refer to "gross gambling revenue" – Where CDA defines "gross gambling revenue" to mean "amount received ... for or in respect of consideration for gambling" – Where s 51(1) of Casino Act 1997 (SA) ("Casino Act") provides appellant must pay interest and penalties for late payment or non-payment of casino duty in accordance with CDA – Where s 17(4) of Casino Act provides for operation of CDA as deed – Whether converted credits used to place bet constituted "amount received" by appellant "for or in respect of consideration for gambling" – Whether obligation of appellant under CDA to pay 20% per annum interest for late payment could be subject of relief against enforcement if properly characterised as penalty at common law or in equity. Words and phrases – "amount received", "automated table games", "cashless gaming system", "consideration", "converted credits", "electronic gaming machines", "for or in respect of consideration", "gross gambling revenue", "interest", "late payment" "loyalty points", "monetary value", "net gambling revenue", "ordinary meaning", "orthodox interpretative principle", "penalty". Casino Act 1997 (SA), ss 17, 51.

CRIME – appeals – appeal against sentence – where expert evidence was not put before sentencing judge – whether there was a miscarriage of justice – whether evidence capable of materially affecting the outcome of the sentence proceedings – appeal allowed – resentence

CRIME – Appeals – Appeals against conviction – Unreasonable verdict – Where co-accused have successfully appealed their convictions to the Court of Criminal Appeal on the basis that the evidence of a key Crown witness had serious difficulties which undermined his and its credibility and reliability and in circumstances where there was no objective supporting evidence linking the co-accused to the offending – Where the Crown case against the applicant for counts 1-3 was supported by corroborating evidence – Order extending time to appeal against conviction made – Leave to appeal granted – Conviction for count 4 quashed – Appeal otherwise dismissed in relation to counts 1-3 – Matter remitted to the District Court for re-sentence

PRIVATE INTERNATIONAL LAW – orders with extraterritorial effect – where judgment entered in this Court that cross-defendant bank pay cross-claimant $37 million under letter of credit issued by cross-defendant in the People’s Republic of China – where cross-defendant enjoined by order of Court in the PRC from making payment under letter of credit – where judgment in this Court stayed until further order pending the cross-defendant drawing this Court’s judgment to attention of PRC Court – where plaintiff’s appeal challenging this Court’s decision that cross-claimant entitled to call on letter of credit has been dismissed – where those matters have been drawn to attention of Chinese Court – where proceedings in Chinese Court fixed for final hearing in December 2024 – whether stay in this Court should be lifted – whether comity requires that the stay should continue until a reasonable time after the scheduled hearing in the Chinese Court

CIVIL PROCEDURE – disclosure of documents – where disclosure of documents already given – where party to whom disclosure made contends further disclosure is required – appropriate procedure to adopt in that event – general rule that application should be made by notice of motion for further disclosure – general rule that further disclosure should not be sought by service of notice to produce

SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow — Whether deceased suffering from delusions that affected the provisions of the will SUCCESSION — Probate and administration — Rectification of wills SUCCESSION — Family provision — Claim by de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made LAND LAW — Co-ownership — Severance of joint tenancy EQUITY — Trusts and trustees — Resulting trusts ESTOPPEL — Proprietary estoppel — Encouragement

CIVIL PROCEDURE – Interlocutory applications – Whether plaintiff is entitled to a declaration that the second defendant’s wife is not permitted to enter, stay at, or reside at Punchbowl house – Where plaintiff and second defendant were married from 2003 until 2022 – Where plaintiff’s late mother had bequeathed Punchbowl house to her under Will

HIGH RISK OFFENDERS – forensic patient – application for an extension order– orders not opposed – no issue of principle