Cases and authorities

COSTS – no question of principle.

Contracts – employment contracts –– breach of contract – consequences of breach – liability – right to damages

JUDICIAL REVIEW – personal injury – challenge to finding of 10% WPI – medical assessment – whether injury occurred some other time – adequate reasons – procedural fairness – causation – errors of law

CRIMINAL PROCEDURE – jurisdiction of Court of Criminal Appeal – application for stay of sentence – pending determination of proposed appeal – effect of filing of notice of intention to appeal – extension of time within which to appeal – notice does not commence proceeding – jurisdiction of Court not engaged CRIMINAL PROCEDURE – application for stay of sentence – contingent exercise of discretionary power to stay – whether stay of sentence necessary to preserve subject-matter of proposed appeal against conviction – opportunities for early hearing rejected by applicant – extent of prejudice from serving part of non-custodial sentence

SUCCESSION — Family provision — Claim by stepdaughter of the deceased out of time — Deceased died intestate and was survived by her (allegedly estranged) sister, the current defendant — Main asset of the estate was a unit subject to a mortgage, which had subsequently gone into default, and the mortgagee had gone into possession and was proceeding to exercise its power of sale — Following various delays and disruptions to an application being made by any party for letters of administration, the plaintiff filed a notice of motion seeking to have an independent administrator appointed — Appointment made SUCCESSION — Administration of estates — Practice and procedure — Preservation of assets —Discussion of importance for parties legally interested in the administration of an estate to take prompt steps to identify, preserve and secure assets of the estate, especially in the context of actual or potential family provision proceedings — If such parties are stymied in that course, they should approach the Court in a timely manner seeking relief by way of an interim special grant SUCCESSION — Practice and procedure — Practical guidance — Parties and legal practitioners involved in estate disputes should, before commencement of proceedings, consider the nature of the relief sought and status of estate assets to ensure that any court process, if started, has some realistic prospect of yielding a practical outcome — Practitioners should have a “big picture” outcomes awareness in considering the overall forensic strategy of each case and what steps may be necessary to initially preserve property that is the source of any provision in the proposed action, with an eye to monitoring or reviewing matters or risks which may jeopardise meaningful outcomes from such property SUCCESSION — Administration of estates — Appointment of administrators — Status of the Law Society’s List of Independent Administrators — List is a helpful resource to the Court, but it does not bind or compel the Court to only choose independent administrators from that list SUCCESSION — Administration of estates — Discussion of role of the NSW Trustee and Guardian in circumstances where estate property has vested in it pursuant to s 61 of the Probate and Administration Act 1898 (NSW) — Whether NSW Trustee and Guardian should be appointed over another independent administrator (solicitor) SUCCESSION — Representation of an estate — Proposed appointment of an independent administrator — On occasion separate appointments of representatives for an estate can co-exist, but they are not necessarily ideal — In such circumstances, there is a need to clarify the terms, nature and scope of the representatives’ functions and also there may be need to address whether any of the representatives have or will likely have a right to indemnity from the estate or the facility to seek judicial advice APPEARANCES — It is not necessary for a defendant who has entered an appearance in proceedings to file a further notice of appearance to an amended summons

CIVIL PROCEDURE — suppression and non-publication — orders — public interest in non-publication of plaintiff’s name — where plaintiff was victim of child sexual abuse

Defamation – practice and procedure – notice of motion to file a second further amended statement of claim – notice of motion to dismiss proceedings summarily

CIVIL PROCEDURE – cross-vesting – transfer to another Supreme Court – relevant factors – more appropriate or convenient forum – transfer granted

CHILD WELFARE – adoption – consent dispense order – where consent dispense order sought before application for adoption order – where father not identified – where multiple putative fathers identified – where reasonable inquiries made to identify and locate the father

CIVIL PROCEDURE — subpoenas — to produce documents — production of documents by third party insurer — where similar documents produced by defendants subject to confidentiality order — whether confidentiality order ought be extended to documents produced by insurer

CIVIL PROCEDURE — Leave to file further evidence — Where matter already set down for final hearing — Whether granting leave will prejudice other party — Minimal prejudice — Leave granted EVIDENCE — Leave to file further evidence — Assessment — sections 56, 57 and 58 of Civil Procedure Act 2005 (NSW) — Leave granted

Civil Procedure –– Dismissal of proceedings – Frivolous or vexatious proceedings – Costs

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 BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) (‘SOPA’) — adjudication of payment claims — scope of adjudication proceedings — respondent calls bank guarantees and allows credit against set-off claims in payment schedule — claim for restitution in adjudication application — jurisdiction BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) (‘SOPA’) — adjudication determination — application for stay of enforcement proceedings pending arbitration — alleged risk of non-repayment — whether stay available where judgment creditor not in liquidation — SOPA, s 32B — whether expert evidence required as to risk of non-repayment —– degree of risk — stay refused

CRIMINAL LAW – contempt – refusal to answer questions when directed to do so – where court determined provisionally to refer the matter to the Prothonotary for institution of charges – where contemnor submits contemnor should not be prosecuted – contemnor submits alternatively that the alleged contempt should be dealt with summarily – where contemnor to be called in subsequent trial having refused to answer questions in related trial – where Prosecutor also urges contempt to be dealt with summarily due to likely delay in alternative procedure

LIMITATION OF ACTIONS — causes of action not maintainable — extension under s 60G(2) of the Limitation Act 1969 — whether the plaintiff ought to have become aware of the connection between the personal injury and the defendant’s act or omission for the purpose of s 60I(1)(a)(iii) and s 60I(1)(b) — just and reasonable for the purpose of s 60IG(2). LIMITATION OF ACTIONS — causes of action not maintainable — extension under s 62A(2) of the Limitation Act 1969 — whether the plaintiff ought to have known that the injury was caused by the fault of the defendant for the purposes of s 50D(1)(b) and s 50D(2) — just and reasonable for the purpose of s 62A(2).

CONTRACTS – construction – whether the term “arrears” in Handover Agreement means amount actually owing under Leases or the amount owing under Rent Reduction Arrangements – whether appellants proved the amount owing under Rent Reduction Arrangements CONTRACTS – accord and satisfaction – whether obligation to pay Rental Arrears under Leases was released by an accord, constituted or evidenced by Handover Agreement, which the appellants satisfied APPEAL – where counsel for the appellants at first instance conceded second respondent was not party to Handover Agreement – whether appellants should be permitted to resile from that concession on appeal APPEAL – where appellants contend primary judge should have found entitlement to payment of Rental Arrears was a joint entitlement of first and second respondents – where that contention was not pleaded at first instance – where submissions to this effect were not made to the primary judge – whether appellants should be permitted to raise this contention for the first time on appeal

CORPORATIONS – authority of company officers – statutory assumptions – Corporations Act 2001 (Cth), ss 128, 129 – loan agreements between property developer and multiple lenders – agreements signed by director without authority of company – agreements also signed by secretary not validly appointed by company – notification of appointment of secretary by ASIC agent of company – reliance on assumptions of authority – exception where party knew or suspected statutory assumptions were incorrect – whether knowledge of lenders’ solicitor was imputed to them for purpose of Corporations Act, s 128(4)

CONTRACTS – solicitor client retainer – construction of retainer– where the appellant acted for the respondent in various capacities – where the appellant acted for the lender in respect of a loan to the respondent – where the appellant communicated that it would not act for the respondent on a previous transaction involving similar parties – where the transaction contemplated the respondent receiving independent legal advice – where the respondent received independent legal advice – whether primary judge erred in finding that the appellant was retained to act for the respondent in respect of a loan transaction EQUITY – fiduciary duties – breach – whether the primary judge erred in finding that the appellant owed a fiduciary duty to the respondent in respect of entering the loan transaction – whether the primary judge erred in finding that the appellant was relevantly in a position of conflict of interest EQUITY – fiduciary duties – causation – whether the primary judge erred in assessing causation by reference to what would have happened if informed consent was obtained – whether the primary judge erred in finding that the breach of fiduciary duty caused the respondent to enter the loan transaction EQUITY – fiduciary duties – informed consent – whether the primary judge erred in finding that the appellant required the consent of both directors to establish informed consent to it acting for the lender PROCEDURAL FAIRNESS – whether the primary judge erred by determining issues on a basis that was neither pleaded nor run at trial – whether there was any practical injustice arising from the primary judge’s findings PROPORTIONATE LIABILITY – apportionable claims – whether s 34(1) of the Civil Liability Act 2002 (NSW) requires a failure to take reasonable care to be an element of the cause of action

CIVIL PROCEDURE — Liquidator’s cross-claim for declaration and directions as to payment out of proceeds of litigation — Whether reliance on trustee’s right to exoneration required to be specifically pleaded — Transfer to Corporations List

SUCCESSION — Family provision — Claim by alleged de facto of the deceased — Plaintiff had lived with the deceased in the deceased’s unit for some period of time prior to his death — Plaintiff continued to live in the deceased’s unit after his death and refused to grant the defendant, the deceased’s brother and executor, access to the unit for the purposes of administering the estate by taking an inventory of estate property, recording the condition of the unit and estate property and removing any estate property about which there is no dispute as to ownership or possession (“purposes”) — In the context of being repeatedly refused access, the defendant filed a notice of motion seeking access to the unit for the purposes and for fulfilling his obligations as executor — Held that access orders should be made SUCCESSION — Executors and administrators — Rights, powers and duties — Real property — Whether the defendant could seek access to the estate property — Discussion of sources of powers of executors to require access to estate property for the purposes of administration, including in the terms of the Will and general law SUCCESSION — Executors and administrators —Construction of powers under Will — Whether sufficient to enable access to property — In context of resistance to access and extant court proceedings, it is appropriate for an executor to seek the imprimatur and authorisation from the Court, rather than resort to self-help remedies — It is appropriate to make formal orders directing the plaintiff occupant to permit the executor access to estate property and to authorise the executor to enter such property to enable rights of access (from the Will or otherwise) to be practically exercised CIVIL PROCEDURE — Powers of the Court to order inspection of property — Uniform Civil Procedure Rules 2005 (NSW), r 23.8 — Given that the nature and extent of the deceased’s estate is a fundamental matter in question in family provision proceedings, the Court has power under UCPR r 23.8 to make orders for the inspection of estate property in order to enable the proper determination of that matter — Held that UCPR r 23.8 was an available and appropriate power under which to order the relief sought by the defendant on his notice of motion

CORPORATIONS – Receivership – Application for directions and declarations – Whether proposed course of action is authorised by security documents. PRACTICE AND PROCEDURE – Application pursuant to s 500(2) of the Corporations Act 2001 (Cth) for leave to proceed against First to Fifth Defendants – Where claim cannot be resolved by the lodgement of a proof of debt in a liquidation.

CRIMINAL LAW – murder – evidence – relevance of crime scene footage – retrial – whether previously edited out gruesome images relevant to a fact in issue – satisfied images are relevant to a fact in issue, namely, accused’s assertion in the last trial that the deceased had been attacked by others and he was uncertain whether the deceased was dead, and the position in which the deceased was left by the accused

NON-PUBLICATION ORDERS – application to revoke – retrial – suppression orders made in March 2024 to protect potential jury panel from possible unbalanced media reports of accused’s evidence at last trial in the short period leading up to September 2024 trial date – very particular and recognisable facts – short term order only – order no longer necessary to prevent prejudice to the administration of justice

LEASES AND TENANCIES – Construction and interpretation – Plaintiff Lessor had previously leased premises to the Defendant Lessee under two leases which required the Defendant to carry out defined Tenant Works and required the defendant to remove those works on the termination of the leases if the Lessor required – The works were carried out – Each lease contained two 5-year extension options – The Defendant exercised its first 5-year option under each lease which provided that the renewed lease must contain the same terms as the original but with no option for renewal after the last option has been exercised – The parties, however, negotiated new terms and a fresh lease, not containing the same terms as the original lease, was entered into for a period of 10 years – The new lease contained a term (cl 16.3) obliging the Lessee, if required by the Lessor, to remove the Tenant Works and reinstate the Premises except for fair wear and tear – The lease defined Tenant Works to mean “any improvement, alteration (whether structural or otherwise), or addition to the Premises or any demolition, landscaping or earthworks on the Premises, to be performed by the Tenant and referred to in Item 11(b) of Schedule 1” – Item 11(b) of Schedule 1 stated that Item 11(b) was “Not applicable” – The Court ordered that there be heard as a separate question, whether on the proper construction of the lease, the Defendant was obliged to remove the Tenant Works and reinstate the Premises to their condition when the Defendant commenced its occupation of the Premises at the times of the two earlier leases or at the time of the third lease – HELD that on the proper construction of the lease, the Defendant was obliged to remove the Tenant Works and reinstate the Premises by reference to the condition of the Premises at the commencement of the third lease

EVIDENCE – Admissibility – Tendency evidence – Asserted tendency to threaten to ‘jump on a person’s head’ – Asserted tendency to engage in significant threats of violence in response to minor incidents involving motor vehicles – Asserted tendency to use violence in a calculated and controlled way in response to conflict – Asserted tendency to claim fear as a means of manipulating a situation or justifying criminal activity – Whether tendency evidence has significant probative value

COSTS – party/party – gross sums costs order – where proceedings settled – where plaintiff obtained orders it sought - whether an order for costs should be made – where plaintiff would have succeeded at hearing – where defendant unreasonably rejected Calderbank offers – whether defendants’ conduct of proceedings unreasonable - doubtful capacity of defendant to pay costs – where plaintiff sought gross sum lower than their actual costs – gross sum costs order made

CRIME — appeals — appeals against conviction — whether miscarriage of justice —Crown Prosecutor closing address — no evidence to support submissions on central issue — impermissible speculation — whether submissions affected jury verdict CRIME — appeals — appeals against conviction — whether miscarriage of justice — conduct of defence counsel — failure to object to submissions — failure to request evidentiary basis of Crown submissions — failure to address issue in cross-examination of complainant — defence case contrary to appellant’s evidence — no rational reason for conduct of defence counsel CRIME — appeals — appeals against conviction — unreasonable verdict — whether supported by evidence — new evidence — new evidence confirming position at trial on agreed facts — Crown case run contrary to agreed facts on one count — reasonable doubt not explained by manner in which evidence given — appellant acquitted on one count

CRIMINAL PROCEDURE – conviction appeal – convictions of uncle for sexual abuse of young nephews – complaints by children to mother – delay in reporting to police – mother and father in acrimonious separation – court proceedings against father for domestic violence – challenge to mother’s credibility – failure to use evidence in domestic violence trial to challenge mother’s credibility in sexual abuse trial involving father’s brother – whether incompetence of trial counsel – whether trial unfair

CRIME – appeals – appeal against sentence – misapplication of principle – where applicant pleaded guilty to multiple counts of sexual intercourse without consent and common assault – where parties had been in intimate relationship – offending occurred as a result of victim terminating relationship - whether sentencing judge erred by failing to give full effect to the findings in relation to Bugmy – where applicant was found to have mental health conditions and a very harsh background – where applicant’s moral culpability was reduced as a result of Bugmy factors but weight still given to specific and general deterrence – challenge to assessment of objective seriousness - where sentencing judge increased sentence but not objective seriousness (as applicant asserted) by reason of Form 1 matters – where applicant’s knowledge of lack of consent arose from unreasonable belief in victim’s consent – no error in assessment of objective seriousness – sentence not manifestly excessive

BUILDING AND CONSTRUCTION – adjudication – adjudicated amount – where plaintiff commenced these proceedings seeking to quash an adjudication determination – where first defendant registered adjudication certificate – where judgment now entered against plaintiff – where first defendant seeks stay of these proceedings until plaintiff pays into Court the adjudicated amount – where plaintiff has no present ability to pay amount into Court – where plaintiff’s assets exceed her liabilities – where secured creditor in possession and about to exercise power of sale over plaintiff’s principal assets

PRACTICE AND PROCEDURE – where determination of notice of motion would be inconsistent with stay proceedings – where notice of motion not served on other party to proceedings whose legal rights would be affected by the relief sought.

CHILD WELFARE — adoption — where proposed adoptive parents are child’s current foster parents — where birth father recently identified and declaration of parentage sought — whether adoption order is in child’s best interests — whether birth parents’ consent should be dispensed with — whether change of name should be approved

COSTS – proceedings change significantly from inception to conclusion – application for trustee to process request for redemption of units and for removal of trustee – cross-claim that units the subject of equitable charge and to injunct redemption – trustee steps down without admission – equitable charge established and injunction ordered – partial success by plaintiff on remaining claim while other claims not pressed – Lai Qin – costs apportioned based on relative success – no issue of principle.

SUCCESSION – contested probate – testamentary capacity – lack of knowledge and approval – where primary judge’s findings were predicated upon his view of the credibility of the witnesses assessed in the context of the whole body of evidence including contemporaneous medical records and the views of joint experts – Fox v Percy – where lay evidence was diametrically opposed – where no contemporaneous file notes made by the solicitor who prepared the will LEGAL PRACTITIONERS – solicitors – whether the primary judge erred in his assessment of the evidence of the solicitor who prepared the will on the basis that the solicitor was also the solicitor on record for the Respondents – where the primary judge held that the solicitor should have ceased to act earlier than he did APPEALS – from findings of fact – inferences from primary facts – Jones v Dunkel inference – where a witness swore affidavits in support of the Respondents’ case but was not called by the Respondents – where the witness was called by the Appellant but did not appear and a bench warrant was not issued – whether it was natural to expect the witness to have been called – where the witness was a family member with mental health issues and associated vulnerability EVIDENCE – witness evidence – affidavits – use of direct speech to recount past conversations of which a witness recalls only the gist – where direct speech is prefaced with the phrase “words to the following effect” ESTOPPEL – equitable estoppel – estoppel by encouragement – proprietary estoppel – estoppel by acquiescence – where primary judge’s findings as to estoppel expressed in the alternative and as a contingency – no issue of principle

JUDGMENTS AND ORDERS — Enforcement — Application for stay of writ of possession — Where execution of writ previously stayed based on evidence later found to be a forgery — Where concurrent hearing of application for leave to appeal and substantive appeal was stayed until determination of criminal proceedings against first applicant relating to the forged evidence — Whether writ of possession ought be stayed pending determination of appeal — No reasonable arguable grounds for appeal — Stay least likely to lead to injustice when all relevant factors balanced — Application rejected and notice of motion dismissed

LEASES AND TENANCIES — Repairs, maintenance and alterations — Obligation to repair and maintain — Where plaintiff permitted to re-enter premises upon providing undertaking to Court to engage independent expert to determine scope of works for necessary repairs — Where repairs not carried out — Whether second cross-defendant is liable for loss caused by breach pursuant to guarantee and indemnity provisions of lease

COSTS – No question of principle

CRIME – Application for trial by judge alone – Court informed of application 19 days before trial – Leave required – Asserted prejudice to accused if tried by jury – Potential for the accused to become unfit to be tried due to length and stress of jury trial – Crown consents to application

SECURITIES – charge – whether deed of charge gave rise to a priority for a party’s debt in the relevant circumstances. PRACTICE AND PROCEDURE – whether consent orders bind the parties to the findings of an expert accounting report – whether accounting report should be adopted by the Court – where manifest error may have arisen from the parties’ failure to draw a recent transaction to the expert’s attention.

INSURANCE — Life insurance — Accident and sickness — Definitions — Whether life insured “Own Occupation TPD” — “occupation”

COSTS – Costs assessment – application for assessment – timing – where application for costs assessment lodged out of time – where Manager, Costs Assessment allowed application to proceed – whether Manager, Costs Assessment erred by failing to have regard to a mandatory relevant consideration

WORKERS COMPENSATION — referral of medical dispute to a medical assessor — claim for injury to right upper extremity (right thumb, right wrist, right elbow) causing complex regional pain syndrome — whether medical dispute included injury to right shoulder and peripheral nerve injuries — whether Appeal Panel mistaken in its understanding of the worker’s claim and the resulting medical dispute

WORKERS COMPENSATION — referral of dispute as to degree of whole person impairment to a medical assessor — whether Appeal Panel failed to consider the worker’s submissions — whether Appeal Panel erred by considering its own view as to the rating of impairment WORKERS COMPENSATION — deduction for previous injury or pre-existing condition or abnormality — where worker’s pre-existing condition was symptomatic before the onset of work-related stressors — whether the Appeal Panel applied the correct test to determine extent of deduction

APPEALS — Leave to appeal — Where statutory right to appeal confined to “a question of law” — Where applicants contend that the application for leave to appeal is brought under “a question of fact, law and jurisdiction” — Where no error or question of law is clearly identified ADMINISTRATIVE LAW — Supervisory jurisdiction — Where summons also sought certiorari for error of law on the face of the record — Conduct of judicial review refused where applicants also sought leave to appeal

CRIME – appeals – appeal against conviction – miscarriage of justice – whether trial miscarried because the applicant was denied the benefit of a good character direction – where applicant was unrepresented at the trial – where applicant had no history of sexual or violence offences – where no character direction of any sort was given – where Crown conceded that failure to give at least a limited good character direction gave rise to a miscarriage of justice - appeal upheld – conviction quashed – new trial ordered

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Drug supply offences — Parity principle — Where the applicant’s co-offender had committed similar offences with other offenders — Where the applicant raised a question of parity between his sentence and that of an offender who was sentenced for similar offences that were committed with the applicant’s co-offender

CIVIL PROCEDURE – Representative proceedings – Conduct of proceedings – Motion brought by the defendant seeking leave to rely upon Statements of Contentions – Where a court appointed Senior Referee has conducted inquiries and prepared reports for the Court in respect of damages payable to remaining group members – Where the Statements of Contentions raises the defendant’s position that certain claimants failed to mitigate their losses, in circumstances where a failure to mitigate loss had not been previously pleaded in the Defence and thus had not been considered by the Senior Referee – Defendant not permitted to rely on a failure to mitigate loss argument with respect to the particular group.

CRIMINAL LAW – murder – discharge of a juror where unwell and unable to perform duties as a juror

COSTS — Party/Party — Costs orders in interlocutory proceedings — Where consent orders made without merits hearing — Whether plaintiff should pay defendants’ costs — Whether costs should be payable forthwith

COSTS – unsuccessful application for security for costs – costs to follow the event – where applicant for security successful on some issues – whether costs should be payable forthwith – whether a gross sum costs order should be made