Cases and authorities

CIVIL PROCEDURE – Representative proceedings – Pleadings – Amendment – Whether the plaintiff should be granted leave to file amended pleadings to change the definition of the group members – Where the effect would be that the number of potential group members expands – Where facts and knowledge about other potential group members came to light after the commencement of proceedings – Leave granted.

CIVIL PROCEDURE – Pleadings – Amendment – Application for leave by the defendant to file an Amended Statement of Cross-Claim – Whether the Cross-Claim is sufficiently pleaded – Leave to file the Amended Statement of Cross-Claim refused.

CIVIL PROCEDURE — parties — vexatious litigant — winding up order made against defendant’s company and subsequent repossession of company owned Maserati vehicle by financier — spate of pointless and unmeritorious proceedings brought by defendant in Local, District, Supreme and High Court challenging winding up and, principally, repossession of vehicle — vexatious proceedings order made

CORPORATIONS – management and administration – orders sought for modification of operation of Corporations Act s 443A for limitation of administrators’ liability in respect of relevant borrowings – whether the funding arrangement is in the interests of the company’s creditors – whether the creditors stand to benefit from entry into the arrangement

CIVIL PROCEDURE – Approval of settlement of proceedings pursuant to s 76 of the Civil Procedure Act 2005 (NSW) – Where proceedings commenced by the plaintiff (as purchaser) against the defendant (as vendor) for specific performance of a contract for sale – Whether the settlement is beneficial to the interests of the defendant who is a person under legal incapacity – Held: settlement approved

CONTRACTS — Remedies — Breach of lease to pay rent and outgoings — Damages — After repudiation — Whether plaintiff entitled to loss of bargain damages COSTS — Party/Party — Court’s discretion — Whether there should be apportionment of costs

BIAS — Apprehended bias — Application for recusal of judge — Whether previous adverse decisions can ground apprehended bias — Whether comments by judge at commencement of hearing gave rise to reasonable apprehension of bias — recusal application refused

APPEALS — Procedure — Summons seeking leave to appeal — Where President of Court of Appeal directed that application for leave be heard alone not concurrently with argument on the appeal — Where applicant for leave challenged administrative decision of single judge of appeal — Whether listing decision is a judgment or order or direction amenable to challenge or review APPEALS – Procedure – Application to vacate leave only hearing to provide more time to prepare – Unrepresented litigant – Where other party filed response to summons late – Where nothing in other party’s response capable of taking applicant by surprise

CRIME – Appeals – Appeal against sentence – application for leave to appeal out of time – manifest excess – old age and poor health of offender – whether sentencing judge erred in giving personal deterrence prominence alongside finding that offender unlikely to reoffend – whether sufficient weight given to onerous conditions of custody given offender’s deteriorating health and age – whether appropriate approach taken regarding parity with co-offenders – where non-parole period only 55% of head sentence to reflect individual circumstances of the offender – sentence not manifestly excessive – extension of time granted – appeal dismissed

CIVIL PROCEDURE — Interim preservation — Freezing orders — Against third parties — Jurisdiction to make freezing order — Discretion whether to make freezing order — Where evidence led raises risk of continued dissipation of assets without reserving funds to meet judgment — Where plaintiff in derivative proceedings or liquidator has prospective claims against Second Defendant.

CONTRACTS – Breach of Contract – Cross-Claim for damages for breach of a contractual term of confidentiality – The cross-claimant was an authorised representative and agent, of the first cross-defendant insurance broker and Australian Financial Services Licence holder, under a written Authorised Representative Agreement (the Agreement) – The Agreement contained a provision that during and after termination of the Agreement, each party must keep confidential and must not use the other party’s Confidential Information (a defined term) except as necessary to perform the Agreement or as required by law – The Agreement and the cross-claimant’s appointment as the first cross-defendant’s Authorised Representative were terminated after the first cross-defendant became aware that the cross-claimant had knowingly provided false information about insured clients to insurance companies to reduce the premium payable – The first cross-defendant transmitted the client information to another Authorised Representative to carry out a policy remediation process and service the clients – The cross-claimant claims that this was in breach of the confidentiality provision and claims damages being the loss of the sale value of the insurance broking portfolio which the cross-claimant was administering – HELD on the proper construction of the Agreement, the information concerned was not Confidential Information – What the first cross-defendant did was required by law – Any loss and damage caused to the cross-claimant was caused by its own acts and not the acts of the first cross-defendant – The cross-claimant failed to place before the Court sufficient material to enable the Court to make a rational assessment of the loss – Methodology adopted by the expert valuers was inappropriate in the circumstances of this case

COSTS – application for gross sum cost order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) – whether appropriate to make a gross sum cost order – where cost and delay of assessment would not be warranted – quantification of the gross sum to be awarded

CIVIL PROCEDURE — Interim preservation — Freezing orders — Application to vary

CIVIL PROCEDURE — interim preservation — freezing orders — burden of proof not discharged —good arguable case against defendants — no solid evidence of risk of dissipation of assets by second defendant — evidence of a substantial diminution in value of first defendant’s assets — uncertain utility of narrow form of freezing order sought against first defendant — HELD — motion dismissed with liberty to apply in respect of relief sought against first defendant CIVIL PROCEDURE — evidence — notice to produce — application to set aside — orders in Family Court proceedings sought — legitimate forensic purpose of documents — confidentiality protected by non-publication order — HELD — notice to produce motion dismissed

CIVIL PROCEDURE — stay of proceedings — pending appeal — where defendants seek a stay of proceedings and plaintiff seek payment of half of the verdict sum — court to do justice between the parties — stay of proceedings granted with conditions — payment of previously ordered costs — funds to enable payment of defendant’s legal fees, past and future

EVIDENCE — Tendency evidence — Significant probative value — Whether tendency evidence admissible under section 97 of the Evidence Act 1995 (NSW) — Evidence admissible EVIDENCE — Witness evidence — Whether basis of expert opinion adequately disclosed — Whether evidence admissible under section 79 of the Evidence Act 1995 (NSW) — Evidence admissible EVIDENCE — Witness evidence — Where evidence relates to historic events — Whether imperfections of evidence about past traumatic events should result in evidence being rejected NEGLIGENCE — Vicarious liability — Where Diocese did not employ parish priest — Whether Diocese was vicariously liable for parish priest assaulting a minor — Vicarious liability established NEGLIGENCE — Whether duty of care was owed to minor — Whether risk was reasonably foreseeable and not insignificant — Whether reasonable person would have taken precautions against that risk of harm — Whether duty breached NEGLIGENCE — Damages — General exemplary and aggravated damages — Whether harm suffered justified award of aggravated or exemplary damages NEGLIGENCE — Damages — Economic loss — Earning capacity — Where harm suffered claimed to have resulted in lost future earning capacity TORTS — General principles — Negligence — Vicarious liability — Historical sexual assault — Assessment of damages

SPECIFIC PERFORMANCE – contract for sale of land for $20.6 million – purchaser is special purpose vehicle with $100 issued share capital – sole director of purchaser guarantees “observance by the Purchaser” of the contract’s terms – whether specific performance available against guarantor – principles at [21]-[30] – guarantor did not undertake to render performance if the purchaser did not. INDEMNITIES – guarantor agrees to indemnify vendor “from and against all damages and losses” arising from breach of contract – whether vendor entitled to specific performance against guarantor to pay the balance of the purchase price – “damages and losses” does not mean the balance of the purchase price – specific performance of indemnity not warranted where damages are adequate remedy and the only obligation of the indemnifier in any event. WORDS AND PHRASES – “observe” – “observation” – at [37]-[42].

COSTS – proceedings overtaken by subsequent events – no final determination on merits – rule 42.20, Uniform Civil Procedure Rules 2005 (NSW) – complex and protracted proceedings partly resolved interlocutory orders and defendant terminating contracts for sale of land – remaining causes of action premised on contracts proceeding to completion – whether grounds for Court to “order otherwise” – principles at [48]-[54] – plaintiffs have effectively obtained the relief sought – remaining issues became otiose as proceedings developed and by defendant’s actions – plaintiff acted reasonably – defendant acted unreasonably for portion of litigation.

CIVIL PROCEDURE – Representative proceedings – Settlement or discontinuance – Court approval – Representative proceedings claiming that junior medical officers had been underpaid – Whether the settlement, is fair and reasonable – Settlement approved.

CRIME – Appeals – Appeal against sentence – recklessly causing grievous bodily harm – ex tempore judgment – whether judge made findings of fact not available on the evidence – whether judge erred in finding the objective seriousness as slightly above mid-range – whether judge erred in declining to find reduced moral culpability on the basis of offender’s alcohol use disorder – whether sentence manifestly excessive – erroneous findings of fact – no error with respect to objective seriousness – no error with respect to moral culpability – re-sentence – no lesser sentence

CRIME – Appeals – appeal against sentence – where expert evidence was unavailable at sentencing hearing – where applicant gave instructions not to adjourn sentencing hearing to obtain expert evidence – where it was unclear what advice was given to the applicant – whether there was a miscarriage of justice CRIME – Appeals – appeal against sentence – whether pre-sentence custody was taken into account CRIME – Appeals – appeal against sentence – extension of time in which to appeal

CIVIL PROCEDURE – Pleadings – Striking out – No reasonable cause of action pleaded – Application for the plaintiff’s Statements of Claim to be struck out granted.

LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where trustees of a fund are co-owners of properties – Where plaintiff is receiver of fund — Whether receiver a “co-owner” within meaning of s 66G Conveyancing Act 1919 (NSW)

CIVIL PROCEDURE – pleadings – amendment – where plaintiff seeks to exercise liberty to replead allegations against the third defendant – whether prejudice to the third defendant by reason of delay and other matters CIVIL PROCEDURE – admissions – where plaintiff’s proposed amended list statement contains new allegations as to an alleged contract between the second and third defendants said to be evidenced by “evidentiary admissions” in the second and third defendants’ cross-claim against third parties where the existence of such a contract is asserted – where that cross-claim is unverified but contains certificate by third defendant’s solicitor that there are reasonable grounds to make the allegations in the cross-claim – whether these allegations are admissions – whether these allegations are representations

COSTS – party/party – costs orders in interlocutory proceedings – where plaintiffs’ contempt application against third and fourth defendants failed – where no reason why plaintiffs should not pay third and fourth defendants’ costs of the application

LAND LAW – Community title – Community scheme – Where resuming authority seeks orders restructuring community scheme consequential upon resumption of part of a development lot in the community scheme – Requirement for resuming authority notified interested persons of the application – Orders to be made pursuant to s 73 of the Community Land Development Act 2021 (NSW) in circumstances where the value of the residue of the relevant development lot, and the relative values of the lots in the scheme, are unchanged by the resumption.

HIGH RISK OFFENDER – Extended supervision orders – Final hearing – where defendant does not oppose the making of an order – where defendant a repeat child sex offender – dispute as to appropriate conditions

HIGH RISK OFFENDER – Preliminary hearing – Application for appointing qualified psychologists or psychiatrists

ESTOPPEL – Proprietary estoppel – Where parents made promises over many years to give one half of rural property to each of their two children, a daughter and a son – Where daughter, together with her husband and children, moved from Canada to live on the property – Where each adult child has moved onto and made substantial improvements to their promised half of the property – Whether the promises induced the daughter and her husband to expect and assume that she, or they, would receive half of the property as an inheritance following the death of both of the parents, or at some earlier time – Where a development application for subdivision of the property into the two halves was rejected – Where the property passed to the mother on the death of the father by right of survivorship – Where the mother remains alive and is the sole registered proprietor of the property – Where the mother’s last will gives the property to her daughter and son as tenants in common in shares reflecting the value of the half of the property that each of them has developed and improved as a proportion of the value of the whole of the property, as determined by a registered valuer – Where mother has undertaken not to revoke or vary that will, and not to make a new will – Whether parents resiled from promises – If so, whether detriment to daughter and son-in-law – Held: There has been no resiling from the promises, which induced daughter and her husband to expect and assume that she, or they, would receive the southern half of the property by way of inheritance following the death of both of the parents. SUCCESSION – Family provision – Claim by daughter for provision out of the estate of her late father – Where only material asset of father at time of his death was the property that was the subject of the promises – Where father, jointly with mother, made significant contributions during his lifetime to his daughter’s maintenance and advancement in life – Where further provision will be made for the daughter by the gift in her mother’s will of an interest in the property, consistently with the promises made by the parents to their daughter and son over many years – Where daughter’s evidence of financial position deficient – Held: Claim dismissed.

PERSONAL PROPERTY – Property (Relationships) Act 1984 (NSW) – Domestic relationship between father and adult daughter – Deed entered into for father to transfer family house to daughter while retaining continuing right of occupation – Father moved out given dispute with daughter’s son – Error in taking account of inheritance – Error in undervaluing father’s contribution pursuant to the Deed – Incomplete reasoning – Consideration of matters not properly in issue and of little weight – Making of unfair and irrelevant findings – Re-exercise of discretion on appeal COSTS – Failure to make an offer of compromise not to be held against a party

CIVIL PROCEDURE – whether the plaintiff ought to be required to submit to a number of further examinations by the defendants’ experts – utility of psychometric testing – application to amend defence to plead s 151Z of the Workers Compensation Act 1987 (NSW) – vacation of hearing date sought

CIVIL PROCEDURE – Suppression and non-publication orders – Application by the defendant for suppression orders and pseudonym orders – Where the cause of action arises out of conduct which was the subject of criminal proceedings – Where the criminal proceedings were dealt with on the basis that the victim and the defendant were under the age of 18 and fell within the definition of a child within the meaning of the Children (Criminal Proceedings) Act 1987 – Whether the suppression orders and pseudonym orders are necessary for the interests of justice – Application granted. MEDIA AND COMMUNICATIONS – Publication – Court Suppression and Non-Publications Orders Act – Where publicity concerning the criminal proceedings may have identified the defendant – Whether the suppression orders and pseudonym orders are necessary for the interests of justice – Application granted.

CRIME – Sentencing – murder – plea of guilty – domestic violence offence – brutal and sustained assault – history of controlling and violent behaviour – intent to inflict GBH –objective seriousness in mid-range – no prior criminal history – substance abuse problem – no genuine remorse – moderate prospects of rehabilitation – onerous conditions in custody due to limited English ability – special circumstances found

Contractual interpretation – subsequent conduct – offer and acceptance – settlement agreement – objective intention – negotiations.

CORPORATIONS – members’ rights and remedies – oppression – power of court to order remedy – where group of companies engaged in the timber industry – where irretrievable break down in the relationship between various shareholders and directors of those companies – where competing allegations of oppression – plaintiffs’ allegations for the most part not made out – defendant undoubtedly locked out of management of companies since November 2023 CORPORATIONS – winding up – where the group of companies is in a parlous financial state – where the principal trading company in the group is likely, or is actually, insolvent – where remedy sought by the plaintiffs would enable the group to trade and incur debts where there are reasonable grounds to suspect insolvency – where appropriate course to wind up the companies

CRIMINAL LAW – contempt of court – witness indicates preference to take a contempt charge rather than an affirmation or oath – where deference paid to contemnor’s preference

CRIMINAL LAW – contempt in the face of the court – where witness refuses to answer questions when directed to do so – alternative procedures for dealing with contempt – unusual circumstances – witness charged with unrelated murder – where witness seeking to traverse a plea of guilty based on trauma response to watching death of victim of current killing – where witness directed to answer questions with the protection of a certificate under s 128 of Evidence Act – preferable not to deal with contempt by summary procedure – preferable for a different judge to deal with contempt proceedings – whether witness should be afforded opportunity to be heard

INSURANCE – Insurance Contracts Act 1984 (Cth) – non-disclosure and misrepresentation – duty of disclosure – where senior executive of Leighton made a file note in November 2010 detailing conversations with another senior executive (“Iraq File Note”) – where that executive advised he had an opportunity to extend/vary a contract for a major infrastructure project in Iraq but it would require payment to a third party nominated subcontractor of $50-$60 million where the real value of the work was less than 50% of the payment, and that the current contract was won by a payment to a nominated subcontractor “on the same terms” – where Iraq File Note not disclosed to insurers for 2011 year (“2011 Insurers”) – where Leighton subsequently entered into primary and excess layers of D&O Insurance for the 2011 year (“2011 Policies”) – whether Leighton breached its duty of disclosure under s 21 of the Insurance Contracts Act and made a misrepresentation to the 2011 Insurers INSURANCE – Insurance Contracts Act 1984 (Cth) – whether the 2011 Insurers were entitled to reduce their liability to nil under s 28(3) of the Insurance Contracts Act INSURANCE – Liability insurance – directors and officers – whether cll 5.3 and 7.1 of the 2011 Policy precluded the 2011 Insurers from reducing their liability under s 28 of the Insurance Contracts Act – whether cl 5.3(ii) of the 2011 Policy operated so that limit of liability under previous years policy (as reduced by amounts previously paid) applied to CIMIC’s claims INSURANCE – Insurance Contracts Act 1984 (Cth) – contribution – whether AIG entitled to equitable contribution of 50% from Berkley and Swiss Re – where, without recourse to s 54 of the Insurance Contracts Act, AIG could not have contribution from Berkley – whether an omission to form an expectation that a claim could arise is a relevant omission for the purposes of s 54 of the Insurance Contracts Act INSURANCE – Liability insurance – directors and officers – where primary judge granted declaratory relief against insurers for the 2010 year – whether Court had jurisdiction to grant declaratory relief or alternatively whether the exercise of jurisdiction to grant declaratory relief miscarried APPEALS – Procedural fairness – whether primary judge denied Berkley procedural fairness in limiting its cross-examination of two witnesses

TORTS – nuisance – private nuisance – plaintiffs claimed their properties were affected by construction of Sydney Light Rail – whether interference with enjoyment of plaintiffs’ property substantial and unreasonable – whether failure by plaintiffs to establish a failure to take reasonable care determinative – whether defendant bore onus of establishing that it took reasonable care – whether defendant failed to take reasonable care – significance to cause of action in nuisance of taking reasonable care – whether use of road for construction purposes exceptional – whether interference with plaintiffs’ enjoyment inevitable – whether delay in construction attributable to discovery of unknown utilities – whether damages should include a “recovery period” – whether s 43A of Civil Liability Act 2002 (NSW) applicable DAMAGES – pure economic loss – funded litigation – funding agreement included commission to funder – whether commission recoverable as component of damages

CRIME – Appeals – appeal against sentence – parity – hindering a police investigation of an unlawful killing – assessment of comparative culpability and subjective circumstances of co-offenders – where appellant’s sentence incomparable with one asserted co-offender – whether one of the persons sentenced was properly to be considered a co-offender – where second co-offender’s objective and subjective factors comparable – modest difference between sentences justified – appeal dismissed

CIVIL PROCEDURE – Discovery – Classes or categories of documents.

COSTS — party/party — general rule that costs follow the event — proceedings discontinued by plaintiff — UCPR r 42.19 — where defendant seeks indemnity costs on basis of Calderbank offers — where plaintiff acted reasonably in instituting and discontinuing proceedings — where defendant’s conduct necessitated both commencement and discontinuance of proceedings — where defendant made concessions in list response — where plaintiff reasonably declined offers of compromise — HELD — defendant to pay plaintiff’s costs of the proceedings

INTERLOCUTORY APPLICATION – application for stay of orders pending appeal to Court of Appeal

COSTS – where plaintiff failed in his most significant claim advanced at trial, but succeeded on second claim – where defendant did not press some of its defences at last moment – where plaintiff incurred costs relating to defences not pressed – what costs orders should be made to reflect those matters COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise – where defendant made offer of compromise the day before hearing – where offer was expressed, in effect, to be inclusive of costs

NEGLIGENCE — personal injury — vicarious liability — where a worker on a job site injured his back when performing a lift with another worker — whether the other workers act constituted a casual act of negligence which the first defendant was vicariously liable for — where both workers were performing the lift under the direction of the first defendant — held the other workers failure to coordinate the lift constituted a casual act of negligence — held the first defendant is vicariously liable for the casual act of negligence of the other worker as he was performing a lift under the first defendants direction NEGLIGENCE — damages — personal injury damages — whether a pre-existing pathology would have affected the plaintiffs earning capacity — where experts agreed that the pre-existing pathology would have affected his function after 12 years — held the pre-existing pathology reduces the plaintiffs future economic loss calculation after 12 years — damages awarded for non-economic loss, past and future economic loss, past and future medical expenses, past and future domestic assistance, Fox v Wood damages, loss superannuation benefits

HIGH RISK OFFENDERS – supervision and other orders under the Crimes (High Risk Offenders) Act 2006 (NSW) – application for extended supervision order (ESO) – ESO not opposed – conditions to be imposed as part of the ESO – no point of principle

COSTS — appeal allowed on terms — whether plaintiff acted unreasonably in rejecting Calderbank offer — whether partial success of plaintiff warranted favourable costs order — whether successful appellants’ obligation to pay compensation should be stayed pending assessment of costs

CIVIL PROCEDURE – Cross-vesting – Transfer to other Supreme Court – Proceedings transferred to the Supreme Court of Tasmania.

JUDGMENTS AND ORDERS – Application to vary orders – No issue of principle – Where application not supported by notice of motion or submissions