Cases and authorities

CORPORATIONS – Statutory derivative action – Application to bring proceedings on behalf of company – Whether leave to bring derivative action should be granted.

CRIMINAL PROCEDURE – Costs – application for certificate pursuant to Costs in Criminal Cases Act 1967 – where applicant acquitted of charge of murder by a jury – whether there must be new evidence which emerges at trial for a certificate to be granted – whether reasonable to institute proceedings

COSTS – Gross sum costs order – where plaintiff’s counsel and solicitor applied for leave to withdraw from proceedings but later withdrew that application – where plaintiff’s tutor sought to withdraw as tutor – where plaintiff made a late application to adjourn hearing – where adjournment granted – whether plaintiff should pay costs of and occasioned by these applications and costs thrown away by reason of late adjournment – whether gross sum costs order should be made pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW)

HIGH RISK OFFENDERS – application for extended supervision order – final hearing – third ESO – high risk sex offender – “statistical outlier” – difficult to apply ordinary assumptions based on advanced age – where parties accept defendant poses unacceptable risk of committing a serious offence if not kept under supervision – where dispute as to conditions of supervision – electronic monitoring – victim impact statements – orders made

COSTS – re-exercise of costs discretion after partially successful appeal

PRACTICE AND PROCEDURE – inspection of documents disclosed in proceedings – whether plaintiff and defendant are trade rivals – whether documents in issue contain commercially sensitive information – whether any commercially sensitive information should be disclosed to a designated officer of the plaintiff

PROCEDURE – judgments and orders – amending, varying and setting aside – application by plaintiff for leave to reopen – whether leave should be granted to plaintiff to reopen – whether judgment should be set aside or varied.

PROCEDURE – form of orders – costs – general rule that costs follow the event – costs as to determination of issue as to distribution of fund.

CONTRACTS — Formation — Consideration — Deeds — Delivery — Intention of parties

EQUITY – accessorial liability – Plaintiffs were deceived into transferring moneys to First Defendant’s bank account – moneys were transferred out of account to third parties located overseas – Second Defendant was sole director and shareholder of First Defendant and was sole authorised signatory on the bank account – First Defendant held moneys obtained by fraud on trust and transferred those moneys out of account in breach of trust – whether Second Defendant handed over control of the First Defendant and its bank account to a third party prior to the relevant transactions occurring – whether Second Defendant knowingly assisted in breach of trust

HIGH RISK OFFENDER – application for review of extended supervision order – serious Pt 5.3 terrorism offences – whether scheduling conditions reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Pt 5.3 offence

COSTS — Party/Party — Bases of quantification — Indemnity basis — Assessment as a gross sum — No issue of principle

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

DAMAGES – costs of rectification works

CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether change of name should be approved

SUCCESSION — Mandatory interlocutory injunction Succession Act 2006 (NSW), s 62 — Leave to appeal refused

CIVIL PROCEDURE — Time — Extension of time to commence judicial review proceedings ADMINISTRATIVE LAW — Whether reviewable decision — Jurisdictional error — where decision to issue a construction certificate legally unreasonable ENVIRONMENT AND PLANNING — Consent — Conditions — Construction certificate — plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent – effect of decision in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 in circumstances where jurisdictional error has been established

CRIME — Sentencing— Federal offences — Corporations Act — “Ponzi scheme”

CIVIL PROCEDURE – appeal from decision of Appeal Panel of NCAT – application for leave to appeal pending – stay of issue of writ of possession sought pending determination of appeal – writ issued and executed before stay sought – stay no longer available

COSTS – Indemnity costs – Offer of compromise – Calderbank offer – Real and genuine element of compromise – Degree of compromise assessed cumulatively – No explanation as to significant costs asserted to have been incurred before exchange of submissions – No reason first respondent should obtain advantage of consensus later broken out to alter precise sums awarded COSTS – Active role played by second and third respondents appropriate and useful

APPEALS – Adequacy of reasons – Brief ex tempore reasons – Distinct claim in tort not addressed – No substantial wrong or miscarriage occurred due to failure to address – Appellant not deprived of possibility of successful outcome APPEALS – From findings of fact – Finders of fact entitled to degree of practical judgment with respect to certain matters – Limits of judicial notice – No substantial wrong or miscarriage – Failure to address claimed tendency to violence – Not necessary in every case for judge to determine whether to accept version of events given by party not bearing the onus

CRIMINAL LAW – evidence – admissibility of portion of Macquarie Dictionary – where evidence of listening device admitted over objection – where one accused threatens “to smoke” the other if he speaks to police – where Prosecutor seeks to rely on dictionary to prove meaning – where trial riddled with idiosyncratic idioms – probative value of evidence wafer-thin – potential for prejudice significant – evidence rejected

EQUITY — Unconscionable conduct — Special disability or disadvantage – other party’s knowledge – whether unconscientious advantage taken – the plaintiff, a financier, loans a substantial sum to a special purpose corporate vehicle associated with the interests of the defendant’s husband in relation to a property development – defendant provides a secured guarantee over her residence for the obligations of the corporate borrower to repay the loan – the loan to the corporate borrower covers temporary default interest and charges on other loans to parties and interests associated with the defendant’s husband – the defendant executes the loan documents at the office of the defendant’s husband in the presence of the solicitor for the defendant’s husband – whether the defendant was in a position of special disadvantage in relation to the plaintiff lender at the time of giving a secured guarantee – whether the plaintiff took unconscientious advantage of the defendant in taking her secured guarantee – whether the defendant had independent legal advice – whether any legal advice that was available to the defendant overcame any special disadvantage that she had in giving her secured guarantee to support the loan transaction. CONSUMER LAW — Misleading or deceptive conduct – defendant cross claims alleging that a principal of the plaintiff, the second cross-defendant, engaged in misleading deceptive conduct which had the effect of inducing the defendant to provide a secured guarantee of the obligations of the corporate borrower – whether the principal of the plaintiff made the statements that the defendant alleges he made to her.

PRACTICE AND PROCEDURE – hearing – adjournment – applicable principles – whether plaintiff should be given leave to rely on further evidence – where grant of leave would necessitate adjournment of hearing date – where refusal to grant leave would mean the plaintiff’s claim fails – whether in the interests of justice – plaintiff’s application for leave to rely on further evidence successful – hearing adjourned – no question of principle

Administrative Law - Judicial Review – Judicial Review of Council decision to approve plan that identified the boundaries of a public road – certiorari ordered

CONTRACTS — interpretation — business premises lease agreement between partnership and lessor — whether subject to annual CPI increase — notice requirements LIMITATION OF ACTIONS — contract and debt — where lessor claims unpaid rent from partnership — where partner promised to account to other partner for her share of unpaid rent — where promise to account was not made to the lessor — whether partner confirmed the cause of action — whether partnership renewed the rent agreement with lessor EQUITY — fiduciary duties — breach — rule in Barnes v Addy — where partner in partnership appropriated partnership assets to company of which she was a director — whether company knowingly received partnership property in breach of partner’s fiduciary duty — whether company knowingly participated in a dishonest and fraudulent design — whether partnership could be compensated for value of appropriated partnership assets

TAXES AND DUTIES — Administration — Assessment — Health Insurance Levies Act 1982 (NSW) – Whether the taxpayer had discharged its onus of proving the amount of “exempt contributors” for the purpose of calculating the amount of the levy

ADMINISTRATIVE LAW – judicial review – motor accident – decision of medical review panel – unexplained delay by review panel in providing certificate – whether delay resulted in jurisdictional error or error of law on face of record COSTS – judicial review of decision of a medical review panel – application of Suitors’ Fund Act 1951 (NSW) – whether costs may be payable by body responsible for delay leading to proceedings TORTS – negligence – damages – non-economic loss – whether threshold exceeded – medical assessment of permanent impairment

EQUITY — Trusts and trustees — Constructive trusts — Common intention — whether there was an “actual intention” mutually held between the parties– where defendant owned farm property in which plaintiff alleged that he had a present beneficial interest ESTOPPEL — Proprietary estoppel — Encouragement — whether there was a clear and unambiguous representation by the plaintiff to the defendant – where defendant purportedly made representations as to plaintiff’s interest in farm property ESTOPPEL — Proprietary estoppel — Encouragement — Detrimental reliance — whether sufficient evidence that circumstances amounted to detrimental reliance – where plaintiff contributed time and labour to defendant’s farm properties over several years EQUITY – Trusts and trustees – Constructive trusts – whether circumstances gave rise to a joint endeavour between the parties – where plaintiff and defendant lived and farmed properties together on and off for 30 years

EVIDENCE – Discretions – Exclusion of evidence – Criminal proceedings – Application by accused to exclude evidence of witness’ “off-the-record” conversation with police under s 138 of the Evidence Act 1995 (NSW) because it was improperly obtained and/or under s 137 because the probative value is outweighed by the danger of unfair prejudice to the accused - No impropriety by police officer established – Danger of unfair prejudice not outweighed by probative value of evidence – Application to exclude evidence rejected

CIVIL PROCEDURE – stay of proceedings – pending High Court decision in a different case – stay granted

CRIMINAL LAW – evidentiary ruling – telephone intercept – dispute over words used – whether accused said “I dig it” in reference to the murder – where word sounds like “deep” – whether used as a verb – possible antiquated judicial understanding of modern Australian usage – possible interpretation that accused ruminating on events – comparison with other evidence in case – assessment of probative value – taking the evidence at its highest – whether evidence tendency evidence – use as circumstantial evidence going to state of mind – consideration and application of authorities – significant potential for misuse – possible remedies to cure prejudice – Pulp Fiction

CIVIL PROCEDURE — judgments and orders — setting aside and variation after entry — Uniform Civil Procedure Rules 2005, r 36.15(1) — application to be made by notice of motion in existing proceedings rather than in fresh proceedings CIVIL PROCEDURE — judgments and orders — setting aside and variation after entry — irregularity — declaration as to beneficial interest in land in favour of party to proceedings based on provision of purchase funds — no notice to non-party claiming to be assignee of that party’s interest — application successful

GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appointment – Application for appointment of a protective estate manager – Capacity for self-management – Meaning – Governed by nature and purpose of protective jurisdiction

CORPORATIONS – directors and officers – where officers of First Plaintiff breached their statutory duties by transferring funds of the First Plaintiff to a lawyer’s trust account in response to blackmail threats – whether Second to Fourth Defendants were involved in any such contravention EQUITY – fiduciary duties – whether Second to Fourth Defendants knowingly assisted in a breach of fiduciary duty by the officers or by an employee of the First Plaintiff – whether Second to Fourth Defendants knowingly received property of the First Plaintiff as a result of such breach CORPORATIONS – voidable transactions – whether transactions made using the company funds which had been paid into the lawyer’s trust account in response to the blackmail threats were transactions of the company – whether the transactions were uncommercial transactions and insolvent transactions RELIEF – whether funds transferred into the lawyer’s trust account were funds which the First Plaintiff held on trust – whether the Commonwealth has recovered such funds by the forfeiture of property in proceedings under the Proceeds of Crime Act 2002 (Cth) – whether the Plaintiffs ought to have sought an exclusion order in respect of the forfeiture of such property – whether any order for relief would offend the principle against double recovery or double proof – whether the Court should exercise discretion to deny or reduce relief EVIDENCE – where Plaintiffs tendered recordings and transcripts of conversations which had been obtained by the Australian Federal Police – where this material had been given in evidence in criminal proceedings and where recordings had been played in the course of those proceedings – whether this material was admissible under the Telecommunications (Interception and Access) Act 1979 (Cth) and the Surveillance Devices Act 2004 (Cth) – whether this material fell within section 69(3) of the Evidence Act 1995 (NSW)

CIVIL PROCEDURE – court administration – court powers – control of proceedings – where plaintiff is a prisoner in the High Risk Management Correctional Centre at Goulburn – plaintiff previously had access to eight storage tubs in his cell to store legal documents – where plaintiff subsequently restricted to accessing one storage tub in his cell at any given time in compliance with Custodial Operations Policy and Procedures – where plaintiff seeks continuous access to all eight storage tubs in his cell to assist him prepare for legal proceedings – where plaintiff also seeks access to a laptop with word processing capabilities to prepare for legal proceedings – whether the orders are necessary to prevent an abuse of the Court’s process or to ensure a fair trial in the substantive proceedings

EQUITY – trusts – estoppel – siblings transferred assets to parent – ongoing businesses operated by trustee of discretionary trust – parent the sole director and shareholder of trustee – siblings found to be shadow directors of trustee – whether primary judge erred in finding that assets held by parent on trust for siblings – whether primary judge erred in finding that trustee estopped from distributions with less than 50% to one sibling – whether breach of non-fettering principle – trustee made determinations in favour of one sibling’s spouse – whether primary judge erred in finding that distributions not paid and were owing – whether unpaid distributions should attract interest – whether credit should be given for tax paid

CRIME – Bail – Appeal bail – applicant required to establish that special or exceptional circumstances exist – where applicant to be sentenced for unrelated convictions shortly after bail hearing – where it is likely that further custodial sentence will be imposed on applicant – where applicant has not proved that proposed appeals are most likely to succeed – application refused

REAL PROPERTY – possession of land – application to stay execution of writ for possession – impending sale of the property

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

CORPORATIONS — Voluntary administration — Deed of company arrangement — Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to DOCA — Whether residual equity in company — Whether shareholders unfairly prejudiced.

COSTS — general rule — mixed outcome — privilege motion — where the cross-claimants/respondents succeeded in the substantive event — where the cross-defendants/applicants succeeded in their alternative claim — dominant and separable issues — where single order is necessary to reduce further costs — HELD — cross-defendants to pay half of the cross-claimants’ costs of the motion — costs payable forthwith

APPEALS – s 83 Civil and Administrative Tribunal Act 2013 (NSW) – student accommodation – whether residential agreement exempt from Residential Tenancies Act 2010 (NSW) – boarder or lodger – hall of residence – no question of law raised – Court’s power to dismiss appeal based on futility – appeal dismissed

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient

CORPORATIONS – deregistration by ASIC – application for reinstatement – where company was deregistered by ASIC pursuant to s 601AB of Corporations Act 2001 (Cth) at a time when the sole director was in aged care – where company held substantial assets at time of deregistration – reinstatement ordered – ancillary orders made for appointment of directors – where potential capital gains tax liability as a result of divestment and revesting of property – ancillary orders sought deeming company to have remained owner of property during period of deregistration – whether orders are within power and should be made

PRIVATE INTERNATIONAL LAW – foreign judgments and orders – service outside of jurisdiction – leave to proceed granted PRIVATE INTERNATIONAL LAW – foreign judgments and orders – Qatar– recognition or enforcement at common law – the First Instance Circuit, Civil and Commercial Court of the Qatari International Court and Dispute Resolution Centre – recognition orders unopposed – judgments recognised

EQUITY — Equitable remedies — Mandatory injunction — Where plaintiff’s director’s professional profile has been removed from website — Where plaintiff seeks interlocutory mandatory injunction to restore its director’s profile on website — Where the director’s relationship with the other business owners has broken down — Where the absence of the director’s profile on the website may cause a loss of potential clients and work — HELD — The balance of convenience does not favour the granting of the injunction — Interim restoration of the director’s profile would not assuage any reputational damage caused by its removal and is unnecessary where plaintiff’s separation from the business is imminent

COSTS – Indemnity costs – on appeal – Calderbank offer – offer open for two days – where offer made before service of appellant’s written submissions – whether respondents’ non-acceptance was reasonable

JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule – application to vary orders made in February 2024 – composite sum payable by appellants – assumption that each appellant liable for particular sums – interest calculable from different dates – reformulation of orders

APPEALS – leave to argue point not raised below – need for statement of findings challenged – Uniform Civil Procedure Rules 2005 (NSW), r 51.36 CONTRACTS – express terms – incorporation of terms – written contract – customer required to tick box on sales agreement agreeing to agree to supplier’s standard terms – link to standard terms not working at time of execution – whether link was to document produced in evidence by supplier CONTRACTS – construction – commercial context – prior dealings between parties – whether specific terms consistent with minimum annual quantity clause in standard terms – operation of exclusivity clause