Cases and authorities

COSTS – costs order – Calderbank offer – whether costs should be ordered on an indemnity basis from the date of offer by plaintiff to first defendant – where rejection of offer was not unreasonable – costs ordered on the ordinary basis – no question of principle

EQUITY – equitable interests in property – priority of interests – where net sale proceeds from sale of property paid into Court – whether plaintiff’s rights or interest had merged with earlier orders of the Court after entry into a deed of settlement – where plaintiff’s interest first in time prevails

CONTRACTS – construction – share purchase agreement – where agreement drawn by two businessmen without legal assistance and originally in Mandarin – whether plaintiff exercised option to “choose to leave the company” within the period of election ESTOPPEL – Anshun estoppel – where in earlier proceedings this Court at first instance and on appeal preferred the defendant’s construction of the agreement – where plaintiff now brings further claim for payment of interest that fell due after the plaintiff purported to terminate the agreement – whether plaintiff’s claim should reasonably have been brought in earlier proceedings

CONTEMPT – criminal contempt – interference with administration of justice – disclosure of confidential information provided for purposes of mediation – provision of information to person known to respondent within office of Deputy Commissioner of Taxation – discussion of matters requiring proof beyond reasonable doubt – whether statement of charge sufficiently specific – all matters requiring proof established – notice of charge not defectively imprecise – finding that criminal contempt committed returned

CONTEMPT – civil contempt – breach of orders – notice and knowledge of terms of orders – where plaintiffs seek orders that the third and fourth defendants be found guilty of contempt of court for non-compliance with court orders – where fourth defendant is sole director of the third defendant – where orders made by consent by the duty judge – where fourth defendant did not see or read emails from former solicitor containing proposed consent orders – where fourth defendant had some discussions with former solicitor or assistant about proposed consent orders – where former solicitor incorrectly summarised the terms of the court orders once made – whether third defendant by its sole director, the fourth defendant, knew of the terms of the court order

SENTENCING – federal offences – re-sentence following successful Crown appeal to the High Court – remitted from the Court of Criminal Appeal to a single judge of the Supreme Court – resentence for sequence 3 for conspiracy to cause an offer of a bribe to a foreign official contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) – relevant factors on sentence – within the mid-range of objective seriousness – damage caused by corruption of public officials – exemplary past assistance given by the company to authorities – undertaking of future assistance to authorities – need for general and specific deterrence – consideration of the effect of delay in commencing the prosecution of the company – absence of evidence of the actual impact of delay

LEASES – whether a sub-clause of the leases entered into between the appellant (lessee) and each of the respondents (lessors), which provided for restrictions on the lessee dealing with its interest and rights/obligations under the leases, applied to the grant of a proposed licence by the lessee to a third party granting access rights – where that sub-clause was contained within a clause dealing with restrictions on assignment of the leases without the relevant lessor’s consent LEASES – if the sub-clause applied – whether the lessors unreasonably withheld their consent to the grant of the proposed licence deed CONTRACTS – construction – whether the lessee was entitled to grant the proposed licence without the lessors’ consent – where the lessee and lessors had shared rights to use the land the subject of the leases – where the lessee failed to exercise an option granted to it for the creation of an access easement, which would have resolved the issue of access by the third party

CIVIL PROCEDURE – notice of motion – order sought to appoint a representative to the deceased person’s estate – Rule 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) – appointment consented to – order made CIVIL PROCEDURE – transfer of proceedings from District Court to Supreme Court – order made

TRUSTS – Application for judicial advice – Whether property is trust property – Whether property or proceeds of its sale must be transferred to incoming trustee – Where there is a change of trustee.

SUCCESSION - Administration of estates – plaintiffs sought orders for an executrix of an estate to file and pass accounts under Probate and Administration Act 1898, s 85 after the estate had been fully administered – lengthy unproductive correspondence between the plaintiffs and the executrix of the estate about access to estate accounts and documents - discretion as whether to grant relief and, if so, how and when accounts should be filed - consideration of factors relevant to exercise of discretion – whether alternative relief should be granted.

HIGH RISK OFFENDER – application for Extended Supervision Order – forensic patient – Interim Supervision Order – unacceptable risk

MENTAL HEALTH – where plaintiff charged with federal offence – found unfit to be tried in District Court – schizophrenia and cognitive impairment – prima facie case established – continued detention in hospital ordered pursuant to s 20BC of the Crimes Act 1914 (Cth) – concurrent detention as involuntary patient pursuant to State legislation – plaintiff held indoors within particular unit of mental health centre within hospital continuously for 18 months in purported compliance with order – declaration sought that order made does not prevent plaintiff from having supervised access to grounds of hospital and supervised leave outside those grounds – statutory construction of phrase “detained in a hospital” – expansive version of declaration made

JUDGMENTS AND ORDERS – suppression and non-publication orders – where defendant subject to Extended Supervision Order under the Crimes (High Risk Offenders) Act 2006 (NSW) – where final non-publication and suppression orders sought – where news media organisation opposes application – whether orders “necessary” pursuant to s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW)

CORPORATIONS – management and administration – procedural irregularity – whether Plaintiff’s admission to membership of Defendant was invalid – where order is sought under s 1322(4)(a) of the Corporations Act 2001 (Cth).

COSTS – party/party – costs orders in interlocutory proceedings – where order made for second defendant to pay plaintiff’s costs of motion – where second defendant seeks to have costs order varied

CIVIL PROCEDURE — Specialist lists — Possession List — Transfer from Equity Division General List

CORPORATIONS – Winding up – Application by liquidator for directions – Whether liquidator is justified in retaining or repaying certain monies – Where the Australian Taxation Office paid monies to the company by mistake.

COSTS – party/party – gross sum costs order – successful defendant on an appeal from the Local Court – where plaintiff unrepresented – where plaintiff had not paid the judgment sum – where the amounts involved did not justify a costs assessment

APPEALS — procedure — time limits — whether notice of appeal ought be dismissed for failure to serve on respondent in time CIVIL PROCEDURE — summary disposal — notice of motion seeking striking out or dismissal of proceedings — abuse of process — no reasonable cause of action — frivolous or vexatious proceedings — where self-represented appellant failed to adequately draft grounds of appeal

COSTS – Application to vary costs order under Uniform Civil Procedure Rules (NSW), r 36.16 – where no notice of motion filed seeking such variation – where requirement to file notice of motion dispensed with pursuant to Civil Procedure Act 2005 (NSW), s 14 – where appellants seek an order that the respondents pay the appellants’ costs of the appeal proceedings on an ordinary basis up to 11 June 2024 and thereafter on an indemnity basis COSTS – Where appellants successful on appeal – where prayers 1-4 in the appellants’ summons remitted to primary judge for determination – whether respondents should pay the appellants’ costs of the proceedings at first instance – whether appellants will be entitled to the whole of their costs of the proceedings at first instance – whether order as to costs of the proceedings at first instance premature

CRIME — application for leave to appeal against sentence — application for leave to appeal out of time — extension of time and leave to appeal granted. CRIME — appeal against sentence — aiding and abetting the supply of commercial quantity prohibited drugs — whether sentencing judge erred in assessment of objective seriousness — storage of prohibited drugs and characterisation of applicant as “user dealer” open to sentencing judge — no specific error demonstrated — appeal dismissed. CRIME — appeal against sentence — whether sentence was manifestly excessive — ground not made out — appeal dismissed.

EVIDENCE – murder trial – unfavourable witness – whether leave to cross-examine should be granted

COSTS — Application for imposition of an easement under s 88K Conveyancing Act 1919 (NSW) — Ordinary rule that applicant pays defendant’s costs of proceedings — Whether departure from ordinary rule warranted due to unreasonable conduct

COSTS – Party/Party — Payable out of a fund — Deceased estate – Calderbank letters – gross sum costs order – testator dies leaving two sons, the plaintiff and the defendant – principal judgment in the probate proceedings dismisses the plaintiff’s claim to have admitted to probate the testator’s later will, giving the whole of her estate to the plaintiff – the court admits to probate the earlier will dividing the estate between the plaintiff and the defendant – separate Calderbank and UCPR r 20.26 letters issued by the defendant – the principal judgment orders that the parties bear their own costs – defendant applies to vary costs orders on the basis the plaintiff had failed on all issues – whether the Calderbank letter offer effective – whether the UCPR r 20.26 offer of compromise effective – whether the Court should make a gross sum costs order or otherwise limit the costs payable to give effect to the Calderbank letter or the offer of compromise. CIVIL PROCEDURE — expert evidence – comments in relation to the need for prompt payment of court-appointed experts – consideration of how a party who has not paid a court expert should be required to pay that expert – consideration of how compensation for the expert should be measured.

CIVIL PROCEDURE — application for summary dismissal or strike out of pleadings — leave sought to withdraw alleged admissions in list response — where alleged admissions arise in part from obvious error in list response — court’s power to make amendment to facilitate just, quick and cheap resolution of real issues in dispute — finding that alleged admissions not truly admissions — General Steel test not met — no summary dismissal — finding that part of pleadings embarrassing and liable to be struck out

CHILD WELFARE – Adoption – Best interests of the child – Where child consents to adoption

GUARANTEES – principles of construction at [20]-[30] – contra proferentem rule not relevant where no suggested ambiguity – contract for sale of land and businesses in Darlinghurst for $61 million – purchasers are special purchase vehicles with $20 issued share capital – “prompt performance” of “all” purchasers’ obligations guaranteed by director and shareholder of special purchase vehicles – purchasers failed to complete or comply with an order for specific performance – whether guarantor undertook to perform principal’s obligation if the principal did not. SPECIFIC PERFORMANCE – whether orders for specific performance should be made against guarantor – Ryan v UPG 322 Pty Ltd [2023] NSWSC 1293 considered – quia timet relief available. WORDS AND PHRASES – “obligation to pay money” at [39].

COSTS — security for costs — whether order should be made for security for costs.

CIVIL PROCEDURE — subpoena to produce documents — where document produced in redacted form without leave — redactions made to prevent the identification and personal information of claimants and potential claimants of historical abuse — dispute regarding terms upon which access is to be granted — Plaintiff granted access on terms. PROCEDURE — civil proceedings —application for limited suppression order to protect the identity of the Plaintiff granted — detraction from the principle of open justice minimal— suppression order made to prevent prejudice and protect the safety of the Plaintiff.

LAND LAW — easements — purported easement for use of servient land “for garden use”, including planting and landscaping, and construction of garden shed for storage — interpretation — whether use of shed for storage limited to gardening items — whether grant allowed for common use by servient owner — “reasonable use” — validity — whether grant capable of forming subject matter of easement — “ouster principle” — effect on servient area and servient lot as a whole — grant invalid as an easement

PROTECTIVE JURISDICTION — Appeal from Guardianship Division of the NSW Civil and Administrative Tribunal (“Tribunal”) — Appeal from making of financial management order under Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), Sch 6, cl 14(1)(b) — Appeal limited to questions of law — Appeal allowed ADMINISTRATIVE LAW — Questions of law — Discussion of meaning within NCAT Act, Sch 6, cl 14(1)(b) ADMINISTRATIVE LAW — Jurisdictional error — Discussion of requirement of materiality PROTECTIVE JURISDICTION — Standing to bring application for financial management order under Guardianship Act 1987 (NSW), s 25I(1)(b) — Whether the Tribunal had formed the opinion that the applicant had a “genuine concern” for the welfare of the person the subject of the application (his mother), being a subjective jurisdictional fact — Discussion of meaning of “genuine concern” for the welfare of the person — Whether issue of standing raised — Whether finding on standing was “inherent” in the Tribunal’s reasons — Whether Tribunal’s rejection of summary dismissal application was a finding on standing — Held that issue of standing was raised before the Tribunal and it had not formed the opinion that the applicant had a “genuine concern” PROTECTIVE JURISDICTION — Grounds for making financial management order — Discussion of test to be applied in determining whether the person is not capable of managing her affairs under Guardianship Act, s 25G(a) — Whether “affairs” include directorship of a family company — Whether test requires the person to be able to “weigh complex information” regarding a significant property and business portfolio managed by the family company, in circumstances where she relies on her daughter (who is a co-director) and her son-in-law to manage those complex financial matters — Discussion of the relevance of assistance from the person’s support system in determining whether the person is capable of managing her affairs — Held that the Tribunal applied the incorrect legal test under s 25G(a) ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Legal unreasonableness — Discussion of requirements for legal unreasonableness — Whether conclusions of the Tribunal that the person was not capable of managing her own affairs and it was in her best interests for a financial management order to be made lacked an evident and intelligible justification — Held that the Tribunal’s findings on those issues were unreasonable ADMINISTRATIVE LAW — Procedural fairness — Whether the Tribunal afforded the plaintiff procedural fairness in rejecting evidence from the person’s general practitioner on Makita grounds, in circumstances where no objection was taken to that evidence at the hearing and no issue was raised with the parties — The Tribunal is not obliged to give the parties a “running commentary” of its assessment of the evidence — Held that the plaintiff was afforded procedural fairness ADMINISTRATIVE LAW — Procedural fairness — Whether the Tribunal afforded the plaintiff procedural fairness in drawing conclusions from certain payments made from the person’s bank accounts, in circumstances where the evidence of the payments was produced by the plaintiff herself but no issue as to the payments was raised with the parties — Whether conclusions of the Tribunal were “obviously open on the known material” — Held that the plaintiff was aware that the matters to which the payments related were in issue before the Tribunal and the plaintiff was afforded procedural fairness ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Whether the Tribunal took into account the principle in Guardianship Act, s 4(b) in concluding that it was in the person’s best interests to make a financial management order — Whether principles set out in Guardianship Act, s 4 are “mandatory considerations” in the Peko-Wallsend sense — As a matter of statutory construction, the principles in s 4 may not be “mandatory considerations” in that sense — Nonetheless, the Tribunal took into account, in substance, the principle in s 4(b) when it excluded the person’s personal bank accounts and credit card from the order

ADMINISTRATIVE LAW — Jurisdictional error — Children and Young Persons (Care and Protection) Act 1998 (NSW) — where care orders made by the Children’s Court removed parental responsibilities from mother — where care orders confirmed on appeal by the District Court — where no appeal lies to the Court of Appeal — where part of applicant’s evidence not considered by judge — no cross-examination or argument addressed to judge on evidence not considered — whether judge displayed apparent bias — whether applicant denied procedural fairness — whether decision was legally unreasonable — nothing in transcript of hearing under review demonstrates reasonable apprehension of bias or procedural fairness — findings of judge were not unreasonable in any sense of the word — summons dismissed.

CRIME — Appeals — Appeal against sentence — Re-sentence — Commencement date of sentence

CRIME – appeals – appeal against sentence – child sex offence – where no explicit reference to s 16A(2AAA) Crimes Act 1914 (Cth) in remarks on sentence – where sentence proceedings previously reopened to correct orders – whether sentencing judge failed to engage with a mandatory sentencing consideration – whether sentencing discretion miscarried – appeal allowed

CRIME – appeal against sentence – historic child sexual offences against own children and recent sex offences against step-grandson – application of MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180 – approach to sentencing for s 66EA offences discussed – complaint of manifest excess considered

CRIME – appeals – appeal against sentence – misapplication of principle – dealing with property reasonably suspected of being proceeds of crime -whether sentencing judge breached De Simoni principle – where absolute liability applied to mental element of the offence - whether sentencing judge drew inference about the mental element to sentence for a more serious offence – sentencing remarks do not disclose any such inference CRIME – appeals – appeal against sentence – denial of procedural fairness – offender with gambling addiction - whether sentencing judge introduced into his deliberations evidence that was not before him – whether applicant’s attendance at a video game convention involved a form of gambling – whether applicant was provided the opportunity to make submissions on the matter – where applicant did not show that he had addressed his gambling addiction generally – where applicant’s continued gambling did not affect the assessment of the applicant’s prospect of reoffending – no denial of procedural fairness

CIVIL PROCEDURE – approval of settlement in relation to persons under legal incapacity – settlement approved

CIVIL PROCEDURE — subpoena to produce documents — where document produced in redacted form without leave — redactions made to prevent the identification and personal information of claimants and potential claimants of historical abuse — dispute regarding terms upon which access is to be granted — Plaintiff granted access on terms. PROCEDURE — civil proceedings —application for limited suppression order to protect the identity of the Plaintiff granted — detraction from the principle of open justice minimal— suppression order made to prevent prejudice and protect the safety of the Plaintiff.

LAND LAW — Adverse possession — Possessory application over Torrens title land ­­— Where the plaintiff seeks a declaration that he is the rightful owner of part of the defendants’ rural land by reason of adverse possession for more than 40 years — Whether the acts of the plaintiff and his predecessors in title establish factual possession and intention to possess

CRIMINAL LAW – Whack-A-Mole pre-trial hearing – application for inspection of scene – relevant considerations – large area over which various incidents occurred – physical evidence scattered over several suburban blocks – perspective and distances – location of CCTV cameras – material alteration to one area of scene – shower can identify – inspection likely to be of significant assistance

EVIDENCE – client legal privilege – whether privilege waived or lost – whether conduct inconsistent with maintenance of the privilege – multifarious complications – where witness faces unrelated murder charge – where expert reports provided to prosecution in those proceedings – where witness objects to production of reports on Prosecutor’s call in these proceedings – Prosecutor’s proper compliance with Harman undertaking – whether reports served under compulsion of law – broad or strict approach – consideration of authorities – brutal environment of the Commercial List EVIDENCE – loss of client legal privilege – relevant considerations – whether witness’s contemptuous but courteous approach in witness box is a relevant consideration – considerations of fairness – where witness a child guided by lawyers – where Prosecutor denied more detailed understanding of witness’s observations – where witness declines to answer questions – “no comment” – disclosures in present proceedings – where witness objects to giving evidence – privilege against self-incrimination – contents of solicitor’s affidavit – disclosures striking “fine balance between candour and maintenance of privilege” – whether substance of evidence disclosed

SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow – Whether deceased was able to comprehend and appreciate the claims which deceased ought to have considered – Where deceased was elderly and vulnerable – Where deceased’s decision influenced by separation due to COVID-19 lockdown

APPEAL – application for leave to appeal from Local Court from various interlocutory decisions in criminal proceedings – where application for leave and appeal heard simultaneously – Court’s jurisdiction for orders in the nature of certiorari and declarations pursuant to Supreme Court Act 1970 (NSW) discussed – leave granted for some grounds and appeal dismissed – otherwise leave refused CRIMINAL PROCEDURE – surveillance warrant under Surveillance Devices Act 2007 (NSW) – authorisation of surveillance device for recording conversations – relationship between Surveillance Devices Act and Telecommunications (Interception and Access) Act 1979 (Cth) – powers of judicial officers to issue warrants – construction of the Independent Commission Against Corruption Act 1988 (NSW) in relation to functions and powers provided to officers of the Independent Commission Against Corruption – powers of ICAC officers to commence proceedings prosecuting offences before the promulgation of s 14A

ADMINISTRATIVE LAW – Judicial review – Consent orders for dismissal of summons

CIVIL PROCEDURE – Stay of proceedings – Concurrent civil and criminal proceedings – Whether civil proceedings should be stayed – Where prejudice to the defendants.

WORKERS COMPENSATION – Application for leave for extension of time – Whether leave should be granted – Explanation for delay – Strength of case – Prejudice – Discretion to grant leave exercised

ADMINISTRATIVE LAW – Jurisdictional error –Whether District Court should have declined to hear appeal from application to extend apprehended domestic violence order – Whether applicant denied natural justice and procedural fairness – Whether primary judge applied correct test – Whether primary judge’s ex tempore reasons adequate – Summons dismissed

ESTOPPEL – Proprietary estoppel – Where representations made by appellants to respondents (their daughter and son-in-law) as to ownership of various farming properties and interest in family farming business – Where following a “catastrophic falling out” of the relationship between them, appellants resiled from those representations – Whether representations were sufficient to ground a proprietary estoppel – Whether respondents reasonably relied on representations – Whether respondents suffered detriment – Whether representations were conditional such that the change in circumstances following the falling out between the parties meant that the appellants’ departure from their representations was not unconscionable APPEALS – Leave to appeal – Whether leave required for cross-appeal solely as to costs COSTS – Party/Party – Where primary judge ordered that each party bear his or her own costs – Where respondents were substantially successful at first instance but did not receive entirety of relief sought – Re-exercise of discretion as to costs

LEGAL PRACTITIONERS – disciplinary proceedings – solicitor – whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers - where Respondent convicted of six offences involving false and misleading conduct and participation in a criminal group and sentenced to a term of imprisonment – where Respondent did not oppose relief sought

CONTRACTS – Construction of a commercial lease – Whether COVID public health restrictions prevented tenant from “opening” the premises for business – Paramount clause to be construed before paramountcy can take effect – Not construed to require illegal activity CONTRACTS – Termination – Frustration – Impossibility of performance – Frustration does not apply as COVID public health orders as supervening event was risk for which tenant had assumed responsibility under the lease – Relevant orders did not require radical or fundamental change in what contracted for in any event