Cases and authorities

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.

COSTS – costs order – two related family provision proceedings heard together – where plaintiffs in one proceedings were unsuccessful and plaintiff in other proceedings was successful – where several Offers of Compromise served to unsuccessful plaintiffs prior to hearing and rejected – onus on unsuccessful plaintiffs to persuade the Court that the overall justice of the case requires the exercise of the Court’s discretion to “otherwise order” – whether unsuccessful plaintiffs should be ordered to pay successful plaintiff’s costs in whole or in part – no question of principle

CHILD WELFARE — jurisdiction — Supreme Court of New South Wales — parens patriae — child requiring surgical procedures where blood transfusion may become necessary — parents consent to surgical procedures but refuse consent to possible blood transfusion on religious grounds — order authorising potential transfusion made — further consideration of whether application was necessary given provisions of s 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) — whether to make suppression orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) given existing protections parties have – closure of Court and file – pseudonym orders — equitable obligations of confidence — Court confidentiality — statutory suppression order made

COSTS — Where amount recovered within jurisdictional limit of Local Court — Where proceedings commenced and continued in Supreme Court — Whether Court satisfied that commencement and continuation of proceedings in Supreme Court was warranted in circumstances where substance of plaintiff’s claim was for unpaid rent and damages — Whether Court ought to deviate from starting position that costs follow the event

CIVIL PROCEDURE — conduct of proceedings — application for adjournment — evidence does not prove that the applicants are unable to attend Court and participate effectively in the proceedings — adjournment refused PRACTICE AND PROCEDURE – application to reopen – no basis for reopening REAL PROPERTY — mortgages — possession of land — judgment sought for possession — order for possession admitted subject to claimed set off.

SUCCESSION – wills – application under s 86A of the Trustee Act 1925 (NSW) for approval of arrangement to vary testamentary trusts created by will dated 1925 by bringing forward the vesting date which would otherwise occur in 2034 – Held: arrangement approved. SUCCESSION – wills – construction – whether reference to “child” and “children” in will made in 1925 included adopted child or children.

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — frivolous or vexatious proceedings — no reasonable cause of action disclosed — abuse of process — whether primary judge erred in dismissing proceedings — where applicant sought government grant for sporting achievements CIVIL PROCEDURE — summary disposal — dismissal of proceedings — incompetence — where leave to appeal was required — where a summons seeking leave was not filed

CIVIL PROCEDURE — parties — removal of parties — application to remove employee of the registry of the New South Wales Civil and Administrative Tribunal (NCAT) as party to proceedings — where claim was for judicial review of an NCAT decision — whether employee was a necessary and proper party

APPEALS – point not taken below – whether argument sought to be run on appeal was outside the pleadings and the manner in which the case was run at first instance – where evidence relied upon by the Respondent on appeal was not challenged by the Appellant at first instance given the way the case has been formulated and run CONTRACTS – formation – consideration – forbearance to sue – whether there was a presently owing debt as at the date when the agreement was entered into – whether the primary judge made a finding that there was a presently owing debt as at the date when the agreement was entered into – where pleadings were silent as to how any indebtedness was said to have arisen – where the Respondent sought to advance a different argument on appeal that was not pleaded at first instance and did not reflect the way the trial was conducted at first instance

NEGLIGENCE — Workplace injury — Where worker fell in a stormwater drain on construction site — Whether accident occurred as alleged — Competing testimony of witnesses — Whether director of appellant knew or ought to have know that the drain was uncovered — Director knew the drain was uncovered NEGLIGENCE — Duty of care — Duty of occupier to employee of subcontractor — Whether it was reasonable for occupier to assume that that a competent contractor would have addressed the risk — Occupier owes a duty to use reasonable care to avoid physical injury to individuals on site — Occupier was negligent NEGLIGENCE — CLA s 5D — Whether the negligence was a necessary condition of the occurrence of the harm — Proximate cause irrelevant WORKERS COMPENSATION — Common law remedies — Workers Compensation Act 1987 (NSW) ss 151A and 151Z — Damages payable by a non-employer — Proper operation of s 151Z(2) — Consensual adjustment of figures

LAND LAW — Compulsory acquisition of land — Compensation — Loss attributable to disturbance — costs incurred in connection with relocation — meaning of “relocation” — where lessee seeks costs of constructing landlord’s fixtures for use in lessee’s business — fit out costs — whether fit out costs encompass replacement of landlord’s fixtures LAND LAW — Compulsory acquisition of land — Compensation — market value — relationship between loss attributable to disturbance and market value of interest in land LAND LAW — Compulsory acquisition of land — compensation — Loss attributable to disturbance — costs incurred in connection with relocation — difference between rent at acquired premises and at the relocation premises — profit rental assessed for market value — whether compensation available as disturbance for difference in market rents

CRIME – proceeds of crime – where proceedings brought by the Australian Federal Police under the Proceeds of Crime Act 2002 (Cth) – monies held in various accounts with Australian banks – where those monies are proceeds of crime – restraining orders made – where applicants sought recompense – exclusion orders – where this Court has previously considered the alternative methodologies for the division of funds – where most appropriate methodology was applied to each account CRIME – proceeds of crime – where subsequent to hearing but prior to judgment further applicants came forward claiming an interest in the restrained funds – where previous orders had been stayed for 28 days – where orders sought by new applicants will affect previous orders made – further hearing dispensed with by agreement of the parties – new applications determined on the papers – interest determined by application of same method of distribution determined to be appropriate for each particular account in previous judgment – stay of orders discharged – orders made in favour of new applicants – orders previously made varied to adjust the interests of original applicants

PARTNERSHIPS – dissolution of partnerships – where partners operated separate and individual farming businesses – whether sale of property to partners within partnership is the most advantageous outcome for the partnership – where plaintiffs jointly hold an 80% interest in the property – where Court not satisfied in the exercise of its discretion to grant a buyout order – receiver appointed for the sale of the property and partnership assets

CONTRACT – execution – the plaintiffs executed one counterpart of a deed and contend that the defendants executed the other counterpart of the deed – the form of deed records an agreement between the plaintiffs and the defendants that the plaintiffs would not bid at a forthcoming auction of a farming property – the expressed consideration for the agreement of the plaintiffs not bidding at the auction was that if the defendants were successful at the auction that they would transfer another property to the plaintiffs that was adjacent to the plaintiffs’ existing farming property – defendants successfully bid at the auction of the farming property and acquired the auctioned property – defendants refuse to transfer the other farming property adjacent to the plaintiff’s property – defendants deny executing the counterpart of the deed – whether or not the defendants executed the counterpart of the deed that apparently bears their signatures – no issue that if the defendants executed the counterpart of the deed that bears their signatures that the deed is specifically enforceable.

SENTENCE – murder – 17 year old stabbed in home whilst asleep – offence one of considerable violence – offender aged 18 years – early plea of guilty – background of serious childhood physical and sexual abuse and deprivation – evidence of genuine remorse – good future prospects

COSTS – application by plaintiff for gross sum costs orders in main proceedings, contempt proceedings and application – main proceedings long running and involve serious and complex allegations of fraud – numerous costs orders on ordinary and indemnity basis – detailed evidence of costs and reductions – gross sum costs order in contempt proceedings conceded by defendants – whether plaintiff is entitled to costs before commencement of main proceedings – no discount to be applied for gross sum costs in main proceedings but discount applied for gross sum costs for application – HELD – gross sum costs orders awarded

LAND LAW – Easements – Right of Way – Full and free right for every person entitled to an estate or interest in the dominant tenement, and every person authorised by them, to go, pass and repass at all times and for all purposes, with or without vehicles, to and from the dominant tenement - Whether the defendant (servient owner) is infringing the right of the plaintiff (dominant owner) to enjoy the easement according to its terms and free of substantial interference by the servient owner, by refusing to consent to the plaintiff making a development application in respect of the dominant tenement – Where defendant’s consent is required because the proposed development also relates to the right of way – Whether the plaintiff’s use of the right of way following the proposed development would be excessive – Whether the plaintiff’s proposed development would unreasonably interfere with the defendant’s reasonable use of the servient tenement – Held: Defendant, in its capacity as the owner of the servient tenement, ordered to provide written consent to the making of the development application by the plaintiff

SUCCESSION — Executors and trustees — Duties – Liability to account – Wilful default – Held: Plaintiff beneficiaries’ claims for the taking of an account on wilful default basis, or equitable compensation in respect of alleged wilful defaults, dismissed. SUCCESSION – Construction, validity and operation of clause in will excluding liability of executor for loss – Where defendant executor was the testator’s solicitor who drafted the will - Whether clause void or unenforceable by reason of presumed undue influence - Held: Presumption of undue influence does not apply in probate context – Whether liability for “loss” in the context of the exclusion clause includes liability to account on a wilful default basis – Held: yes – Whether exclusion clause is void on the basis that it is repugnant or contrary to public policy because it excludes liability for breach of executor’s irreducible core obligations – Held: No, the clause, properly construed, does not exclude liability for breach of irreducible core obligations of honesty and good faith.

CRIMINAL LAW – admissibility of evidence – covert recording by surveillance device of three juveniles in police truck – six hours of recordings – around twenty portions to which objection is taken pressed by prosecution – remainder of recording not to be played to the jury – a mercy – where accused charged with murder – where accused provided with lengthy fact sheet – discussion relating to the same – consciousness of guilt – admissions – assessment of probative value – danger of unfair prejudice – seventeen evidentiary rulings made – no question of principle

CIVIL PROCEDURE — Discovery — Objection to inspection — Redaction — Privilege — Waiver

STATUTORY INTERPRETATION – literal meaning gives way to contextual and purposive approach – powers of court – “at the time the order is made” – Succession Act 2006 (NSW), s 59(2) SUCCESSION – family provision – evidence – whether primary judge erred in failing to require the claimants to provide updating evidence –– whether Succession Act 2006 (NSW), s 59(2), required claimants to file updating evidence – evidence was over five years old – judge subsequently accepted updated valuation of the estate – impact of delay on assessment of provision SUCCESSION – family provision – claim by grandchildren for provision from deceased’s estate –weight to be given to deceased’s testamentary intentions – intentions expressed in unexecuted will – passage of 16 years – evidence of applicants’ financial circumstances and needs lacking currency COSTS – requirement for leave to appeal – offer of compromise before first trial – order sought for indemnity costs – failure to challenge costs order on prior appeal – offer contained no real compromise

LIMITATION OF ACTIONS – breaches of fiduciary duty by director – claims by company for equitable relief against director and associated third parties – when company “first discovers” facts giving rise to claim for purposes of Limitation Act 1969 (NSW), s 47(1)(e) – principles applicable to attribution of director’s knowledge to company – whether those principles involve application of general rule in favour of attribution subject to “fraud exception” turning on whether company received benefit from director’s conduct – director’s knowledge of circumstances of breaches not attributed to company where attribution sought to defeat company’s claims EQUITY – equitable remedies – where director misappropriates company funds – where director subsequently characterises payment to him of company funds as a “loan” – whether later payment by director to company should be treated as reducing amount of equitable compensation to which company entitled – not established that later payment when made was to be applied in reduction of “loan”

CONSUMER LAW – Misleading or deceptive conduct – Purported termination of contract – “No transaction” case – Termination unavailable where breach of contract was minor and innocent party affirmed the contract COURTS AND JUDGES – Bias – Alleged “differential” treatment of parties – Adverse credibility assessments not evidence of bias COSTS – Where a judge other than the trial judge determines costs – Offer of compromise unreasonably rejected – Discretion as to costs not constrained by Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) where primary judge expressly provided opportunity to apply to vary costs order under that rule.

PROFESSIONS AND TRADES – medical practitioners – application for reinstatement – deregistered medical practitioner applied for reinstatement order – NCAT made order – Medical Council appealed, purportedly as of right – appeal as of right confined to questions of law – notice of appeal failed to identify any questions of law – belated application for leave to appeal on other grounds – whether error of law in NCAT’s decision – whether any other error disclosed – appeal dismissed

ADMINISTRATIVE LAW — judicial review — decision of medical appeal panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where appeal panel revoked medical assessor’s assessment of whole person impairment —whether primary judge erred in finding no jurisdictional error in appeal panel’s decision — whether primary judge erred in finding no denial of procedural fairness in appeal panel’s decision WORKERS COMPENSATION — injury — dispute as to assessment of whole person impairment — deduction for previous injury pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where medical assessor did not refer to evidence of previous injury — powers of medical appeal panel to revoke and issue new certificate of assessment

CRIMINAL PROCEDURE – Trial – Jury – Discharge of individual juror – Where juror has requested to be discharged on the basis of personal commitments – Juror discharged

CHILD WELFARE – adoption – where applicant and former husband adopted a child in another country – where applicant later discovered that adoption order not recognised in New South Wales – where applicant seeks to adopt the child, now an adult, pursuant to Adoption Act 2000 (NSW) – whether adoption would be in the best interests of the child

CRIMINAL LAW – application for separate trial – unusual possibly unique case – where Prosecutor agrees to tender statement of co-accused based on understanding the accused will give evidence in joint trial – where statement makes substantial admissions – where statement also implicates co-accused – where statement not tendered against co-accused and not admissible against them – where length of trial estimated to be 2-3 months – where four accused in custody for more than 2 years – dire consequences if basis of tender proves invalid – length of remand – relevance of Senior Counsel’s indication of accused intention to give evidence – acting on hope rather than an understanding of the fluidity and unpredictability of the criminal trial process – counsel and Court unable to find precedent – assessment of prejudice – consideration of possible jury directions – extent to which the accused giving evidence may alleviate the prejudice – summary of relevant principles – whether positive injustice established CRIMINAL PROCEDURE – accused person’s decision to give evidence – decision for accused not counsel – accused not bound by counsel’s current understanding – many reasons accused may change his mind about decision to give evidence

COSTS — Party/Party — General rule that costs follow the event — Proceedings resolved by consent — No issue of principle — Observations concerning treatment of costs in settlement negotiations

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Consent orders — where sum of money paid into Court as surplus funds of mortgagee sale — where consent orders sought for judgment debts and declarations as to underlying security interests — where other proceedings on foot in Federal Circuit and Family Court of Australia concerning defendant’s financial position — whether consent judgment should be entered and on what terms

CRIME — Appeals — Appeal against sentence — Persistent sexual abuse of a child — Sentencing judge misinformed about facts of and maximum penalty for one constituent unlawful sexual act — Crown conceded error — Applicant resentenced

EVIDENCE – s 18 of the Evidence Act 1995 (NSW) – murder charge – objection of the father of the accused to giving evidence – whether the nature and extent of that harm outweighed the desirability of having the evidence given – harm outweighed by desirability of having the evidence given – objection not upheld CRIMINAL PROCEDURE – trial – case management – objection of the father of the accused to giving evidence – whether objection should be upheld under s 18 of the Evidence Act 1995 (NSW) – objection not upheld in the circumstances

COSTS – proceedings travel to Court of Appeal, application for special leave and back – plaintiff get $500,000 – apart from curious damages claim pitched at its peak at $72 million, case should have been brought in District Court – defendants spend $2.5 million defending proceedings – 80% of trial occupied by issues on which plaintiffs failed – apportionment – principles at [21]-[23] – plaintiffs entitled to 50% of their costs on a party-party basis. CALDERBANK OFFER – defendants offer $2 million for damages and costs of three proceedings – plaintiffs contend unable to ascertain whether they did better than the offer where their costs are not known (nor disclosed) – principles at [38]-[40] –assuming plaintiffs incurred same costs as the defendants (which was obviously not the case), the offer was better than the outcome achieved – unreasonable to reject offer in the circumstances.

CORPORATIONS — voluntary administration — legal proceedings against company — application under s 440D(1) of the Corporations Act — where plaintiffs seek leave to proceed against company for summary judgment and gross sum costs — where administrators of the company neither consent to nor oppose the application — where grant of leave would occasion no prejudice to administrators — where proof of debt procedure would be more costly and less efficient — HELD — leave to proceed granted.

LAND LAW – possession of land – default under mortgage – no defence to the claim – where defendant has entered into a conditional contract of sale of the land - defence struck out – leave to plaintiff to seek default judgment the day after contract is due to become unconditional

SENTENCE – MURDER – offender found guilty at trial – joint criminal enterprise – where not possible to find offender committed physical act causing death beyond reasonable doubt or that co-offender did on balance of probabilities – no remorse – no discount for assistance – totality – reasonable prospect of rehabilitation – hardship in custody related to former OMCG membership – custody throughout COVID-19 pandemic – mental health – special circumstances

CRIME – sentence – manslaughter by excessive self-defence – affray – juvenile offenders – offences of lower objective seriousness – reduced moral culpability on account of background and immaturity

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — appeal from Associate Justice — No reasonable cause of action disclosed — reflective loss — whether reflective loss principle applies to indirect shareholders — abuse of process — where multiple prior proceedings brought on behalf of related party — proceedings dismissed

SUCCESSION – informal wills – s 8(2)(a), Succession Act 2006 (NSW) – principles at [143]-[153] – businessman makes will leaving $13.5M estate to defacto wife – couple separate in 2019 – both amend wills, leaving estate to their children instead – businessman amends will on computer only but not printed or signed – tells defacto wife, new executor and family law solicitor – emails Microsoft Word document to new executor – settles protracted family law proceedings including mutual release of claims on estates – difficult post-separation relationship with former defacto – happy in new relationship – dies in boating accident in 2023 – former defacto seeks probate of earlier signed will – whether businessman intended Microsoft Word document “to form his … will” – so satisfied.

HIGH RISK OFFENDER – high risk sex offender – application for extended supervision order – defendant with history of sexual offences against children and women - preliminary proceedings – without admissions dispute confined to appropriateness of some conditions

CIVIL PROCEDURE – appeal – interlocutory injunction – extension of order granted pending hearing of appeal – owner of property in default under loan agreement – receiver and manager appointed by lenders – proceeds of sales of secured property and rental income held by receiver and manager – application by owner to prohibit payment to lenders pending outcome of challenge to loan agreement

ADMINISTRATIVE LAW — judicial review of “serious corrupt conduct” findings made by Independent Commission Against Corruption against former Premier — where Commission’s report adopted findings of credibility made by person who presided at public inquiries — where the appointment of the person who presided at public inquiries as an Assistant Commissioner expired after conclusion of those public inquiries and that person appointed as a consultant and accordingly officer of Commission prior to report being finalised — whether assistance of presiding officer as consultant in preparation of report outside limits of her authority — whether Commission could adopt credibility assessments made by presiding officer after her appointment as Assistant Commissioner had expired ADMINISTRATIVE LAW — judicial review of “serious corrupt conduct” findings made by Independent Commission Against Corruption against former Premier — whether “no evidence” to support finding applicant influenced by her private interest in maintaining close personal relationship — whether non-pecuniary personal relationship capable of being “private interest” giving rise to conflict of interest and public duty — whether applicant as parliamentarian and Minister of the Crown had legally enforceable positive duty to act only according to what she believed to be in public interest — whether Commission made findings about merits of funding proposals — whether s 7 of NSW Ministerial Code and cll 10-12 of Schedule to code applies to Premier — whether applicant’s conduct in relation to funding decisions constrained by duty to act impartially — whether finding of partial conduct requires finding that but for unacceptable reason conduct would not have occurred — whether finding of partial conduct requires comparative exercise — whether Commission reached illogical or irrational result by making “serious corrupt conduct” finding but also refusing to recommend advice be sought as to whether to prosecute applicant — whether “dishonest” in s 8(1)(b) of Independent Commission Against Corruption Act 1988 (NSW) requires person to realise his or her conduct dishonest according to standards of ordinary people

JUDGMENTS AND ORDERS – Amending, varying and setting aside – Court of Appeal – whether judgment should be set aside under Uniform Civil Procedure Rules 2005 (NSW), r 36.16 COSTS – Application to vary costs order – whether parties should be permitted to make further submissions on costs

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing judge mistook facts in finding aggravating circumstances for a Form 1 offence – Whether the sentencing judge erred in admitting on sentence, and having regard to, the applicant’s criminal history for offences committed as a child.

CRIME – appeals – appeal against sentence – manslaughter – where applicant drove motor vehicle towards victims acting in defence of her daughter – whether sentencing judge failed to take into account relevant considerations when assessing objective seriousness – relationship between objective seriousness and moral culpability – identifiable error in the sentencing exercise – applicant re-sentenced.

CRIME – appeals – sentence appeal – where applicant pleaded guilty to numerous property offences – where applicant on conditional liberty at time of offending – new aggregate sentence partly cumulative upon balance of parole – whether error in failure to consider the effect of the applicant’s balance of parole on the “statutory ratio” between total non-parole period and total head sentence – where special circumstances not found – no evidence of express intention to extend ratio beyond 75% – appeal allowed – discussion of issues arising from Kentwell v The Queen and Lehn v R – applicant resentenced afresh – lesser sentence warranted in law CRIME – appeals – sentence appeal – where applicant pleaded guilty to numerous property offences – one count of enter dwelling-house with intent to commit larceny – circumstances of aggravation – whether error in finding the offending was aggravated by the fact that it was committed in a home – discussion of complexities surrounding aggravating factors listed in Crimes (Sentencing Procedure) Act 1999 (NSW) – no error by way of double counting established – breadth of statutory definition of “dwelling-house” – authorities to the effect that concepts underpinning “dwelling-house” and “home” are different CRIME – appeals – sentence appeal – manifest excess – extensive criminal record – offending whilst subject to conditional liberty – history of disciplinary actions in custody – background of profound deprivation – mental illness – drug and alcohol dependence – whether sentence imposed failed to reflect appropriate consideration of the applicant’s disadvantaged upbringing and history of abuse – difference between satisfaction that sentence imposed is manifestly excessive and satisfaction that lesser sentence is warranted in law on resentence – sentence imposed not manifestly excessive

CRIME — appeals — appeal against conviction — miscarriage of justice — whether direction to jury about elements of s 61HE of the Crimes Act 1900 (NSW) erroneous — elements of proving applicant was reckless as to whether complainant consented to sexual intercourse— distinction between advertent and inadvertent recklessness — distinction between subjective and objective recklessness CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of attempted and actual sexual intercourse with complainant without her consent — where complainant was intoxicated — whether complainant lacked credibility — whether complainant’s evidence unreliable — whether Crown excluded applicant’s version beyond reasonable doubt — whether applicant knew the complainant was not consenting to sexual intercourse

CRIME – appeals – appeal against aggregate sentence – four counts involving two complainants of assaulting a female and committing an act of indecency on a person under the age of 16 years – whether sentencing judge gave consideration to reducing the applicant’s moral culpability due to his age at the time of offence – where applicant did not make submissions on his age and immaturity – sentencing judge still reduced the applicant’s moral culpability – no error shown - whether sentencing judge had failed to find remorse – where no submission made by applicant to sentencing judge regarding remorse - where applicant had previously apologised to one complainant – no other statement or indication of remorse - apology did not show that applicant had accepted responsibility for his action – no error shown CRIME – appeals – appeal against sentence – manifest excess – whether indicative sentences were excessive resulting in manifestly excessive aggregate sentence - where the offences constituted serious offending against two young and defenceless victims – where a generous reduction of the non-parole period was granted – indicative sentences and the aggregate sentence were open to the sentencing judge – sentence not manifestly excessive EVIDENCE – new evidence – evidence sought to be led on appeal which was not before sentencing judge – where applicant submitted a miscarriage of justice resulted from the absence in the sentencing proceedings of new evidence – new evidence related to a conviction recorded against the applicant in 1975 – where applicant submitted that the new evidence demonstrated his mental health issues relating to offences against second complainant – new evidence did not add anything of substance to evidence before sentencing judge – new evidence did not make any link or material contribution to the applicant’s offending – where sentencing judge had reduced the applicant’s moral culpability on account of his mental health – no miscarriage of justice - evidence rejected