Cases and authorities

TORTS – economic torts – injurious falsehood – injunctions – application for interlocutory injunction restraining publication – asserted tort of injurious falsehood – plaintiff company asserts article published by defendant falsely states that plaintiff and its officers engaged in criminality – discussion of elements of tort – discussion of the matters needing to be established in order for injunction to be granted – arguable case with regard to many elements of tort – no sufficiently good case for element of malice – application for injunction dismissed – ancillary orders

SPECIFIC PERFORMANCE – contracts for sale of land and businesses for $61M – director of corporate purchasers gives guarantee – purchasers fail to complete – portion of deposit also unpaid – orders for specific performance made against purchasers –whether specific performance should be ordered against guarantor as well – authorities considered at [57]-[66] – whether concurrent liability of purchasers and guarantor exists – whether guarantor directly liable to vendors – decline to order specific performance by guarantor until after date for specific performance by purchasers – adjourn proceedings.

COSTS — party/party — bases of quantification — indemnity costs

CRIMINAL LAW – sentence – manslaughter – objective features – objective seriousness – moral culpability – causal connection not necessary – social deprivation – contribution to mental health and tendency to violence – explain recourse to violence when frustrated – aggravating features – absence of planning – vulnerability of victim – hatred for prejudice against a group of people – criminal history – mitigation – plea of guilty – subjective circumstances – rehabilitation and remorse – general deterrence – s 166 matters – totality – special circumstances – aggregate sentence

COSTS — whether Uniform Civil Procedure Rules 2005 (NSW) r 42.34 applies — where plaintiff recovers less than $500,000 — considerations in reaching a fair and just result caters to both parties — Calderbank offer made by plaintiff — indemnity costs — indemnity costs awarded to plaintiff after date of Calderbank offer

CONTRACTS — Terms — Where terms of agreement between parties are inferred by parties’ conduct — Where parties disagree on scope of agreement — Where parties seek declarations concerning terms of the agreement EQUITY — Trusts and trustees — Court’s supervision of — Appointment and removal of trustees — Application of section 70 of Trustee Act 1925 (NSW) — Application of Miller v Cameron (1936) 54 CLR 572 — Where circumstances of trust management do not justify removal of trustees

USUAL UNDERTAKING AS TO DAMAGES – shareholder dispute resolved by consent orders, including sale of apartment building ‘in one line’ to maximise sale price – director alleged to have circumvented consent orders by arrangement with another developer and mortgagee – interlocutory injunction to restrain mortgagee sale of 3 apartments only – plaintiffs pay $2M into court as security under Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 – apartment building sold ‘in one line’ for higher price – mortgagee paid out – director seeks compensation of $980,000 for mortgagee’s higher payout figure. COMPENSATION – whether to enforce undertaking where no final determination of the merits –defendants concede injunction properly granted – principles and case law review at [61]-[78] – mere discharge of interlocutory injunction before trial does not establish that it ought not to have been ordered – defendants fail to establish circumstances warranting exercise of court’s discretion to enforce undertaking.

CONTRACTS – Claim to enforce a settlement reached at mediation – Whether there was an immediately binding agreement reached at mediation – Intention of the parties.

APPEALS – Further evidence – whether the appellants should be granted leave to rely upon further evidence on the appeal VALUATION – Compulsory acquisition – market value – where freehold interest in land acquired by the respondent for Coffs Harbour Bypass Project – where appellants objected to compensation awarded by primary judge – whether primary judge erred in applying s 56 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) in determining market value of the acquired property EVIDENCE – Witness evidence – adversarial bias – whether the evidence of the respondent’s hydrology and valuation expert witnesses should have been inadmissible due to adversarial bias APPEALS – Procedural fairness – whether appellants denied procedural fairness by conduct of their case by counsel below – whether appellants denied procedural fairness by conduct of the Valuer Conclave – whether appellants denied procedural fairness by apprehended bias of the primary judge EVIDENCE – Witness evidence – valuation experts – supervision of the expert valuation conclave VALUATION – Valuer – comparable sales – where expert valuers disagreed as to location adjustment for Corindi Property – whether primary judge erred in accepting the respondent’s expert valuer’s location adjustment VALUATION – Valuer – comparable sales – where comparable sale of Shepherds Lane Property relied on by appellants’ expert valuer – whether primary judge erred in disallowing Shepherds Lane Property as a comparable sale on the basis it was a compulsory acquisition VALUATION – Compulsory acquisition – disturbance – where primary judge awarded compensation under s 59(1)(f) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) for stamp duty on a replacement property which was not for “relocation” – whether primary judge’s award for disturbance erroneous as a matter of legal principle in light of the Court of Appeal’s findings in Sydney Metro v G&J Drivas Pty Ltd [2024] NSWCA 5

CIVIL PROCEDURE — Interim preservation — Search orders — Subsequent ancillary arrangements — Plaintiffs obtained search orders pursuant to which certain property was seized and held by independent solicitors — Independent solicitors no longer wished to hold the property — Certain of the property, which included medical imaging equipment, may be property in respect of which fourth defendant has a claim — Plaintiffs’ proposed regime for release or transfer of property to a secure storage site agreed between actives parties presented as a sensible, balanced and fair arrangement CIVIL PROCEDURE — Parties — Fourth defendant did not file any notice of appearance since the proceedings were commenced, nor take any active part in the proceedings — In the circumstances, the proposed regime for release or transfer of the property to a secure storage site, which requires prior notice to be given to the fourth defendant, gave him an opportunity to make whatever claim he may wish to make

REAL PROPERTY — Caveats — Plaintiff sought extension of caveat on property auctioned by defendant, who was joint tenant and sole trustee to act on the sale — Other joint tenant of property borrowed funds from plaintiff pursuant to personal loan agreement — Borrower’s only obligation under loan agreement was to repay principal balance — Whether mere borrowing of money gives rise to a caveatable interest — Ordinarily, mere fact that a caveator is a creditor of the registered proprietor does not give rise to a caveatable interest in land, as a caveat cannot be lodged to protect a mere contractual or personal right CIVIL PROCEDURE — Representation — Unrepresented litigants — In correspondence with Court, plaintiff sought some form of legal assistance in circumstances where solicitor who filed summons on plaintiff’s behalf appeared to no longer represent him — Whether order should be made pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) to refer the plaintiff to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance — Held that a referral should be made in favour of the plaintiff

CIVIL PROCEDURE — federal jurisdiction — special federal matters — Bankruptcy Act 1966 (Cth) — personal insolvency agreement — debtor a co-owner of five properties subject to orders appointing statutory trustee for sale — debtor assigns interest in three of the properties to PIA trustee — PIA trustee assigns debtor’s interest to purchasers — proceedings by purchasers against sale trustee and other co-owner to obtain registration — whether jurisdiction “in bankruptcy” REAL PROPERTY — statutory trust for sale — Torrens title — properties remain registered in names of co-owners following order appointing sale trustee — co-owner assigns shares of properties to purchasers — claim by assignees to require sale trustee and other co-owner to assist in obtaining registration refused — nature of assigning co-owner’s interest — nature of assignees’ entitlements — whether a “statutory trust” rather than a trust in the strict sense — Property Law Act 1958 (Vic), Part IV — claim refused — application by assignees to vary sale orders — orders substantive or mechanical — Woods v Sheriff of Queensland (1895) 6 QLJ 163 — discretion — failure to join assigning co-owner — standing — application refused

EQUITY – Fiduciary duties – Breach – Stolen funds – Trust attaches to stolen funds – Equitable compensation available remedy. EVIDENCE – Burden of Proof – Civil Proceedings – Claim for recovery of misappropriated funds – Plaintiff bears the onus of proving funds were misappropriated – Defendant bears the onus of proving repayment, set off or Cross claim.

STATUTORY INTERPRETATION – text and context of Part 5.3A of Corporations Act 2001 (Cth) – Corporations Act, s 443B(2) – whether “so much of … other amounts payable by the company … as is attributable to a period” misconstrued – no relevant misconstruction of s 443B(2) of the Corporations Act – appeal dismissed CORPORATIONS – external administration – administrator under Part 5.3A – personal liability of administrator – use or occupation of leased premises by administrator – whether personally liable for damages by way of makegood costs and lost rent – administrator not liable

HIGH RISK OFFENDER – high risk sex offender – application for extended supervision order – preliminary proceedings – concession as to statutory basis to make interim order without admissions as to final disposition of application – dispute confined to appropriateness of some conditions

CONTRACTS — Breach of contract — Where party seeks contract be set aside under Contracts Review Act 1980 (NSW) — Party unable to establish that circumstances at time contracts were entered were unjust — Relief not granted EQUITY — Equitable Fraud — Where invoice discounting facility used to perpetrate fraud EQUITY — Tracing — Mixed funds — Where misappropriated funds can be traced into property owned by a Defendant — Plaintiff awarded proprietary relief TORTS — Miscellaneous torts — Deceit — Elements — Application and satisfaction of Magill v Magill (2006) 226 CLR 551 — Whether parties had knowledge of, or were reckless to, the falsity of representations

NEGLIGENCE — breach — foreseeability of risk — whether height differential between surfaces in a playground gave rise to a reasonably foreseeable risk of harm — whether height differential was readily discernible — where the Australian playground maintenance standards applied — where council was independently advised to take steps to mitigate risk — where council did not take reasonable precautions advised NEGLIGENCE — breach — obvious risk — whether height differential between different surfaces in a playground was obvious — assessment to be made in all the circumstances — where it was foreseeable that playground users would be distracted by children NEGLIGENCE — causation — factual causation — whether council’s failure to top up mulch in playground to even out the surfaces caused the respondent’s injury NEGLIGENCE — duty of care — formulation of risk — whether primary judge erred in identifying the risk of harm as the risk of falling and sustaining injury when walking between two surfaces in a playground — whether the risk of harm could be reformulated on appeal — necessary specificity of formulation of risk of harm APPEALS — point not taken below — where matters raised on appeal were not raised before the primary judge — where council’s case on appeal differed substantially from the way in which it was conducted at first instance — extent to which parties are bound by the way in which their case was conducted at first instance

APPEALS – Leave to appeal – where applicant brought concurrent appeal and judicial review proceedings in relation to decisions of NSW Civil and Administrative Tribunal – where judicial review proceedings stayed – whether exercise of discretion to refuse to conduct judicial review pursuant to s 34(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) miscarried – whether primary judge misapplied principle in Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 – insufficient prospects to warrant grant of leave to appeal

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 — Winding up — Liquidators — Grant of leave to distribute a surplus — application of rule in Cherry v Boultbee — order for release of liquidator and deregistration of company.

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.

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.

ADMINISTRATIVE LAW – judicial review – jurisdictional error – Appeal Panel of Personal Injury Commission – whether Appeal Panel failed to give substantive consideration to the plaintiff’s ground of appeal – fair reading of Appeal Panel’s reasons – no constructive failure to exercise jurisdiction WORKERS COMPENSATION – medical assessment – proper construction of Medical Assessor’s Certificate – application of Workers Compensation Guidelines – proper construction of “social and recreational activities” scale – whether distinction between activities that occur within or outside of the home – no distinction – focus is on the social and recreational character of an activity

CIVIL PROCEDURE – application by defendant for permanent stay – whether res judicata or issue estoppel where claims in earlier proceedings dismissed by consent without adjudication on the merits – whether Anshun estoppel or abuse of process – whether claim for loss is a claim for reflective loss which should be summarily dismissed or struck out – whether proposed amendment discloses a reasonable cause of action – permanent stay granted

CIVIL PROCEDURE – notice of motion – adjournment - application to vacate hearing – adjournment sought on the basis that counsel has not had time to prepare reply submissions – unsatisfactory reason for adjournment – motion dismissed

CONTRACTS – construction – proper construction of a Share Purchase Deed – purchase of an online hamper and gift business – dispute as to what principles the expert must apply in calculating earnings and earn out amount – whether expert must take into account changes in manner in which purchaser has conducted the business following purchase

APPEAL — Appeal from ex tempore judgment of Local Court Magistrate — Right to reasons — Inadequacy of reasons — Nature of judicial duty to give reasons — Failure to deal with substantial and clearly articulated argument — Failure to consider reasonableness of mitigation — Reasons inadequate — Constructive failure to exercise jurisdiction TORTS — Damages — Mitigation — Damage to non-income producing chattel — Motor vehicle collision — Damaged vehicle unavailable while undergoing repairs — Owner’s need for replacement vehicle — Whether rental charges were reasonably incurred — Relevance of range of market rates in determining reasonableness of claimant’s conduct

COSTS – apportionment of costs where there has been mixed success in proceedings – class action brought by individual and corporate plaintiffs for public and private nuisance arising from Sydney Light Rail construction – individual plaintiffs failed to establish a claim in public nuisance – plaintiffs unsuccessful with respect to common questions 10 and 11, which were subject to separate hearing – appropriate basis for apportioning costs

COSTS – Party/party – Exceptions to general rule that costs follow the event

TAXES AND DUTIES — land tax — liability — concessions — principal place of residence

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

APPEALS – employment and industrial law – work health and safety – time limit for SafeWork NSW to commence prosecution under s 232 Work Health and Safety Act 2011 (NSW) – whether proceedings commenced in time – when SafeWork NSW had notice of the offence in s 32 Work Health and Safety Act 2011 (NSW) – the meaning of the phrase “exposes an individual to a risk” in s 32(c) Work Health and Safety Act 2011 (NSW)

CIVIL PROCEDURE – guillotine orders – expert reports served late in face of guillotine order – whether leave to rely on late served reports should be granted – where evidence is of importance to plaintiff’s case – where no specific prejudice to the defendant – where no suggestion that the plaintiff itself is responsible for the delay – where solicitor to show cause why he should not pay costs of the application and not charge plaintiff for work done in relation to the application

LAND LAW – strata title – duties of owners corporation – duty to maintain and repair common property – claims for rectification works and damages by lot owner under Strata Schemes Management Act 2015 (NSW), s 106(5) and 232(1) following breach of duty – whether entitlement of owners corporation to apply for orders to inspect and perform works on lot owner’s property an answer to resistance by lot owner to accessing her property – whether open to owners corporation to rely on unreasonable conduct by lot owner in failing to mitigate her loss in partial defence to claim for damages – consideration of nature of duty owed by owners corporation and statutory right to damages under s 106

CRIMINAL LAW – murder – wounding with intent to inflict grievous bodily harm – trial by judge alone – where the accused a young person at the time of the alleged offences – stabbing – Beef Week – melee at a KFC restaurant – numerous young persons involved – where the event is captured by CCTV and mobile phone – where the deceased exhibited significant animus towards the accused – where the accused suffers from a cognitive impairment – Foetal Alcohol Spectrum Disorder (FASD) – defence of substantial impairment – self-defence – knuckledusters – guitar capo – whether the accused believed his conduct was necessary in order to defend himself – whether the conduct of the accused was a reasonable response to the circumstances as he perceived them – excessive self-defence – accused not guilty of murder but guilty of manslaughter on the basis of excessive self-defence – accused not guilty of wounding with intent to cause grievous bodily harm – orders made

LEGAL AID – pro bono assistance – pro bono assistance previously provided for advice and the drafting of pleadings – further referral for continuing assistance – special reasons demonstrated – pro bono referral made

COSTS — party/party — costs follow the event — multiple claims — plaintiff claims orders appointing trustee for sale of co-owned property — defendant cross-claims for declaration that plaintiff held her portion of property on trust for him — cross-claim rejected – property sold by mortgagee and appointment of trustee rendered unnecessary — costs of cross-claim to be paid by unsuccessful defendant – costs of plaintiff’s claim to be borne by the parties — whether common costs to follow the claim or the cross-claim

CORPORATIONS – voluntary administration – deed of company arrangement – application under s 445D(1) of the Corporations Act 2001 (Cth) to set aside deed of company arrangement – where significant delay in making application – where false and misleading information was material to voting composition – termination of deed of company arrangement COSTS – determination of costs – ordinary basis – indemnity basis – no question of principle

UNDERTAKINGS TO THE COURT – elderly mother sues only son and his wife – settled – son and wife give undertaking to the court not to contact the mother – court informed undertakings interim measure intended to restore family relationships – not fit for purpose – implications on procedural fairness in subsequent legal proceedings – need for clear drafting at [73] – acceptance of undertaking in settlement context does not represent Court’s endorsement at [74]-[75] – Court’s discretion to accept undertakings at [76]-[77]. COURTS AND TRIBUNALS – whether NCAT has power to permanently stay proceedings – caselaw review at [96]-[107] – unnecessary to determine given express power to dismiss vexatious proceedings – s 55(1)(b), Civil and Administrative Tribunal Act 2013 (No 2) (NSW). PARENS PATRIAE – principles at [107]-[109] – elderly mother seeks orders prohibiting son and his wife from instituting any proceedings concerning her – cites stress and anxiety caused by further NCAT proceedings – whether “exceptional circumstances” exist – NCAT is a specialist tribunal best suited to consider the matter – mother is competent and able to give instructions – query whether orders sought are suitable where circumstances of elderly person may change – discretion to exercise jurisdiction not enlivened. VEXATIOUS PROCEEDINGS – s 8, Vexatious Proceedings Act 2008 (NSW) – principles at [116]ff – elderly mother sues, and is sued by, her son in relatively equal measure – son seeks guardianship and financial management orders in NCAT and fails – unsuccessful appeal to this Court – son files second NCAT application citing fresh evidence – whether the various proceedings were “vexatious” – whether son and wife had “frequently” instituted such proceedings – requisite elements not established.

APPEALS — Procedure — Adjournment — application for adjournment — no issue of principle.

AVIATION LAW – international carriage of passengers by air – Montreal Convention 1999 – limits of liability for bodily injury – whether carrier’s tariff waived partial defence under Art 21(2) for liability above 113,100 SDRs – whether unlimited strict liability for bodily injury

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing Judge erred in finding aggravation by reason of the age of the victims – Whether the sentencing Judge erred in his consideration of the age of the victims – Whether the sentencing Judge erred in not giving reasons for finding aggravation.

CRIME – appeals – appeal against sentence – totality – whether the principle of totality was applied to overall terms of imprisonment – concurrency and accumulation where the applicant is serving a sentence for unrelated matters – error established – re-sentenced

SENTENCING — procedural fairness — where parties proceeded on basis that the applicant had made frank admissions to his own offending conduct in an ERISP — whether sentencing judge failed to provide an opportunity to the applicant to address adverse findings made about his responses in the ERISP SENTENCING — relevant factors on sentence — remorse and contrition — whether sentencing judge failed to consider the applicant’s early guilty plea and unchallenged evidence of remorse and contrition

CORPORATIONS — winding up — application under s 482 of the Corporations Act 2001 (Cth) to terminate the winding up — where original winding up order and order appointing liquidators stayed and only to take effect upon company’s failure to pay amount of debt to plaintiff by certain date — where payment by defendant failed and winding up order automatically took effect on stipulated date — where the company has taken steps to pay all creditors and reduce or transfer liabilities — where remaining creditors support the application — where the company will likely be solvent on returning to trading — where the company is engaged in a speculative business endeavour and its future financial performance cannot be accurately predicted — where the interests of the public, creditors and commercial morality favour the termination

CRIMINAL LAW – proceeds of crime – production of documents – where proper officer suspects defendant engaged in serious crime – suspicion reasonably held – production order made

CRIMINAL LAW – proceeds of crime – production of documents – where proper officer suspects person engaged in serious crime – suspicion reasonably held – production order made

CIVIL PROCEDURE – parties – representative order – where plaintiff died prior to conclusion of the proceedings – whether plaintiff should be removed as a party pursuant to r 6.29 of the UCPR – whether representative of the plaintiff’s estate should be appointed and named as party – representative appointed pursuant to r 7.10 of the UCPR

COSTS – party/party – indemnity basis – whether costs should be awarded on indemnity basis – whether unreasonable of defendant not to accept offers

EQUITY — Equitable remedies — Injunctions — Whether damages not an adequate remedy – Whether to restrain first defendant from completing contract for sale of land