Cases and authorities

Land tax – Exemption – Statutory construction – Primary production exemption – Where s 10AA(1) of Land Tax Management Act 1956 (NSW) ("Land Tax Act") exempts from land tax rural land if used for primary production – Where s 10AA(3)(b) provides "land used for primary production" means land dominant use of which is for maintenance of animals for purpose of selling them or their natural increase or bodily produce – Whether requirement of "dominant use" of land applied both to "maintenance of animals" and also to "purpose of sale" in s 10AA(3)(b) of Land Tax Act – Whether "dominant" confined to required use of land only or "dominant" qualifies composite "use-for-a-purpose" phrase. Words and phrases – "dominant", "dominant purpose", "dominant use", "exempt from taxation", "exemption", "integrated business", "land tax", "multiple purposes", "primary production", "significant use", "tax", "use‑for‑a‑purpose", "use‑for‑the‑identified‑purpose", "use‑for‑the‑purpose", "use of land". Land Tax Management Act 1956 (NSW), ss 7, 9, 10, 10AA, 10

CRIMINAL PROCEDURE — Trial — conspiracy to defraud Commonwealth of PAYG tax — latent duplicity — Crown evidence only consistent with two conspiracies — Crown directed to close its case on only one of the conspiracies — where no evidence available to find one accused guilty of the conspiracy charge so confined — verdict by direction for that accused

CRIMINAL PROCEDURE — conspiracy trial — where Crown seeks to tender large volume of audio evidence — where some audio material has no or marginal evidentiary value — whether possible to reduce proposed tender of audio evidence in early stages of trial without unfairness to accused

SUCCESSION — Family provision — Family provision orders made in two separate claims on the deceased estate — In the current proceedings, orders provided for a period of 60 days for a lump sum legacy to be paid — The lump sum remained unpaid for a further period of approximately four weeks — D’s solicitor informed P’s solicitor that D was seeking refinancing — P’s solicitor complained of undue delay and lack of precise information — P’s solicitor sought relisting of the matter – Matter relisted and, over a number of listings, D’s solicitor provided to the Court, only by oral assertions, updates lacking clarity regarding progress of refinancing – In absence of disclosure of direct communications with the bank, P’s solicitors left in an invidious position of not being able to test the assertions about what was happening with the refinancing SUCCESSION — Family provision — Enforcement of family provision orders — Nature of family provision orders — Discussion of means of enforcement by administration suit, s 84 Probate and Administration Act 1898 (NSW) and discrete orders in relation to appointment of trustees in respect of specific estate property pursuant to s 66 Succession Act 2006 (NSW) — Ultimately lump sum and interest paid without necessity for appointment of trustee for sale EVIDENCE — Discussion of appropriate means of placing before the Court evidence in relation to refinancing — Risk that the Court will not be satisfied of important matters on the basis of pure assertion and may, in some circumstances, draw an inference unfavourable to the party where it appears that the party fails to testify or give evidence without adequate explanation SUCCESSION — Family provision — Compliance with court orders — In the absence of an empowering provision in the Will, statutory provision, consent or court order, an executor beneficiary is not at liberty to appropriate property in specie by payment of a legacy from alternate funds when the Court has ordered the payment to be made out of the estate property — If the executor beneficiary wishes to pay a legacy not from estate property as ordered, but from alternative available funds or funds to be raised by refinance, it is open to the executor to seek consent or apply to the Court for a substitution order pursuant to s 92 Succession Act 2006 (NSW) SUCCESSION — Permissible departures from administration according to a Will — Deeds of family arrangements — Discussion regarding executors and or beneficiaries funding an estate LEGAL PRACTITIONERS — Obligations of legal practitioners to make submissions of fact only based on evidence before the Court — Exceptions in cases where the relevant facts are agreed facts or are facts not genuinely in dispute or, in urgent circumstances, where the legal practitioner warrants to the Court that the asserted facts are trustworthy and in due course capable of being made good by admissible evidence LEGAL PRACTITIONERS — Obligations of legal practitioners — Obligations of legal practitioners in dealing with directions to pay funds — Obligations of legal practitioners dealing with one another, particularly in estate law SUBPOENAS — Subpoenas to give evidence — Directions made to identify a particular corporate officer with actual knowledge of the refinancing transaction, rather than to the corporation by its “proper officer”

CORPORATIONS – provisional liquidators – application by shareholder to appoint – no resolution of contested facts on interlocutory application – alleged scam promotion – winding up on just and equitable ground highly likely – HELD – provisional liquidators appointed

CIVIL PROCEDURE – cross-vesting – transfer to another Supreme Court – relevant factors – more appropriate or convenient forum – substantive place of the tort rule – substantive connecting factors with Queensland – transfer granted

COSTS — Where judgment delivered determining all questions other than quantum — Whether costs in respect of the proceedings to date should be deferred until after the determination of quantum where the parties have incurred significant costs to date — Held: determination of costs not deferred COSTS — Whether costs should be apportioned between claims where there has been a mixed outcome in the proceedings — Where two claims in respect of which plaintiffs failed were significant claims and separable from the balance of the claims — Where balance of claims interrelated and plaintiffs succeeded overall — Held: costs apportioned COSTS – Whether the defendants should pay the plaintiffs’ costs on an ordinary or indemnity basis — Where some defendants relied on fabricated documents and false evidence and caused delay during the hearing — Where such conduct increased the plaintiffs’ costs — Held: costs payable by those defendants on an indemnity basis

CIVIL PROCEDURE – Cross-vesting – Transfer to Federal Circuit and Family Court of Australia (Division 2) – Where the Supreme Court of New South Wales proceedings include claims by the plaintiff to equitable and proprietary interests in property that is co-owned by the first defendant and his former wife which is the subject of existing FCFCA proceedings in which the wife seeks orders under s 79 of the Family Law Act 1975 (Cth) altering the interests of the husband and wife in property, numerous third parties claim interests in the same property that is the subject of the plaintiff’s claims in the Supreme Court proceedings, and the FCFCA has power to make orders under s 79 binding third parties – Where the FCFCA has jurisdiction to hear the matter – Whether it is in the interests of justice to transfer the proceedings – Proceedings transferred

CIVIL PROCEDURE – service outside Australia – application for leave to proceed and default judgment against the fourth defendant – whether the fourth defendant validly served with the statement of claim – where the fourth defendant is a dissolved company formerly registered in the United States of America – where the plaintiff relies upon UCPR pts 11, 11A and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters – whether the plaintiff is able to rely upon pt 11A in circumstances where the originating process was not served pursuant to a request by the Registrar of this Court – whether the fourth defendant was served in accordance with New Hampshire law – whether the requirement to serve a notice in accordance with r 11.7 of the UCPR should be dispensed with – whether the fourth defendant’s dissolved status prevents the plaintiff from proceeding against it

SUCCESSION — Family provision — Claim by adult child — where young adult children of the deceased — where no provision made — where one child severely disabled — where one school age child – where defendant accepts some provision should be made — amount of provision to be made SUCCESSION — Family provision — Notional estate — where estate likely to be insolvent — where deceased’s real property transferred into joint tenancy immediately before death – where deceased’s real property transferred to defendant on his death as surviving joint tenant — where deceased directed large sums of cash from insurance and superannuation to defendant prior to his death — whether notional estate order should be made in relation to cash and real property – identification of cash and real property to be designated as notional estate

SUCCESSION - family provision - claim by grandchildren - whether primary judge erred in finding dependency - whether primary judge erred in finding factors warranting orders for family provision - whether failure in fact finding process in not addressing key documents or central submissions - whether retrial necessary

CIVIL PROCEDURE — freezing orders — costs order below and potential increase of judgment sum on cross-appeal — where judgment on appeal and cross-appeal reserved — where respondent has entered a contract of sale for only significant asset — whether risk of dissipation of assets — whether discretion to make orders should be exercised

REAL PROPERTY – caravan park with entitlement to exclusive long-term sites through share in company which owned the land – at first instance, claim by purchasers of shares to equitable interest in sites – no challenge to finding that no equitable interest in the sites was acquired – challenge to rejection of allegation that alleged representations made that the purchasers were buying sites as land, as well as shares – claim for specific performance – company placed into liquidation caravan park sold to company – indefeasibility of title CORPORATIONS – oppression – company placed into voluntary administration and caravan park land sold to company owned by same directors – where primary judge found that certain other conduct of affairs of company was oppressive – whether primary judge failed to find sale of caravan park itself amounted to oppressive conduct – whether relief ordered was sufficient to remedy oppressive conduct CONSUMER PROTECTION – misleading or deceptive conduct – where appellants did not challenge primary judge’s finding that there had been no reliance on the representations said to constitute misleading and deceptive conduct – whether primary judge erred in failing to find misleading or deceptive conduct by the making of representations as to sale of sites as land – whether misleading or deceptive conduct in relation to assurances that caravan park could not be sold without shareholder approval and/or as to whether cabins were fixtures – whether adequate reasons CONSUMER PROTECTION – unconscionable conduct – where alleged unconscionable conduct was constituted by a “course of conduct” of disparate acts – alleged failure of primary judge properly to address the pleaded claim – adequacy of reasons CONSUMER PROTECTION – harassment or coercion – whether correspondence following sale of caravan park amounted to harassing or coercive conduct – where primary judge had found that no damage had resulted from the alleged misconduct

WORKERS COMPENSATION – Disease injury – Disease contracted by a gradual process – Deemed date of injury – where original claim for compensation sought both weekly payments under s 33 and medical treatment expenses under s 60 of the Workers Compensation Act 1987 (NSW) (1987 Act) – where claim for weekly payments was subsequently withdrawn – whether the operation of s 15(1)(a)(i) and (ii) of the 1987 Act to deem the date of injury depends on whether there is an incapacity for work and a consequential entitlement to claim compensation for economic loss which has resulted from the injury in circumstances where the claim for compensation does not depend upon demonstrating incapacity – whether the limitation period in s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is inapplicable in the particular circumstances of this case because the appellant abandoned his s 33 claim

ENVIRONMENT AND PLANNING — Offences — Clearing native vegetation — Application by prosecutor for leave to appeal against interlocutory order or judgment — Appeal from Land and Environment Court — Case management provisions

CRIME – Appeals – appeal against sentence – dangerous driving causing death – where the statutory element of aggravation is excessive speed – whether the sentencing judge conflated the statutory element of aggravation with the circumstance of aggravation being driving under the influence of methylamphetamine – whether the applicant’s mental health conditions materially contributed to the offending – giving practical effect to a finding of special circumstances – variation to the statutory ratio should meaningfully reflect the period of parole required to sufficiently address rehabilitation – appeal upheld – re-sentence

CRIME – appeal against sentence – child sexual assault offences – where indicative term for a count relating to anal penetration was higher than the indicative term for counts relating to vaginal penetration – where applicant argues this indicates error by sentencing judge – whether ratio of indicative sentences establishes error – question of manifest excess

JUDICIAL ADVICE – Trustee Act 1925 (NSW) ss 63(1)-(2) – The trustee of a unit trust trading in foreign exchange contracts seeks judicial advice that it is justified in terminating the trust and doing so in a shorter period than that which the trust deed provides (by exercising a power under the trust deed to vary it) – Where there is shortly to be heard in the Court a trial involving, amongst others, claims against the trustee for breach of duty and that it should be removed – Where one of the avowed purposes of the trustee in bringing the application is to reduce its participation in the upcoming trial – Where the trustee’s approach is based on a short series of factual propositions without regard to the wide and significant context in which those propositions must be seen to be properly understood – Where the advice sought would entail closing out open positions on foreign currency contracts, a decision which would require complex and expert business judgement which the trustee is not in a position to make – Where the trust has made significant losses but in the immediate past has made a profit - Where one of the parties opposing the advice holds 80% of the equity in the trust – HELD – In the circumstances, it is not appropriate for the Court to exercise its discretion to give the advice sought – Application dismissed

CIVIL PROCEDURE – requisition for trial by jury – tort of assault – where jury trial requested to consider facts – where applicant alleges assault by police officers – where applicant alleges bias – where applicant is self-represented – whether the interests of justice require a jury trial be ordered

APPEALS — leave to appeal — whether leave to appeal against liability and costs order ought be granted — where applicant found to be liable for false imprisonment of respondent — whether appeal raises issue of principle — whether appeal raises question of public importance — whether there is reasonably clear injustice — application of s 46 of the Bail Act 2013 (NSW) — bail obligations of police officers

INJUNCTIONS — Permanent injunction — AB applied for employment with P and in a domestic relationship with an employee (CD) of P — P declined to employ AB following results of probity checks — AB without consent of CD obtains access to sensitive database information held by P — AB by text message to P seeks termination of CD’s employment with P at the threat of exposure of confidential details of P’s patrons — P obtains urgent interlocutory relief and seeks permanent restraining order — AB fails to appear on the hearing — Court satisfied AB notified of the hearing — Held interlocutory injunction made permanent INJUNCTIONS — Permanent injunction — Nature of a permanent injunction CONFIDENTIAL INFORMATION — Consideration of the requirements to establish a case of threatened misuse of confidential information accessed impermissibly and restraint relief — “Theft” of confidential records coupled with an attempted misuse in the nature of extortion readily gives rise to a sound action for breach of confidence — Discussion of sort of confidential information and risk of misuse as to justify permanent injunctive relief as distinct from interlocutory relief CIVIL PROCEDURE — No appearance by defendant — Uniform Civil Procedure Rules 2005 (NSW) r 29.7 — Whether defendant “absent” within the meaning of r 29.7 — Court satisfied defendant had notice of hearing by email CIVIL PROCEDURE — Hearings — Suppression and non-publication orders — Court Suppression and Non-publication Orders Act 2010 (NSW) (“Act”) — Whether suppression order should be made on the basis that it is necessary: to prevent prejudice to the proper administration of justice pursuant to s 8(1)(a) of the Act; to protect the safety of any person pursuant to s 8(1)(c) of the Act; and in the public interest pursuant to s 8(1)(e) of the Act

CIVIL PROCEDURE – Extension of time – Discoverability – Disability – Workplace bullying – Presumptive prejudice – Fair trial – Leave granted.

CIVIL PROCEDURE – commencement of proceedings – leave to commence pursuant to Felons (Civil Proceedings) Act 1981 – leave granted

CIVIL PROCEDURE – suppression and non-publication orders – significant media interest – where past publication of identity allegedly resulted in vilification – previous non-publication orders by this Court – necessity of an interim order under s 10 Court Suppression and Non-publication Orders Act 2010 pending final determination of non-publication application

SUCCESSION – Family provision – Nature of orders – Settlement – Burden of provision – Whether provision to come out of specific legacies or residuary estate

BUILDING AND CONSTRUCTION – contract – damages – defects – judgment earlier entered against builder with damages to be assessed – assessment of damages

PROCEDURE – slip rule – application of slip rule to amend name of fourth defendant and vehicle identification number

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – claim for negligence against insurance brokers – where plaintiff’s claim is said to be statute barred under the Limitation Act – loss of a chance or the chance of a loss – not the “clearest of cases” – necessity of close examination of situation in a case for contravention of a statute of limitations warrants maintenance of proceedings

CIVIL PROCEDURE — Pleadings — Striking out — Abuse of process — Plaintiff’s amended statement of claim including for possession of properties struck out for failure to provide security for costs — Whether abuse of process for plaintiffs to assert same contentions as part of defence to bank’s cross-claim in same proceedings for possession of those properties

SUCCESSION — Administration of estates - distribution – continuing claims by beneficiaries of an estate against an independent administrator alleging maladministration of the estate – claims raised in the evidence are unfounded – beneficiaries seek distribution of the estate to them and threaten the possibility of future litigation against the administrator – beneficiaries refuse to give the administrator a release in respect of his administration of the estate – administrator pays funds into Court under Trustee Act 1925 Part 4, requesting the Court to resolve the extant issues between the beneficiaries and the administrator and to determine the beneficiaries’ respective entitlements for the estate – whether the administrator is entitled to insist upon a release by a beneficiary from liability for estate administration before payment out of the funds in Court – what determination can be made in relation to the claims made by the beneficiaries against the administrator – what should be done in the interests of justice to balance the rights of the parties in relation to potential future litigation by the beneficiaries against the administrator.

LAND LAW – Judgment in favour of the plaintiff for possession of a property – Where the plaintiff is the registered proprietor of the property – Where the defendant, the plaintiff’s daughter-in-law, has lived in the property for more than 20 years with the plaintiff’s son – Where the plaintiff’s son unexpectedly died – Whether the plaintiff is estopped from requiring the defendant to vacate the property. ESTOPPEL – Proprietary estoppel by representation – Whether the plaintiff made oral representations to the defendant, more than 20 years ago, that she could live in the property owned by the plaintiff for as long as she wished if she agreed to return to her marriage to the plaintiff’s son – Where Plaintiff no longer competent to give evidence — Held: representations not proved.

PRACTICE & PROCEDURE – pleadings – summary dismissal – whether statement of claim discloses a reasonable cause of action – where previous proceedings between the same parties litigated to judgment – whether current proceedings an abuse of process LIMITATION OF ACTIONS – whether proceedings commenced in 2023 relating to tort or contract – allegations arising from events in 1977 barred by statute

TORTS – Trespass to the person – Battery – Persistent Sexual Assault by brother – Damages – Assessment of damages – No point of principle.

CRIMINAL LAW – Sentencing following guilty plea to murder – gravity of offence – killed young girlfriend with whom he lived – jumped over balcony and fell four storeys sustaining very serious traumatic brain injury and physical injuries – violent, merciless attack using a hammer and two knives – intention to kill – drug-induced psychosis – whether such condition present at the time of the murder – whether offender drug intoxicated by nitrous oxide use at the time of the murder – psychiatrists’ opinions – satisfied on the balance of probabilities that the offender had transient drug-induced psychosis at the time of the murder – marginal reduction in objective seriousness – mildly reduced moral culpability – early guilty plea – entitled to a 25% reduction in sentence – no remorse – feigned lack of memory of events – special circumstances given serious self-inflicted physical injuries and traumatic brain injury

CONTRACTS — formation — consideration — where new promise made in context of pre-existing contract — whether new promise is no more than promisor already bound to do — whether new promise was a bona fide compromise of a disputed claim CONTRACTS — illegality — illegal contracts — contracts contrary to public policy — whether it is incongruent with public policy to allow unlicensed agent to retain monies paid to it in breach of agency legislation RESTITUTION — ineffective transactions — unenforceable contracts — restitution of money paid — where payee in breach of obligation to be licensed under Property and Stock Agents Act 2002 (NSW) and Agents Act 2003 (ACT) — whether payor entitled to restitution of monies paid under contract despite payee’s breach — where legislation expressly excludes quantum meruit claims — where legislation does not provide for recovery of amounts already paid RESTITUTION — mistake — restitution of money paid — whether payor entitled to restitution of monies paid under mistaken belief that payee could enforce claim to recover such payment — whether payment made as a result of mistaken belief STATUTORY INTERPRETATION — Agents Act 2003 (ACT) — whether respondent “carries on business as a real estate agent” — meaning of “induce”

APPEALS — Procedure — Adjournment — Amendment — Appeal from final orders but in relation to two interlocutory decisions leading to final orders – Whether leave required CIVIL PROCEDURE — Hearings — Adjournment application refused — Relevance of timing of application — Where applicant self-represented CIVIL PROCEDURE — Originating process — Application to file an amended statement of claim granted at hearing — Where applicant provided opposing party four months’ notice of intention to make application

CIVIL PROCEDURE – recusal application – adjournment application – application pursuant to slip rule to vary orders made in 2022 – judgment in favour of one appellant with set off for respondents’ costs – judgment stayed and amount paid into court pending determination of costs of otherwise successful respondents – order for payment out

CRIME – appeals – appeals against conviction – miscarriage of justice – manslaughter – second-hand hearsay evidence of an admission – where no objection taken to admissibility – where no direction limiting use sought by defence counsel – whether to grant leave under Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 – where evidence highly prejudicial to defendant – where no rational forensic explanation for lack of objection – material irregularity – miscarriage of justice established CRIME – appeals – appeals against conviction – application of proviso – defence at trial not glaringly improbable – substantial miscarriage of justice occurred – proviso not engaged

CRIME – appeals – appeal against sentence – whether time in custody partly referable to other offending – whether failure to properly consider all pre-sentence custody – resentence CRIME – sentencing – pre-sentence custody – effect of s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – where Pt 2 Div 3 non-custodial penalty imposed – whether s 24 applies to non-custodial penalties

CIVIL PROCEDURE — Application for leave to reopen — Where application to reopen made at time of judgment — Where applicant made a conscious decision not to bring forward certain evidence — Where evidence not probative EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Intention — Where defendant had an obligation to repay money — Whether money extended was a loan or a contribution which entitled the plaintiff to an equitable charge EQUITY — Defences — Illegality — Where no defence raised — Where Court raised issue of Foreign Acquisitions and Takeovers Act 1975 (Cth) — Whether declaration should be refused in circumstances where the issue of statutory illegality arose

CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – settlement approved

CIVIL PROCEDURE – interim preservation – freezing orders – application for post-judgment freezing orders made ex parte following transfer of property by Second Defendant to third party – whether basis established for freezing orders against third party – whether basis established for freezing orders against each of judgment debtors – whether reasonably arguable that Third Defendant incurred contractual liability in capacity as trustee – whether freezing orders against third party should be conditioned on giving undertaking to commence proceedings – whether freezing orders should be continued until further order or for specified period

CIVIL PROCEDURE – representative proceedings – settlement or discontinuance – Court approval pursuant to s 173 of the Civil Procedure Act 2005 (NSW) – claims arising out of breast augmentation surgery – $25 million settlement sum – reasonableness of settlement distribution scheme including deductions for plaintiffs’ legal costs and disbursements, special payments to representative plaintiffs and costs of administration – reasonable settlement as between the parties and as between group members – orders made approving settlement

EMPLOYMENT AND INDUSTRIAL LAW – awards and enterprise agreements – interpretation – Public Health System Nurses’ and Midwives’ (State) Award – cl 53 “Staffing Arrangements” – proper construction of cl 53(iv) section II – where State failed to achieve 6.0 Nursing Hours per Patient Day (NHPPD) – whether failure to achieve 6.0 NHPPD amounts to a contravention – whether NHPPD are to be calculated by reference to the “spot check methodology” – held NHPPD sets a minimum staffing level that must be met at the rostering stage – rostering gives effect to reasonable workloads constituted by the agreed NHPPD – spot check provides facility for monitoring (not implementing) NHPPD – spot check employed at the instigation of a nurse or member of the Local Reasonable Workload Committee – plaintiff’s construction of cl 53 impractical and unworkable CIVIL PROCEDURE – separate determination of questions – whether order for separate determination can be made by Registrar by consent of parties - consequences of separate determination – where both questions answered adversely to the plaintiff – no contravention – disposal of proceedings

CONTRACTS — formation — acceptance of Calderbank offer — whether parties reached binding agreement to settle proceedings — meaning of “without prejudice save as to costs” — where settlement agreement contemplated execution of deed — whether entry into deed was a condition precedent — whether settlement agreement incomplete due to missing key term — whether entry into Calderbank offer indicated intention immediately to be bound

JUDGMENTS AND ORDERS – Proper construction of orders made by primary judge – Whether interest applied to amounts awarded under an order – Meaning of “the rate specified in the Suncorp mortgage” where two rates involved – Whether certain expenditures relating to rubbish removal and legal cost for dispute about land rating were properly referable to expenses reasonably incurred in the maintenance of property – Whether appellant entitled to allowance on GST paid with respect to maintenance expenses

COSTS – variation of costs order – application for indemnity costs by second defendant – second defendant seeks an order under s 6A of the Suitors’ Fund Act 1951 (NSW) – whether the fact that hearing date not reached entitles second defendant to such an order – first defendant seeks costs for period in which she was represented by solicitors

CIVIL PROCEDURE – interim preservation – freezing orders – application by plaintiff to extend freezing orders restraining second and fourth defendants – whether a “good and arguable case” established

COSTS – security for costs – relevant factors – whether ordering security would stultify proceedings – belated production of litigation funding agreement with private lenders – agreement produced with redactions – whether unredacted copy should be made available to defendant EVIDENCE – privileges – legal professional privilege – where litigation funding agreement in non-representative proceedings – whether details of manner in which lenders might share in claim proceeds should be disclosed to defendant – whether clauses were subject to legal professional privilege – whether clauses contained commercially sensitive information – whether disclosure would confer tactical advantage on defendant – relevance of provision in Practice Note SC Gen 17 concerning redaction of funding agreements to conceal information that might confer tactical advantage on defendant