Cases and authorities

CORPORATIONS – winding up – statutory demand – application to set aside – whether the statutory demand ought to be set aside because the alleged multiple debts are expressed as a single amount – whether the whole of the alleged debts were due and payable – whether the expression of the debt in a foreign currency constitutes a defect in the statutory demand – HELD – application to set aside statutory demand dismissed; no substantial injustice caused

CONTRACTS – remedies – damages – assessment of damages – assessment of interest – s 100 Civil Procedure Act 2005 (NSW) – orders COSTS –broad brush assessment – legal principles apportionment – mixed success in primary judgment and cross-claim – determination

CIVIL PROCEDURE – exercise of discretion whether to allow amendment of amended summons and extension of time – where court in previous notice of motion gave directions not complied with as to time and content – failure to comply with Uniform Civil Procedure Rules 2005 (NSW) – no reasonable excuse for the delay – no prospect of success in substantive case – leave refused to amend the amended summons and for an extension of time

CIVIL PROCEDURE – pleadings – amendment – where plaintiff is a self-represented litigant – whether leave should be granted to file a further amended statement of claim – where plaintiff has been given a number of opportunities to re-plead – where defendant opposed the grant of leave and sought an order that the proceedings be dismissed – leave to file further amended statement of claim refused – proceedings dismissed under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) as an abuse of the process of the Court

COSTS – security for costs – where earlier orders for security were made – where third defendant seeks order that the proceedings be stayed until security amount is paid – where plaintiff seeks order vacating earlier orders for security – where no dispute that plaintiff should provide security – question of what would be reasonable quantum of security to provide from this point on to conclusion of a hearing

SUCCESSION – Probate and Administration – Renunciation – Intermeddling Executor – Grant of Leave to renounce probate not a release of any liability arising from intermeddling – Nature of liability of executor de son tort.

MENTAL HEALTH – criminal proceedings – person unfit to be tried – special hearing – necessity of adjournment for further psychiatric evaluation – adjournment in the interests of justice

PRACTICE & PROCEDURE – Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B – cross-examination of witnesses in China – evidence regarding credibility of plaintiff – two witnesses cannot attend court in Australia as no passport or visa – not unfair to allow evidence by AVL – in the interests of justice to allow evidence by AVL

PRACTICE & PROCEDURE – Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B – contested application – where witnesses are legal practitioners residing in China – where evidence of one is expert evidence re: Chinese law of contract – where evidence of other witness is regarding searches made of certain registries – no unfairness to defendants if evidence given by AVL

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order and mandated reports – history of sexual offences against children – where defendant has been subject to multiple supervision orders over many years – somewhat advanced age of defendant – physical and cognitive impairments – where defendant has chronic sexual attraction to children – imposition of order and conditions not opposed by experienced counsel – supervision required to mitigate risk – interim supervision order imposed

CORPORATIONS – compromise and arrangement – scheme of arrangement – transfer scheme – offer of mixed consideration – election between cash and scrip or combination of both ­– first court hearing – assessment of procedural and substantive requirements – whether orders convening meeting of members should be made

HIGH RISK OFFENDERS – application for an order to extend the status of the defendant as a forensic patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – application for final relief – unacceptable risk of causing serious harm – the risk cannot be adequately managed by less restrictive means – duration – orders

MENTAL HEALTH – application for extension of defendant’s status as a forensic patient – whether the defendant poses an unacceptable risk of serious harm – risk conceded – orders made

CRIME – bail – release application – grant of bail following conviction but before sentence – whether the applicant “will be sentenced to full-time imprisonment to be served by full time detention” so that s 22B Bail Act 2013 (NSW) applies – where alternative sentence of community corrections order was available – where it could not be said the applicant “will” serve full-time imprisonment by way of full time detention – where the applicant has filed a notice of intention to appeal – where the applicant’s grounds of appeal “are at least arguable and enjoy reasonable prospects of success” for the purpose of the release application – not necessary to consider “special or exceptional circumstances” pursuant to s 22B Bail Act 2013 – bail granted

PROTECTIVE JURISDICTION – Protected estate management – Application for change of manager – Welfare and interests of protected person the paramount consideration – Obstruction of management by applicant for change of manager – Application dismissed

EQUITY — trusts and trustees — two couples who are family purchased property with view to developing duplex — tenants in common in equal one-third shares (plaintiff’s partner not included on legal title) — single mortgage over property agreed between the parties to be paid off in proportion to 50:50 contribution between couples — couples occupy duplex after construction — property subdivided but ownership and mortgage proportions unchanged — plaintiff claims beneficial ownership in half of property on the basis of constructive trust — determination of appropriate species of constructive trust — failed joint endeavour constructive trust and common intention constructive trust — whether joint endeavour was ever completed — whether common intention constructive trust, as pleaded, was sufficient to deal with continuing mortgage and loan obligations — held, failed joint endeavour constructive trust rather than common intention constructive trust

CIVIL PROCEDURE – default judgment – setting aside – re-ventilating interlocutory application regarding same relief – where defendant previously sought to set aside default judgment without success – where defendant now alleges ineffective personal service – where defendant has in any event been aware of default judgment since late 2022 – purpose of personal service – no arguable defence to claim for possession CIVIL PROCEDURE – cross-claims – right of set-off – defendant’s proposed cross-claim insufficient to impeach the plaintiff’s title to possession as mortgagee – intuitive unfairness insufficient to establish interconnectedness between respective claims to allow equitable set-off

CIVIL PROCEDURE — Default judgment — Defence struck out for failure to prosecute with due dispatch – No issue of principle

CORPORATIONS — receivers appointed — application for the passing of the receiver’s accounts, payment of the receiver’s remuneration and expenses out of the assets of the receivership of the trust, payment of the balance of the assets of the receivership to creditor, and discharge of the receiver thereafter

CIVIL PROCEDURE — recusal of trial judge — apprehended prejudgment — partnership proceedings — receiver previously appointed to assets of partnership — determination of claim by partner against third party allegedly holding partnership assets — successful application to put proceedings on hold pending determination of appeal — no application to stay receivership order — comments on receiver’s power to pursue claims for partnership assets — no intimation that any such claim would be successful — recusal application dismissed

CONTRACT – 82-year old bachelor owns land near Thredbo with ski lodge – befriended by couple – offers rent-free accommodation in return for work on property – couple press for 99-year lease, then 30 + 30 year lease, then 30-year lease – owner agrees couple can manage the ski lodge – couple apply pressure – bachelor seeks help – police evict couple – couple assert 30-year lease – whether a contract – principles at [159]-[160] – owner did not sign lease – couple falsify multiple documents in support of claim – rogues. REPRESENTATION – whether owner represented that couple had 30-year lease – estoppel – misleading and deceptive conduct – principles at [177]-[178] – reasonable person in couple’s position would have recognised that owner unwilling to agree to (ridiculous) proposal, effectively giving his land to people he had just met on uncertain terms and for paltry return. QUANTUM MERUIT – principles at [187]-[188] –plaintiffs did excavation and redecorated ski lodge – work poorly executed – property damage – benefit not established – no injustice where work in return for accommodation or management of ski lodge.

APPEALS – Procedure – Stay pending appeal –balance of convenience – whether stay should be conditional on appellant giving security – appellant is wholly owned subsidiary of listed company – deed of cross-guarantee – whether risk appellant would default on judgment debt – no issue of principle

COSTS – Security for costs – Relevant factors – Impecuniosity – no issue of principle

CIVIL PROCEDURE – parties – marriage certificate and death certificate – deceased’s husband appointed as representative.

COSTS – security for costs – quantum and order

CORPORATIONS — liquidators — application by liquidator seeking court approval of entry into proposed deed of assignment — where proposed deed of assignment appropriate and consistent with expeditious and beneficial administration of liquidation — where liquidator also seeks confidentiality orders in respect of material concerning entry into proposed deed of assignment — where public interest in the proper administration of justice in respect of the liquidation outweighs open justice concerns to justify confidentiality orders

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.

SUCCESSION – application by interim administrator of deceased estate which includes units in a unit trust for judicial advice whether he would be justified in commencing proceedings to remove the trustee and appoint a new trustee under s 70 of the Trustee Act 1925 (NSW), and in relation to certain ancillary matters – no question of principle.

TAXES AND DUTIES — landholder duty — landholdings — meaning of ‘land’ TAXES AND DUTIES — landholder duty — liability — inclusion of asset in valuation of acquisition — meaning of ‘goods’ TAXES AND DUTIES — landholder duty — liability — valuation of property

PRACTICE AND PROCEDURE – application by defendants for permanent stay – whether agreement contained exclusive jurisdiction clause – where not all parties to the proceeding were parties to the relevant agreement – where plaintiffs made claims against defendant arising from alleged contravention of Entertainment Industry Act 2013 (NSW) – where no evidence that foreign court would apply this Act as part of the lex causae – where defendants sought to strike out claims based on Act and sought summary dismissal of claims against defendants who were not parties to the relevant agreement – whether strong reasons established for refusing a stay PRACTICE AND PROCEDURE – application by defendants for summary dismissal or strike out – test to be applied – whether there was a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial – whether plaintiffs should be given opportunity to amend pleading STATUTORY INTERPRETATION – section 11 of the Entertainment Industry Act 2013 (NSW) – prohibition on performer representative demanding or receiving fees or other remuneration from a performer under an entertainment industry agreement in excess of capped amount – meaning of “performer”, “performer representative” and “entertainment industry agreement” – whether “agreement” can be constituted by more than one contract – whether provision capable of applying where a performer representative located overseas demands or receives fees from a performer resident in the jurisdiction pursuant to an agreement governed by foreign law TORTS – breach of statutory duty – whether contravention of section 11 of the Entertainment Industry Act 2013 (NSW) is capable of giving rise to a private claim for damages for breach of statutory duty RESTITUTION – claim by plaintiffs for restitution of payments made by defendants – requirement for vitiating factor in order to establish entitlement to restitution – deficiency in pleading of claim

PROPERTY – directions – no point of principle

COSTS — party/party — general rule that costs follow the event — proceedings discontinued or dismissed — no final hearing on the merits

TORTS – trespass to the person – wrongful arrest – battery – false imprisonment – whether Appellant’s arrest was an unlawful exercise of power pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether police officer was satisfied that the Appellant’s arrest was “reasonably necessary” – whether requirement that a police officer be satisfied that an arrest is “reasonably necessary” requires an objective or subjective assessment TORTS – trespass to the person – false imprisonment – ss 114-116 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether the Appellant who was otherwise lawfully detained was “falsely imprisoned” for 16 minutes when he was questioned in an interview room after he had made it clear that he did not wish to answer any further questions – where most of the 16 minutes was not spent questioning the Appellant but in reading him the complainant’s statement – whether the Appellant was falsely imprisoned during period where police officers were awaiting the issuance of an Provision Apprehended Violence Order – whether Jones v Dunkel inference can be drawn in relation to State’s failure to call the Custody Manager TORTS – malicious prosecution – whether police officers were actuated by malice – whether proceedings were brought to mollify the complainant and her mother or to punish conduct which the police officers considered to be inappropriate

CONTRACTS – construction – breach of contract – action in debt – no issue of principle

PRACTICE AND PROCEDURE – whether the Court should make a vexatious proceedings order of its own motion – s 8(1) of the Vexatious Proceedings Act 2008 (NSW) – whether sufficient frequency of institution of vexatious proceedings – where litigants reagitated the same points on multiple occasions in the Common Law Division of the Supreme Court and in the Court of Appeal

EQUITY – constructive trust – failed joint endeavour – property acquired by one sister and her son using borrowed funds secured by mortgage – purpose of acquiring property was to provide a home for another sister following breakdown of her marriage – sister lived in home, paid outgoings and paid “rent” roughly equivalent to mortgage repayments – sister also paid $160,000 in reduction of principal from proceeds of her divorce settlement – whether primary judge erred in finding that sister and her son held property on constructive trust for themselves and other sister in equal shares after the payment of their respective relevant contributions – whether primary judge erred in assessing the quantum of the parties’ contributions – whether primary judge erred in finding “mutual understanding” that sister had an undefined interest in property – whether primary judge erred in finding son was nominee of his mother – whether primary judge erred in indexing the sister’s capital contribution of $160,000

CRIME – appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) – historical sexual acts – where female teacher maintained a sexual relationship with a child – where appellant pleaded guilty in the District Court – whether the conviction was a miscarriage of justice – whether appellant was convicted of a charge founded upon charges for which the appellant could not lawfully be convicted

CRIME – appeals – appeal against sentence – armed robbery – whether sentencing judge erred in failing to take account of the effect of the applicant’s mental health on the onerousness of full-time custody – where applicant suffers complex PTSD as a result of grave offences committed against him in juvenile detention – sentencing not reduced to “tick a box” process – necessary for sentencing judge to engage with significant submissions – topic of custody being more onerous because of applicant’s mental condition not specifically addressed – appeal allowed – applicant resentenced

CIVIL PROCEDURE – joinder – whether the Attorney General for New South Wales is a necessary party – no question of principle – orders made

COSTS – Where defendants are successful and the first plaintiff accepts the underlying contractual instruments entitle the defendants to costs on the indemnity basis – Where second plaintiff is not a party to those instruments but the defendants argue that he and first plaintiff should be treated as one – HELD: Indemnity costs ordered against the first plaintiff but costs on the ordinary basis ordered against the second plaintiff.

SENTENCE – MANSLAUGHTER – self-defence – excessive self-defence – plea of guilty – special circumstances SENTENCE – MANSLAUGHTER – excessive self-defence – accessory after the fact – pre-sentence custody – conviction without further penalty

ADMINISTRATIVE LAW – judicial review – where plaintiff seeks certiorari and declaratory relief – jurisdictional error – improper purpose – application for revocation of apprehended violence order (AVO) – where application brought before expiry of order – where court unable to deal with revocation application – where extension of AVO sought to enable it to be revoked – whether extension made for an improper purpose – purpose extraneous to objects of domestic violence legislation – revocation sought to avoid disqualification from applying for firearms licence – whether improper purpose – litigant’s motivation does not equate to Magistrate’s purpose COURTS AND JUDGES – obligation of courts to deal with controversies brought before them – requirement to act expeditiously – the ugly issue of court delays – the oppressive workload of local courts – litigants at the mercy thereof JUDGMENTS AND ORDERS – entry of orders on computer system – where orders entered incomplete or obviously wrong – rule 36.11 – Kafka

COSTS — Party/Party — Payable out of a fund — Deceased estate — whether costs-capping order should be made — whether gross sum costs order should be made

APPEALS – Leave to appeal – Where applicant’s submissions raise no arguable issues – Purported notices of appeal dismissed and leave to appeal refused.

CIVIL PROCEDURE – application for leave under Felons Act – claim for damages following alleged physical and sexual assault by officers in juvenile detention – leave granted

COSTS — Party/Party — Orders when proceedings involve multiple parties — Whether some defendants should be considered “interveners” — Whether plaintiff ought to pay the costs of those defendants – Whether plaintiff capitulated COSTS — Party/Party — Court’s discretion — Where two dominant issues arose during the proceedings — Where plaintiff unsuccessful on first issue — Where second issue arose due to a controversy as between some defendants — Where plaintiff “agnostic” as to outcome of second issue — Where first defendant agitated for a particular outcome — Where first defendant would have failed if orders had to be made in relation to the second issue — Whether first defendant ought to bare the costs of the other relevant defendants in relation to the second issue

FREEZING ORDERS – no question of principle

JUDGMENTS AND ORDERS — amending, varying and setting aside — for irregularity CONTEMPT — criminal contempt — contumacious breach of orders and undertaking given to the Court — reasonable belief in excuse

COSTS – Party/party – Indemnity basis – Whether costs should be awarded on an indemnity basis – Where a Calderbank offer was made by the defendant which was more favourable for the plaintiff than the final judgment of this Court.

NEGLIGENCE — duty of care — foreseeability — whether primary judge erred in finding risk of psychiatric harm to employee was not reasonably foreseeable — where employee was verbally harassed by co-workers — where employee made complaint to employer and employer took reasonable precautions to address risk of psychiatric harm — where employee did not indicate to employer that psychiatric harm was being suffered NEGLIGENCE — causation — where employee suffered “transient” psychiatric injury — whether certificate of whole person impairment issued by the Workers Compensation Commission was evidence of the permanence of the psychiatric injury for the purpose of ascertaining causation APPEALS — from finding of fact — improper admission of evidence — whether primary judge erred in admitting evidence of witness who was not disclosed in respondent’s pre-filing statement — where disclosure was required by s 315 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where appellant’s pre-filing statement did not comply with s 315 CIVIL PROCEDURE — pleadings — whether primary judge erred in failing to address appellant’s case on vicarious liability — where vicarious liability was not pleaded — where vicarious liability was raised in cross-examination and oral submissions at first instance — purpose and function of pleadings