Cases and authorities

EQUITY — unconscionable conduct — whether equitable principles of unconscionable conduct apply to testamentary gifts as they apply to inter vivos transactions — where testator suffers from special disability — where beneficiary was aware of testator’s special disability — whether it was unconscionable for beneficiary to retain the benefit of a testamentary gift made in the course of a doctor/patient relationship EQUITY — undue influence — whether equitable principles of undue influence apply in probate as they do to inter vivos transactions — whether presumption of undue influence arises in circumstances where testator leaves substantial gift to treating physician — protection of testamentary freedom in testamentary dispositions EVIDENCE — credibility — whether primary judge erred in accepting evidence of testator’s treating physician who was also principal beneficiary under testator’s will — whether physician was a dishonest witness — where there were minor inconsistencies in physician’s evidence SUCCESSION — contested probate — lack of knowledge and approval — suspicious circumstances — where testator in poor health left substantial gift to treating physician — whether there was a quid pro quo arrangement between testator and beneficiary — whether beneficiary knew of the contents of testator’s will — onus of proof on beneficiary to prove that testator knew and approved of the contents of his wills SUCCESSION — contested probate — undue influence — whether testator was subject to undue influence — where testator in poor health left substantial gift to treating physician — where treating physician recommended solicitor to testator to draft his will — whether will represented testator’s true intention — onus of proof of undue influence in probate — whether presumption of undue influence arises in probate — whether general equitable principles of unconscionability apply in probate SUCCESSION — costs — whether appellants were entitled to have their costs paid out of the estate

CRIME – appeal against conviction – whether miscarriage of justice because of representation at trial – whether defence conducted contrary to applicant’s instructions – whether self-defence not advanced – whether applicant not permitted to give evidence – whether letters written by applicant not given to judge – no miscarriage of justice

CRIME – appeals – sentence – where applicant pleaded guilty to multiple child sex offences and offences of physical assault after one day of trial – sentencing judge applied no discount in relation to one count – error conceded – error as to maximum penalty and standard non-parole period also conceded – question of whether any lesser sentence should be imposed – grave course of offending over many years – multiple child victims

EQUITY — Trusts and trustees — Constructive trusts — Common intention — Where a father now deceased built house on son’s land — Whether inference as to common intention that father be entitled to an interest in son’s land should be drawn

CIVIL PROCEDURE — interim preservation — freezing orders

COMMERCE — restraint of trade — enforcement and remedies — injunction CIVIL PROCEDURE — interlocutory applications — interim injunction

PROCEDURE – civil – third application for stay of execution of writ of possession over three properties – too little too late – eviction from two of the three properties scheduled for 9:00am and 10:00am 20 May 2024 – affidavit inadequate and includes demonstrably false allegations by deponent (director of first defendant / eighth named defendant) – no defence ever filed – no affidavit of solicitor for defendants outlining or annexing any grounds of defence – judgment entered July 2023 – stay of writ of execution issued in January 2024 lifted by consent in February 2024 – nothing since – potential conflict of interest given allegations of incompetence in affidavit of Ms Colevski regarding solicitor with conduct of the matter previously, and, it seems, currently – no valid explanation for lateness – application refused

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient

APPEALS – leave to appeal – interlocutory order dismissing Land and Environment Court Class 3 proceedings – leave to appeal required under s 57(4) of the Land and Environment Court Act 1979 (NSW) – where two of many proposed grounds raise questions of statutory construction, one of general application – leave granted in relation to those grounds LAND LAW – water boundary dispute – application for boundary determination made to Registrar-General under Pt 14A of Real Property Act 1900 (NSW) – application refused under s 135D(2) – whether right of appeal under s 135J(1) from a “determination” made under Pt 14A extends to a refusal to make a determination LAND LAW – water boundary dispute – where appeal filed in October 2022 from a boundary determination made under Pt 14A of Real Property Act in 1996– where s 135J(3) required “appeal” to be made within 28 days of notice of determination – where Land and Environment Court Rules 2007 (NSW), rr 7.1 and 7.3 do not provide for extension, variation or waiving of that requirement – where by Uniform Civil Procedure Rules 2005 (NSW), r 1.7 and Sch 2 those “local rules” prevail – appeal out of time and incompetent

NEGLIGENCE — Breach — Slip and fall injury in supermarket — Whether systems of periodic inspection and cleaning adequate — Whether employees failed to implement systems — Whether reasonable precautions required additional system of hourly inspection and cleaning of front of store area — Whether breaches of duty additional to those found by trial judge NEGLIGENCE — Causation — Whether plaintiff proved factual causation under Civil Liability Act 2002 (NSW) — Whether injury would have occurred if there had been no negligent act or omission TORTS — Whether liability of occupier for breach of duty of care owed to invitee analogous to employer’s vicarious liability for employee’s tortious conduct or other wrongful act of employee in the course or scope of employment APPEALS — From findings of fact — Inferences to be drawn from CCTV footage — Whether appeal court in same position as trial judge to draw inferences from CCTV footage

CRIME – murder – wounding with intent to cause grievous bodily harm – Judge alone trial – accused a young person at the time of alleged offences EVIDENCE – objection by the accused - relevance – video evidence – file taken from accused’s phone as a result of a Cellebrite examination – failure by Crown to disclose this evidence – evidence relevant to provide further background with respect to issues relating to the accused’s state of mind – significant evidence already available – evidence excluded and not admitted

CRIME – murder – wounding with intent to cause grievous bodily harm – Judge alone trial – question as to whether the Court should be closed – where accused was a child at the time of the alleged offending – where accused no longer a child – little in the way of authority on the question – bound by a decision of a superior court – Court to be open

CORPORATIONS — civil procedure — default judgment — cross-claim — where cross-defendant has failed to appear, file defence or reduce the amount of the cross-claim

CORPORATIONS – deregistration – application for reinstatement under s 601AH(2) of the Corporations Act 2001 (Cth) – where the company is solvent and provides benefits to local community – where undertakings to rectify governance failures given – HELD – application for reinstatement granted

CORPORATIONS — meeting of members — requisition of special general meeting — where resolution for immediate vacation and re-appointment by election of elected council positions passed — where immediate re-election at special general meeting not practicable — where council instead proposes to fill vacancies on a casual basis — where there is a seriously arguable case that the council’s chosen approach is inconsistent with its governing rules and resolution — where the balance of convenience favours the grant of interlocutory injunctive relief

COSTS – third party costs order – where third party costs order made – where dispute as to scope of that third party costs order

CORPORATIONS – managed investments – judicial advice sought by responsible entity under s 63 of the Trustee Act 1925 (NSW) – conversion of closed class units to open class units in fund – whether responsible entity would be justified in convening meetings and distributing explanatory memorandum to unitholders – whether responsible entity would be justified in treating constitution amendments as within power.

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – where plaintiff claims $50 million for 1996 workplace injury – where proceedings in the District Court in 2000 were unsuccessful – subsequent proceedings in the Compensation Court settled in 2003 – plaintiff now asserts incorrect company was named as the defendant and inadequate compensation was provided – both allegations already determined in previous judgments – collateral attack on decisions in the District Court, Compensation Court and Supreme Court – nothing additional has been put forward – plaintiff has never appealed from earlier decisions – abuse of process to replead the issues CIVIL PROCEDURE – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – where plaintiff was unsuccessful in the District Court because her evidence was rejected – name of the defendant company inconsequential – where plaintiff further asserts a settlement offer was never provided to her and she was not present during negotiations – contemporaneous evidence clearly establishes offer was made and plaintiff was involved – insurer cannot be liable for failure of plaintiff’s solicitor to communicate offer – no duty to opposite party in litigation – where plaintiff claims her personal injury records were stolen and distributed – claim for breach or privacy or confidence – plaintiff unable to identify what documents were disclosed – allegations misconceived – proceedings dismissed

MORTGAGES AND SECURITIES — Unregistered mortgage — Where mortgage granted as security for legal fees — Whether caveat claiming an interest pursuant to mortgage valid — Whether mortgage void or otherwise terminated for breach — Whether mortgage secures forensic and speculative amount — Whether mortgage executed as a deed in accordance with requirements of Conveyancing Act 1919 (NSW), s 38 COSTS — Solicitor/client — Costs agreement — Where costs estimate given and costs agreement capped legal costs — Whether mortgage constituting costs agreement void by reason of asserted non-compliance with disclosure obligations to provide an updated costs estimate COSTS — Solicitor/client — Costs assessment — Where Costs Review Panel found costs payable pursuant to mortgage constituting costs agreement — Where mortgage terms cap amount payable and defer date for payment of costs — Where Costs Review Panel determined it lacked jurisdiction to determine costs assessment application before costs became payable under agreement — Whether attempt to enforce costs agreement before costs fell due constitutes breach of agreement APPEALS — Appeal by mortgagor against declarations that mortgage secures legal costs and is enforceable subject to final quantification by assessment process after a future date — Whether trial judge misinterpreted findings of other courts on related issues between same parties CIVIL PROCEDURE — Pleadings — Departure from pleadings — Whether respondent acquiesced in appellant’s departure from pleadings — Whether trial judge should have made findings on matters not pleaded below EQUITY — Defences — Set-off — Whether client’s claim against solicitor in negligence in separate proceedings capable of offsetting amount owing under costs agreement — Where negligence claim still on foot and neither party presently has a monetary judgment against the other

CRIME — Apprehended violence orders — Variation or revocation — Where application to revoke AVO filed prior to expiry of order but heard in Local Court after order had expired — Whether Local Court had jurisdiction to vary or revoke AVO once order had expired STATUTORY INTERPRETATION — Meaning of word “revoke” — Application to revoke final AVO made under Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 73 CIVIL PROCEDURE — Jurisdiction — Judicial review — Where applicant has no right of appeal from District Court decision — Application to invoke Court of Appeal’s supervisory jurisdiction — Whether jurisdictional error established — Whether District Court misconstrued the relevant statute thereby misconceiving the extent of its powers on appeal in a criminal matter APPEALS — Procedural fairness — Whether District Court failed to consider revocation application — Whether District Court prevented applicant from tendering evidence — Whether “legitimate expectations” doctrine applies

COSTS – application for security for costs – UCPR r 42.21 – factors relevant to the exercise of discretion to order security – ordinary residence of plaintiff – where defendant has failed to establish plaintiff is ordinarily a foreign resident – where Court is not satisfied that the plaintiff is ordinarily a resident of Australia – where Court is satisfied that the plaintiff is transitioning to Australia – where plaintiff has given enforceable undertaking not to leave Australia until conclusion of proceedings – whether an order for security for costs appropriate in the circumstances

CORPORATIONS – dissolution – reinstatement – where application for reinstatement under s 601AH(2) of the Corporations Act 2001 (Cth) – where the third and fourth defendant companies transferred properties to the first defendant – where the second defendant was sole shareholder of the third and fourth defendant companies – where plaintiff contends that the transfer of the two properties made with intention to defraud the plaintiff creditor – whether the plaintiff is a ‘person aggrieved’ by the deregistration of the companies – whether the justice of the case requires reinstatement

CONTRACTS — Construction — Interpretation — where document extremely poorly drafted CONTRACTS — Duress — Illegitimate pressure — commercial pressure — whether pressure amounted to illegitimate pressure EQUITY — Unconscionable conduct — where weaker party was under pressure due to failing business — whether circumstances sufficient to give rise to a special disadvantage GUARANTEE AND INDEMNITY — Contract of guarantee — Construction — Rules of construction — where deed containing guarantee and indemnity poorly drafted — rule to favour surety in face of ambiguity

EQUITY — Equitable interests in property — Priority disputes — Competing with other equitable interests — where money paid into Court by registered mortgagees following sale of three real properties — where three parties assert equitable charges — whether merits unequal — whether postponing conduct

JUDGMENTS AND ORDERS — Amending, varying and setting aside — where competing proposed orders — no question of principle

CIVIL PROCEDURE – application for approval of proposed settlement – professional negligence – proceedings commenced on behalf of six-year-old plaintiff – where plaintiff suffered permanent brain injury during birth – whether proposed settlement is beneficial to the interests of the plaintiff – settlement approved

LEGAL PROFESSION – leave to serve submissions after hearing – defendant serves submissions beyond scope of leave – principles at [4]-[7] – expedited matter – urgent application – plaintiff unable to respond to submissions in time – judge disregards unauthorised submissions – cost order excises costs of unauthorised submissions – plaintiff later consents to pay these costs “to avoid a fight” – serving submissions without leave is a professional conduct issue, unsuitable to be remedied by consent – access to transcript no answer. PROCEDURAL FAIRNESS – reasonable opportunity to be heard – principles at [9]-[13] – court not obliged to hear every submission counsel wishes to make in full – the court may cut short one party’s submissions to ensure that the other party also has a reasonable opportunity to be heard – no justification for serving submissions without leave.

CIVIL PROCEDURE – application for approval of proposed settlement – professional negligence – proceedings commenced on behalf of eight-year-old plaintiff – alleged negligence in misdiagnosing the plaintiff’s severe pneumococcal meningitis – whether proposed settlement is beneficial to the interests of the plaintiff – settlement approved

CRIMINAL LAW – sentencing – commercial drug importation – hardship to third parties – no requirement to establish exceptional hardship – gloss on plain language of Commonwealth sentencing statute – where sentencing Judge applied principles established at time of sentencing – where Court of Criminal Appeal subsequently held earlier authorities plainly wrong – ground of appeal established – applicants re-sentenced – whether applicant a “principal” – relevant considerations – not necessary to determine ground of appeal – applicant’s role substantial and possibly managerial

PRACTICE AND PROCEDURE – costs – determination – where plaintiffs’ claim for interlocutory relief has failed – no question of principle

CIVIL PROCEDURE – interim preservation – freezing orders – fraudulent CTP personal injury claim – forged medical invoices – brazen fraud – prima facie cause of action established – necessity of freezing order to prevent frustration of court’s process – freezing order granted

CIVIL PROCEDURE – application for leave for person in custody to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success – leave granted CIVIL PROCEDURE – application for suppression and non-publication order – paramountcy of “open justice” – calculus of risk – no evidence of real risk of harm – application refused

CIVIL PROCEDURE – application for leave for person in custody to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success – leave granted CIVIL PROCEDURE – application for suppression and non-publication order – paramountcy of “open justice” – calculus of risk – no evidence of real risk of harm – application refused

JUDICIAL ADVICE — Discussion of nature of judicial advice — Discussion of ability of Court to expeditiously transform proceedings from a private advice application to a contested application binding all relevant interested parties, conducive to the just, quick and cheap disposition of the real issues between them WILL CONSTRUCTION — Identification of appropriate approach to Will construction — Discussion of guides to Will construction, including grammar and sentence structure WILL CONSTRUCTION — Last nominated remainder beneficiary predeceases the life tenant on the same day — Issue regarding successive interests and when the remainder interests vest — Held that the disputed clause which included a phrase “as shall be living at the date of death” in context to be construed as creating a survivorship condition that one or more of the remainder beneficiaries be living at the time of death of the life tenant, not merely at the date of the death of the life tenant WORDS — “date” RECKONING OF TIME — The law does not in general recognise fractions of a day — However, the law will have regard to parts of a day where it is necessary for the purposes of the decision to establish a sequence of events

LAND LAW — Adverse possession — Possessory application over Torrens title land — Intestacy — Where no legal personal representative of deceased registered proprietor able to be found after extensive local and international inquiries — Nearly fifty years adverse possession

CRIMINAL PROCEDURE – impending murder trial – alleged stabbing by one juvenile of two others, one fatally – foreshadowed reliance on self-defence and substantial impairment – application for trial by judge alone of accused opposed by Crown – leave permitting late application not opposed – whether in the interests of justice to make the order – recent notorious fatal and non-fatal knife attacks in NSW – very recent homicide by multiple stabbings in Coffs Harbour – perpetrator still at large – apparent inability for trial to be conducted elsewhere, or at a later time – finely balanced competing considerations – application granted

ADMINISTRATIVE LAW – judicial review of decision of medical appeal panel – medical dispute under Workplace Injury Management and Workers Compensation Act 1998 – where plaintiff had suffered injury to her left elbow in a fall – where defendant rejected plaintiff’s claim about resulting impairment of her left upper extremity – where plaintiff made an application for assessment of impairment of her left upper extremity – where medical assessor found impairment of ulnar nerve as well as elbow joint – where appeal against assessment upheld – whether appeal panel erred in finding that medical assessor had dealt with injury which went beyond the parties’ medical dispute which was confined to impairment of the left elbow – claim pursued in respect of impairment of left upper extremity included impairment of the ulnar nerve – appeal panel’s decision set aside

COSTS – usual costs order – whether discretion to make a specified gross sum costs order should be exercised – principles applicable to order made under Civil Procedure Act s 98(4)(c) – where sum sought had been fairly calculated and a discount had been applied – where assessment likely to be costly, and involve further unnecessary expense, delay and aggravation – gross sum costs order made

COSTS – whether usual costs order under UCPR r 42.1 should be made – where defendant effectively surrendered to the plaintiff after litigating for some time – usual order made

BUILDING & CONSTRUCTION – plaintiff constructed house for defendant – plaintiff sued defendant for unpaid balance of contract price – defendant claimed entitlement to set-off for defects and brought cross-claim against plaintiff and against structural engineer – whether defects established – extent of defects – consequences of defects – proper measure of damages CONSUMER LAW – misleading or deceptive conduct – claim arose from communications concerning location of swimming pool - whether pleaded representations were made – whether representations were as to future matters or representations of opinion – whether representations were misleading – whether any loss or damage was suffered because of the representations

APPEALS – Leave to appeal – Appeal from orders as to costs only – Order on alternative bases – No clear injustice – Caution in granting leave from decision pertaining to practice and procedure – Proper reticence to grant leave in matters relating to costs alone APPEALS – Procedural fairness – Non-success in argument gives no cause for complaint about procedural fairness – Issue well and truly raised at hearing – Absence of reasons for rejecting procedural application for standing over issue of costs not sufficient basis to grant leave to appeal on substantive decision on costs

APPEALS – appeal from Land and Environment Court – Class 4 civil enforcement proceedings – where primary judge found appellant lacked standing PRACTICE AND PROCEDURE – standing – whether environmental organisation has standing to bring civil enforcement proceedings against State forestry authority – where application of special interest test is fact and context specific – evaluative judgment required – where interest more than mere intellectual or emotional concern – where interest beyond that of public generally – where organisation has taken sufficient concrete steps to give effect to interest and concerns

LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where owners are joint tenants — Where joint tenancy not severed at time of hearing — Where orders made pursuant to s 66G Conveyancing Act 1919 (NSW)

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether there is a genuine dispute as to the amount claimed in the demand — Whether there is some other reason why the demand should be set aside.

CRIMINAL PROCEDURE – suppression and non-publication orders – appeal against Local Court decision refusing non-publication order – gangland murder – lethal retribution on other co-accused resulting in death – strong temporal connection between retribution and publication of arrests – paramountcy of “open justice” – calculus of risk approach – evaluative judgment – necessity of non-publication order for genuine safety concerns

TORTS – trespass to land – squatter – land owned by NSW government – no ground for adverse possession – no arguable defence – summary judgment granted

NEGLIGENCE – General practitioner and patient –where plaintiff alleges that her general practitioner failed to advise or inform her of the need for cervical screening – where plaintiff now suffers from cervical cancer – whether the defendant was obliged to “follow up” on whether the plaintiff had undergone cervical screening – whether s 5O of the Civil Liability Act applies NEGLIGENCE – Causation – Medical negligence –whether, absent the defendant’s negligence, the plaintiff would have undergone cervical screening at a time when her condition was treatable NEGLIGENCE – Damages – damages sought for both economic and non-economic loss – assessment of likely future earning capacity

CIVIL PROCEDURE – jurisdiction – transfers to and from other courts – Local Court to Supreme Court – complex legal issue to be determined – where construction of a Deed of Settlement and Release is required – Deed product of proceedings in Equity Division

CONTRACTS - construction - share sale agreement made provision for payment of “Deferred Amount” - joint venturer entitled to acquire shares owned by company being sold if written consent not provided - share sale agreement made no provision for Deferred Amount if written consent not provided but joint venturer did not acquire shares - literal meaning left Deferred Amount undetermined - text and context favoured conclusion that Deferred Amount payable if company retained shares - interpretation of contract where clauses inconsistent or lead to commercial absurdity CONTRACTS - requirement of written consent by joint venture partner - whether requirement satisfied by sale of joint venturer’s interest in joint venture, thereby terminating joint venture

CRIME – appeals – appeal against sentence – attempt to import commercial quantity of border-controlled drug – ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional and held it thus did not operate to reduce significantly the otherwise appropriate penalty – Crown conceded “Totaan error” – hardship to family and dependents taken into account – parity with co-offenders considered – applicant resentenced