Cases and authorities

EQUITY — application for appointment of trustees for sale — defendant denies plaintiff’s ownership of half share of property — whether plaintiff holds property on constructive trust for defendant — plaintiff inherited interest in property from son who predeceased her — treatment of evidence where maker is not available (deceased)

ADMINISTRATIVE LAW – judicial review – application to set aside appeal panel’s decision – dispute about the subject of the medical dispute referred for assessment – panel mistaken in its understanding of plaintiff's claim and resulting medical dispute – panel acted on a significant misunderstanding of the statutory scheme – injury to wrists and shoulder part of medical dispute correctly referred for assessment – appeal panel's decision set aside ADMINISTRATIVE LAW – judicial review – whether the appeal panel made relevant errors – appeal panel failed to consider documents attached to application which crystallized the medical dispute – claim for injury to upper left extremity not confined to elbow injury – relevant error established – appeal panel's decision set aside

CIVIL PROCEDURE – commencement of proceedings – further amended statement of claim raising additional claim – extension of time to bring proceedings previously granted – whether further extension required –– no further leave required –– whether leave to file amended statement of claim finally pressed should be given –– leave granted

CIVIL PROCEDURE – notice to produce the terms of claimed retainers – application to set aside notice to produce the terms of claimed retainers – whether the order pressed in relation to the notice to produce is required under either rr 21 or 34 of the Uniform Civil Procedure Rules 2005 (NSW) – the order is not required – the notice to produce does not identify specific documents – the order pressed must be refused COSTS – a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed – order depends on how parties have acted – plaintiff effectively surrendered to defendant – costs of motion must be borne by plaintiff COSTS – all parties had a measure of success in relation to the motion – costs are to be costs in the cause

CIVIL PROCEDURE — Anti-suit injunctions — Application to restrain party from continuing proceedings in foreign jurisdiction

COSTS – plaintiffs’ claim resolved by consent – whether Lai Qin order should be made – principles at [18]-[20] – defendants did not capitulate but proceeded to agitate key issue by cross claim – plaintiffs entitled to portion of their costs in respect of that issue, on which they ultimately succeeded. OFFER OF COMPROMISE – whether offer complied with r 20.26(2)(c) or was “inclusive of costs”, principles at [31] – exception in r 20.26(3)(a)(ii) applied – indemnity costs ordered.

CIVIL PROCEDURE — whether defendant’s prior claims constitute “vexatious proceedings” pursuant to s 6 of the Vexatious Proceedings Act 2008 (NSW) — whether the defendant has “frequently instituted or conducted vexatious proceedings in Australia” pursuant to s 8(1)(a) of the Vexatious Proceedings Act 2008 (NSW)

CRIME – proceeds of crime – whether forfeiture orders must be made pursuant to s 49(1) of the Proceeds of Crime Act 2002 (Cth) – whether the court’s discretion to refuse forfeiture orders is to be exercised under s 49(4) of the Proceeds of Crime Act 2002 (Cth)

CIVIL PROCEDURE — Court of Appeal — stay of orders — stay pending application for special leave to appeal to High Court — no exceptional circumstances — stay not granted

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether the amount claimed in the demand is due and payable — Whether there is some other reason why the demand should be set aside.

CONTRACTS — Formation — Acceptance of offer — Method of acceptance prescribed by offeror — Whether steps to be taken “upon acceptance” were requirements for acceptance of offer, or steps to be taken after acceptance of offer as part of agreement formed

PRACTICE AND PROCEDURE – costs – determination – whether reason for departing from usual rule – Calderbank offer – whether costs should be paid on indemnity basis by reason of rejection of offer – no question of principle

CRIME – sentencing – juvenile offender – manslaughter – plea of guilty – youth gang bashing of child – assault captured on video and posted on social media – serious example of manslaughter – reduced moral culpability on account of age, immaturity of youth and background of profound deprivation – remorseful – good prospects of rehabilitation – special circumstances for parole flexibility as offender matures – sentence to be served as a juvenile offender

COSTS – solicitor/client – costs agreement – costs assessed under Legal Profession Act 2004 (NSW) – binding costs certificate issued – unsuccessful appeal on questions of law – costs judgment entered – application to set aside costs judgment under r 36.15 of Uniform Civil Procedure Rules 2005 (NSW) – whether costs judgment was entered irregularly or in bad faith – whether plaintiff liable to pay assessed costs – application based on claimed misconduct considered on both assessment and appeal – plaintiff liable to pay assessed costs – costs judgment not entered irregularly or in bad faith – order refused and proceedings dismissed CIVIL PROCEDURE – jurisdiction – supervisory jurisdiction of legal practitioners – order setting aside the costs judgment where plaintiff is bound by costs agreement and proven judgment debt application to set aside costs judgment under r 36.15 having been refused

CIVIL PROCEDURE – separate determination of question – action in trespass in relation to underground gas infrastructure – alleged defence of statutory authority – whether that defence apt for separate determination

CRIME – sentencing – juvenile offender – murder – plea of guilty – youth gang bashing of child – assault captured on video and posted on social media – serious offence – reduced moral culpability on account of immaturity of youth and background – remorseful – reasonable prospects of rehabilitation and avoiding reoffending – special circumstances to allow for parole flexibility as offender matures – special circumstances for serving sentence as a juvenile offender

CIVIL PROCEDURE — Pleadings — Amendment — Allowance of proposed amendments — Where proposed amendments address some minor deficiencies in existing pleadings CIVIL PROCEDURE — Pleadings — Amendment — Disallowance of amendment — Where proposed amended pleadings are delayed, vague and expand the purported issues in dispute

CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) – blackmail – Plutus Payroll tax fraud – hung jury – legal aid refused for retrial – stay refused – discontinuation of proceedings by CDPP – credibility of witness – history as investigative journalist – whether if prosecution had all relevant facts it would have been reasonable to institute proceedings – application refused

INSURANCE — public liability insurance — where insured was builder responsible for construction site — where formworker slipped and fell from scaffolding — where insurer repudiated the policy because of misrepresentations by insured — whether the policy responded to liability assumed by a consent judgment — whether insured needed to prove that he was liable to the formworker — whether the settlement amount was reasonable APPEALS — amendment of notice of appeal — whether leave should be granted to run a new ground of appeal — where argument not put below — where argument may have been met by further evidence at trial

CONTRACTS – Formation – Oral contract – Whether evidence of conversation alleged to have occurred in 1999 in which alleged agreement was reached was plausible – Whether primary judge erred in considering surrounding circumstances to determine the existence of the contract EVIDENCE – Witness evidence – Affidavits – Where affidavit evidence of two witnesses included identical paragraphs – Whether primary judge erred in rejecting evidence of appellant’s witness APPEALS – Procedural fairness – Apprehended bias – Whether primary judge’s interjections during witness examination amounted to a denial of procedural fairness to the appellant or gave rise to a reasonable apprehension of bias

CRIME – appeals – appeal against conviction – three counts of indecent assault, sexual assault and sexual touching against younger sister – complainant aged between 12 and 17 years – where complainant’s police statement disclosed earlier instances of abuse at age nine – admitted as context evidence at trial – where evidence went to complainant’s continuing fear and delay in complaint – whether trial judge erred by admitting part of the context evidence involving fellatio – whether act of fellatio exceeded gravity of the counts of indictment because of the complainant’s young age – where no submission to that effect was made at trial – where ground of appeal alleged error when no objection taken at trial as to portions of context evidence – application of r 4.15 of the Criminal Appeal Rules – trial judge properly considered the test in s 137 of the Evidence Act – where proper anti-tendency directions were given – no miscarriage of justice demonstrated – no error in admitting the context evidence – appeal dismissed

COSTS – no question of principle.

LAND LAW – possession of land – judgment given in favour of bankruptcy trustee against bankrupt – where bankrupt has commenced proceedings in the Federal Circuit and Family Court challenging the inclusion of the land as property divisible amongst creditors – stay sought on writ of possession pending determination of bankruptcy proceeding

CRIME – sentence – murder – guilty verdict by jury – stabbed in the front upper right side of the chest – where jury rejected defence of self-defence – where no intention to kill – where significant degree of pre-trial disclosure – discount for facilitating the administration of justice – background of substance abuse and violence – sentence imposed

SUCCESSION — construction — gifts to class SUCCESSION — construction — legacies and devises SUCCESSION — construction — general principles — meaning of phrase ‘survive me’

LIMITATION OF ACTIONS – Limitation Act 1969 (NSW), ss 11, 52 – suspension of limitation period – whether plaintiff under relevant disability – restraint of plaintiff’s person – mental impairment – whether impairment rendered plaintiff incapable of, or substantially impeded in, managing his affairs in relation to initiating proceedings to initiate cause of action – whether statement of claim statute-barred

INSURANCE – liability insurance – professional indemnity insurance – legal practitioners’ “approved insurance policy” for purposes of s 210 of Legal Profession Uniform Law (NSW) – whether s 95(2) of Legal Profession Uniform Law Application Act 2014 (NSW) confers power on Attorney General to approve insurer under policy – whether, for purposes of s 210(1)(a), s 95 is a “legislative arrangement for the approval or selection of insurers”

PRACTICE AND PROCEDURE – Costs orders – Order made under s 135 of the Civil Procedure Act 2005 (NSW) – Whether registered certificates of determination of costs under s 70(5) of the Legal Profession Uniform Law Application Act 2014 (NSW) are “judgments” of the Court – Registered certificates of determination of costs are judgments – Respondents’ argument contrary to the statutory scheme SUMMARY JUDGMENT – Judicial review application – r 13.4 Uniform Civil Procedure Rules 2005 (NSW) – Action disclosing no reasonable basis

CRIMINAL LAW – jury trial – murder – defence of mental health impairment – s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – expert evidence – psychiatrists in agreement – accused was suffering a psychotic episode at the time of the relevant acts – impairment not caused solely by the temporary effect of ingesting a substance – not a “but for” test – appropriate verdict act proven but not criminally responsible – jury directed in clear terms as to only the rational application of the evidence to the relevant law

CIVIL LAW – compulsory examination before Crime Commission – requirement for leave by Supreme Court – ex parte application – constant guardian – where defendant foreign nation – charged with related offences – imposition of strict conditions on grant of leave – hybrid of competing considerations ­­­­

HIGH RISK OFFENDERS – supervision and other orders under the Crimes (High Risk Offenders) Act 2006 (NSW) – application for extended supervision order (ESO) – ESO not opposed – appropriate duration of ESO – conditions to be imposed as part of the ESO – no point of principle

MORTGAGES — Payment of funds into Court — Application for payment out of surplus funds by persons claiming to be registered proprietors of the property — Requirements as to payment out of funds specified — Importance of applicants for payment out identifying themselves not merely as persons having the same name as the registered proprietor, but also connection with the property — Order made for payment out of funds after supplementary evidence as to identity provided EVIDENCE — means of proof of identity briefly discussed WORDS — “skip tracing”

COSTS – whether usual costs order should be made – whether circumstances warrant a departure from ordinary rule that costs follow the event – usual order made

STATUTORY INTERPRETATION – application to set aside restitution order made under s 59(2)(b) of the Victims Rights and Support Act 2013 (NSW) – whether proceedings in which plaintiff was convicted and sentenced for assault were civil or criminal – section 3 of the Civil Procedure Act 2005 (NSW) – definition of “civil proceedings” – definition of “criminal proceedings” – proceedings were correctly characterised as criminal – challenged order cannot be set aside – proceedings dismissed

PRACTICE AND PROCEDURE – application for leave to appeal from an interlocutory decision refusing to set aside default judgment – leave to appeal granted – whether primary judge erred in taking into account absence of draft defence – whether short affidavit advancing defence disclosed facts which established a bona fide defence on the merits – evidence insufficient to establish bona fide defence – appeal dismissed

CRIME – Appeals – Interlocutory appeal – By accused against interlocutory judgment made during trial – Appeal made under Criminal Appeal Act s 5 F following conviction – Where accused had agreed to a plea bargain then successfully sought for his conviction to be set aside – Where Crown then brought more serious charges resulting in a conviction – Where primary judge declined to grant a permanent stay on the basis that the proceedings brought the administration of justice into disrepute –Whether the interlocutory decision had merged into the conviction – Whether leave to appeal should be granted – Whether the subsequent proceedings were oppressive

CIVIL LAW – proceeds of crime – ex parte application for restraining orders – where defendant gave false evidence on examination – no question of principle

JUDGMENTS AND ORDERS – amending, varying and setting aside orders – corrections under slip rule – orders amended

CIVIL PROCEDURE – stay of proceedings – concurrent civil and criminal proceedings – prejudice to the defendants – whether defendants may be permitted to decline to admit or deny allegations in the Commercial List Statement

CIVIL PROCEDURE – interim preservation – freezing orders – whether orders should be varied to decrease amounts allowed for living expenses

CRIMINAL LAW – murder – evidence – admissibility – objections – aspects of evidence the Crown proposed to lead from its expert witness – relevance – witness heard from on the voir dire – where witness’ evidence on the voir dire was that the evidence was relevant to the opinion formed by him – whether probative value outweighed by prejudicial effect – reasons given

CIVIL PROCEDURE — Pleadings — Striking out — No issue of principle

EQUITY – Injunctions - Where parties seek an urgent final hearing of whether the plaintiff is in lawful possession of premises as a tenant – Where the plaintiff has an injunction restraining the defendant landlord from entering the premises – Where the plaintiff no longer contends that it has any right to occupy the premises other than by way of a monthly holding over and the monthly holding over will not extend beyond 15 May 2024 – Where the landlord has entered into a registered lease with an alternate tenant which is to commence on 1 May 2024 – Where the final hearing will therefore only relevantly determine whether a maximum period of two weeks’ occupation is lawful – HELD balance of convenience does not favour continuation of the injunction and it is discharged – HELD an urgent hearing on a final basis is not needed

ASSOCIATIONS AND CLUBS — domestic and private tribunals — interpretation of rules governing domestic sporting tribunal CONTRACTS — construction — interpretation — natural and ordinary meaning

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.

CIVIL LAW – cross-vesting – class action in Victoria – proceedings in negligence arising out of novel procedures in the course of IVF treatment – similar issues raised in proceedings in NSW District Court – whether appropriate to remove District Court proceedings to this Court – whether proceedings in each state related to each other – whether more appropriate proceedings be dealt with by the Supreme Court of Victoria – remote duty list – notice of motion in the midst of duty list – colour and movement – misericordious development – consent! – alas, not a consent jurisdiction – thorough and helpful submissions – matter transferred to Victoria

APPEALS – jurisdiction of appellate court – Supreme Court – NSW Civil and Administrative Tribunal – Health Practitioner Regulation National Law – cancellation of registration order – whether the Tribunal erred in its application of the appropriate standard of proof – whether the Tribunal erred in its alleged failure to give adequate reasons for its findings – Tribunal’s judgment to be read in the context provided by the whole of its reasons – Tribunal gave comprehensive reasons without placing reliance on undisclosed materials – appeal dismissed HEALTH – practitioner – pharmacist – professional misconduct – alcohol misuse disorder

­­­­ADMINISTRATIVE LAW – judicial review – whether the Medical Assessor erred in the treatment of causation of the injury – whether the Delegate erred when considering the Medical Assessor’s treatment of causation of the injury – where the Delegate committed jurisdictional error – the Delegates decision is set aside

CONTRACTS — terms — exclusion clauses — construction — insurance — where insurance policy covers property damage — where exclusion clause purports to exclude asbestos related damage — whether the negligence arose only from the act of spraying a high pressure hose or the spraying of the hose on a roof that likely contained asbestos – HELD — the liability arose not only from the spraying but included the spraying of a roof likely to contain asbestos — where business efficacy is a relevant consideration to construction

CORPORATIONS – Directors – Duties under Corporations Act 2001 (Cth), ss 180, 181, 182 – Involvement of third parties in contraventions of ss 180, 181, 182 CORPORATIONS – Directors - Fiduciary duties owed to company during directorship – Circumstances in which former director continues to owe fiduciary duties to company after resigning as a director EQUITY – Fiduciaries – Conflict rule – Profit rule – Liability of fiduciaries and third parties under the rule in Barnes v Addy – Alter ego doctrine PROPERTY – Conveyancing Act 1919 (NSW), s 37A – alienation of property with intent to defraud creditors CORPORATIONS – Whether affairs of company conducted in a manner that is contrary to interests of members as a whole, and oppressive to, unfairly prejudicial to, or unfairly discriminatory against a member