Cases and authorities

CORPORATIONS – Winding up - Whether winding up on the just and equitable ground should be ordered - Where common ground that there has been a failure in the relationship between shareholders – Where the Company has no assets and its business is apparently now operated by another entity.

COSTS – third party costs order – whether majority shareholders of plaintiff companies should pay costs of unsuccessful application for interim injunction – whether majority shareholders and plaintiffs should be jointly and severally liable for costs – whether those costs should be assessed and payable forthwith

BUILDING AND CONSTRUCTION – Contract – cost plus contract for construction of residence – alleged breach of contract – whether builder entitled to claim payment of outstanding invoices – whether builder entitled to claim damages for loss of profits BUILDING AND CONSTRUCTION – Australian Consumer Law – whether misleading or deceptive conduct – whether builder represented that cost of building would be around and not substantially more than $550,000 or $750,000 – whether owners relied on any such representation when deciding to enter the contract BUILDING AND CONSTRUCTION – Contract – damages – whether “alternative transaction” case or “no transaction” case available – where damages claimed “because” of the alleged misleading or deceptive conduct BUILDING AND CONSTRUCTION – Contract – variation – oral variation – whether owners agreed to substitute blockwork for Rediwall construction – whether builder can rely on oral variation in defence of claim by owner

CIVIL PROCEDURE – default judgment – where defendant is bankrupt – whether leave from the Federal Court is needed to proceed – where plaintiff’s claim satisfies exception under s 82(2) in the Bankruptcy Act 1999 (Cth) – claim for unliquidated damages arising from an intentional tort or negligence – judgment entered for damages to be assessed and for costs

COSTS – Courts discretion – Application for alternative costs order – Offer of compromise – Change in plaintiff’s case on filing of amended statement of claim – Alternative costs order granted – No costs order up to 11 May 2023 – Costs thereafter in plaintiffs favour to be assessed on an indemnity basis

ADMINISTRATIVE LAW – Judicial review – whether time should be extended to allow judicial review of the first of three decisions – extension of time not granted – where judicial review of the following two decisions also fails

APPEALS – appeal from the Local Court to the Supreme Court – appeal as of right “only on a question of law” – no leave to appeal on a question of mixed fact and law sought – whether question of law raised BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – payment claim – claimant’s entitlement to recover “the unpaid portion of the claimed amount” – whether relying on payment made which reduced the unpaid portion amounted to “bringing a cross-claim” which was prohibited – whether a payment not made to the claimant which was found to reduce the unpaid portion was not to be taken into account in determining the unpaid portion

BUILDING & CONSTRUCTION — Adjudication — Application to have adjudication determination made void — Whether parties had entered a ‘construction contract’ as defined in s 4(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) CONTRACTS — Formation — Incompleteness — Executed contracts — Whether contract was signed and agreed to by all essential parties

CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW), ss 7, 9 – Whether 6% monthly simple interest provision was relevantly unjust – Where mortgage was provided to a “lender of last resort” – Where debtor was advised by an independent solicitor of the applicable interest rates – Where primary judge varied the contract to remove the compounding element of the interest provision

WORKERS COMPENSATION – Medical assessment – Degree of permanent impairment as a result of an injury – Where medical assessor assessed appellant as having whole person impairment of 19% – Where primary judge found medical assessor had exceeded his statutory jurisdiction having regard to an estoppel arising from the terms of a Certificate of Determination – Whether primary judge erred as to the proper construction of the Certificate of Determination

APPEALS – leave to appeal – whether to grant leave – circumstances of case did not raise matters of public importance – monetary amount small – leave refused

APPEAL AND REVIEW – appeal from judicial review of costs assessment – application for leave – judicial review refused on discretionary grounds – failure to follow prescribed procedure for review and appeal – allegation of procedural unfairness for failure to grant further adjournment not established – no arguable error on part of primary judge – no issue of principle CIVIL PROCEDURE – application for leave to appeal – application months out of time – explanation for delay – merit of application for leave – extension of time refused

Administrative law (Cth) – Judicial review – Jurisdictional error – Materiality – Threshold of materiality – Principles to be applied. Immigration – Visas – Cancellation of visa – Where appellant committed and found guilty of offences – Where appellant sentenced to terms of imprisonment – Where appellant's visa mandatorily cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where delegate of Minister refused application to revoke cancellation – Where appellant applied to Administrative Appeals Tribunal to review delegate's decision – Where Tribunal required to comply with Direction given by Minister under s 499 of Migration Act in determining whether "another reason" why visa cancellation should be revoked – Where Direction required Tribunal engage in evaluative assessment of relevant mandatory considerations – Where Tribunal's decision involved error – Whether Tribunal's decision affected by jurisdictional error – Whether error was material. Words and phrases – "another reason", "cancellation decision", "convicted", "criminal offending", "direction", "fanciful or improbable", "judicial review", "jurisdictional error", "materiality", "merits review", "protection of the Australian community", "realistic possibility", "threshold of materiality". Migration Act 1958 (Cth), ss 499, 501(3A), 501CA(4).

CRIMINAL LAW – jury trial – murder – media applications – access to trial exhibits

CRIMINAL LAW – trial – murder – jury – 13 jurors – juror note indicating their child is unwell – juror discharged – trial to continue

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 PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – abuse of process – where plaintiff sought judicial review of a decision of a judge of the Supreme Court – application for summary dismissal granted

CORPORATIONS — trustees and receivers — whether trustees and receivers are entitled to recover further receivership costs — HELD — further receivership costs to be paid to trustees and receivers

COSTS – application for maximum costs order limiting costs recoverable by other party – factors to consider in making maximum costs order – whether litigation in public interest – inadequate and deliberately incomplete revelation of applicant’s true financial situation – maximum costs order not made

INSURANCE – professional indemnity insurance – plaintiff was design and construct contractor – claim made relating to external sandstone tiling designed and installed by plaintiff – insured activities included design but not installation – whether the liability resulted from the design or installation of the tiling system INSURANCE – professional indemnity policy underwritten by first defendant for three consecutive years – exclusion clause in respect of prior known circumstances – whether failure to disclose prior known circumstances – consequences of failure to disclose prior known circumstances after entry into the first of the three consecutive policies – application of continuous cover provision – application of ss 21 and 28 of the Insurance Contracts Act 1984 (Cth) INSURANCE – whether plaintiff failed to comply with s 21 of the Insurance Contracts Act 1984 by failure to disclose that plaintiff performed external tiling or cladding works – whether the first defendant would have entered into policy if relevant failure had not occurred INSURANCE – construction of contract of insurance – exclusion clauses INSURANCE – brokers – claims for negligence and misleading or deceptive conduct – premises for claims not established BUILDING AND CONSTRUCTION – scope of rectification works – cost of rectification works

CIVIL PROCEDURE — Pleadings — Amendment — Leave granted to file proposed amended pleadings exclusive of specific paras due to inadequate particularisation CIVIL PROCEDURE — Discovery — General discovery — Where plaintiff is unable to properly particularise claim without discovery COSTS — Party/Party — Costs orders in interlocutory proceedings – Gross sum costs order — Unnecessarily and unreasonably causing legal expenses to be incurred — Where plaintiffs have persisted in seeking to advance a cause which has limited factual foundation COSTS — Party/Party — Costs orders in interlocutory proceedings — Whether classification as interlocutory or final costs orders affects question of gross sum costs order

Immigration – Visas – Cancellation of visa – Revocation of cancellation decision – Where respondent's visa mandatorily cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where respondent made representations seeking revocation of cancellation decision under s 501CA(4) – Where Minister provided by Department of Home Affairs with submission summarising respondent's representations, draft statement of reasons, copies of respondent's representations and other relevant material – Where Minister decided to personally exercise power under s 501CA(4) to revoke cancellation decision – Where Minister decided not to revoke cancellation decision – Where Minister read only departmental submission and draft statement of reasons – Where s 501CA(4) obliges Minister to "read, identify, understand and evaluate" representations – Whether Minister required to personally read some or all of respondent's representations to form state of satisfaction whether "another reason" existed to revoke cancellation of respondent's visa – Whether Minister entitled to rely upon summary of representations contained in departmental submission – Whether summary provided adequate and accurate. Words and phrases – "another reason", "cancellation decision", "directly consider", "duty of consideration", "jurisdictional error", "personally examine", "personally exercise", "read, identify, understand and evaluate", "representation", "revocation", "submission", "summary", "visa". Migration Act 1958 (Cth), ss 501(3A), 501(6), 501CA(4).

EVIDENCE – Documentary evidence – Business records – where plaintiffs sought to admit resolutions of companies under the control of one of the plaintiffs to prove a continuing obligation on behalf of the plaintiffs to repay monies to these “related entities” –whether these resolutions were produced for the purposes of or in connection with the present litigation

EVIDENCE – course of evidence – application by defendants for leave to re-open their case to rely on plaintiff’s expert report

CIVIL PROCEDURE – discovery – orders and directions

CIVIL PROCEDURE – application to vacate procedural orders – application for hearing liability of defendant as to specified employee – application for concurrent hearing temporary employment claim – directions and orders

LAND LAW – easements – substantial interference with rights under easements – neighbouring properties have reciprocal benefits and burdens under easements to enable shared use of an inclinator and rights of foot access – previous judgment determines that the first defendant has engaged in excessive use of easements and has trespassed beyond the boundaries of the designated easement and obstructed or interfered with use of the easement, occasioning nuisance to the plaintiff in four out of eight alleged incidents – conduct of the first defendant found to amount to a substantial interference with the rights of the plaintiff under the easement and a trespass upon a servient tenement – whether damages should be awarded and whether aggravated or exemplary damages should be awarded – assessment of the quantum of damages. COSTS – Party/Party – Court’s discretion – proceeding not complete – whether a costs order should be made at this stage- plaintiff is successful in respect of four out of eight incidents at final hearing and in respect of some issues at earlier hearings – what overall costs orders should be made in the circumstances – what costs orders should be made in respect to a decision of a judge to grant restraining orders with respect to the conduct of the first defendant on one occasion – whether costs orders should be made now or at the conclusion of the proceedings.

CORPORATIONS — directors and officers — ostensible authority — whether company held out managing director as having authority to bind it to indemnity — where nature of indemnity was not outside of the normal course of the company’s activities CORPORATIONS — directors and officers — actual authority — whether managing director had actual authority to enter guarantee and indemnity — whether managing director was the alter ego of the company GUARANTEE AND INDEMNITY — contract of guarantee and indemnity — construction — whether agreement was guarantee and indemnity, or only indemnity ESTOPPEL — estoppel by convention — promissory estoppel — whether parties held mutual assumption, or the company induced solicitors to adopt an assumption, that the company would indemnify solicitors

EVIDENCE — documentary evidence — legal professional privilege — fraud or other illegal purpose exception — application of s 125 of the Evidence Act — whether the relevant document was produced in furtherance of a deliberate abuse of power — where no direct evidence of improper purpose or motive

PRACTICE AND PROCEDURE – pleadings – amendment of defence – late application of second defendant seeking leave to amend defence and adduce further evidence – necessity to vacate final hearing dates in the interests of justice – no question of principle

MENTAL HEALTH – criminal proceedings – fitness to be tried – where accused suffering from severe chronic treatment resistant schizophrenic illness – where experts agree that the accused is unfit to be tried under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and will not become fit to be tried within 12 months – finding that the accused is not fit to be tried and will not become fit to be tried within 12 months

PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – expulsion – interpretation of agreement – whether resolution for expulsion was valid – where partnership deed required seven days written notice and 80% of whole partnership votes – where variation resolution came after expulsion resolution – held that expulsion was not valid by reason of breaches of partnership deed PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – fiduciary relationship – good faith obligations – whether expulsion power was exercised for an improper purpose – held that this purpose was not established PARTNERSHIP AND JOINT VENTURES – dissolution – dissolution by court of partnership between plaintiff and defendants – dissolution for just and equitable reasons

COSTS – Costs assessment – Determination – Mixed results – Parties succeeding and failing in both claims and cross claims – Intent to find just and equitable costs solution to whole of the proceedings

ADMINISTRATIVE LAW – judicial review – motor accident compensation – submitting appearances by the defendants – error of law on the face of the record – inadequate reasons

COSTS — Application to vary costs order — Where unsuccessful party rejected offer of compromise made by successful party — Whether indemnity costs should be ordered from date offer made COSTS — Security for costs — Application to release security monies paid into court by plaintiff — Where plaintiff successful at trial — Where defendant filed notice to appeal — Whether grounds of appeal arguable — Whether reason to doubt financial position of plaintiff seeking release of security

CIVIL PROCEDURE – commencement of proceedings – leave to commence

HIGH RISK OFFENDERS – high risk sex offender – offender with long history of violent sexual offending - application for interim supervision order – continuing detention order previously imposed on defendant – no opposition to preliminary orders – orders made

CRIME – SENTENCE – murder – accessory before the fact – not present at the scene – plea of guilty – deceased lured onto street and shot on pretext of drug deal – where offender’s extent of involvement disputed – where offender diagnosed with ADHD – Bugmy factors – delay in prosecution – limited remorse demonstrated – some prospects of rehabilitation – onerous conditions throughout COVID-19 pandemic – totality

ADMINISTRATIVE LAW – Whether reviewable error of law – where plaintiff alleges various errors of law on the face of the record and jurisdictional error in decisions of NCAT ADMINISTRATIVE LAW – Particular administrative bodies – Ombudsman – where plaintiff makes allegations of discrimination and victimisation against the Ombudsman

APPEALS – appeal from Local Court to Supreme Court – where pending criminal charges against applicant in the Local Court – subpoenas sought for documents from NSW police and local hospital – where refusal by Local Court Registrar to issue subpoenas – where application for review dismissed by Magistrate – prerogative relief sought – in the alternative, leave to appeal refusal by Magistrate in the Local Court – whether error of law on the face of the record – whether applicant denied procedural fairness – whether findings by Magistrate incapable of being supported – whether decision affected by actual or apprehended bias – arguments by applicant rejected – various costs orders made APPEALS – review of various interlocutory decisions of Registrar – certain costs orders impugned – submission that informant in criminal proceedings in Local Court should not be a party in application for prerogative relief and leave to appeal in Supreme Court ill-conceived – notice of motion substantively dismissed – various costs orders made

SENTENCING – Murder – Context of organised criminal activity – Where offender and deceased known to each other through mutual involvement in outlaw motorcycle gang – Where offender shot deceased with an intention to kill – Where circumstances of killing contested

APPEALS – application for leave to appeal – where applicant club’s constitution provides that by-laws invalid unless “not inconsistent with” constitution – no arguable error identified in primary judgment – no question of principle – leave refused

CRIME – appeals – purported appeal against interlocutory orders of Court of Criminal Appeal – orders made limiting applicant’s written submissions to 200 pages – whether in interests of justice to reconsider, vacate or amend orders – no reason shown to vary orders

CRIME — Appeals — Appeal against sentence

CRIME – appeals – appeal against sentence – whether the sentencing judge erred by double counting a Form 1 offence when assessing the objective seriousness of a count to which it did not attach – facts and circumstances of a Form 1 offence may be considered to provide context – no demonstrable error – appeal dismissed

CRIME — Appeals — Appeal against conviction —Directions of trial judge — Whether trial judge’s direction about alternative verdicts erroneously restricted the jury’s deliberations — No error — Leave refused SENTENCING — Appeals — Appeal against sentence — Relevant factors on sentence — Parity principle — Two co-offenders sentenced with benefit of pleas and application of the totality principle — Unorthodox method of achieving appropriate totality reduced the co-offenders’ sentences for the common offence — No justifiable sense of grievance arising from co-offenders’ sentences or from a related offender’s sentence

CRIME – appeals – appeal against conviction – one count of sexual intercourse without consent – where parties had been drinking heavily all day – where complainant was in and out of consciousness – where applicant stopped attempted anal penetration when asked – applicant resumed vaginal penetration – complainant said “Stop” multiple times – non-consensual penile/vaginal intercourse continued for around two minutes – where complainant made an immediate complaint to her mother – other early complaints – where mother’s evidence disclosed an alleged complaint about anal penetration inconsistent with other evidence the complainant gave – whether trial judge erred by failing to direct jury on complaint evidence given by the complainant’s mother – where Crown case never concerned anal intercourse – trial judge’s summing up made clear penile/vaginal intercourse formed the basis of the charge – jury could have had no doubt what act constituted the offence – no miscarriage of justice – leave to appeal refused CRIME – appeals – appeal against conviction – unreasonable verdict – whether by reason of inconsistencies and discrepancies the jury ought to have had a doubt – “inconsistencies” entirely explicable by reason of the complainant’s intoxication – central allegation consistent since time of first complaint – greater detail emerged in subsequent complaints – immediacy and distress of first complaint sufficient in nature and quality to satisfy jury beyond reasonable doubt CRIME – appeals – appeal against conviction – whether trial judge erred by failing to direct on the accuracy and reliability of the complainant’s account – where trial judge gave standard direction in accordance with s 293A of the Criminal Procedure Act – where applicant’s trial counsel sought no further direction – direction now proposed adds nothing to what the trial judge said – no miscarriage of justice – leave to appeal refused – appeal dismissed

CRIMINAL PROCEDURE – Suppression and non-publication orders

CRIMINAL PROCEDURE – Suppression and non-publication orders