Cases and authorities

TORTS — Private nuisance — Interference with use and enjoyment of land — Where stormwater and pool water flowing over and through retaining wall — Whether material and unreasonable interference — Whether natural and reasonable user — Whether injunctive relief appropriate

COSTS – Where real estate agent employed by the owner of a property negligently causes it to be burnt down – Where tenants of the owner and the owner sue the agent in tort and succeed – Where in addition the tenants bring an unmaintainable claim against the owner for alleged breach of their tenancy agreement which is successfully defended by the owner – Whether the real estate agent should pay the owner’s costs of resisting the tenants’ contractual claim – HELD that justice does not dictate that the real estate agent bear the owner’s costs of defeating a manifestly untenable claim even though the litigation as a whole was caused by the conduct of the real estate agent – The tenants should pay the owner’s costs, if any, attributable exclusively to his defence of the contractual claim on the ordinary basis as agreed or assessed.

LAND LAW – possession of land – claim by trustee in bankruptcy against the bankrupt – where trustee now registered proprietor in lieu of the bankrupt – where bankrupt recently filed proceedings in the Federal Circuit and Family Court challenging the inclusion of the land as property divisible amongst creditors – where defendant claimed declaration that he had equitable rights in the land – where such claim did not constitute a defence to the claim for possession – defence struck out – judgment given for possession

COSTS – Party/Party – Court’s discretion – Where the plaintiff has had a measure of success JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Where plaintiff seeks interest on a loan – Whether to grant interest under s 100 of the Civil Procedure Act 2005 (NSW)

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts – Where purchase price was paid using the funds obtained from a loan which was eventually paid by the legal owner EQUITY — Trusts and trustees — Express trusts — Declaration of trust – Where there was no writing EQUITY — Trusts and trustees — Express trusts — Declaration of trust over land – Writing requirement - Whether an affidavit sworn in the proceedings in which satisfaction of the writing requirement is in issue can constitute sufficient compliance with s 23C of the Conveyancing Act 1919 (NSW) ESTOPPEL — Proprietary estoppel — Encouragement — Detrimental reliance – Whether sufficient evidence that circumstances amounted to detrimental reliance – Whether remedy would be proportional to detriment suffered. EQUITY — Subrogation — Requirements – Where mortgage not yet discharged – Whether a declaration should be made that a third party has a right to be subrogated to the position of the mortgagee once discharge has occurred – Where there is no evidence that funds were intended to be repaid – Where there was no expectation of subrogation CONTRACTS — Performance — Discharge by performance – Whether the confiscation of money paid in satisfaction of a loan agreement “revives” the repayment obligation under the loan agreement.

TRAFFIC LAW AND TRANSPORT – traffic law – motor accident legislation – Motor Accident Injuries Act 2017 (NSW) – meaning of “medical dispute” under Act – actual medical dispute between the claimant and the insurer about the relevant medical assessment matter – question of fact depending on the ambit of dispute between the parties at the relevant time ADMINISTRATIVE LAW – judicial review – jurisdictional error – further medical assessment under Motor Accident Injuries Act 2017 (NSW) – where claimant underwent surgery for cervical spine injury – whether obliged to consider if surgery itself rendered injury “non-minor” – not included in “medical dispute” referred again for assessment – no obligation on medical assessor ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accident Injuries Act 2017 (NSW) – decision of delegate refusing to refer decision of medical assessor to review panel – where primary judge dismissed application for review of delegate’s decision on basis that there was no jurisdictional error in medical assessor’s decision – whether primary judge erred – question for the primary judge did not turn on question of whether there was jurisdictional error in decision of medical assessor

COSTS – Party/Party – as to the costs of the proceedings at first instance, whether should be deduction to reflect costs incurred prior to amendment of summons in relation to claims or contentions then abandoned – Whether parties should bear their own costs in respect of a notice of motion filed by the second respondent under s 25C of the Land and Environment Court Act in the proceedings before the primary judge, in circumstances where primary judge was found to have erred in concluding that development consent was validly issued – Where the notice of motion would not have been necessary but for determination (overturned on appeal) that development consent valid COSTS – Party/Party – Apportionment of costs as between respondents following successful appeal – Where second respondent’s participation at first instance and on appeal was limited having regard to Hardiman principles – Whether costs liability should be joint and several or limited in the proportions indicated by the primary judge

BAIL – breach of condition – arrest without warrant – applicant convicted of resisting officer in execution of duty – police officer reasonably believed applicant had not complied with bail condition – s 77(1) of Bail Act 2013 (NSW) empowered officer to take one of six actions, one of which was arrest – s 77(3) of Bail Act provided that officer was to consider four matters in deciding whether to take action and which action to take in those circumstances – officer considered none of those matters – whether non-compliance with s 77(3) meant that arrest was not in lawful execution of duties – appeal allowed, conviction set aside and charge dismissed

APPEALS – from finding of fact – credibility of witness – where credibility informed assessment of competing contemporaneous documentary, affidavit, and oral evidence at trial – where credibility fell to be assessed having regard to evidentiary inconsistences in an individual’s affidavit and oral evidence at trial in determining what he would have done in two counterfactual circumstances – where primary judge enjoyed the benefit of observing the trial in forming an assessment of credibility NEGLIGENCE – where law firm breached duty of care to advise client against lodgement of a caveat – damages – loss of chance to exercise right of recission under a call option deed – whether the lost opportunity had some non-negligible value within the principles in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 – where relevant parties had a willingness to pay – where there was insufficient evidence for an inference that the relevant parties had an ability to pay

CIVIL PROCEDURE – time – extension of time – notice of motion seeking leave to rely upon expert report – duplication with report of a separate expert – limited leave granted

Criminal Law – appeal – application to vacate hearing – Legal Aid Commission Act 1979 section 57 – pending decision of Legal Aid Review Committee – hearing vacated

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – where defendant alleges the plaintiff is an employee of the defendant – where it is agreed that “pre-filing requirements” under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) have not been complied with – triable issue of fact found – application for summary dismissal dismissed CIVIL PROCEDURE – separate determination of questions – application for separate determination of whether the plaintiff is a worker employed by the defendant within the meaning of ss 4 and 5 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – application for separate determination dismissed

ADMINISTRATIVE LAW — judicial review of two guidelines issued by the Medical Board of Australia (Medical Board) under 39 of the Health Practitioner Regulation National Law (National Law) — whether the guidelines are properly characterised as rules (and not guidelines) and are therefore ultra vires the Medical Board’s functions and powers under ss 35 and 39 of the National Law — whether the guidelines were issued for an improper or unauthorised purpose — whether the Medical Board failed to take into account mandatory relevant considerations

COMMERCIAL ARBITRATION — Court’s inherent jurisdiction — Commercial Arbitration Act 2010 (NSW) ss 8(1), 16 — Whether court or tribunal should construe arbitration agreement COMMERCIAL ARBITRATION — Stay of proceedings — Whether arbitration agreement is null, void, inoperative or incapable of being performed CONTRACTS — Construction and interpretation — Principles — Literal or strict approaches — Interpretation of dispute resolution clause / arbitration agreement

JUDGMENTS AND ORDERS - enforcement – garnishee order – attachment of debts – Civil Procedure Act 2005, s 117 the plaintiff, a managing agent holds funds collected from the tenants of the second defendant, the owner of units in a residential and commercial building, on trust for the second defendant pursuant to a management agency agreement – the owners corporation of the strata plan of the building, the third defendant, obtains a money judgment in the District Court against the second defendant and serves a garnishee notice on the second defendant seeking to attach debts owed by the plaintiff to the second defendant pursuant to the management agreement – the plaintiff pays funds in its possession at the time of service of the garnishee order and thereafter to the third defendant – the second defendant defaults to its mortgagee and the mortgagee appoints a receiver, the first defendant – the receiver contends that the plaintiff wrongly paid monies under the garnishee order to the third defendant after the date of service of the garnishee order – whether the third defendant is entitled to retain the monies so received or whether those monies should be repaid to the plaintiff – construction of the expression “due and payable”.

OCCUPATIONS – legal practitioners – misconduct and discipline – barrister apparently practising without current practising certificate – injunction to restrain contraventions of Legal Profession Uniform Law

DAMAGES — assessment of damages — termination of contract for the sale of land following purchaser’s failure to complete — subsequent sale of land for lower price — interest payable for delayed settlement – costs of re-sale — pre-judgment interest — judgment entered in round figure

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.

LAND LAW – possession of land early and regular default – previous judgment for possession but subsequent agreements and forbearance – no payments since October 2019 – defence arguments have no merit – possession granted and judgment for the lender

COSTS – Calderbank offer - No issue of principle

LAND LAW — easements — constructions of easements — general principles of construction LAND LAW — easements — creation of easements — creation by express grant LAND LAW — easements — substantial interference with easements

CIVIL PROCEDURE – default judgment where no appearance by defendant – damages proved – no need for declaratory relief CONTRACT – breach of contract – employment contract – misleading or deceptive conduct by former employee – breach of contractual, fiduciary and statutory duties DAMAGES – assessment – damage to reputation COSTS – gross sum costs order – where sufficient information before the Court to enable the grant of a gross sum costs order

SUCCESSION – family provision – claim by widow for provision from the deceased’s estate under Succession Act 2006 (NSW) Ch 3 – adequacy of provision – obligation of the deceased to the surviving spouse after 31 years of relationship – provision of financial resources where deceased and surviving spouse entered into a Binding Financial Agreement

SUCCESSION – trusts and trustees – judicial advice – application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) – no question of principle

JUDICIAL REVIEW – Jurisdictional Errors – Errors of law – Adequate reasons – Clear path of reasoning – Causation – Excessive damages – Medical expert evidence.

JUDGMENTS AND ORDERS — Court of Appeal — motion to set aside order refusing leave to appeal —application under UCPR, rr 36.15, 36.16, 36.17 — whether orders made against good faith — where no misconduct or dishonourable conduct by the respondents — whether Court misapprehended the applicant’s evidence or submissions — where no basis for setting aside judgment established COURTS AND JUDGES — bias — where applicant requested notice of motion be heard by differently constituted bench — where members of bench participated in earlier decision refusing leave to appeal — whether previous adverse decision can ground reasonable apprehension of bias — recusal application refused

CIVIL PROCEDURE – settlement approval – whether settlement in best interests of person under disability

COSTS — Party/Party — bases of quantification — gross sum costs application — application dismissed

CONTRACTS – breach of contract – breach of lease – breach of agreement – maintain herd profile – whether there is a shortfall of cattle – onus of proof – Briginshaw principles - probability of a shortfall CONTRACTS – construction of a contract – falsa demonstratio non nocet – rectification – error – absurdity – objective intention CONTRACTS – formation of a contract – offer and acceptance – failure to unequivocally accept CONSUMER LAW – s 18 of Australian Consumer Law – misleading or deceptive conduct – reliance on representation – loss suffered from sale of cattle - whether relived of obligations otherwise under contract – damages

NON-PUBLICATION ORDERS – previous trial – interim non-publication order applied for and made immediately after jury discharged – open justice – need to ensure fair trial – retrial to take place slightly over five months from now – media interest – particularly memorable and unusual facts of alleged murder – application granted

CRIME – sentence – murder and wounding with intent to murder – guilty verdicts by jury – “Hand of Death” – targeting the “less dead” – senseless, brutal murder – admissions made by offender – offender’s mental health – history of homicidal ideation – conflicting views of the offender’s mental health – dispute between experts as to diagnosis of bipolar disorder – relevance of offender’s mental health impairment to sentence - imprisonment for life? – applicable discounts – assistance to law enforcement authorities - totality – victim impact statement – sentence imposed

MENTAL HEALTH – forensic patient – extension of status as forensic patient – final hearing – where defendant has been diagnosed with an intellectual disability and paedophilic disorder – whether the risk of causing serious harm to others can be adequately managed by other less restrictive means – where defendant subject to guardianship order, obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) and in receipt of NDIS funding – application for final extension order granted

PERSONAL PROPERTY – Personal Property Securities Act 2009 (Cth) – personal property securities register – charge registered on the basis of an agistment agreement which never came into existence – whether defendant had any interest in the Arabian mares capable of being registered as a security interest – no security interest ever came into existence TORTS – interference with goods – detinue

BUILDING AND CONSTRUCTION – whether adjudication determination under Building and Construction Industry Security of Payment Act 1999 should be quashed – whether the determination was outside the scope of the payment claim – whether the determination lacked a legal or factual basis, and was illogical or unreasonable – Jurisdictional error not established

CIVIL PROCEDURE – Service – application for substituted service under r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) – where not practicable to serve originating process and related documents personally CONTEMPT – Arrest - application for Court to issue warrant for arrest of contemnor under Pt 55 r 10 of the Supreme Court Rules 1970 (NSW) – where application not served either personally or otherwise – application to be listed for subsequent hearing

NEGLIGENCE — Personal injuries — slip and fall during open for inspection — admission that driveway had recently been painted — whether non-slip paint was used — whether evidence was that driveway was slippery — whether primary judge erred in finding witness’ evidence unreliable

CLIENT LEGAL PRIVILEGE – s 118, Evidence Act 1995 (NSW) – onus – means of proof – dominant purpose – ruling on ‘sample’ documents – efficacy questioned – privilege over communications with in-house lawyers – principles at [13]-[14] – privilege over communications between non-lawyers – principles at [15].

EQUITY — Equitable remedies — Specific performance — Land — Where defendant unlikely to comply with Court orders — Whether consequential orders empowering Registrar in Equity to execute necessary documentation ought to be made COSTS — Party/Party — Where plaintiff seeking gross sum costs order — Whether sufficient evidence to make gross sum costs order — Whether proposed discount to gross sum amount sufficient

COSTS – Suitors’ Fund Act 1951 (NSW) – discharge of jury – no fault of applicant or her legal team – new trial ordered - certificate granted

COSTS — interlocutory costs — application for asset preservation orders – orders obtained ex parte against defendants and third party – application abandoned following service of evidence by respondents – incidence of costs – reasonableness of application – costs follow the event – applicants ordered to pay costs – applicants ordered to pay lump sum on account of costs liability

CIVL PROCEDURE – Parties – Representation – Appointment of person to represent defendant in proceedings – Where one defendant has died – Order made under UCPR rule 7.10 that proceedings continue in the absence of a representative of the deceased person’s estate

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of shareholders to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

APPEALS – appeal from Local Court to Supreme Court – Local Court determined parties did not have a binding agreement – whether plaintiff’s offer was subject to contract – how offer should be categorised in accordance with Masters v Cameron CONTRACTS – formation – agreement – counter-offer – whether purported acceptance complied with mirror image rule – taking into account parties’ conduct in interpreting intention – purported acceptance was a counteroffer – decision of Local Court affirmed

COSTS – indemnity costs – where plaintiff was self-represented at hearing of notices of motion – whether relevant misconduct in the proceedings warranting indemnity costs order established –unreasonableness of plaintiff’s application for summary judgment and resistance of defendants’ application for leave to amend defence and file a cross claim contrary to obligations under the Civil Procedure Act 2005 (NSW) warrants indemnity costs order –– costs ordered on indemnity basis

ADMINISTRATIVE LAW — procedural fairness — decision of medical review panel made pursuant to Motor Accident Injuries Act 2017 (NSW) regarding percentage whole body impairment suffered by claimant in motor accident — decision quashed at first instance based on a denial of procedural fairness to the claimant — whether primary judge erred in finding procedural fairness was denied — content of procedural fairness obligations owed by a medical review panel as compared to a court or tribunal

CRIME – appeals – appeal against sentence – where applicant sentenced to a term of imprisonment for 1 year and 10 months for cause grievous bodily harm reckless as to actual bodily harm – whether sentencing judge followed “three step process” – where applicant posed no risk to community safety - whether intensive correction order had to be imposed – whether intensive correction order should have been imposed – application of High Court decision in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

PRACTICE AND PROCEDURE – service of Notice of Motion initiating contempt proceedings – whether service in New Zealand should be effected under the Uniform Civil Procedure Rules 2005 (NSW) or the Trans-Tasman Proceedings Act 2010 (Cth). PRACTICE AND PROCEDURE – service outside of Australia – whether leave should be granted for service of originating process outside Australia under r 11.5(4) of the Uniform Civil Procedure Rules 2005 (NSW).

ORDERS — Determination of total amount of judgment sum based on findings in principal judgment regarding various monetary claims ORDERS — Interest — Claim for pre-judgment interest — Interest allowed COSTS — Calderbank offer — Principles — Assessment of offer from a mathematical perspective in terms of the value of benefit ultimately derived at a final hearing and from the nature of the relief sought — Indemnity costs refused COSTS — Indemnity costs sought on basis of defendant’s conduct in allegedly prolonging the proceedings and unsuccessful defence — Indemnity costs refused COSTS — Specified gross sum sought under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) — Potential for a cost assessment process to be stymied or prolonged in light of foreshadowed application of first defendant to file for her bankruptcy — Specified gross sum allowed and determined PAYMENT INTO COURT — Request made for the Court to order payment into Court of funds the subject of mortgagee or proposed mortgagee sales — Request declined as plaintiffs’ interests safeguarded by leave to apply in respect of working out of orders and direction to the first defendant to provide contact details for mortgagee contact person

CIVIL PROCEDURE – application for leave under s 4 Felons (Civil Proceedings) Act 1981 (NSW) – claim for damages following alleged sexual assault by officer in juvenile detention – leave granted nunc pro tunc

CIVIL PROCEDURE – default judgment – application for default judgment – requirements of UCPR r 16.6 met – default judgment entered – declarations sought provided to assist with repossession process