Cases and authorities

LAND LAW – possession of land – default under loan agreement and mortgage – where second defendant had been bankrupted but bankruptcy annulled – where trustee held funds of bankrupt – where second defendant intended to use funds held by trustee to satisfy debt to mortgagee – where no arrangements made for application of funds - where no defence to mortgagee’s claim – summary judgment given

HIGH RISK OFFENDER – application for extended supervision order – where extended supervision order previously made by same judge – history of sexual offending against developmentally delayed women and girls – determination of risk – lack of insight or change in attitude towards offending – concerning contact with intellectually disabled woman whilst subject to order – lack of compliance with conditions leading to community correction order – failure to discontinue risky personal relationships – some evidence of defendant’s efforts to reintegrate into community – formation of some pro-social contacts – expert evidence of average risk of committing a further serious sex offence – extended supervision order imposed – dispute regarding scheduling conditions resolved

EVIDENCE – Expert Witness Code – Whether applies to expert evidence of liquidator who is plaintiff in his own case.

CIVIL PROCEDURE – admissions – withdrawal – leave to withdraw admission made in pleadings – whether the admission was contrary to the facts

CIVIL PROCEDURE – infant settlement approval – whether settlement in best interests of infant – settlement approved

CONSUMER LAW – Australian Consumer Law misleading or deceptive conduct – principles – misleading or deceptive conduct by silence, non-disclosure or fraudulent concealment amounting to a positive representation – sale of contaminated land for residential development purposes – whether purchaser has a “reasonable expectation” for certain disclosures to be made by vendor – whether vendor did not disclose information in light of purchaser’s “reasonable expectation” – whether vendor had requisite knowledge CONSUMER LAW – Australian Consumer Law – sections 237 and 243 – meaning of “loss and damage” CIVIL PROCEDURE – privileges – Evidence Act 1995 (NSW) s 131 – without prejudice privilege – meaning of “in connection with” – proximity of conversations to resolution of dispute CIVIL PROCEDURE – pleadings – construction of pleadings – scope of pleadings

CIVIL PROCEDURE – jurisdiction – judicial review – supervisory jurisdiction of State Supreme Court – where Council relied on its own legal interpretation of proposed contracts in refusing registration of financial interest – Court well equipped to make such an evaluation – no absolute rule that a public law remedy after judicial review must be refused in favour of merits review or appeal available in lower court or tribunal – Court’s power to make binding declarations of right irrespective of whether consequential remedy is available CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – where only relief sought is a declaration of right – commencement of second proceedings when proceedings pending in NCAT – where remedies are different in nature and purpose – where determination of these proceedings will not finalise NCAT proceedings – no abuse of process

CIVIL PROCEDURE – leave to discontinue proceedings under UCPR r 12.1 – leave granted COSTS – where proceedings discontinued by the plaintiff – whether plaintiff established basis for departure from ordinary costs order under UCPR r 42.19(2) – whether parties to bear own costs – plaintiff ordered to bear defendant’s costs of the proceedings

CONTRACTS – formation – whether the Loan Agreement is a deed – whether forbearance to sue is sufficient consideration – whether the deceased had mental capacity to create the Loan Agreement – whether the deceased was under undue influence when creating the Loan Agreement – whether the plaintiff engaged in unconscionable conduct – whether the interest component of the Loan Agreement is a penalty – whether the reference to $300,000 in the Loan Agreement is a reference to the $300,000 bequeathed to the plaintiff in the deceased’s will – held the Loan Agreement is valid and enforceable

COSTS – specified gross sum costs order instead of assessed costs – Civil Procedure Act 2005, s 98(4)(c) – defendant, the Deputy Commissioner of Taxation, successfully opposes the plaintiff’s appeal against a Departure Prohibition Order issued under the Taxation Administration Act 1953 (Cth), s 14S – plaintiff ordered to pay the defendant’s costs of the proceedings – plaintiff has few assets in his own name – plaintiff advanced evidence of doubtful provenance in support of his claim – whether the conduct of a costs assessment would be aggravating or oppressive to the defendant in the circumstances – what is the appropriate specified gross sum to be fixed instead of assessed costs – whether a discount should be applied from the costs claimed by the defendant – consideration of the effect of proceedings being brought in vacation reducing the cost efficiencies that might otherwise have been employed by the legal representatives of the defendant.

COSTS – party/party – exercise of costs discretion – contested probate suit – plaintiff is the executor of an estate – final orders made by consent in September 2023 – plaintiff’s notice of motion of January 2024 sought to vary the final orders – plaintiff’s January 2024 motion is resolved by agreement except as to the costs of the motion – the Court foreshadows the making of orders that the contest about the costs of the motion be capped at a maximum of $5,000 – which party should bear the costs of motion – application of Lai Qin principles – whether one party was almost certain to have succeeded, if the matter had been fully tried – whether one party has conducted itself unreasonably – whether the plaintiff should be entitled to indemnify himself out of the estate for his costs of the contest and any liability for costs he bears.

CRIMINAL PROCEDURE – stay of proceedings – plaintiff charged by future Court Attendance Notice (“CAN”) with two driving offences – where original CAN charged negligent driving occasioning grievous bodily harm – four further CANs added dangerous driving, combined two offences and added further details – plaintiff sought a permanent stay of the proceedings on two bases – Magistrate dismissed application – whether prosecutor needed leave to amend CAN – held s 20 of the Criminal Procedure Act 1986 (NSW) requiring leave to amend an indictment after it is presented does not apply to a CAN – prosecutor entitled to issue further CANs – if leave had been sought to amend, leave would have been granted – greater degree of particularity with successive CANs – no abuse of process by service of five successive CANs – whether the particulars were inadequate – CAN identifies precisely the time and date, place, act and harm suffered – CAN complies with relevant legislation and matters discussed in Johnson v Miller – plaintiff in no doubt about the case she has to meet – both bases for a permanent stay rejected – no error in the Magistrate’s determination – summons dismissed

INTERLOCUTORY APPLICATIONS – interim injunction – forestry operations – assumption that serious question to be tried – unexplained delay in seeking interlocutory relief – scope of relief sought too vague and uncertain – balance of convenience a neutral consideration

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Want of due despatch – Where in principle settlement has been agreed between the parties for judgment in favour of the defendants – Where plaintiffs have failed to progress applications for infant approval

REAL PROPERTY — caveats — solicitor’s costs agreement providing for client’s property to be charged as security for fees — caveat by solicitor — lapsing notice issued — application for extension of caveat — final relief not claimed — originating process defective CIVIL PROCDURE — service — application for interlocutory relief — respondent inmate of correctional centre — ex parte order for “service in the first instance” on respondent’s then solicitor by email — originating process and other court documents not delivered to respondent — no valid service — application dismissed

CRIME — Evidence — murder – co-accused – application to release evidence given before the Crime Commission – s 45(5) of the Crime Commission Act 2012 (NSW) – whether disclosure in the interests of justice – factors weighing for and against disclosure – two stage approach to disclosure to give witness opportunity to be heard

CIVIL PROCEDURE — Notices to produce in civil proceedings — Application to set aside — Proper approach to assessing whether notice to produce should be set aside — Interaction of principles of abuse of process and legitimate forensic purpose CIVIL PROCEDURE — Notices to produce — Consideration of power of the Court to regulate production of documents — Distinction between subpoenas to persons or entities who are not parties to proceedings and notices to produce as between parties to proceedings — In the context of case management as between parties to proceedings, once an issue regarding production of documents comes before the Court, the issue of what may be permissible is not restrained by the parties’ contentions but in a sense becomes ‘at large’ in that it is subject to the Court’s power to actively manage cases to achieve the overriding objective — In the context of appropriate case management and the Court’s dispensing power, the Court is not bound to binary outcomes of whether the notice to produce in its existing form and content should be set aside or not — Nor is the Court necessarily bound by historical distinctions between whether the notice to produce identifies a particular document or thing or requires an obligation in the nature of discovery — The Court may modify the form and/or content of a notice to produce to require production of documents having apparent relevance consistent with the overriding purposes of case management NOTICES TO PRODUCE — Whether the documents are likely to materially assist the issuing party’s case is not the decisive determinant of legitimate forensic purpose — If the documents materially assist the issuing party’s case that will generally suffice as demonstration of legitimate forensic purpose — However the converse is not the case, and inability to demonstrate that it is ‘on the cards’ that the documents sought will materially assist the issuing party’s case will not necessarily deprive the notice to produce of a legitimate forensic purpose if ‘apparent relevance’ is shown NOTICES TO PRODUCE — In general, it will be sufficient, and prima facie evidence of a legitimate forensic purpose, if the documents sought to be produced have an apparent relevance to the issues in the case, including if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are, or might be, inadmissible according to the rules of evidence NOTICES TO PRODUCE — Discussion of meaning of requirement that the issuer of the notice ‘specify’ a document or a thing — Examples of ‘specification’ PRELIMINARY DISCOVERY — Elements for enlivening the discretion to order preliminary discovery — Consideration of element that the applicant may be entitled to make a claim for relief against the prospective defendant

HIGH RISK OFFENDER – Final hearing – High risk sex offender – Application for extended supervision order – Where parties accept defendant poses unacceptable risk of committing serious offence if not kept under supervision – Where dispute as to appropriate duration and conditions of supervision

APPEALS — Leave to appeal — Whether leave required — Interlocutory decisions — Principles governing — Application of Section 127(1) of the District Court Act 1973 (NSW) APPEALS — From exercise of discretion — Disregard of relevant considerations — Whether Judicial Registrar of District Court failed to take into account relevant considerations APPEALS — From exercise of discretion — Procedural decisions — Whether several cases with overlapping facts should be heard together

EVIDENCE — murder trial — joint criminal enterprise – explanation for accused’s presence at scene – where cellmate concocted story with the accused – Defence application to exclude on s 90 unfairness – cellmate acting individually not as agent of the state – no trickery involved in ERISP – evidence admitted. EVIDENCE — murder trial —joint criminal enterprise – explanation for accused’s presence at scene – where cellmate concocted story with the accused – Defence application to exclude statement for s 137 unfair prejudice – complexity of required lies direction to the jury – unique circumstances of cellmate involvement in lies – risk of jury misuse of impugned statement – lack of credibility of cellmate – impugned statement excluded.

APPEALS – appeal from Local Court to Supreme Court – proceedings for recovery of $30,000 – where defendant loaned money to his first cousin – cousin asserts third party borrowed money and ownership of a BMW X6 was transferred as security – where cousin was unrepresented litigant – cousin subpoenaed car registration documents – subpoenaed documents show ownership was transferred to the defendant four months before the loan was made – registration documents not tendered at trial – Magistrate gave judgment against cousin – whether Magistrate denied procedural fairness by not facilitating tender of the registration documents – whether failure to tender documents deprived cousin the possibility of a successful outcome – questions of fact – where Magistrate had explained the procedure for tendering documents and asked what material was to be tendered – held Magistrate was not obliged to say anything further – no denial of procedural fairness – subpoenaed documents inconsistent with BMW being provided as security – evidence overwhelmingly supported defendant’s case – no substantial miscarriage or wrong – grounds of appeal rejected – summons dismissed

CIVIL PROCEDURE — Stay of proceedings — whether the home owner’s proceedings claiming damages should be stayed until payment of the judgment debt in favour of the builder obtained by filing an adjudication certificate under s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) — operation and effect of s 32 of the SOP Act — whether the home owner’s proceedings are properly characterised as a “cross-claim” for the purposes of Pt 3 of the SOP Act — where the primary judge failed to consider the strength of the home owner’s case — where the builder has delayed in enforcing the judgment debt BUILDING AND CONSTRUCTION — Contract — Damages — need to reconcile the policy of the SOP Act that a builder should receive progress payments promptly with the preservation of common law rights in s 32 of that Act

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.

CONTRACTS – Sale of Land – Where defendant Vendor repudiates contract by purporting to terminate it without valid grounds and plaintiff accepts repudiation – Plaintiff entitled to damages

GUARANTEE AND INDEMNITY – deed of guarantee – whether deed of guarantee executed by guarantor – no point of principle EVIDENCE – evidence of execution of a document – execution of document not admitted by defendant – comparison by tribunal of fact of authentic signature of defendant with non-admitted signature – document found to have been executed by defendant

EQUITY — Equitable interests in property — Nature of equitable interests — Birth certificate does not evidence or create any type of property or interest in property

JUDGMENT AND ORDERS – parties bring in orders to reflect reasons – construction of orders – whether ambiguity required before judgment consulted – principles at [5]-[11] – ambiguity not a pre-condition to consider judgment. COMMON INTEREST PRIVILEGE – legal advice shared between competitors – whether joint interest in governance of an industry body constitutes a “common interest” – principles at [115] –– whether parties’ interests are selfish or adverse to one another. PRELIMINARY DISCOVERY – adequacy of preliminary discovery challenged – whether direct evidence should be given as to compliance with orders – whether claims for client legal privilege ought be supported by direct evidence.

COSTS – Late substantial amendment to cross-claim – Amendment would have been vigorously fought even if made earlier – Allowance made for lengthening of hearing caused COSTS – Indemnity costs application rejected – Purported offer of compromise and Calderbank offer

CIVIL PROCEDURE – Subpoenas – Leave to issue subpoena – Court of Appeal – Leave refused

STATUTORY INTERPRETATION – meaning of “unpaid leave” – whether a period of absence from work due to incapacity from an injury for which a worker was paid workers compensation constitutes a “period of unpaid leave” – cl 2(3)(a) of Sch 3 to the Workers Compensation Act 1987 (NSW) – reg 8E of the Workers Compensation Regulation 2016 (NSW)

LAND LAW – possession – default judgment

CRIME – application for presence of a witness intermediary – accused young persons – use of witness intermediary while giving evidence

CIVIL PROCEDURE – application for leave to institute proceedings nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) – leave granted nunc pro tunc

CIVIL PROCEDUURE – application for leave under s 4 Felons (Civil Proceedings) Act 1981 – leave granted nunc pro tunc

CIVIL PROCEDUURE – application for leave under s 4 Felons (Civil Proceedings) Act 1981 – leave granted nunc pro tunc

CORPORATIONS – winding up – application based on failure to comply with creditor’s statutory demand – whether creditor’s statutory demands were served – whether presumption of insolvency displaced – whether discretion should be exercised not to make winding up order to avoid risk of commercial disadvantage to a secured creditor.

CIVIL PROCEDURE – pleadings – amendment – vacation of hearing dates – tendency to cause prejudice or delay – no question of principle

CHILD WELFARE – Jurisdiction – Supreme Court of NSW – Parens patriae – 14 year old child diagnosed with Pre B Acute Lymphoblastic Leukemia – Where the child has a number of underlying health conditions – The Parents would prefer that there be no treatment for the Leukemia and the child be allowed to die at home so that the child may avoid the pain and suffering of the treatment – Hospital sought order authorising treatment – Order made for authorisation of treatment

CIVIL PROCEDURE – Pleadings – Amendment – Plaintiffs seek to file Further Amended Statement of Claim – Defendants’ consent to substantive amendments but oppose deletion of a paragraph – No real prejudice to the defendants – Amendment allowed

COSTS – ex parte orders set aside for lack of candour – proceedings expedited given plaintiff’s terminal illness – some evidence that plaintiff had divested himself of assets – plaintiff’s claim being reformulated. PAYABLE FORTHWITH – r 42.7 Uniform Civil Procedure Rules 2005 (NSW) – court’s discretion to “order otherwise” – principles at [2]-[7] – motion concerned a discrete matter – existence of some unreasonable conduct – some distance to go in the litigation – no evidence that a ‘forthwith’ costs orders would stultify the proceedings – defendants ought nor bear credit risk associated with plaintiff’s asset divestiture – payment of costs order should be finalised given plaintiff’s terminal illness and likelihood of additional disruption to the litigation.

TORT – CONSUMER LAW - Civil Liability Act 2002 Part 1A, Part 4 – Australian Consumer Law s 60 - Duty of care – Negligence – Where an employee of the real estate agent retained by the owner of a house causes a fire and the house burns down – Claim by tenants and occupiers for damages for the loss of personal property in the house and by the owner for damages for the loss of the house – Claim by the owner that the real estate agent breached the warranty given in s 60 of ACL to render services with due care and skill – Whether the real estate agent caused the fire and acted negligently and without due care and skill – Liability established

COSTS — Party/Party — General rule that costs follow the event — no question of principle

CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — Cy-près scheme — where administration of two trusts in parallel administratively difficult — whether order should be made for assets of both to be applied cy-près pursuant to a single scheme

CRIME – sentence – manslaughter – excessive self-defence – offender stabbed adult son in the neck at their home – offending arose during family argument – victim approached offender quickly – single stab wound to the neck using kitchen knife – offender accepted responsibility but unable to explain or recall inflicting the stab wound – relatively impulsive offending – just below mid-range of objective seriousness – where offender did not give evidence at sentence proceedings – three psychological and psychiatric reports – no evidence of mental health concerns – 12 character references speak of a good, kind and non-aggressive person – offender aged 76 years – currently in remission from leukemia – no criminal record or concern about reoffending – offender entirely remorseful for his actions – significant variation of statutory ratio given offender’s age and health conditions SENTENCING – plea of guilty – where offender originally charged with murder only – where offender made an offer to plead guilty to manslaughter by unlawful and dangerous act before committal – offer rejected by Crown – Crown later accepted plea to manslaughter by excessive self-defence – s 25E of the Crimes (Sentencing Procedure) Act 1999 concerned with the “offence” not its basis – entitled to 25% discount for guilty plea

CIVIL PROCEDURE – Practice and Procedure – filing appeal books – contents of appeal books – unrepresented appellant – no issue of principle

CIVIL PROCEDURE – notice to produce – application to set aside – whether plaintiff’s notice to produce documents complies with Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 21.10(1)(b) – whether that requirement should be dispensed with pursuant to Civil Procedure Act 2005 (NSW), s 14 CIVIL PROCEDURE – subpoenas – application to set aside – where plaintiff seeks two correctional officers attend and give evidence at hearing of notices of motion – where plaintiff self-represented – whether subpoenas comply with UCPR, r 7.3(1) – whether necessary in the interests of justice for officers to give evidence on hearing of motions CIVIL PROCEDURE – where plaintiff seeks access to other inmates for purpose of obtaining their evidence in the exercise of his “right” to bring proceedings – where plaintiff classified as an EHRR inmate and subject to non-association determination – where, notwithstanding those determinations, plaintiff able to communicate with other inmates via mail – whether order for access otherwise necessary to prevent an abuse of process

LEASES AND TENANCIES — Renewals and options — Exercise of option — Validity of exercise — Whether email correspondence a sufficiently absolute and unqualified exercise of option

BAIL – application for variation of conditions to allow for employment – partially granted – reporting conditions not reduced – hours within which to report expanded

COSTS – where gross sum costs order made – quantification of costs – order for further costs incurred in respect of quantification submissions and hearing.

CRIME – murder – cause grievous bodily harm with intent to murder – defence of mental health impairment – judge alone trial – availability of the special verdict – schizophrenia – s 28 Mental Health Cognitive Impairment Forensic Provisions Act (NSW) – special verdict returned