Cases and authorities

SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 — Proper construction and management of an unarticulated testamentary direction to pay “Zakat” SUCCESSION — Construction — Islamic Wills —Sharia law and its interaction with Australian Succession law CHURCHES AND RELIGIOUS ASSOCIATIONS — Conceptualising Sharia law in the context of the general law governing a religious community as a voluntary association

CIVIL LAW – high risk sexual offender – application for continued detention order – complex diagnostic challenge – uncertainty over diagnosis – where psychotic illness complicated by personality disorder – tirades of abuse – mental condition masked by nasty and aggressive abuse of authority figures – where court appointed experts disagree on management of risk legislative or administrative hole – crossroads of mental health and high risk offender legislation – uncertainty over accommodation – defendant not engaging with assessments for appropriate accommodation – cheeky and unrealistic demands regarding accommodation – two bedder by the seaside – plaintiff’s reluctant applications for adjournment – defendant incarcerated – “Parkinson’s Law" – cycle – application for adjournment refused – community safety – continued detention – superficially preferable – protective purpose better achieved by supervision and rehabilitation – conditions of extended supervision order – relevant principles – orders made

CIVIL PROCEDURE — interim preservation — freezing orders — form of freezing orders to give effect to principal judgment — HELD — orders proposed by plaintiff in standard form granted COSTS — party/party — mixed outcome — general rule that costs follow the event — application of the rule and discretion — discretion to award indemnity costs — where no unreasonable conduct or delinquency on the plaintiff’s part — where the overall practical result favoured the plaintiff — HELD — order that costs be costs in the cause

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Application of Graywinter principle — Where the affidavit in support of application adequately supports the application — where plaintiff bears burden of proof and evidential onus of establishing genuine dispute — where there is a failure to discharge that onus — HELD — application dismissed with costs

EVIDENCE – tendency evidence – MR charged with murder – MR raising self-defence – MR seeks to adduce evidence of previous conduct by the deceased as tendency evidence – objection by the Crown – whether evidence has significant probative value

JUDGMENTS AND ORDERS – monies in court – defendant mortgagor seeking payment out of residual funds from sale of defendant’s property – no question of principle

CORPORATIONS — winding up — voidable transactions by group of companies — unreasonable director-related transactions — evidential onus on defendant to explain commercial purpose — failure to meet evidential onus — where recovery of payments sought and granted

TORTS – false imprisonment – arrest and detention prior to bail being granted – whether arrest unlawful – onus on defendant to establish that arrest was lawful – requirements for lawful arrest under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether requirements met TORTS – malicious prosecution – elements – whether proceedings terminated in favour of the plaintiff if finding of guilt but no conviction or withdrawal of charges – whether prosecutor acted with malice – whether prosecution commenced or maintained without reasonable and probable cause TORTS – trespass to goods – whether seizure of mobile phone containing video of alleged offence voluntarily handed to police was lawful under s 21(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether seizure of mobile phone was lawful under common law principles in Ghani v Jones [1970] 1 QB 693 TORTS – general principles – damages – availability of damages for consequential loss and damage from harm suffered as a result of intentional torts – whether harm caused by the tort – whether harm intended by tortfeasor – whether harm the natural and probable consequence of the tort

CIVIL PROCEDURE — Pleadings — Striking out —Anshun estoppel — no reasonable cause of action or defence — tendency to cause prejudice, embarrassment or delay

CIVIL PROCEDURE – duty list – medical negligence – application for a separate hearing on the issue of liability only – UCPR r 28.2 – quantum of damages difficult to assess for a substantial period of time – overlapping evidence in liability and damages - application granted.

ADMINISTRATIVE LAW – functions conferred on professional council – power to delegate functions – no power to delegate power to delegate – delegation of function to persons appointed by Executive officer – whether delegation valid OCCUPATIONS – medical practitioners –misconduct and discipline – power to suspend registration – delegation of power – delegation to panel appointed by Executive Officer – whether invalid subdelegation OCCUPATIONS – medical practitioners – misconduct and discipline – obligation of Medical Council to refer complaint to Tribunal if grounds for suspension or deregistration – obligation of Medical Council to refer complaint to Health Care Complaints Commission – Commission to investigate – consideration of statutory scheme STATUTORY INTERPRETATION – obligation of professional council under National Law to refer complaint to disciplinary tribunal – provisions of National Law to be read harmoniously with State law establishing Complaints Commission – inconsistency – State law to prevail – requirement for investigation prior to referral to disciplinary tribunal

NEGLIGENCE — personal injury — patient conveyed in hospital bed impacting with a wall — challenges to factual findings — foreseeability of risk NEGLIGENCE — causation — whether impact caused patient’s symptoms — conflicting expert evidence on causation NEGLIGENCE — assessment of damages — past economic loss — assessment of earnings of respondent but for negligence NEGLIGENCE — assessment of damages — future economic loss — damages by way of buffer — Civil Liability Act 2002 (NSW), s 13

PROCEDURE - dismissal for default - summons seeking appointment of trustees for sale of co-owned land - cross-claim seeking orders that defendant/cross-claimant was sole owner - cross-claimant did not appear at hearing - formal application for adjournment based on loss of legal representation, not being supplied with documents and psychiatric injury - informal application on morning of hearing based on cross-claim suffering cardiac episode - primary judge permitted cross-claimant to establish extenuating circumstances to justify adjournment - following subsequent contested hearing, primary judge not satisfied extenuating circumstances established - cross-claim dismissed and trustees for sale appointed - whether appeal as of right - nature of appeal - whether primary judge erred in not being satisfied

CRIME – appeals – appeal against sentence – where sentencing judge found that community safety would be best served by the applicant serving his sentence in the community – where sentencing judge declined to order an ICO – whether a positive finding with respect to community safety mandates a sentencing judge to impose an ICO – consideration of Stanley v Director of Public Prosecutions (NSW) – whether sentencing judge impermissibly subordinated community safety to general deterrence

CRIME – appeals – appeal against sentence – whether sentencing judge failed to have regard to applicant’s youth in assessing moral culpability and the role of general deterrence – whether the relevance of the applicant’s youth to these factors adequately explained – relationship between moral culpability and objective seriousness

CRIME – Appeals – Appeal against conviction – Where applicant found guilty by jury of common assault and one count of sexual intercourse without consent – Where applicant not found guilty of related offences – Whether guilty verdicts unreasonable with regard to available evidence and related not guilty verdicts – Guilty verdicts reasonable – Leave granted, but appeal dismissed CRIME – Appeals – Appeal against direction given to jury by trial judge - Whether trial judge misdirected jury – Where no objection made to direction during trial – Where appeal against direction is strictly protective where identical argument rejected in earlier decision of this Court

CRIME – appeals – extension of time – where applicant pleaded guilty to maintaining an unlawful sexual relationship with a child – female teacher sexually abused one of her students between 1977 and 1979 – where underlying offences were contrary to s 81 of the Crimes Act 1900 (NSW) (since repealed) – where Court recently held in Lam v R [2024] NSWCCA 6 that s 81 was incapable of being committed by a female – applicant now seeks leave to appeal against conviction – where no application made to withdraw plea – extension of time granted CRIME – bail – bail pending appeal – whether pending proceedings – whether bail should be granted – necessity to demonstrate “special or exceptional circumstances” – where Crown accepts applicant more likely than not to succeed on appeal – where no bail concerns – conditional bail granted

CRIME – appeal against interlocutory order – Crown appeal under s 5F Criminal Appeal Act 1912 (NSW) – offence of attempting to possess a marketable quantity of an unlawfully imported border control drug – preliminary question of jurisdiction – whether exclusion of evidence “substantially weakens” Crown case – evidence excluded by trial judge as tendency evidence – where Crown does not rely upon evidence as tendency evidence - whether evidence goes to the respondent’s state of mind – whether evidence relevant for other uses – evidence available to rebut defence case – question of unfair prejudice – capacity for directions to cure unfairness

SUCCESSION — Family provision — Claim by adult child — Plaintiff lived overseas with her mother since the age of nearly four — “Estrangement” not a useful term

JUDGMENTS AND ORDERS — injunction — enforcement of possession orders of Federal Circuit and Family Court of Australia — comity between courts — earlier applications to the Court dismissed –- functus officio doctrine — injunction refused

COSTS – solicitor/client – application to appeal out of time a Costs Determination Certificate entered as a judgment of the Local Court – where procedure for appeal to review panel has not been followed – where the Court has no power to make the orders sought by the plaintiffs in the circumstances – application dismissed

CRIMINAL LAW – evidence – admissibility of evidence captured on CCTV recording – representations of one accused being used against another accused for a hearsay purpose – exception to the hearsay rule – admissibility of an admission by MR – admissibility of words of a witness BS for a non-hearsay purpose

TAXES AND DUTIES — administration — interest — remission — principles governing remission TAXES AND DUTIES — dutiable transactions — dutiable transfer — agreement for lease TAXES AND DUTIES — review — Supreme Court — objection determination

APPEALS – appeal from Local Court to Supreme Court – proceedings for recovery of $65,000 – where daughter was appointed mother’s financial manager from 2013 to 2018 – whilst financial manager daughter transferred $65,000 from mother’s bank account to her own – NSW Trustee and Guardian appointed financial manager in 2018 – commenced proceedings in 2022 to recover sum plus interest – where daughter failed to respond to Notice to Produce bank records - Magistrate gave judgment against daughter – whether Magistrate erred by finding daughter retained the benefit of the $65,000 to the detriment of her mother – question of fact – Magistrate did not draw inferences from daughter’s failure to produce documents – cannot be said that there is no evidence to support the Magistrate’s finding – no error of law – ground rejected APPEALS – appeal from Local Court to Supreme Court – on a question of mixed fact and law – whether Magistrate erred in permitting reliance on a claim for fraud – where fraud allegation was not particularised nor ultimately pursued – where Magistrate made findings on fraudulent concealment not fraud or deceit – where fraudulent concealment was put to the daughter in cross-examination – held no unfairness despite lack of particularisation – leave to appeal refused – ground not made out APPEALS – appeal from Local Court to Supreme Court – on a question of mixed fact and law – question of costs – indemnity costs – where daughter rejected an earlier Calderbank offer – where Magistrate made lump sum costs order at $30,000 – whether Magistrate erred in finding the Calderbank offer was a valid basis to award indemnity costs – held Calderbank offer a valid offer of compromise – no reason shown for grant of leave in respect of ground – leave to appeal refused – summons dismissed

APPEALS — Leave to appeal — Principles governing — Interlocutory decision — Public importance — Novel issues raised EVIDENCE — Expert Witness — Medicolegal report — Witness Immunity — Relationship to advocates’ immunity — Proper test

Statutes – Construction – Procedural fairness – Reasonable opportunity to respond – Where Independent Broad-based Anti-corruption Commission ("IBAC") conducted investigation into allegations of unauthorised access to and disclosure of internal email accounts – Where IBAC provided redacted draft special report containing proposed adverse findings against appellants – Where IBAC refused to provide evidentiary material for proposed adverse findings – Where s 162(3) of Independent Broad-based Anti-corruption Commission Act 2011 (Vic) relevantly provided that, if IBAC intends to include in report "a comment or an opinion which is adverse to any person", then IBAC must first provide person reasonable opportunity to respond to adverse material – Whether "adverse material" in s 162(3) referred to proposed adverse comments or opinions in report, or evidentiary material upon which proposed adverse comments or opinions based – Whether provision of substance or gravamen of adverse material sufficient to comply with obligation under s 162(3) – Whether substantive relief warranted where findings unaffected by misconstruction of s 162(3). Words and phrases – "adverse comment or opinion", "adverse finding", "adverse material", "evidentiary material", "reasonable opportunity", "reasonable opportunity to respond", "special report", "substance or gravamen". Independent Broad-based Anti-corruption Commission Act 2011 (Vic), s 162(3).

The King v Anna Rowan – A Pseudonym Criminal law – Defences – Defence of duress – Where respondent charged with sexual offences committed against two of her daughters in presence of respondent's partner "JR" – Where, prior to trial, respondent sought to raise defence of duress – Where supporting evidence on voir-dire included daughters' evidence, forensic psychologist's report and tendency evidence concerning JR's threatening, violent and controlling behaviour – Where trial judge ruled no factual basis for duress – Where trial proceeded without duress being put to jury and respondent convicted – Where Court of Appeal of Supreme Court of Victoria found duress should have been put to jury – Whether Court of Appeal implicitly adopted doctrine of "duress of circumstances" instead of requirement there be threat to inflict harm if accused failed to commit acts charged – Whether Court of Appeal erred in concluding evidence was sufficient to raise defence of duress at common law and under s 322O of Crimes Act 1958 (Vic). Words and phrases – "defence of duress", "duress at common law", "duress of circumstances", "ongoing threat", "operative threat", "threat to inflict harm", "unstated demand". Crimes Act 1958 (Vic), s 322

Statutes – Construction – Statutory debt – Local government – Special rates and charges – Where appellant empowered by Local Government Act 2009 (Qld) ("Act") to levy special rates and charges in respect of rateable land – Where appellant purported to levy special charges on respondents' land – Where special charges levied pursuant to invalid resolutions – Where respondents paid special charges contained in rate notices – Where regulations made pursuant to Act provided for return of special rates or charges levied on land to which special rates or charges did not apply – Whether provision in regulations providing for return of special charges applicable where resolution levying special rates invalid. Restitution – Unjust enrichment – Defence of good consideration – Where respondents paid special charges to appellant under mistake of law – Where appellant spent funds levied on works conducted on waterways adjacent to respondents' land – Where appellant statutorily obliged to conduct relevant works – Whether appellant had defence to respondents' claim for restitution. Words and phrases – "benefit", "failure of consideration", "good consideration", "local government", "mistake of law", "money had and received", "recipient not unjustly enriched", "regulations", "restitution", "special rates and charges", "statutory construction", "statutory debt", "unjust enrichment". Local Government Act 2009 (Qld), ss 91, 92, 93, 94. Local Government (Finance, Plans and Reporting) Regulation 2010 (Qld), ss 28, 32. Local Government Regulation 2012 (Qld), ss 94, 98.

Hurt v The King Hurt v The King Delzotto v The King Criminal law – Sentencing – Appeal against sentence – Minimum sentences – Where s 16AAB of Crimes Act 1914 (Cth), inserted by Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) ("Amendment Act"), provided for minimum terms of imprisonment, subject to limited exceptions, for offences – Where offences included s 474.22A(1) of Criminal Code (Cth) ("Possessing or controlling child abuse material obtained or accessed using a carriage service") – Where elements of offence included, relevantly, "the person has possession or control of material" and "the person used a carriage service to obtain or access the material" – Where transitional provision in Amendment Act required "relevant conduct ... engaged in" to take place on or after commencement of amendments, including insertion of s 16AAB – Whether minimum sentence provides yardstick for calculation of appropriate penalty in addition to restricting sentencing power – Whether "relevant conduct" concerns only "conduct" element of offence or also "circumstance in which conduct ... occurs". Words and phrases – "appropriate penalty", "appropriate term of imprisonment", "child sexual abuse offence", "conduct", "double function", "engaged in", "relevant conduct", "restriction on power", "sentencing", "sentencing discretion", "statutory minimum sentence", "yardstick". Crimes Act 1914 (Cth), ss 16AAA, 16AAB, 16AAC. Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), Sch 6, items 3, 9. Criminal Code (Cth), s 474.22

LAND LAW — caveats — formal requirements —particulars of estate or interest claimed — where caveat claimed an estate in fee simple but by virtue of facts giving rise to security interest — whether caveat, read as a whole, “really” claimed a security interest — Real Property Act 1900, s 74L — application for extension of caveat dismissed

CORPORATIONS – application for interlocutory freezing orders under s 1323 of the Corporations Act 2001 (Cth) and other interlocutory orders.

CIVIL PROCEDURE – pleadings – self-represented litigant – whether leave to file amended summons should be granted – whether summons complies with requirements of Uniform Civil Procedure Rules 2005 (NSW) – whether summons discloses a reasonable cause of action – whether proceedings should be dismissed – leave refused – proceedings dismissed

CIVIL PROCEDURE – service outside of Australia – service of documents other than originating process – where defendants seek third party costs order against majority shareholders to plaintiffs – where majority shareholders incorporated in Singapore and the Cayman Islands – where those shareholders actively involved in events leading to the litigation – whether defendants require leave to serve those shareholders overseas – whether circumstances fall within Sch 6 of the UCPR – whether leave to serve overseas should be granted – whether motion delivered to solicitors acting for shareholders in wider dispute albeit not in relation to the third party costs application itself should be taken to have been served on shareholders

APPEALS – procedure – time limits – extension of time – amendment– parties on appeal – joinder – whether joinder was necessary or proper APPEALS – leave to appeal – right of appeal – whether appeal moot – proper construction of Liquor Act 2007 (NSW) – whether Civil and Administrative Tribunal of New South Wales could make orders in favour of appellant on further review of an application for extended trading refused by the Authority LICENSING – liquor licensing – hotel – failed application for extension of trading hours – statutory construction – s 49 of the Liquor Act 2007 (NSW) – whether extended trading authorisation ‘runs’ with the premises upon transfer to a new licensee –whether orders pursued by former licensee about a failed extended trading application can be made by Tribunal

CRIME – bail – show cause – strength of the prosecution case for serious drug charges – first time offending – delay until trial – medical evidence demonstrating a more onerous experience in custody – cause shown CRIME – bail – bail concerns – where Crown raises all bail concerns in s 17(2) Bail Act 2013 (NSW) – where bail conditions can adequately ameliorate bail concerns – bail granted

APPEALS – leave to appeal – monetary threshold – principles governing grant of leave to appeal below monetary threshold – whether application identified issue of principle, question of general public importance or reasonably clear injustice – whether application goes beyond being merely arguable

GUARANTEE AND INDEMNITY – actions to enforce guarantee – defences to – unconscionable conduct – whether primary judge erred in finding that respondent did not act unconscionably in procuring Deed of Guarantee and Indemnity – s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) GUARANTEE AND INDEMNITY – actions to enforce guarantee – defences to – relief under Contracts Review Act 1980 (NSW) – whether primary judge erred in finding that clause of Deed of Guarantee and Indemnity was unjust – s 7 of the Contracts Review Act JUDGMENT AND ORDERS – interest – award of on judgment – rate applicable – where primary judge awarded interest at the rate of 10% as provided for in Deed of Guarantee and Indemnity – where pleaded claim was for interest at the prescribed rate under the Civil Procedure Act 2005 (NSW) – whether primary judge erred in finding that interest should accrue in accordance with terms of Deed of Guarantee and Indemnity

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where the appellant was convicted of being an accessory after the fact to murder of the principal offender’s girlfriend – Where Crown case wholly circumstantial – Whether the jury was not adequately directed as to the elements of the offence – Whether the evidence admissible against the appellant did not support his conviction – Whether there was a substantial miscarriage of justice EVIDENCE – Admissions – Criminal Proceedings – Where the trial judge admitted the principal offender’s certificate of conviction in the appellant’s trial – Whether the certificate can be admitted under the Evidence Act 1995 (NSW) in the appellant’s trial EVIDENCE – Criminal Proceedings – Appeals – Failure to object – Where the principal offender’s interviews with police were admitted during the appellant’s trial – Where the trial judge admitted evidence of sexual interactions between the principal offender and another – Where the trial judge admitted text messages sent by the appellant as admissions – Where no objections were made at trial – Where leave required to challenge admissions –Whether the jury was misdirected as to the use of the statements made by the principal offender

CRIMINAL PROCEDURE — sexual offence proceedings — applicant convicted of indecent assault of and sexual intercourse with a child under the age of 10 — victim gave detailed description of ejaculation when interviewed by police at the age of 11 — effect of prohibition in to s 293 Criminal Procedure Act 1986 (NSW) (now s 294CB of Crimes Act 1900 (NSW)) — whether Crown was entitled to make submission to the effect that victim would not have known about ejaculation other than because of the offending conduct — whether trial judge was entitled to infer that victim would not have known about ejaculation other than because of the offending conduct EVIDENCE — discretions — exclusion of evidence — criminal proceedings — whether trial judge erred in not accepting evidence of witness (a child) which was contradicted by complainant — reasons for verdict to be read as a whole to determine why such evidence was rejected CRIMINAL PROCEDURE — sexual offence proceedings — complaint evidence — minor inconsistencies in complaint evidence — whether trial judge entitled to address alleged inconsistencies in global way in reasons for verdict EVIDENCE — whether trial judge was obliged to refer to evidence of witness whose evidence was of little or no probative value in reasons for verdict JUDGES — Courts — Duty of trial judge in trial by judge alone to give reasons for verdict — whether infelicitous phrase revealed error — requirement to read judgment fairly and as a whole

CRIME – appeals – appeal against sentence – offences of sexual intercourse with child – inclusion on form 1 of repealed offence – error conceded – no findings on remorse, prospects of rehabilitation or risks of reoffending – offender denying offences six weeks prior to sentencing hearing despite having pleaded guilty three months prior – questionable insight – no lesser sentence is warranted in law

CRIME – appeals – appeal against sentence – where applicant had committed a large number of property offences – larceny, obtain property by deception, break and enter, reckless damage – whether error in sentencing judge’s determination of objective seriousness – consideration of the applicant’s status as subject to conditional liberty at the time of the offending in determining objective seriousness – consideration of the applicant lengthy criminal history in determining objective seriousness of offence pursuant to s 115 Crimes Act 1900 – objective features of the offending and subjective features of the offender must be considered separately – appeal upheld – applicant resentenced CRIME – appeals – appeal against sentence – whether error in sentencing separately for common elements in ss 114 and 115 offences – no additional act of criminality necessary for guilt under s 115 – offence complete on proof of previous conviction and applicant’s commission of the s 114 offence – double punishment –contravention of Pearce v the Queen – discussion of background to statutory provision – consideration of approach in Darcy v R and R v Tillott – s 115 inconsistent with prevailing sentencing standards – unanimous criticism of s 115 – inappropriate to impose any penalty – inappropriate to indicate any sentence as part of an aggregate term of imprisonment – appeal upheld on this ground by majority

PROCEDURE – transfer of proceedings – transfer of medical negligence proceedings from Supreme Court to District Court – orders made

LAND LAW — Easements — Creation of easements — Creation by order of court — Application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway — Where plaintiff owns landlocked rural land — Whether proposed easement over neighbouring property reasonably necessary — Where access possible via a paper road and across plaintiff’s other land

SENTENCING – penalties – criminal contempt – deletion of documents in order to prevent production pursuant to an order of the Court COSTS – costs of separate sentencing hearing

EQUITY – alleged oral rental agreement – whether property was purchased as an investment or as part of joint endeavour with family members – purchase financed with a loan in the name of the plaintiff – cross claimants paid for completion, contributed some mortgage payments and paid some outgoings EQUITY – remedies – failed joint endeavour – division of proceeds of sale – division of surplus – return of contributions – indexation – occupation for a period following the failure of a joint endeavour

SENTENCING – hindering investigation of homicide – guilty plea – relevant factors on sentence – objectively serious example of the offence – no persons convicted of homicide of deceased – where offender former national sergeant-at-arms of Comancheros – lengthy criminal history – commission of offence on parole serious aggravating feature – no remorse found – prospects of rehabilitation unclear – near fatal injuries inflicted on offender – death of brother in his presence – very significant physical injuries – psychological conditions – extremely restricted conditions of custody – special circumstances found – small reduction of non-parole period – sentence imposed

BANKRUPTCY – civil proceedings – proceedings resolved without order as to costs – sequestration order against estate of unsuccessful party – whether costs order could be made in civil proceedings after sequestration order COSTS – general rule that costs follow the event – whether subsequent events affect success – effect of delay in pursuing costs application – related issue raised in separate unresolved proceedings in Equity Division COSTS – form of order – order sought for assessment on indemnity basis – Calderbank offers by plaintiff – whether defendant unreasonable in failing to accept offers – gross costs order – complexity of case

CONTRACT – real estate agent and Chinese investors in property development together – proceedings commenced in Commercial List alleging real estate agent misappropriated $9M to buy property in Meadowbank – proceedings settled – agree to sell Meadowbank land – real estate agent to chose selling agent – property to be sold “on terms to be agreed, such agreement not to be unnecessarily withheld” – proper construction of clause – principles at [26]-[29]. BREACH OF CONTRACT – incomplete agency agreement submitted – real estate agent did not respond to queries – whether breach – principles at [86], [87] – time for performance had not yet arrived. WORDS AND PHRASES – “unnecessarily withheld” – “unreasonably withheld” – at [50], [87].

APPEALS – Leave to appeal – Arguable case CIVIL PROCEDURE – Jurisdiction – Where applicant alleged that primary judge had exercised Federal jurisdiction to the exclusion of State jurisdiction CIVIL PROCEDURE – Summary disposal – Where applicant had sought summary judgment – Where respondents had not yet been required to file evidence in defence CIVIL PROCEDURE – Default judgment – Where respondents had not yet been required to file a defence CIVIL PROCEDURE – Pleadings – Amendment – Where amendments were based on contentions the primary judge considered were doomed to fail – Where applicant had not been able to identify the evidence on which he intended to rely – Whether House v The King error was demonstrated CIVIL PROCEDURE – Summary disposal – Where primary judge had summarily dismissed the proceedings – Whether proceedings were doomed to fail COURTS AND JUDGES – Bias – Actual and apprehended bias – Whether primary judge had pre-judged the applicant’s claim – Whether primary judge was intimidatory and bullying towards the applicant APPEALS – Procedural fairness – Whether applicant was afforded a reasonable opportunity to adduce relevant evidence

APPEALS – Leave to appeal against costs order – Where proceeding had led to a mixed result – Where two alleged Calderbank offers had been made by applicant – Where applicant asserted that the practical outcome of the proceeding aligned with the compromise proposed in the Calderbank offers – Whether the reluctance to grant leave in relation to orders as to costs only should be overcome by the alleged serious risk of injustice – Whether House v The King error not to grant indemnity costs