Cases and authorities

CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success

COSTS — Security for costs — Relevant factors — No issue of principle

CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success

EQUITY — Equitable remedies — Injunctions – interlocutory injunction – second defendant/cross claimant seeks the continuation of injunctive relief to restrain a trustee from making payment to a unitholder, the plaintiff/cross-defendant, upon a notice of redemption of units in a unit trust – the second defendant/cross claimant alleges that the plaintiff/cross-defendant granted security to the second defendant/cross claimant over the proceeds of the units being redeemed to secure the repayment of a debt due by the plaintiff/cross-defendant to the second defendant/cross claimant – whether there is a serious question to be tried – whether the injunctive relief originally granted to the second defendant/Cross claimant should be discharged on account of nondisclosure at the time of an ex parte application.

PARTNERSHIPS AND JOINT VENTURES — Partnership property — Identification — where family farming partnership had carried on farming business since 1989 — whether farmland formed part of partnership assets PARTNERSHIPS AND JOINT VENTURES — Winding up — Rights of outgoing partner — where family farming partnership had carried on farming business since 1989 — where daughter-in-law buys into the partnership — where parents retire from partnership — whether retired parents hold farmland on bare trust for incoming partners — effect of informal winding-up on retired partners’ interest in the partnership assets EQUITY — Equitable remedies — Specific performance — Land — where conversation at family meeting said to give rise to binding contract — whether terms of contract ever agreed to ESTOPPEL — Proprietary estoppel — Encouragement — Nature of promise — where conversation at family meeting said to give rise to inducement to pay into partnership in return for inheriting farm — whether representation made — whether representation too ambiguous to give rise to an estoppel

JUDGMENTS AND ORDERS – Consequential orders – Where order made that parties seek to agree on declaratory relief to give effect to reasons – Where parties unable to agree on form of declaratory relief – Where declarations proposed in primary judgment include a slip – Whether matter should be remitted to primary judge – Matter not to be remitted to primary judge REAL PROPERTY – Caveats – Caveatable interests – Where caveatable interest in the nature of equitable charge secured payment of commission owing in respect of sales of property – Whether charge extended to all unsold units – Effect of supplementary agreements is that the properties listed therein are to be treated as included in the primary agreement – Declaration that equitable charge extends to all unsold units to secure debt owed for commission and interest

APPEAL – Local Court – Leasing Agreement – Trade and Commerce – Employee and independent contractor distinction.

Order for security of costs – Judicial review – Contracts – Leases – Licence agreement – Conversion – Breach – Discretionary factors – Impecuniosity.

HIGH RISK OFFENDER – final hearing – application for continuing detention order – application for an extended supervision order - serious violence offences – final relief granted - continuing detention order - committal of the defendant to a correctional centre - defendant be subject to an extended supervision order.

COSTS — Costs assessment — Application for assessment on a gross sum basis where proceedings dismissed for want of prosecution — No issue of principle

CONSTITUTIONAL LAW — The Judiciary — Notice of constitutional matter — whether the Proceeds of Crime Act 2002 (Cth) ‘otherwise provides’ for law within the meaning of Judiciary Act 1903 (Cth) s 79(1) — whether application of the Uniform Civil Procedure Rules excluded

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Whether leave to bring derivative action should be granted.

SUCCESSION – family provision – deceased provides rent-free accommodation and interest-free loans to Solomon Islands couple, to obtain education in Australia – couple and their children living in deceased’s home when he died – plaintiffs receive $50,000 under Will plus forgiveness of $80,000 debt and one year’s rent-free accommodation – deceased’s children unable to provide personal care for a time given COVID-19 lockdowns and son stranded overseas – plaintiffs had, in fact, abandoned their studies and will soon return to the Solomon Islands. DEPENDENCY – whether “wholly or partly dependent on the deceased” – s 57(1)(e)(i) – principles at [76]-[81] – notion of dependency suggests that the person meeting your needs does not expect repayment – deceased provided funds as loans – support provided went beyond the plaintiffs’ needs to create an opportunity to complete further education, gain employment and permanent residence in Australia – whether “member of the household” – s 57(1)(e)(ii) – principles at [86]. CLOSE PERSONAL RELATIONSHIP – s 57(1)(f) – principles at [102]-[108] – whether assistance provided “for fee or reward” – not living together due to bonds of family or friendship – that was not why plaintiffs provided domestic support and personal care. FACTORS WARRANTING – s 59(1)(b) – principles at [115]-[117] – plaintiffs received deceased’s charitable generosity – deceased made plain that his assistance ceased on his death – no factors to convert the plaintiffs from potential objects of testamentary recognition to objects in fact. ADEQUACY OF PROVISION – s 60(2) – principles at [126]-[128] –– gift sufficient to cover course fees and assist plaintiffs to relocate – deceased’s adult children yet to acquire their first homes in Sydney –plaintiffs have a house and likely to complete studies and gain employment in the Solomon Islands – no further provision warranted.

COSTS – application for indemnity costs or alternatively a gross sum costs order – Offer of Compromise – costs summary – assessment of costs not warranted having regard to the overriding purpose

CIVIL PROCEDURE – application for summary disposal – allegations that a bank unlawfully complied with the terms of a freezing order – dismissal of proceedings – frivolous or vexatious proceedings

CRIMINAL LAW – sentencing – conspiracy to assist a person to engage in hostile activities in Syria – offence against Commonwealth Criminal Code – intensive correction order – requirement to take into account purposes of punishment in state sentencing act – whether requirement satisfied by considering matters in Commonwealth Crimes Act – where issue considered by Court of Criminal Appeal after current sentence imposed – error established despite otherwise impeccable and well-reasoned sentencing judgment – re-sentencing – where intensive correction order no longer appropriate – sentence reduced and applicant entitled to immediate release

CRIME – appeal against conviction – resisting officers executing duty – appellant acquitted of charges of resisting arrest by first two officers at the scene because arrest held to be unlawful – appellant also charged with counts of resisting officers executing duty – charges based on resistance to third and fourth officers who arrived at scene later and saw appellant struggling with first and second officers – appellant pleaded guilty – whether appellant should be permitted to withdraw his pleas – whether unlawfulness of arrest by first two officers impacted upon charges based on resistance to third and fourth officers – alternatively, whether appellant entitled to set aside one of the convictions because both were based on identical conduct – significance of absence of findings by primary judge – appeal against conviction dismissed CRIME – appeal against sentence – whether finding that arrest was invalid relevant to sentencing – whether sentencing judge failed to have regard to evidence of appellant’s cognitive deficits – whether sentencing judge failed to have regard to aspects of appellant’s subjective case – appeal against sentence allowed and appellant resentenced

CIVIL PROCEDURE — Pleadings — Amendment — Current pleading rendered otiose by events — Where foreshadowed amendment involved plaintiff suing in different capacity on completely different causes of action — Application for timetable to bring amendment application refused — Proceedings summarily dismissed

JUDGMENTS AND ORDERS — Slip Rule – Legal practitioners for cross-claimant by oversight failed, both at the time of proposing short minutes of order to give effect to reasons for judgment and on hearing when substantive orders made, to seek orders for pre-judgment interest on amount of judgment sum — Slip rule (Uniform Civil Procedure Rules 2005, r 36.17) applies to various instances of legal practitioner clerical error — Orders made for inclusion of interest REMEDIES — Duress to the person — Payments as the result of improper pressure including economic duress arising from assault are generally recoverable with interest from date of payment

CIVIL PROCEDURE – confidentiality – implied and express obligations to use documents only for purposes of proceedings – reach of obligations – application to agent, solicitor and counsel for party – use for purposes of complaint against solicitor after proceedings completed – release of obligations by court – release to permit ongoing use for complaint proceedings – release nunc pro tunc to permit past use – order for return or destruction of copies by recipients no longer involved in complaint proceedings

EQUITY — Trusts and trustees — Court’s supervision of — Appointment and removal of trustees — Application under s 70 of Trustee Act 1925 (NSW) for replacement of trustee of trust — no question of principle

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.

CORPORATIONS — Winding up — Application to defer deregistration of company — HELD — deferral order made

CRIME – Appeal and review – Application to Supreme Court under Part 7 – where applicant had already made several Part 7 applications – where no special facts or special circumstances arise justifying further action – Court declines to consider or deal with the application

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.

TORTS – Trespass to the person – Battery – Damages – Personal injury damages – Assessment of damages for default judgment in favour of the plaintiff.

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – enforcement of Part 2C statutory warranties against owner-builder – where owner undertook residential building work without an owner-builder permit – whether owner was “owner-builder” STATUTORY INTERPRETATION – definition of “owner-builder” in Home Building Act – where on literal reading definition extends only to those who had an owner-builder permit – whether definition should be extended to those required to obtain an owner-builder permit but did not – purposive construction – whether legal meaning of definition’s actual words differs from literal meaning – whether permissible to read definition as if it contained additional words – principles for reading additional words into statute

SUCCESSION – family provision – claims by testator’s two adult daughters – residue of estate left to testator’s grandchildren – “generation skipping” – estrangement – false statement accompanying will as to reasons for excluding daughters – only competing claims those of claimants’ children – primary responsibility of parents to care for children – impact of unresolved death benefit under life insurance policy

SUCCESSION – informal document – testamentary intention – intention that document be an alteration to a will – document purporting to express testamentary intention – document signed by testator – testator with history of making false statements in relation to her testamentary intentions – failure to see solicitor before or after preparing document – failure to deliver document for safekeeping – Succession Act 2006 (NSW), s 8 COSTS – party proposing informal will to be admitted to probate – applicant unsuccessful – whether applicant’s costs should be paid out of the estate –document purported to disinherit testator’s family – likely effect of pending family provision claims – whether pursuit of claim reasonable

CRIMINAL PROCEDURE — Costs — application for certificate pursuant to Costs in Criminal Cases Act 1967 (NSW) – where applicant charged with murder – where the Crown subsequently accepted the applicant’s plea of guilty to manslaughter on the basis of excessive self-defence – whether it was reasonable for the Crown to institute proceedings for murder

CIVIL PROCEDURE – Representative proceedings – Criteria for commencement – Group members – Identification – Whether proceedings were properly commenced under Part 10 of the Civil Procedure Act 2005 – Whether the group members’ claims involve the same, similar or related circumstances and whether the claims give rise to a substantial common question of fact or law – Whether all group members fell within the definition of group members in the pleadings – Whether certain pleadings and particulars should be struck out – Whether certain terms and expressions used in the pleadings were ambiguous.

PROCEDURE – security for costs – non-compliance with orders to provide security – company placed into liquidation – appeal dismissed

CIVIL PROCEDURE – asset preservation orders – application for discharge after judgment – claims rejected but subject to appeal – further accounting claims pursuant to judgment – risk of dissipation of assets – defendants resident in Australia – one defendant with history of misappropriating funds – findings of unreliable and untruthful evidence – no need for funds beyond those available for legal fees and daily living permitted under existing order CIVIL PROCEDURE – stay of proceedings – vacation of further trial dates pending appeal – issues reserved for future consideration – relevance of appeal to reserved issues – application for leave to appeal and appeal listed for concurrent hearing in two months –applicants not having requested stay from trial judge

APPEALS — leave to appeal — where relatively modest claim — whether injustice reasonably arguable — where applicant sought to raise new point on appeal CONTRACTS — parties — identifying parties to contract implied from conduct of the parties — where accounting services provided to several companies and also to individuals — whether individual instructing accountant a party to the contract — where individual is directly or indirectly the beneficiary of services provided

ENVIRONMENT AND PLANNING – Development applications – Delegation of assessment function of local council – Whether delegate had authority to determine application – Interpretation of relevant instruments of delegation and sub-delegation and policy – Whether primary judge erred by interpreting “submission by way of objection” by reference to the statutorily directed time period under the Environmental Planning and Assessment Act 1979 (NSW) – Whether objection was “a reasonable and unresolved objection resulting from the neighbour notification/exhibition process” – Whether objection was “resolved” ENVIRONMENT AND PLANNING – Development applications – Imposition of orders under s 25B of the Land and Environment Court Act 1979 (NSW) – Whether Council validly regranted consent – Whether there was substantial compliance within the meaning of s 25C of the Land and Environment Court Act 1979 (NSW)

APPEALS – Procedural fairness – Bias or apprehension of bias – Where primary judge intervened during the examination of witnesses and made comments in relation to the State’s submissions – Where no issue of apprehended bias was raised or application for disqualification made at trial TORTS – Trespass to the person – Battery – Whether stopping and detaining of the Respondent was an unlawful exercise of power pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether Respondent was “stopped” – Where small period of time between initial “stopping” and time at which the Respondent was told she would be searched – Where Respondent was not physically constrained and had a limited ability to walk around – Whether police had a suspicion on reasonable grounds that any of the circumstances in s 21 existed – Where primary judge made adverse credit findings in relation to police officer’s evidence as to the matters that informed his suspicion TORTS – Trespass to the person – False imprisonment – Wrongful arrest – Whether Respondent’s arrest was an unlawful exercise of power pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether police officer suspected on reasonable grounds that the Respondent had committed an offence – Where a person other than the Respondent was carrying a bag which contained a knife – Where primary judge made adverse credit findings in relation to police officer’s evidence as to his belief that the Respondent was carrying the bag TORTS – Trespass to the person – False imprisonment – Whether s 43A of the Civil Liability Act 2002 (NSW) applied to exclude any liability arising from the conduct of the Appellant – Whether s 3B(1)(a) applied to exclude the operation of s 43A – Whether there was an intentional act done with intent to cause injury or death – Whether deprivation of liberty falls within the definition of “injury” TORTS – Malicious prosecution – Whether charges were brought against the Respondent without reasonable and probable cause and with malice – Where police officer made repeated references to his previous interactions with the Respondent and omitted exculpatory material from the Facts Sheet including that the Respondent was not holding the handbag in which a knife and various items of new male clothing were found TORTS – Malicious prosecution – Damages – Whether award of damages included compensation for custody that was not a natural and probable consequence of the prosecution – Whether causal connection between the charges laid against the Respondent and the Respondent’s detention severed by the refusal of the Respondent’s bail application or by the revocation of her parole TORTS – Damages – Whether award of exemplary damages excessive – Whether primary judge took into account damages and aggravated damages awarded under each head of damage

NEGLIGENCE – claim for work injury damages for back condition – challenges to factual findings – whether breach of duty of care – whether injury caused by employment COSTS – claim for work injury damages against employer and third party – application of Workers Compensation Regulation 2016 (NSW), Pt 17 Div 3

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Long running litigation where each party succeeded on some issues — No issue of principle

CIVIL PROCEDURE – parties – persons under legal incapacity – tutors – application to remove tutor – whether plaintiff remains a person under legal incapacity

ORDERS – quantification of amounts for which defendants are to account – whether other orders necessary or appropriate

LAND LAW – Strata title – By-laws – Whether By-law granting exclusive use rights conditional on four critical obligations had been complied with – Whether clause of By-law ceasing exclusive use rights unless critical obligations were complied with is unjust – Whether clause of By-law ceasing exclusive use rights unless critical obligations were complied with is unconscionable, harsh or oppressive – Whether special levies are unreasonable – Award as to damages- reasonableness of costs – quantum as to monies owing for strata levies or pursuant to By-law 30 EQUITY – Equitable remedies – Declaration – Remittance to tribunal for orders arising out of the declaration

COSTS – Gross sum costs order – no issue of principle

TAXES AND DUTIES — land tax — liability — exemptions — exemption for land used for primary production — appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) — whether dominant use of land for maintenance of animals for purpose of selling them or their natural increase or bodily produce — when no other use of property put to Tribunal — relevance of subjective intention of taxpayer — no evidence of subjective intention

CIVIL PROCEDURE — Discovery — General discovery – Application for disclosure in advance of evidence CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11 — Exceptional circumstances warranting disclosure before evidence exchanged — Whether plaintiff/applicant has satisfied requirements for exceptional circumstances CIVIL PROCEDURE — Discovery — General discovery – Whether categories considered too broad

CRIME – appeals – appeal against sentence – Commonwealth and State offences - whether a mathematical error made when considering or applying the totality principle – whether sentence for the State offence is manifestly excessive – leave to appeal granted – resentence

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Supply of not less than commercial quantity of drug — Where applicant supplied significantly lower quantities of drugs prior to the involvement of police undercover operative — Whether sentencing judge erred in assessing the objective seriousness of the offence on the basis that it was designed to accrue a financial benefit CRIME — Appeals — Appeal against sentence — Where sentencing judge took account of the applicant’s background of profound childhood deprivation as part of instinctive synthesis but refused to reduce the applicant’s moral culpability — Whether the sentencing judge failed to correctly apply the principles of Bugmy v The Queen (2013) 249 CLR 571

APPEALS – criminal procedure – temporary stay of proceedings – where the Crown sought to rely on putatively privileged communications by a third party – where delay occurred because the question of whether privilege had been waived was not resolved when the third party was to give evidence – temporary stay of proceedings granted pending the Crown’s payment of costs thrown away – whether decision of the Director of Public Prosecutions not to fund legal representation for the third party to resolve the privilege issue was an irrelevant consideration in granting the temporary stay – whether the Crown was at fault for the delay such that the principles of R v Mosely (1992) 28 NSWLR 735 applied – whether the accused suffered unfairness because of delays in resolving the privilege issue

CRIME — appeals — appeal against convictions for sexual intercourse without consent — miscarriage of justice — alleged risk of prejudice following exchange between Crown witness and accused in courtroom — whether trial judge’s decision not to discharge jury following the exchange resulted in a miscarriage of justice — whether trial judge’s direction to jury was sufficient to overcome potential prejudice SENTENCING — appeal against sentence — whether sentencing judge erred in calculation of commencement date of sentence — pre-sentence custody period — discretion of sentencing judge to back-date commencement date of sentence

EQUITY —Equitable charges and liens — Enforceability — Whether court should make an order for judicial sale out of court — Whether court should make ancillary order for possession

CRIMINAL LAW – release application – where sentencing proceedings imminent – where bail also refused for unrelated offences – lengthy delay – whether appropriate to refuse bail for one offence but grant bail on others – possibility of intensive correction order – show cause requirement – issues as to strength of prosecution case and seriousness of second series of offences – different functions of sentencing court and bail court – bail decision ought not to influence proper exercise of sentencing discretion – preposterous in this case to think it would – bail granted on second series of the offences – refused on the offence for which sentence is pending