Cases and authorities

MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — retention of funds as security for costs

COSTS – Party/party costs – General rule that costs follow the event – Application of the rule and discretion – Appeal from a Local Court decision as to costs – Whether the costs order was disproportionate to the dispute.

CHILD WELFARE – adoption – consent dispense order – where consent dispense order sought before application for adoption order – where father not identified – where reasonable enquiries made to identify and locate the father

EQUITY — contribution — co-ordinate liability — party named as borrower claims they are a guarantor — claim for contribution from third party as the ‘true borrower’ GUARANTEE AND INDEMNITY — guarantor — right of subrogation

CORPORATIONS – Statutory Demand – Application to set aside creditor’s statutory demand – Whether there is a genuine dispute as to the amount claimed.

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Where property registered in names of estranged daughters — Where purchaser bankrupt — Where purchaser forged daughters’ signatures — Whether intention to gift property — Whether registration contrary to policy of Bankruptcy Act or Real Property Act — Whether illegality prevents declaration of resulting trust — Whether unclean hands prevent declaration of resulting trust

JUDICIAL REVIEW – summons seeking judicial review against background of extensive litigation – vexatious litigant appealing NCAT decision – where similar matters have been heard by Court of Appeal and decision is reserved at date of hearing – question of whether issues raised substantially replicate issues before appellate court – whether appeal is an abuse of process

CIVIL PROCEDURE – separate determination of questions – whether the amount of damages to which a party are entitled should be heard separately EVIDENCE – expert evidence – whether single party expert should be appointed

APPEAL - statutory interpretation – signature requirement – building contracts – legislative amendments – legislative intention – secondary reading speech

SUCCESSION — Dispute between the plaintiff and the defendant who are the only two children of the deceased, who died in 2021, regarding their entitlements to valuable farming land in Dungog region, which at her death comprised 21 lots — Plaintiff claims that in teenage years the deceased (his mother) and his father (who died in 2005) made initial promises of inheritance of “half of the farm” on which he acted in various ways including forgoing the study of medicine and forgoing an opportunity of postdoctoral studies overseas to remain on the farm and provide assistance in respect of the farming operations which initially involved dairying operations — Subsequent to his father’s death the plaintiff claims the deceased, who ceased dairying operations and leased 13 of the 21 lots and part of another lot (predominantly north of a road dividing the farming property) (the “leased lots”), gave encouragement to the plaintiff to continue work he had engaged in maintaining the leased areas on the promise of receiving the leased lots — Plaintiff continued the work — Deceased made a Will relevantly giving the plaintiff only 2 of the leased lots and the balance of her real property to the defendant — Plaintiff sought relief that the reference by name to the gifted lots should be properly construed as being a reference to most of the lots north of the dividing road — Plaintiff in addition to the construction claim sought rectification of the Will to the above effect — Plaintiff alternatively to the construction claim and rectification claim sought entitlement to the 14 lots by means of an estoppel — Held construction and rectification claims to be dismissed but estoppel claim succeeds WILLS — Construction — Principles — Discussion of appropriate method for describing landholding — The appropriate method will depend upon various factors including context — Generally use of the words “more particularly described (as)” followed by a distinct title reference, is a useful and appropriate drafting technique to remove doubt about what land is precisely the subject of a gift SUCCESSION — Wills — Rectification — Whether always necessary to construe document first — Discussion of rectification principles – Consideration of requirements of ‘clerical error’ — Consideration of conjunction ‘because’ in s 27(1) Succession Act 2006 (NSW) EVIDENCE — Presentation of evidence regarding complex landholdings — Forensic assistance to the Court, and to witnesses, of having a large map version of the deceased’s landholdings to identify the disputed landholding by reference to a single document, so that the evidence of the many witnesses could be comparable and comprehensible by reference to a fixed or standard reference point — Practitioners commended for thoughtful presentation of maps EVIDENCE — Assessment of evidence of witnesses where estoppel claims based on some conversations in the decade prior to the deceased’s death and some many decades ago — Assessment of evidence of professionals engaged by the deceased including evidence of a solicitor regarding instructions for a will made over a decade prior to the deceased’s death where the solicitor’s electronic file is lost ESTOPPEL — Estoppel by encouragement — Farming properties — Plaintiff’s case for detriment presented holistically, with all of the elements of forgoing opportunities and work carried out sharing the common thread that the plaintiff (for the most part) remained living and working in or around the family farm secured by the promises that he would inherit, under the initial promises, “half of the farm” and, by the subsequent promises, the “leased lots” ESTOPPEL — Discussion of issues including whether career choices may constitute detrimental reliance — Discussion of ‘counterfactual case’, significance of countervailing benefits and proportionality of relief — Held choices made by the plaintiff involved life changing decisions with irreversible consequences of a profoundly personal nature, beyond the measure of money — Held relief claimed not “wholly disproportionate” or “out of all proportion” to his detriment

COURTS AND JUDICIAL SYSTEM – Judges – Recusal – Apprehension of bias – Whether issue in proceedings pre-determined by reason of costs order made by Registrar

CRIME – Appeals – interlocutory appeal – decision to refuse a permanent stay – criterion for leave to appeal from interlocutory decision in criminal proceedings – whether leave to appeal should be granted – where applicant for stay had been found unfit to stand trial on the indictment pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether standard of appellate review is the correctness standard in light of the High Court’s decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 – whether there was an error of principle and possibility or likelihood of substantial injustice CRIMINAL PROCEDURE – stay of proceedings – permanent – where permanent stay of proceedings sought on multiple bases including the Applicant’s mental infirmity and forensic disadvantages arising out of delays in bringing the prosecution – whether “common humanity” test applies in cases where more than mental infirmity is relied upon to found an application for a permanent stay – whether sufficient weight given to the Applicant’s mental infirmity – whether primary judge inappropriately weighed the forensic advantage accruing to the accused as a result of delays in bringing the prosecution against those accruing to the Crown

CRIME – Suppression and non-publication – protection for publishing or broadcasting the name of accused children and child victims under s 15A Children (Criminal Proceedings) Act 1987 (NSW) – whether publishing or broadcasting the deceased child victim’s name under the exception in s 15E Children (Criminal Proceedings) Act 1987 (NSW) would be likely to lead to the identification of the accused child – not a question of the possibility of identification by those in the community with personal knowledge of the circumstances of the alleged offence – whether the judgment published with the name of the deceased child would likely lead to the identification of the accused

COSTS — Application for a special costs order — Whether indemnity costs ought be payable — Whether gross sum costs order necessary to achieve finality between the parties in the course of protracted litigation

CIVIL PROCEDURE – amendment of statement of claim – possession proceedings – where defendant occupying plaintiff’s premises wrongly named – where correct name ascertained after attempted service – leave to amend

ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Findings of fact — Whether a “question of law” — Civil and Administrative Tribunal Act 2013 (NSW), Sch 6, Part 6, Cl 14(1)(b)

MORTGAGES AND SECURITIES – Personal Property and Securities Act 2009 (Cth) – enforcement – registered security interest – retention of title clause – interest in goods registered under Personal Property Securities Act 2009 (Cth)

COSTS – costs assessment – application for departure from usual costs order under UCPR r 42.1 – application for an order that there be no order as to costs and in the alternative, a fixed costs order – whether case has a test case aspect – whether defendant has a real interest in the resolution of what is in issue in the Local Court – whether defendant is impecunious COSTS – application for certificate under s 6 of the Suitors' Fund Act 1951 (NSW) – granted

SUCCESSION – family provision – claim by adult daughter for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – where the deceased’s will bequeathed the rest and residue of her estate to her daughter and son as tenants in common in equal shares – whether factors warranting order for provision in favour of the adult daughter of the deceased

CRIMINAL LAW – murder – sentence for murder – where offender sought retribution against victim based on false assumption about the victim’s role in an assault on the offender’s brother – considerable planning to obtain a gun and assistance from co-offenders – victim shot four times in his own home – strong need for general deterrence – no contrition or remorse and persistent denial of culpability – reasonable prospects of rehabilitation – impoverished upbringing and strong subjective case

TORTS – Trespass to the person – Assault – Battery – Claim based on distinct accounts of alleged strangulation APPEAL – From findings of fact – Credibility of witnesses – Appeal of factual decision turning on witness testimony following long hearing – Importance of contemporary evidence

CRIMINAL PROCEDURE – Indictment – where Crown case relied on multiple potential principals and several instances of alleged provision of financial advice in proof of a single count of contravening ss 911B(1) and 1311(1) of the Corporations Act – where trial judge had declined to quash or permanently stay indictment – whether the identification of multiple principals failed to allege an offence known to law – whether the identification of multiple principals was in contravention of the rule against duplicity – whether the identity of the principal is a factual matter that must be pleaded in order to avoid uncertainty in the charge – whether the number of potential principals and instances of provision of alleged advice was an abuse of process. CRIMINAL PROCEDURE – Indictment – where indictment did not address the exculpatory condition in s 911B(1)(e) – whether indictment fails to aver an offence known to law by failing to allege all of the necessary conditions to make out an offence.

CIVIL PROCEDURE – approval of settlement where plaintiffs under legal incapacity – whether the settlement is for the benefit of the plaintiffs

CIVIL PROCEDURE — Representative proceedings – where plaintiffs entered into a litigation funding agreement – whether plaintiffs may claim as a head of damages the litigation funder’s commission.

NEGLIGENCE — Occupiers’ liability – where plaintiff slipped on stairs – whether reasonable precautions could have been taken to prevent slippage NEGLIGENCE — Damages — Economic loss — Earning capacity – where defendant claimed plaintiff had residual earning capacity – whether defendant discharged onus to demonstrate such capacity

COSTS – party/party – application to amend costs order –exercise of discretion – where successful party abandoned monetary claim before hearing

JUDICIAL REVIEW – Serious driving offence – Proceedings discontinued – Statutory interpretation – Historical fact of a charge – Revocation of statutory benefits.

PRACTICE AND PROCEDURE – application by plaintiffs to re-open after judgment reserved to tender judgment of foreign court and document produced on subpoena – where plaintiffs failed to adduce evidence of relevant foreign law during hearing – where plaintiffs now seek to rely on foreign judgment as evidence of the truth of a proposition of mixed fact and law that they have extrapolated from the outcome of the foreign proceedings and erroneously characterised as the “legal effect” of the foreign judgment – where document produced on subpoena has negligible probative value – where defendants would be prejudiced by delay that would follow from a grant of leave to re-open.

APPEALS – Leave to appeal from interlocutory decision – no issue of principle or any question of general public importance – no sufficiently arguable error on the part of the primary judge which warranted a grant of leave

CONSUMER LAW — misleading and deceptive conduct — whether Chief Financial Officer of small proprietary company was a mere conduit of misrepresentations — causation CONSUMER LAW — misleading and deceptive conduct — knowing involvement — requisite degree of knowledge TORTS — deceit — exemplary damages

ADMINISTRATIVE LAW – judicial review – jurisdictional error – extent of functions and powers of tribunal – Personal Injury Commission medical appeal panel – whether appropriate consideration given to late documents – no opportunity given to address panel regarding late documents – whether late documents could materially affect decision WORKERS COMPENSATION – medical dispute – extent of whole person impairment – appeal from certificate of medical assessor – scope of functions and powers of medical appeal panel – panel restricted to determining appeal on indicated grounds of appeal – panel restricted to reviewing injury the subject of referral to the medical assessor

APPEALS – s 57(1) Land and Environment Court Act 1979 (NSW) – requirement for appeal to be from an order or decision on a question of law – deficiencies in the notice of appeal – whether any of the 24 grounds met this requirement COMPULSORY ACQUISITION – Compensation – vacant land acquired by local council for public purpose of stormwater harvesting project – highest and best use of land for rural residential development – appellants sought $160 million compensation below and on appeal

CRIME — Appeals — Appeal against conviction — Sexual assault and intimidation offences — Where trial judge did not give Markuleski direction — Unreasonable verdict

CRIMINAL LAW – sentence appeal – applicant sentenced in relation to a number of contact and non-contact sexual offences – whether the sentencing judge made a finding of special circumstances – the non-parole period was greater than the statutory ratio – approach to re-sentencing – whether discrete matter or arithmetical error – tension in authorities – where parties agree full re-sentencing is required – unfairness – offender resentenced (but only in so far as the non-parole period)

CRIME – appeals – appeal against sentence – one count of obtaining a financial advantage by deception – where applicant falsely represented she was separated from her husband to claim Parenting Payment Single (PPS) – offending took place over seven years and involved fraudulent payments totalling $170,787.11 – where applicant did not give evidence and psychiatric evidence was tendered without objection – where the Crown accepted applicant’s major depressive disorder at least at certain points in time impaired her decision making – where sentencing judge held applicant’s mental health condition did not reduce her moral culpability to a significant degree – whether sentencing judge’s finding on subjective circumstances amounted to a denial of procedural fairness – sentencing judge not obliged to accept what was contained in the psychiatric report – no independent evidence confirmed history given to psychiatrist and appeared inconsistent with other evidence – no denial of procedural fairness – ground rejected CRIME – appeals – appeal against sentence – whether judge ought to have found that applicant’s mental condition would make custody more onerous – where no such finding was sought by the applicant at the sentence hearing – ground rejected CRIME – appeals – appeal against sentence – where fraudulent funds had been fully repaid – where applicant did not give sworn evidence of contrition or remorse – whether sentencing judge failed to take into account repayment of money as evidence of contrition – held sentencing judge not obliged to find contrition simply because fraudulent funds had been repaid – other matters inform determination of contrition – ground rejected – appeal dismissed

ADMINISTRATIVE LAW – workers compensation – judicial review of Medical Appeal Panel – where medical assessor failed to consider cl 1.32 of the NSW workers compensation guidelines for the evaluation of permanent impairment – where Appeal Panel found that medical assessor had erred in failing to consider cl. 1.32 but not in failing to make an allowance for treatment – whether Appeal Panel failed to apply, or failed to correctly apply cl 1.32 when determining plaintiff’s WPI – whether Appeal Panel failed to give adequate reasons

ENVIRONMENT AND PLANNING— Land and Environment Court — Crown land — Management of Crown land — National Parks and Wildlife Act — Plan of management — statutory interpretation — whether Secretary has duties to implement individual policies in Plan of Management compellable by mandamus — whether delay implementing policies unreasonable — utility and appropriateness of relief

CRIME — appeals — appeal against conviction — 16 counts of assault with an act of indecency — 1 count of common assault— three complainants — unreasonable verdict — verdict unsupported by evidence — evidence cross-admissible for tendency purpose — whether deficiencies and inconsistencies in evidence sufficient to give rise to reasonable doubt

CRIME — appeals — appeal against conviction — alleged unreasonable verdicts in judge-alone trial — whether it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant engaged in dangerous driving CRIME — driving offences — dangerous driving occasioning death and grievous bodily harm — truck driver experienced potential trigger for vasovagal syncope when stopped at the lights — put the vehicle in motion before losing consciousness — history of vasovagal syncope — whether applicant had sufficient warning of oncoming loss of conscious such that driving was dangerous — whether applicant’s loss of consciousness was caused by pre-existing medical condition (vasovagal syncope) or a pulmonary embolism

SENTENCING — Crown appeal against sentence — offender convicted of aggravated sexual intercourse without consent and intimidation — whether sentence imposed was manifestly inadequate — whether sentence was unreasonable or plainly unjust — balancing objective seriousness of offence with subjective considerations SENTENCING — subjective considerations on sentence — special circumstances — offender’s youth and cognitive impairment — consideration of how best to achieve the purposes of sentencing including rehabilitation and prevention of further offending — lack of rehabilitation options for offender in custody

CRIMINAL PROCEDURE – non-publication order – power to make – scope of power – prejudicial information accessible on web pages – whether order “necessary” – risk of jurors searching internet contrary to directions – whether trial judge can take steps during the conduct of the trial to relieve against risk to conduct of trial.

CIVIL PROCEDURE – summary judgment – whether summary judgment should be entered in favour of the plaintiff – refused – pleadings – whether leave to amend the defence should be granted – where statement of claim did not particularise claims – where evidence served provided particulars – leave granted – whether an extension of time to file a cross claim should be given – extension granted

CIVIL PROCEDURE – Manager, Costs Assessment – Registrar’s decision – Application filed in time.

APPELLATE REVIEW – appeal from Personal Injury Commission – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353(1) – nature of appellate review – whether error in point of law – meaning of aggrieved in point of law – requirement that appeal identifies a point of law in relation to the decision of the presidential member – failure to recognise error of law generally an error of law WORKERS' COMPENSATION – entitlement to compensation following death of worker – Workers’ Compensation Act 1987 (NSW) s 9A – alleged misdirection as to proper legal test – alleged constructive failure to exercise jurisdiction – alleged failure to give adequate reasons – limits of judicial review – causation involves evaluative question of fact – no constructive failure to exercise jurisdiction – no failure to give adequate reasons CAUSATION – meaning of “substantial contributing factor” in s 9A of Workers Compensation Act 1987 (NSW) – s 9A a more stringent causation test than “arising out of employment” in s 4(a) – Member found that causation not made out – issue of substantial contribution did not arise – requirement that risk “came home”– similarity to the position in tort – increase in risk insufficient of itself to establish causation for purposes of s 9A – meaning of “common sense” causation – common sense causation connotes a number of ideas – no error in use of common sense causation here

CORPORATIONS - Members’ rights and remedies - Where common ground that there has been a failure in the relationship between shareholders - Whether winding up on the just and equitable ground should be ordered. CORPORATIONS - Winding up - Application to appoint liquidator - Whether Plaintiffs’ nominee should be appointed - Where Defendants’ proposed liquidator had begun preparatory works in respect of voluntary winding up proposed by Defendants.

CORPORATIONS — Receivers and managers — Appointment by court — Appointment of receiver for the purpose of selling property and distributing proceeds amongst creditors CORPORATIONS — Winding up — Conduct of liquidation — Application of assets — Order entitling liquidator as receiver to retain funds to account for remuneration expenses and discharge future liabilities CORPORATIONS — Winding up — Conduct of liquidation — Application of assets — Order that any remaining funds from the sale of the property be paid into Court

EVIDENCE – course of evidence – evidence in reply – credibility rule – where the scope of proposed evidence is broader than the evidence it seeks to address – proposed evidence relevant for a non-hearsay purpose

CORPORATIONS – Winding up – application by liquidator for direction as to which rules of fund are operative. CORPORATIONS – Winding up – application by liquidator for direction as to when fund was dissolved – direction as to entitlement of members and former members to share in distribution of fund assets.

CIVIL PROCEDURE – hearings – adjournment – relevant factors – where plaintiff died before commencement of hearing – new causation issues arising from the death – insufficient time to prepare expert reports – vacating hearing dates warranted

CORPORATIONS — winding up — just and equitable ground — appointment of liquidators and receivers — where the parties nominate different proposed liquidators and receivers — where considerations as to fitness, qualifications, and cost do not warrant a departure from the Court’s regular practice of appointing the plaintiff’s nominated liquidator