Cases and authorities

CIVIL PROCEDURE – application to vacate hearing – where solicitor ceases to act in response to client’s non-payment of fees – where client at fault – whether client should be forced to proceed without legal representation

CRIME — sentencing — murder — juvenile offender — plea of guilty — youth gang bashing of child — assault captured on video and posted on social media — offence of great seriousness — reduced moral culpability on account of background and immaturity of youth — remorseful — reasonable prospects of rehabilitation — special circumstances to allow for parole flexibility as offender matures

APPEALS — leave to appeal — whether leave required — whether grounds of appeal contain question of mixed fact and law — principles governing grants of leave to appeal — leave to appeal granted CORPORATIONS — effect of deregistration of lessee on obligations of indemnifier under lease — whether reinstatement of lessee a necessary pre-condition to recovery against the indemnifier LEASES AND TENANCIES — lease term — expiration of lease — whether lease terminates upon deregistration of lessee — operation of holding over provision where lessee is deregistered — automatic renewal of lease where notice to terminate is not provided in accordance with terms of the lease GUARANTEE AND INDEMNITY — scope of liability of guarantor/indemnifier — construction — guarantee of lessee’s obligations under a lease — whether guarantee also contained an indemnity — whether the guarantor assumed primary liability — whether guarantor could be held liable following deregistration of lessee — commercial purpose of the guarantee

COSTS – application to vary costs order – UCPR, r 36.16(3A) – where question of costs addressed in submissions on appeal – whether basis for variation made out

LAND LAW — Crown land — claim by Crown for possession of Crown land — where land previously subject to a permissive occupancy — whether claim statute barred on the basis that the land has been in adverse possession for over 30 years — ss 27 and 38 of the Limitation Act 1969 (NSW) — effect of s 65 Limitation Act — whether s 13.1 of the Crown Land Management Act 2016 (NSW) precludes the appellant’s defence that the Crown’s action is statute barred LAND LAW — Adverse possession — Intention to possess — where rent paid to the Crown — where occupant sought to regularise his occupation of the land by seeking a permissive occupancy or licence from the Crown

CRIME – proceeds of crime – Commonwealth offences – restraining orders – ex parte hearing – orders made

CIVIL PROCEDURE — stay of judgment pending appeal — where primary judge dismissed claim for specific performance of contract for sale of land and discharged injunction restraining respondent Council from considering rescission motion — where respondent acknowledged that appeal raised serious issues — whether balance of convenience or balance of hardship favours stay of order discharging interlocutory injunction

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Plaintiff bankrupt and trustee abandoned action — No issue of principle

EVIDENCE – client legal privilege – waiver – documents produced on subpoena – communications between counterparties to proposed contract – where legal advice shown to proposed counterparty – where no evidence of stage to which negotiations reached at time of disclosure – whether common interest established

CIVIL PROCEDURE – whether provisional hearing date for final determination of the plaintiff’s application for the Tail Customers Injunction should be confirmed or vacated – where defendant contended it could not properly prepare its case by provisional hearing date – whether defendant would not be afforded procedural fairness were provisional hearing date to be retained

CIVIL PROCEDURE – Adjournment application – proposals to appoint tutor and retain legal representation – unnecessary to decide CIVIL PROCEDURE – Alternate dispute resolution – Referral to mediation

CONTRACTS – Formation – Offer – Whether the plaintiff made an offer to settle proceedings – Succession Act 2006 (NSW) – Litigation through social media – Objective assessment of the social media post.

CRIME – sentencing – manslaughter – excessive self-defence – guilty plea on first day of trial – effect of mental health and background of deprivation on moral culpability – youth

CORPORATIONS – Whether receivers validly appointed – whether s 8 of Farm Debt Mediation Act 1994 (NSW) applies where secured property wholly outside New South Wales.

CIVIL PROCEDURE — costs – variation of costs order – Uniform Civil Procedure Rules 2005 (NSW) – costs order against parties in liquidation or otherwise incapable of brining or maintaining legal proceedings – whether the breadth of costs order undermines its benefit – whether costs order should be limited to active parties – facilitation of enforcement of costs order

COSTS — indemnity costs - civil procedure – abuse of process – relitigating claims of virtually same substance twice rejected by courts – “relevant delinquency” - successful parties’ invitation to discontinue proceedings prior to judgment refused - failure to lodge submissions against adverse indemnity costs order – special order for indemnity costs awarded

COURTS — Jurisdiction — parens patriae — 16 year old child diagnosed with bone cancer (Ewing sarcoma) underwent induction cycles of chemotherapy — Following the completion of 4 of 17 cycles of treatment, PET and MRI scans disclosed spectacular reduction in size of tumour — Scans unable to detect existence of tumour deposits below a threshold of size — The treating practitioner discussed results with the child and parents and other medical professionals — The child and family devout Christians and the child believes she has been miraculously healed and declined further treatment — Uncontested medical evidence suggests the cancer subsists — Issues as to the child’s decision-making capacity and ‘Gillick competence’ — Hospital seeks a declaration that the child (now aged 17) had capacity to refuse the recommended medical treatment — Determined that child ‘Gillick competent’ — In the event that it is found that child is ‘Gillick competent’ no party (Hospital, child and parents) sought an order authorising treatment — However parties accepted the Court had power to make such an order — Considerations regarding whether treatment ought to be authorised — Order made for authorisation of treatment CIVIL PROCEDURE — Hearings — Suppression and non-publication orders WORDS AND PHRASES — Miracles and prayer RELIGION — Nature of miracles and prayer briefly discussed

CIVIL PROCEDURE – representative proceedings – settlement or discontinuance – court approval – whether the proposed settlement is fair and reasonable in the interests of group members as a whole – where approval turns on defendant’s inability to satisfy judgment debt – assessment of settlement distribution scheme – where settlement figure modest compared to amounts claimed to cover legal costs and settlement administration expenses

MENTAL HEALTH — forensic patient — extension of status as forensic patient – whether unacceptable risk of causing serious harm to others – consideration of statutory factors – whether less restrictive measures available to manage risk – where defendant found unfit to stand trial – limiting term imposed for manslaughter of domestic partner – where extension order not opposed – dispute confined to length of order – extension granted for a period of two years

INSURANCE – motor vehicle – fraud – s 118 of the Motor Accidents Compensation Act 1999 TORTS – miscellaneous torts – deceit – state of mind of defendant – whether the defendant knowingly or recklessly made false representations to the plaintiff and others to obtain a benefit to the detriment of the plaintiff – whether the plaintiff was induced by the representations of the defendant STANDARD OF PROOF – civil standard – application of Briginshaw EVIDENCE – tendency evidence – where credibility evidence cannot be used for tendency purposes – evidence properly adduced for credibility purposes DAMAGES – whether true value or settlement value theory applies – parties agree that value would be the same in either case – damages assessed

COSTS – indemnity costs – offers of compromise – where a Calderbank offer is made – where offer is made pre-trial – where offer is only made for a very limited period – where offer is not renewed before appeal – where offer requires the parties to enter a non-disparagement deed – where offer is the only basis relied on for a departure from the usual costs order

COSTS – commercial dispute – plaintiffs serve Calderbank offer on Thursday, before trial commencing on the coming Monday – defendants make Calderbank counter-offer the same day, open for acceptance until 10am on Monday – term of both offers that previous costs orders be vacated – plaintiffs lose at trial. INDEMNITY COSTS – whether reasonable compromise given term requiring vacation of previous costs orders – whether indemnity costs appropriate where it was not necessary for the Court to determine some of the issues advanced by the plaintiffs – whether period of time for acceptance was reasonable in the circumstances.

HIGH RISK OFFENDER – final hearing – extended supervision orders – conditions

COSTS – Civil Procedure – Calderbank offer – Offer of compromise – Indemnity costs – Costs awarded on an ordinary basis.

CORPORATIONS – former directors - inspection of documents – electronic mailboxes maintained by the plaintiffs when they were directors of the defendants – where defendants may be entitled to client legal privilege in relation to documents in the mailboxes EVIDENCE – documentary evidence - electronic mailboxes maintained by former directors – client legal privilege

COSTS — party/party — orders when proceedings involve multiple parties — how parties liable JUDGMENTS AND ORDERS — stay of execution — pending appeal

CORPORATIONS — Winding up — Voidable transactions — Separate question as to solvency of company — Whether Company was insolvent during the relevant period.

EQUITY – trusts and trustees – judicial advice under s 63 of the Trustee Act 1925 (NSW) – where superannuation fund comprises members with accumulation interests and members with defined benefit interests – where trust deed of the fund contains a “single trust” clause – where the “single trust” clause provides that no part of the trust deed shall be taken as establishing a separate trust in respect of any category of members or any part of the fund – whether the trustee would be justified in administering and managing the fund on the basis that, notwithstanding the presence of the “single trust” clause, in all the circumstances the entitlements of members with defined benefit interests must be satisfied out of the net value of the assets attributed by the fund to the category or division within the category to which members with defined benefit interests belong – consideration of the construction and effect of the “single trust” clause in the context of the trust deed as a whole – whether the trustee of the fund may make certain amendments to the trust deed to empower the board of directors of the fund to retain the services of and appoint expert advisors and consultants, and to act on their advice – whether the trustee of the fund may amend the trust deed to confirm that the existing indemnity under the deed extends to circumstances where the trustee acts upon the opinion or advice of expert advisors and consultants

SUCCESSION – family provision – claims by three adult children for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – where the deceased’s will made no provision for his daughters – where the deceased’s will bequeathed his entire estate to his only son on the failure of the gift of his entire estate to his wife – whether factors warranting orders for provision in favour of three adult daughters of the deceased

EQUITY – fiduciary duties – breach – rule in Barnes v Addy – where the plaintiff paid approximately $9.9 million to the first defendant to be held by it on trust pending the acquisition of one million boxes of gloves for the plaintiff for on-sale – where the second defendant caused the first defendant to breach the trust and steal the plaintiff’s money – where $8.5 million of the sum paid by the plaintiff was subsequently transferred by the first defendant to the third defendant – where the third defendant subsequently transferred $1 million to the fourth defendant and approximately $6.1 million to the fifth defendant – where the third, fourth and fifth defendants are the active defendants in the proceedings – where the active defendants allege that the transfers were made pursuant to legitimate commercial agreements with the first defendant, made before the theft of the plaintiff's money – whether legitimate commercial agreements existed between the active defendants and the first defendant – whether the active defendants received the money from the first defendant knowing (in the requisite sense) that its transfer was in breach of trust – whether the active defendants assisted (with the requisite knowledge) the first defendant in its dishonest and fraudulent breach of trust EQUITY – trusts and trustees – principle in Black v S Freedman – whether the active defendants are volunteers who have received money obtained by fraud and who have learned that the money was misappropriated RESTITUTION – nature of restitutionary liability – common counts – money had and received – whether the active defendants unjustly obtained a benefit to which they were not entitled and were unjustly enriched

ASSOCIATIONS AND CLUBS — rights, duties and liabilities of members — constitution — whether provisions in constitution for resignation of members mandatory — circumstances in which members may impliedly resign or abandon their membership without a formal resignation in accordance with the constitution — finding that all except one of the plaintiffs had abandoned their memberships of the association by failing to pay membership fees, failing to attend meetings and failing to participate in the affairs of the association in any significant way over different periods of many years ASSOCIATIONS AND CLUBS — rights, duties and liabilities of members — applications for orders reinstating membership of an association — effect of laches and delay — granting of relief discretionary — the Court would not in any event have made orders sought because of laches and delay ASSOCIATIONS AND CLUBS — rights, duties and liabilities of members — power of the Court to order the association to create and maintain the register of members required by the constitution — order made ASSOCIATIONS AND CLUBS — rights, duties and liabilities of members — whether association can be estopped from denying that the provisions in its constitution governing the acquisition of membership have not been satisfied — principles of estoppel not applicable — estoppel not established in any case

COMMERCE – restraint of trade – validity and reasonableness – length and scope of restraint – enforcement and remedies – compensation – where contract between plaintiff health centre and defendant independent chiropractor contained restraints of trade – where restraints of trade were to operate during and after the term of the contract – where the defendant terminated the contract and commenced providing chiropractic services to clients in Newcastle – whether the restraint of trade clauses are valid – consideration of Restraints of Trade Act 1976 (NSW), s 4 – held that a 12 month duration is not a reasonable period of restraint and is invalid – consideration of the quantum of damages that would have been awarded if the plaintiff had succeeded on the issue of liability and the Court had accepted that a period of 12 months was reasonable for the restraints of trade

COMPULSORY ACQUISITION — Compulsory acquisition of land — Compensation — Construction of s 56(1)(a) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) — Determination of market value — Decrease in land value claimed to be caused by public purpose — Statutory disregard — Owners advised of acquisition 17 months prior to acquisition and slowed then stopped development work — Issue of causation to be understood in statutory context — Strain on causal attribution where choices made by owners — Causal issue is re effects of public purpose not of acquisition — Potential for windfall to owners — Effects on value caused only by choices by owners because of possibility of the land being acquired not within s 56(1)(a) COMPULSORY ACQUISITION — Compensation — Disturbance — Construction of s 59(1)(f) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) — Stamp duty and mortgage costs only claimable as disturbance under ss 59(1)(d) and (e)

BUILDING AND CONSTRUCTION — adjudication — whether adjudication determination was affected by jurisdictional error — whether adjudicator denied respondent to adjudication procedural fairness — whether basis of adjudicator’s determination regarding retention monies was in issue on the adjudication — whether respondent could reasonably anticipate basis of determination regarding retention monies — denial of procedural fairness material

JUDGMENTS AND ORDERS – Motion to set aside or vary orders – Court of Appeal – Application under UCPR, r 36.16(3A) – Failure to comply with directions as to length of written submissions – Applicant seeking to reagitate issues – No basis for re-opening established

CIVIL PROCEDURE – notices of motion – expert evidence – where plaintiff sought leave to rely on expert reports – context of delay – amended particulars - renewed claim for psychiatric injury - overriding purpose and objects of case management – rule 31.28 of Uniform Civil Procedure Rules 2005 (NSW) - exceptional circumstances established - leave granted to plaintiff to rely on expert reports – orders made CIVIL PROCEDURE – subpoena to plaintiff’s solicitor – client legal privilege claimed – waiver – scope of subpoena narrowed – objection withdrawn

LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where plaintiff guaranteed mortgage over property — Where defendant in default of mortgage — Whether plaintiff co-owner — Whether plaintiff a trustee

CIVIL PROCEDURE – addition of another plaintiff – consequential amendment of pleadings – whether new plaintiff has a cause of action.

ADMINISTRATIVE LAW — judicial review — penalty notice for breach of COVID-19 public health order — whether the description on penalty notice specified the offence as required by s 20 of the Fines Act 1996 (NSW) — obligation of Commissioner of Taxation to administer law as interpreted by the Court — whether the Court should make a declaration and give reasons where notice admitted to be invalid and withdrawn — whether any public interest warranting a declaration and Court’s reasons for invalidity

CONTRACTS – penalty – relief against penalties – whether penalties doctrine engaged – differential interest rates – where loan agreement provided for “Lower Interest Rate” and “Higher Interest Rate” – where “Lower Interest Rate” operated as a concessional rate payable whilst there was no default – principle in Kellas-Sharpe v PSAL Ltd [2013] 2 Qd R 233 – penalties doctrine not engaged CONTRACTS – unconscionable conduct – Australian Securities and Investments Commission Act 2001 (Cth), s 12CB – whether interest rates in loan agreement unconscionable – where Higher Interest Rate stated to be 70.02% per annum – where interest provisions in contract exceedingly complex – where outstanding interest capitalised – effective annual interest rate by date of hearing of 417% per annum – where borrowers had benefit of legal advice – interest “utterly crushing” – capitalisation provisions unconscionable – loan agreement void in part CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – whether business contract – whether contract unjust CONTRACT – construction – where literal application of formula for calculation of interest would result in very low rate of interest – whether literal construction absurd – provision construed in accordance with commercial common sense NEGLIGENCE – legal practitioners – professional negligence – scope of oral retainer – whether solicitor adequately explained complex terms in loan agreement – whether breach causative of loss

COSTS – indemnity costs – plaintiff sues former director in respect of invalid appointment of his wife as company secretary and entering into series of unauthorised loans to provide working capital for his building company – director maintained the lie to the end – provided a basis for other defendants to strenuously defend all aspects of plaintiff’s claim – resulted in longer trial – increased plaintiff’s costs significantly – indemnity costs order made. COSTS – plaintiff loses claims against lenders who advanced the unauthorised loans – plaintiff now in liquidation – gross sum costs order made to avoid wasted costs of assessment, to both the lender and liquidator – s98(4)(c) Civil Procedure Act 2005 (NSW) EQUITABLE COMPENSATION – plaintiff’s solicitor to provide equitable compensation, being 75% of plaintiff’s indebtedness to lenders – whether equitable compensation can include lenders’ costs.

CONTRACTS — express terms — incorporation of terms into written contract — where customer ticked the box on sales agreement referring to supplier’s terms and conditions of trading CONTRACTS — construction — take or pay, annual quantity, and exclusivity provisions — whether provisions breached — whether take or pay provision void as a penalty — whether take or pay provision collateral stipulation to obligation to purchase annual quantity CONTRACTS — formation — consideration — whether contract void for illusory consideration — construction of supplier’s executory promise to supply products CONTRACTS — whether unilateral amendment of supplier’s terms — whether conventional estoppel established — whether parties adopted mutual assumption as to the terms of their legal relationship CONTRACTS — terms — whether provisions void or unenforceable by reason of alleged misleading or deceptive conduct or unconscionable conduct — whether reasonable expectation of disclosure of specific terms of supplier’s terms and conditions of trading — whether failure to disclose specific terms was misleading or unconscionable conduct — where commercial negotiation at arm’s length for the supply of goods to customer on supplier’s standard terms and conditions of trading

COSTS — costs orders in interlocutory proceedings — basis of quantification — indemnity basis — whether appropriate case for a specified gross sum

WORKERS COMPENSATION — Proceedings before Personal Injury Commission — Appeal against decision of presidential member in point of law — Where Deputy President confirmed determination of Member that employer liable to pay workers’ compensation to worker — Where worker suffered psychological injury — Where Member determined that employment was the main contributing factor to injury — Whether Deputy President erred in implicitly deciding there was evidence capable of supporting the Member’s factual finding — Whether Deputy President erred in implicitly deciding the Member did not misapply or misapprehend relevant legal principles on causation of injury — Whether Deputy President constructively failed to exercise jurisdiction by failing to respond to a substantial and clearly articulated argument

COSTS – motion for contempt following service of subpoena – subpoena complied with following service of motion for contempt – whether recipient of subpoena showed wilful disobedience of subpoena such as to warrant costs order

CIVIL PROCEDURE – Discontinuance of proceedings – Leave of court – Terms on which proceedings discontinued.

COSTS – costs of reference – where both parties failed to establish their preferred case

CORPORATIONS – winding up – costs – where winding up of company ordered – where company wound up on the just and equitable ground – where parties originally sought other relief – where that relief not obtained – whether the court should otherwise order for the purposes of s 466(2) of the Corporations Act 2001 (Cth).

INTERLOCUTORY APPLICATION – application for injunction to restrain transfer to the respondent of a distribution from a unit trust for the 2023 financial year – respondent is the legal owner of the units in the unit trust and claims entitlement to the distribution – the applicant on the motion claims final relief in the proceedings that it is the beneficial owner of the units in the unit trust – the respondent claims he needs the distribution to meet his anticipated legal costs for the final hearing of the proceedings to take place in April 2024 – the applicant says there is a risk of dissipation of the distribution if the injunction is not granted – temporary injunction granted – whether it should be continued, and if so on what terms.

CONTRACTS — Construction — Principles –Significance of poor drafting – whether a sum payable under a contract should be characterised as a “conventional deposit”, repayable in the event of the vendors’ default and recoverable in a claim for restitution, or as an option fee that became and remained the property of the grantor