Cases and authorities

EDUCATION – financial assistance to non-government schools – entitlement conditioned on school not operating for profit – decision made to recover past financial assistance on the basis that the relevant school was non-compliant because it had operated for profit from 2015 to 2020 STATUTORY INTERPRETATION – where Minister made recovery decision under s 83J of Education Act 1990 (NSW) and non-compliance declaration under s 83F of that Act – whether Minister was empowered to make recovery decision in relation to the period prior to her making the non-compliance declaration because she had not reached the requisite state of satisfaction that the school was operating for profit under s 83E of that Act

CRIMINAL PROCEDURE – Whether court should be closed to hear confidential evidence and submissions – motion to be excluded from producing documents under subpoena – public interest immunity

CIVIL PROCEDURE — Pleadings — Amendment — No issue of principle

CRIME – evidence – murder – co-accused – application to release evidence given before the Crime Commission – s 45(4) and 45(5) of the Crime Commission Act 2012 (NSW) – whether disclosure in the interests of justice – factors weighing for and against disclosure – two stage approach to disclosure to give witness opportunity to be heard

CONTEMPT — Civil contempt — orders to be made following findings of breach of orders and civil contempt in relation to accounts — where executors filed and served accounts purportedly in response to orders — findings of breach and civil contempt in limited respects — where no punishment or monetary penalty sought — application for revocation of grant of probate based on contempt findings — where procedural issues raised — whether executors’ conduct required revocation of grant — grant of probate not revoked — orders made to remedy defaults COSTS — whether costs should be awarded on indemnity basis — where applicants sought no punishment of contemnors — where applicants had mixed success — indemnity costs awarded subject to allowance for mixed outcome

APPEALS – jurisdiction of appellate court – extension of time for filing and serving appeal under UCPR r 51.9(1)(b) – notice of intention to appeal filed and served – no notice of appeal filed and served – whether power under r 51.9(1)(b) may be exercised where no appeal or other proceeding commenced – in absence of filed notice of appeal there is no proceeding within which that power may be exercised

CIVIL PROCEDURE — Interlocutory injunctions — minority shareholder seeks control of corporate group by acquiring rights of lenders to the group — corporate group presently in default under Syndicated Loan Facility — actions by former directors and chief executive officer said to be in breach of fiduciary obligations – whether a serious question to be tried – where balance of convenience lies – interim injunction granted.

CIVIL PROCEDURE - dangerous dog – Companion Animals Act 1998 – interlocutory relief – plaintiff’s dog seized and kept in the defendant Council’s facility – whether seizure order valid – defendant’s motion to vary previous orders made by the Court – – whether the strength of the plaintiff’s case and the risk of harm to third parties warrants variation of the Court’s existing orders to permit the plaintiff to visit her dog at the defendant’s facility or to allow the dog to be returned home.

EQUITY — superannuation fund — death benefits — where member of self-managed superannuation fund signed binding death benefit nomination on day of death nominating de facto partner as beneficiary — whether binding death benefit nomination valid and binding — capacity — assessment of member’s mental capacity — where member had ill-health, hospitalised and administered opioids — unconscionable conduct — whether special disadvantage — whether notice of special disadvantage — whether donee took advantage of special disadvantage — whether transaction was improvident — held that member did not lack capacity and transaction not unconscionable

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving schemes of arrangement – Where formal requirements satisfied – Whether schemes of arrangement should be approved.

REAL PROPERTY — Caveats — Plaintiff registered proprietor of property at Abbotsford sought to remove a caveat alleging an interest in the property arising by virtue of an agreement said to be between the plaintiff and the defendant company dated 1 August 2022 — Plaintiff’s son purported to be appointed as a director of the defendant the day before the listing (18 January 2024) had previously filed a caveat in virtually identical form in related proceedings also listed in which he accepted that he had no caveatable interest in the property — Limited leave given to the son to represent the defendant — Details regarding the alleged agreement lacking and no proffer of evidence in support of assertion, which was different to the claimed interest, that there was a form of constructive trust — Monies advanced by the company in 2009 but “on terms to be agreed” — No clear evidence of any discussions giving rise to an interest in the property as between the plaintiff and the son — Caveat ordered to be removed CIVIL PROCEDURE — Hearings — Adjournment — Adjournment refused — Son’s prior involvement in related proceedings brought by him against the plaintiff part of the relevant context indicating that he had not only recently had involvement in the matter — No sufficient evidence supporting a caveatable interest as claimed in the caveat or asserted in an affidavit in support of an adjournment

ORDERS — Orders to give effect to findings in respect of rejection of main claim and qualified success of cross-claim — Specific performance of obligations in a Deed refused as Deed signed as result of duress — Judgment for amounts paid as a result of duress PROCEDURE — Mode of appearance at hearing — audio visual and other mode of appearance — The usual court etiquette, protocols, procedures and restrictions which apply to in-person hearings apply to forms of virtual hearing whether virtual in whole (with all participants joining remotely) or part (with some participants in person and others joining remotely) — Plaintiff sought leave to appear by AVL and initially appeared whilst driving a car — Court expects participants to use their common sense in appearing by AVL — Anyone given permission to appear by AVL should do so in a manner consistent with the appropriate decorum and solemnity of the occasion and not in a manner or environment in which they might be distracted or unable to give their undivided attention properly and safely to the proceedings before the Court — an AVL participant should never participate by AVL in a manner which by dint of their situation or surroundings gives rise to any appreciable risk of placing themselves or others in their vicinity in danger (in this case appearing whilst driving a car with potential risk to herself, other vehicle drivers, passengers or pedestrians) COSTS — Offers of compromise — Whether offer valid — Meaning of must not include an amount for costs in r 20.26(2)(c) UCPR “judgment .. on the plaintiff's claim with no order as to costs” and for the first cross-defendant to pay the costs of the cross-claimant “as agreed or assessed” — Offers held to be valid COSTS — Cross-claimant sought on the cross-claim recovery of sums totalling $210,000 against the first cross-defendant and second cross-defendant jointly — A determination was made in the principal judgment that the cross-claimant was entitled to judgment against only the first cross-defendant for $200,000 and against only the second cross-defendant for $10,000 — Cross-claimant served an offer of compromise in relation to the claim against the first cross-defendant but did not serve any offer in relation to the claim against the second cross-defendant — Each of the cross claimant and second cross-defendant claimed different orders based on different perspectives of whether they had been successful on the cross-claim — Orders made COSTS — Set off – Whether costs in proceedings should be set off

CIVIL PROCEDURE – Pleadings – Form and content of pleading – Whether amendment to pleadings causes prejudice – Construction of certain particulars – Whether the particulars should be struck out.

CORPORATIONS — Members’ rights and remedies — Where common ground that there has been a failure in the relationship of shareholders and directors — Whether winding up on the just and equitable ground should be ordered. STATUTORY INTERPRETATION — Members’ rights and remedies — Where party pursues a buy-out order as ancillary to a just and equitable winding up under s 467(1)(c) of the Corporations Act 2001 (Cth) — Whether the Court has power to make such an order. CORPORATIONS — Members’ rights and remedies — Oppression — Whether failure to enter lease amounted to oppression.

ASSOCIATIONS AND CLUBS — Meetings — Validity — Where members of association were issued debentures — Where terms and conditions of debenture certificates provide debenture holders a right to vote at general meetings — Where certain debenture holders are no longer members on the basis of unpaid fees — Whether debenture holders who are no longer members are able to vote at a general meeting.

GUARDIANSHIP – Guardianship order – Public Guardian – Review of decisions – Notion of Motion by son of protected person seeking the removal of a previous decision that lifted any stays on orders made by the NSW Civil and Administrative Tribunal – Whether there was an urgent need to make the orders sought by the plaintiff.

CIVIL PROCEDURE – Civil Procedure Act 2005 (NSW) – application for approval of settlement of proceedings commenced by or on behalf of person under legal incapacity – resiling from settlement citing a material change in circumstances – whether lawful rescission or repudiation – power of court to determine questions about compromise and settlement

CIVIL PROCEDURE – non-compliance with court order to file amended summons for final relief – whether non-compliance renders proceedings defective – judicial conflict of interest – adjournment warranted

EQUITY – first limb of Barnes v Addy (1874) LR 9 Ch App 244 - the plaintiff sold international travel services to the defendants over a five-year period between 2013 and 2018 – some of the plaintiff’s travel services were sold through a “staff, family and friends” discounted travel scheme – defendants were offered discounted travel at rates substantially below market rates and below the likely wholesale cost of providing the travel services – the defendants were purchasers of those services – in July 2018 the plaintiff discovers that a rogue employee is responsible for irregularities in its staff family and friends travel scheme and that the plaintiff’s travel services have been marketed and sold through the scheme without its authority and in breach of its employee’s fiduciary duty to the plaintiff – the plaintiff seeks recovery of the cost of the travel services supplied to the defendants by the rogue employee – whether the defendants were aware that the rogue employee was selling them travel services without the authority of the plaintiff – whether the plaintiff is entitled on the pleadings to restitution from the defendants on the grounds the defendants made payments for the market value of the travel services supplied to or at the direction of the defendants by mistake or under a total failure of consideration – whether the defendants had the requisite level of knowledge that the rogue employee was acting in breach of her fiduciary duty to her employer, the plaintiff, to attract Barnes v Addy first limb liability – whether the defendants received all travel services from the plaintiff with some of them were supplied to other persons.

TAXES AND DUTIES – review – whether departure prohibition order made under Taxation Administration Act 1953 (Cth), s 14S should be set aside pursuant to Taxation Administration Act 1953 (Cth), s 14V – whether the Deputy Commissioner of Taxation had a bona fide belief and reasonable grounds to believe it was desirable to prohibit the plaintiff from departing Australia to travel to Slovenia for urgent medical treatment – where plaintiff is subject to a tax liability of $18 million under a Deed of Settlement executed by the plaintiff and the Commissioner – where plaintiff has arguably contravened freezing orders of this Court not to diminish the value of assets subject to tax recovery proceedings – where plaintiff has previously been imprisoned for financial crimes – where plaintiff frequently travels overseas and has previously transferred funds overseas. CIVIL PROCEDURE – discontinuance of proceedings – whether the Court should grant application during final submissions for leave to file a notice of discontinuance pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 12.1 – where the Court has granted an early final hearing in the vacation list – where the defendant has gained forensic advantages in the hearing – where application made at the conclusion of the hearing. COSTS - costs assessment – specified gross sum order instead of assessed costs – Civil Procedure Act 2005 s98(4)(c) – order for costs made against an unsuccessful plaintiff – where the plaintiff has few assets in his own name and an assessment of costs would cause unnecessary aggravation expense to the defendant – consideration of making a specified gross sum order instead of assessed costs.

CIVIL LAW – dangerous dog – Max – companion animal – variation of interim orders – allowing plaintiff access to dog pending determination of application for judicial review – Blacktown Animal Rehoming Centre – BARC – where Court made orders allowing plaintiff to visit dog at BARC – bounds and circumstances of contact not defined – inability of parties to agree – diametrically opposed positions taken by the parties – bloody mindedness – what steps are reasonably necessary to facilitate visit – imposition of condition requiring plaintiff to bring support person – whether plaintiff permitted physical contact with dog – whether council should required to put on additional staff – whether plaintiff can hug her dog – what dogs are ever thinking – liability and safety issues – last Friday before Christmas – variation to orders made

PARTNERSHIPS AND JOINT VENTURES — existence of partnership — agreement of partnership PARTNERSHIPS AND JOINT VENTURES — rights and duties between partners — actions between partners PARTNERSHIPS AND JOINT VENTURES — partnership property — identification PARTNERSHIPS AND JOINT VENTURES — joint venture agreements — interpretation

COSTS — No question of principle

COSTS — Indemnity basis — Whether claimant has been put to unnecessary expense of meeting unmeritorious claims — Where respondent’s claim based on forged documents — No doubt as to the falsity of the allegations advanced — respondent’s conduct amounts to a relevant delinquency or exceptional circumstances warranting an indemnity costs order. COSTS — Civil Procedure Act 2005, s 98(4)(c) — Gross sum costs order — Whether appropriate in the circumstances — Where claimant of limited financial means and respondent’s ability to satisfy such an order in doubt COSTS — whether evidence in support of costs claimed sufficient — Where no evidence that invoices presented have been paid — Liability for costs relevant question — Where unclear when cost agreement entered — section 174 of the Legal Profession Uniform Law 2014 (NSW) — Consequences of no disclosure should be no broader those contemplated by into section 178 of the Legal Profession Uniform Law 2014 (NSW).

PRACTICE AND PROCEDURE – application for recusal – where plaintiff identified no basis for recusal – request refused JUDGMENTS AND ORDERS – amending, varying and setting aside – where plaintiff brought application to set aside orders – where plaintiff did not materially engage with provisions of the Uniform Civil Procedure Rules 2005 (NSW) – where plaintiff alleges judge had hidden and malicious agenda – application dismissed

ADMINISTRATIVE LAW – judicial review – from decision of New South Wales Civil and Administrative Tribunal Appeal Panel – where plaintiff raised 55 grounds of appeal – whether grounds of appeal identify a question of law – appeal dismissed

CIVIL PROCEDURE — pleadings — striking out — abuse of process CIVIL PROCEDURE — parties — vexatious litigants — declaration of — repetition of causes of action in multiple proceedings — where documents found to be forgeries in prior proceedings — declaration made CIVIL PROCEDURE — parties — vexatious litigants — stay of proceedings — stay granted

CIVIL PROCEDURE – Teoh order – where the applicants filed a notice of motion seeking to set aside and vary orders under UCPR, r 36.16 – where application does not raise any new issue and the issues raised have now been repeatedly determined against the applicants – where applicants directed to show cause why the Court should not summarily dismiss proceedings as vexatious and an abuse of process – whether application should be dismissed as vexatious and an abuse of process CIVIL PROCEDURE – Subpoena – where leave to issue a subpoena refused by Deputy Registrar on the basis that there were no active proceedings at the time when the subpoena was filed – where applicants made a further application for leave to issue that subpoena – where documents are being sought by the applicants to support contentions considered and rejected by this Court – whether leave to issue the subpoena should be granted

CORPORATIONS — trustees and receivers — where trustees and receivers seek to be fully indemnified for the reasonable costs and expenses incurred in, and to receive remuneration in respect of, the performance of their duties — where fourth defendant raises issue of proportionality — HELD —remuneration and disbursements sought are appropriate

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— Securities — delay in consolidation of shares — Other orders made under s 1322 of the Corporations Act 2001 (Cth).

REAL PROPERTY – Claim to beneficial entitlement to land registered under the Real Property Act 1900 NSW – Claimant asserts registered proprietors bound by personal equities – Claimant relies upon allegations of promissory estoppel, proprietary estoppel, common intention constructive trust, remedial trust, resulting trust, equitable lien – Factual basis not established – Claim dismissed

ADMINISTRATIVE LAW — judicial review — decision to revoke parole — whether decision maker was satisfied of subjective jurisdictional fact — whether error on the face of the record — whether parole authority required to conduct an inquiry or hearing prior to revoking parole — whether decision legally unreasonable — whether error disclosed on the face of the record — decision made in September 2016 and is out of time fixed by UCPR 59.10 — whether leave ought to be granted

COSTS – security for costs – whether power to order security engaged – factors relevant to the exercise of discretion in relation to security for costs – where financial circumstances of plaintiff not in evidence – where no relevant delay in bringing application for security – plaintiff to provide security for costs

CORPORATIONS — Shares — Directors’ power under Articles of Association to decline to register a transfer of shares — Construction of provisions of the Articles conferring that power CORPORATIONS — Members’ rights and remedies — Oppression — Whether decision to decline to register transfer of shares to plaintiff made without just cause within the meaning of s 1071F of the Corporations Act 2001 (Cth), in breach of statutory and fiduciary duties owed by directors to company, or constitutes oppression — Appropriate remedy for oppression in all the circumstances — Whether grounds for just and equitable winding up

CIVIL PROCEDURE — consideration of whether proceedings are frivolous or vexatious — plaintiff unauthorised to institute proceedings on behalf of company in liquidation — abuse of process in as much as multiple proceedings have been brought to ventilate what is in substance the same asserted cause of action

CIVIL PROCEDURE — consideration of whether proceedings are frivolous or vexatious — similar disputes litigated in a variety of different proceedings — no claim pleaded against certain defendants — plaintiff unauthorised to institute proceedings on behalf of company in liquidation — no reasonable cause of action disclosed

CONTRACTS — deed of settlement and release — construction — where release restricted to claims “in connection with or arising out of” statement of agreed facts — whether claim released at law — whether necessary to consider equitable principle in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 where claim not released on proper construction of deed

GUARANTEE AND INDEMNITY — Scope of liability of guarantor — Construction — Where guaranteed loan agreement provided for interest accrual on drawdown — Where side letter agreed between borrower and lender provided for pre-drawdown interest — Where guarantor did not consent to side letter — Whether side letter altered borrower’s obligations under loan agreement pursuant to which funds were advanced GUARANTEE AND INDEMNITY — Discharge of guarantor — Where draft principal contract altered between borrower and lender prior to contract of guarantee — Whether rule discharging guarantee where principal contract varied without guarantor’s consent applied — Rule in Holme v Brunskill (1877) 3 QBD 495 GUARANTEE AND INDEMNITY — Contract of guarantee — Construction — Whether guarantee obligation properly characterised as indemnity — Where guarantee expressed to be principal obligation

APPEAL – application for leave – amount under threshold – whether challenge more than merely arguable – applying arguability criterion on a concurrent hearing – application by party not bearing onus of proof – no challenge to findings of primary fact GUARANTEE AND INDEMNITY – contract of guarantee – oral undertaking by principal of debtor company – repeated undertakings – contractual intention – implied contingent agreement – consideration – forbearance – continuing to trade

JUDGMENTS AND ORDERS – Orders to give effect to reasons in principal judgment in light of parties’ further submissions

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Application of Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 in a case where a substituted plaintiff is a solicitor appointed as executor of a deceased plaintiff’s estate to represent the estate — where solicitor has no interest as a beneficiary in the estate — where solicitor has a right to be paid professional fees for acting as the solicitor in the proceedings — where the Court held that the solicitor was not in substance acting for himself and was entitled to recover his professional fees under a costs order made against the defendants COSTS — Party/Party — Orders against non-parties — where the first defendant was substantially the moving party in the proceedings — where the primary part of the defence was unreasonable and delinquent — where the Court has made an order that the second and third defendants who controlled the first defendant should pay part of the costs ordered to be paid by the first defendant to the plaintiff — consideration of circumstances in which a costs order should be made against third parties COSTS — Party/Party — Bases of quantification — consideration of significance of the failure of parties to accept Calderbank offers

COSTS – Interest calculations – Whether interest should apply at Court rates pursuant to s 100 of the Civil Procedure Act 2005 (NSW) and Practice Note SC Gen 16 COSTS – Calderbank offers – Whether costs incurred after the date of the letter of offer are payable on an indemnity basis

CIVIL PROCEDURE – judgments and orders – enforcement – default – application for examination order – contract for sale of land – order for specific performance against purchaser and guarantor – direction for payment of amount due on settlement –– whether order which “requires the person bound by it to pay money” – Civil Procedure Act 2005, s 108(5) – purchaser and guarantor in default – further remedies – contempt – no election against later damages claim by pursuit of specific performance – directions appointing further settlement date under order for specific performance – application for appointment of receiver – equitable execution– Uniform Civil Procedure Rules, r 40.2 – examination order made

CRIME — sentence — murder — reckless indifference to human life — asphyxiation of intimate partner — abandonment of body in boarding house bedroom — history of violence towards deceased and others — deceased vulnerable through age, stature and frailty — offender’s account to psychologist inconsistent with agreed facts — no remorse — upbringing involving parental substance abuse and instances of sexual abuse — reduced moral culpability leading to less emphasis on general deterrence but greater emphasis on community protection — mandatory declaration offence be recorded as one of domestic violence

COMMERCIAL ARBITRATION — Interim measures — Contractor provides security by unconditional undertakings from bank — Principal yet to make demand to bank — Principles at [3]-[9] — Contractor obtains ex parte injunction restraining principal from making demand to bank — Whether interlocutory measure should be made pending arbitration — Whether right to call on bank guarantee a ‘risk allocation device’ — principal entitled to call on guarantee at an early stage in the dispute BUILDING AND CONSTRUCTION — Where adjudication determinations rendered — Whether right to call on bank guarantees in construction contract void under s 34 of the Building and Construction Industry Security of Payment Act 1999 (NSW) — Case law review at [94]-[102] — Adjudication determination does not stand in the way of the principal making a demand on security INTERLOCUTORY INJUNCTION — Whether serious question to be tried as to principal’s right to have recourse to bank guarantee — Principal required to “act reasonably” — No serious question to be tried as to whether the principal was “acting reasonably” in forming the view that the principal was entitled to terminate for cause — Balance of convenience favours principal.

APPEALS – Leave to appeal – Leave to appeal from costs orders following dismissal of application for mandatory interlocutory injunctive relief – Where parties entered into deed settling litigation in Equity Division – Where applicant covenanted to pay $3.25m to respondent in tranches – Where applicant charged shares in related company as security for payments due under deed – Where applicant subsequently sought rectification of deed and release of charge over shares or a declaration the deed was void ab initio by reason of mistake – Where mistake said to generate equity of rectification as to effect of granting charge on other financing arrangements between parties – Whether primary judge erred in refusing mandatory interlocutory injunctive relief against respondent – Whether applicant had identified question of principle of general importance or injustice or error going beyond one merely arguable – No issue of principle – Leave to appeal refused

ADMINISTRATIVE LAW – Supervisory jurisdiction – Judicial review – Judicial review of confirmation in District Court of conviction entered in Local Court – Where applicant advances numerous grounds of review asserting jurisdictional error in conduct of trial and appeal to District Court – Where applicant asserts primary judge’s comments gave rise to apprehension of bias – Where applicant asserts denials of procedural fairness arising from inability personally to address Court and judge’s possession of extraneous information – Where applicant asserts constructive failures to exercise jurisdiction by failure to respond to substantial and clearly articulated arguments – Where applicant asserts mistaken denial of appellate jurisdiction in conduct of appeal – Where applicant asserts finding of fact made in absence of any evidence – Where applicant asserts diverse errors of law in conduct of appeal – Where applicant asserts legally unreasonable or irrational finding of fact made – Where none of applicant’s grounds has merit – No issue of principle – Application for judicial review dismissed

COSTS – Party/Party – Appeals – Where neither party wholly successful on appeal – Where appellant enjoyed some success with respect to discrete aspect of claim – Where appellant asserts there should be no order as to costs – Where respondent substantively successful on balance of contested issues – No issue of principle