Cases and authorities

TAXES AND DUTIES – payroll tax liability – employment agency contract – contract for trolley collection and cleaning services – identifying the employment agency contract – contract between agent and client – separate contracts between agent and service providers – onus of proof on tax payer STATUTORY INTERRETATION – payroll tax liability – employment agency contract – procuring services for client – when service provider works “in and for” the business of the client of the agent – use of “indicia” – reliance on factors considered in other cases

ADMINISTRATIVE LAW – access to personal information – obligation of public sector agency – access to be provided without excessive delay – breach of obligation – power to order provision of information – unresolved issues as to application of conditions and limitations on disclosure obligation CIVIL PROCEDURE – Civil and Administrative Tribunal – appeals – leave to appeal – third appeal – original applicant inactive party – issue of principle as to power of Tribunal – statutory agency appearing as contradictor – no prejudice to original applicant STATUTORY INTERPRETATION – harmonious construction – two State Acts – provision in one Act picking up provisions from another Act – construing picked-up provision so as to apply in different legislative context

APPEAL – leave to appeal – interlocutory order refusing to strike out defence – defence pleaded plaintiff’s claim apportionable – issue of general public importance – significant impact on course of trial TORT – duty of care – statutory duty for construction work – extension of duty to subsequent owners of land – duty non-delegable – whether claim is apportionable under Pt 4 of Civil Liability Act 2002 (NSW) – claim by owners corporation for defective works – Design and Building Practitioners Act 2020 (NSW), s 37(1) WORDS AND PHRASES – “non-delegable duty – “tort” – “vicarious liability”

CRIME — Appeals — Appeal against conviction — Child sex offences – Three counts of sexual intercourse with child >10 <16 – Two counts under authority – Unreasonable verdict – whether complainant’s evidence inherently unlikely and lacked detail – whether opportunity to develop closeness – where certain matter unexplored and unexplained – whether statement made to arresting officer and effect of statement – whether alleged location of third count possible given evidence of applicant’s brother – whether reasonable possibility applicant’s account might be true

CRIME – appeals – appeal against a special verdict of act proven but not criminally responsible – where trial judge considered accused presented unusually on complainant’s account of acts charged, on body worn police camera and in court – where accused expressly and repeatedly disavowed potential mental health defence – where both accused and Crown opposed to special verdict at trial – where accused gave evidence of historical brain injury – where no expert evidence about effect of any potential impairment on accused’s brain and cognitive functioning – where special verdict entered

CONTRACTS – Airline accident – no allegation of fault – applicability of Montreal Convention – whether damages limited by Convention – whether Civil Liability Act applies CIVIL PROCEDURE – Separate determination of questions – questions of law as to limit to damages – applicability of Montreal Convention – applicability of Civil Liability Act – questions answered

NEGLIGENCE — Damages - calculation of judgments against employer and non-employer tortfeasors – amount of damages recoverable by non-employer from employer tortfeasors – effect of Workers Compensation Act 1987 (NSW) COSTS — Whether award of indemnity costs appropriate

EQUITY — trusts and trustees — rectification of trust deed — no issue of principle EQUITY — trusts and trustees — variation of trust — release or surrender pursuant to Trustee Act 1925 (NSW), s 81(1)

EQUITY — specific performance — where the defendants’ property is burdened by a restriction on the use of land imposing height limitations on trees and vegetation — where the parties entered into a deed of agreement that made provision for the lawful removal of nine trees on the defendants’ property — where council approval was only obtained for the removal of two trees — whether the defendants are required to consent to further applications being lodged with council for the removal of the remaining trees contemplated in the deed — whether the defendants have satisfied their obligations pursuant to the deed so as to require the plaintiffs to discontinue separate proceedings in this court — court to consider the proper construction of the deed

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, to agree to proposed schemes of arrangement to implement corporate restructuring – Whether requirements to order scheme meetings are satisfied.

EVIDENCE — Privileges — Public interest immunity — Whether cabinet documents immune from production EVIDENCE — Privileges — Legal professional privilege — Waiver — Whether waiver arises from conduct that is inconsistent with the maintenance of the confidentiality that the privilege is designed to protect

ADMINISTRATIVE LAW – certiorari issued – limitations to grounds of appeal raised – meaning of “grounds of appeal” – assessment de novo – correction of error – error of law and jurisdiction

ENVIRONMENT AND PLANNING – jurisdiction of Land and Environment Court to hear Class 1 appeals – ss 368(1)(a) and (c) of the Water Management Act 2000 (NSW) – where floodplain harvesting (regulated river) access licence not granted in relation to share component said to have been sought – whether determinations of Minister to grant licences with lower share components than had been sought amounted to refusals to grant access licences – whether decision as to share component for access licence constituted imposition of a discretionary condition

APPEALS – Leave to appeal – question of general principle – scope of tort of injurious falsehood TORTS – Economic torts – Injurious falsehood – malice – where false representations were beliefs or opinions reasonably held TORTS – Economic torts – Injurious falsehood – falsity – whether any error to approach to falsity in the particular circumstances of the case TORTS – Economic torts – Injurious falsehood – damages – whether representations leading to internal investigation caused actual damage – whether aggravated and/or exemplary damages could be awarded in the circumstances TORTS – Economic torts – Injurious falsehood – scope – where unsuitable to determine given failure of other aspects of the appeal

CRIME – appeals – appeal against sentence – aggregate sentences – where aggregate sentence not reconcilable with the sentencing judge’s stated intentions as to the accumulation of the indicative sentences – error conceded by the Crown SENTENCING – firearms offences – where offender convicted of possession, use and unsafe storage of a firearm – general need for some degree of accumulation – where subjective circumstances justified minimal accumulation

CORPORATIONS — Meeting of members — Request for meeting by shareholder — Where the Commonwealth of Australia has prohibited that shareholder from acquiring further interests in the company — Where the Foreign Investment Review Board is investigating further acquisitions of shares in the company — Whether the Court should make an order extending the period by which the company must call the requested meeting while that investigation is pending.

CHILD WELFARE – adoption – best interests – where child does not satisfy definition of “Aboriginal child”

COSTS – party/party – appeals – where offer made before appeal hearing – whether the offer reflected genuine compromise – whether unreasonable for appellants not to accept the offer

CONTRACT – sale of residential property – the appellant and respondents entered into a contract for the sale of the appellant’s property – completion did not occur by the completion date – the respondents sought and were granted specific performance and declaratory relief with the question of damages reserved – Parker J found deposit payable under contract of sale was paid in full by the respondents and was valid and binding – specific performance later became impossible – matter relisted before the Real Property List Judge – both parties purport to terminate the contract of sale – further hearing before Peden J to determine whether respondents are entitled to return of deposit paid under the contract of sale – appellant contends deposit not fully paid as sum of $3,750 had been forfeited pursuant to Conveyancing Act 1919 (NSW) s 66V – the respondents rescinded an earlier contract during the cooling off period – appellant contends forfeited amount cannot form part of the deposit under the contract of sale – Peden J declared the respondents validly terminated contract – Peden J ordered return of deposit to the respondents – Peden J’s orders made in accordance with earlier finding of Parker J that deposit was paid by respondents in full – whether Peden J erred in returning deposit amount to respondents – where appellant does not challenge earlier judgment or orders of Parker J. APPEALS – procedure – appellant filed notice of intention to appeal on 10 July 2023 – appellant filed notice of appeal on 13 September 2023 – appellant served notice of appeal on 3 October 2023 – notice of appeal served out of time – respondent does not oppose extension of time for filing notice of appeal – extension of time for filing notice of appeal allowed pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 51.16(2).

COSTS — Security for costs — Relevant factors — Timing — Whether additional security should be ordered — Where defendants allowed plaintiff to prepare claim without notice of further request for security — Quantum — Where amount sought disproportionate to quantum of claim — Additional security awarded in reduced amount

CIVIL PROCEDURE – court administration – case management – where both parties have not complied with case management orders on multiple occasions – matter is not prepared properly for trial – unacceptable delay in hearing plaintiff’s claim – conduct of parties resulted in ineffective use of court resources – refusal to adjourn final hearing

JURISDICTION — the plaintiff made financial advances to the defendant under a deed of loan granting a charge over real property of the defendant – where the defendant claims the plaintiff’s advances are not repayable – where the plaintiff seeks judicial sale of property under a charge – where other proceedings initiated by the defendant are on foot in the Federal Circuit and Family Court of Australia between the plaintiff’s daughter and the defendant under Family Law Act 1975, s 90SM – defendant seeks transfer of these Supreme Court proceedings to the Federal Circuit and Family Court of Australia under the Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5(1) (“the Cross Vesting Act”) to be heard together with the Family Court proceedings – transfer opposed by the plaintiff – whether the Cross Vesting Act allows the transfer and whether the Court should exercise its discretion to transfer the proceedings.

SUCCESSION — Family provision — Interim provision — Moderately large estate worth $2.8M — Deceased survived by son and daughter (the plaintiff) — The effect of the deceased’s Will is that the plaintiff was given a sum of $10,000 in cash and the residue was given to the son (70%) and his children received the balance — Matter listed for final hearing in April 2024 — Plaintiff has meagre income and financial resources and initially sought interim provision for matters associated with moving house and securing alternative accommodation, a car, cataract surgery, legal costs and contingencies — The defendant, a solicitor executor, proposed more limited interim provision than sought by the plaintiff — The plaintiff’s claim for interim provision was pressed as having some urgency to be heard expeditiously prior to the end of the Court term — On the hearing of the application the plaintiff’s interim claims were refined to seeking monies for a car, cataract surgery, legal costs and a fund for emergencies — Interim provision ordered — On facts no provision for legal costs SUCCESSION — Family provision — Interim provision — The Court gives encouragement to parties to explore whether a sensible interim arrangement is able to be met on appropriate terms out of the estate — Reference made to authorities regarding contested claims which outline the threshold enlivening an order for interim provision to be made and difficulties in assessment LAW REFORM — Family provision — Interim provision — Suggestion that consideration ought to be given to reviewing the threshold required for interim provision or to otherwise extend the terms of the operation of s 92A Probate and Administration Act 1898, or find some other solution consistent with facilitating the just, quick and cheap resolution of interim provision claims and if appropriate, potential statutory reform

CIVIL PROCEDURE – commencement of proceedings – leave to commence pursuant to Felons (Civil Proceedings) Act 1981 – leave granted – orders for suppression of plaintiff’s identity made

CIVIL PROCEDURE – variation of trusts – constitution of proceedings – Court concludes application requires a contradictor to be finally dealt with on their merits – plaintiffs decline to appoint a contradictor – proceedings struck out

HIGH RISK OFFENDERS – post-sentence order under the Criminal Code Act 1995 (Cth) – application for extended supervision order – preliminary hearing – whether an interim supervision order should be imposed under s 105A.9A – whether the Court is satisfied that there are reasonable grounds for considering that an extended supervision order will be made – whether conditions proposed are reasonably necessary and reasonably appropriate and adapted to protect community from unacceptable risk – where defendant has made significant progress in custody – powerful family support – renunciation of extremist beliefs – identified issue of defendant’s misconduct in custody through communications with unauthorised associates while on phone calls with permitted persons – statutory question answered in the affirmative – interim supervision order made

COSTS — Party/Party — Application for preliminary discovery – whether or not actions of plaintiffs unreasonable – no order as to costs.

CIVIL PROCEDURE – limitation period – action in conversion – person under a disability – prisoner in custody seeking damages for vehicles disposed of after his arrest – fraudulent concealment – statements by principal of defendant as to fate of vehicles – application of Limitation Act 1969 (NSW), ss 52, 55 – whether limitation defence appropriately dealt with as preliminary issue CIVIL PROCEDURE – appeal from Local Court – question of law – dismissal of proceedings without hearing on merits – whether interlocutory order – whether leave required – whether criteria for grant same as for appeal by way of rehearing to Court of Appeal CIVIL PROCEDURE – appeal from Local Court – error of law established – magistrate failed to make necessary findings of fact – whether findings can be made on appeal

Appeals – application for leave to appeal from summary dismissal of proceedings – pleading disclosed no reasonable cause of action – no prospect that leave to replead would result in viable claim – leave to appeal refused – no issue of principle

EQUITY – fiduciary duty – existence – whether employee owes fiduciary obligations to employer – whether employee recognised as accepted category of fiduciary – separate element as to whether employee’s conduct falls within scope of fiduciary obligation – whether open to Australian courts below the High Court to reject separate elements of existence and scope of fiduciary obligations of senior employees – Nottingham University v Fishel [2000] EWHC 221 (QB); [2000] IRLR 471 disapproved EQUITY – fiduciary duty – knowing involvement in breach – level of assistance sufficient to render third party liable – extent of knowledge sufficient to render third party liable – circumstances when knowledge imputed to third party – scope of “fraud exception” EQUITY – fiduciary duty – breach – causation – where loss of opportunity turned upon alleged further breach of trust by trustee to which fiduciary obligations were owed by employees – whether such further breach of trust stood in way of assessment of liability of fiduciaries and knowing assistants – whether proposition produces incoherence and leaves dishonest fiduciaries with a windfall – whether allegation of further breach of trust put to trustee – whether there was informed consent to any further breach of trust EQUITY – fiduciary – breach – loss of a chance – whether any lost opportunity caused by breaches was so speculative that it was not valuable – assessment of loss of chance – discounts for future contingencies – appropriateness of “global” discount because future contingencies not independent – significance of paucity of evidence being a consequence of breaches of fiduciary duty – appropriateness of drawing inferences and resolving doubtful questions against fiduciary

COSTS – partial success – part of proceedings remitted – agreement as to principled exercise of costs discretion – orders made accordingly

TORTS – negligence – occupier’s liability – school cleaner injured by striking head on a storeroom doorframe – storeroom contained cleaning products and other items – whether occupier was negligent – whether relocating entire contents of storeroom was a reasonable precaution – whether burden of taking precaution was overly onerous – where burden included burden of taking similar precautions – cleaner’s contributory negligence – where risk of harm was patently obvious to person in cleaner’s position – apportionment of liability between occupier and cleaner’s employer – assessment of damages for non-economic loss COSTS – party/party costs – costs of appeal – where appellant succeeded on several grounds – where respondent wholly successful on notice of contention – where respondent did not lead primary judge into error

CRIMINAL LAW – bail – release application – whether the identified unacceptable risks can be mitigated – not satisfied that any conditions can reasonably be imposed to mitigate the unacceptable risks – bail refused

CRIME — appeals — appeal against sentence — application for leave to appeal – parity – where applicant and co-offender received identical sentences – where co-offender convicted of a more serious offence – whether the applicant has a justifiable sense of grievance – appeal allowed – applicant resentenced

CRIME – appeal against sentence – cultivation of not less than large commercial quantity of prohibited plant – supply of large commercial quantity of cannabis leaf – conspiracy to manufacture commercial quantity of methylamphetamine –erroneous consideration of standard non-parole periods – material error – resentence required

CRIME – appeals – appeal against sentence – where applicant convicted of affray and two counts of assaulting police – where applicant on conditional liberty at the time of offending – parole revoked – imposed sentence partially cumulative upon balance of parole to very small degree – whether sentence imposed failed to reflect sentencing judge’s finding of special circumstances when regard is had to the total effective sentence and total minimum period to be served by the applicant in custody – suggestion that applicant lost the opportunity to be re-released on parole purely hypothetical in the circumstances – no error on part of sentencing judge – appeal dismissed

FAMILY LAW AND CHILD WELFARE – Parens patriae jurisdiction of the Supreme Court – Child welfare under State legislation – Proceedings in District Court on appeal from Children’s Court – Administrative action taken by departmental Secretary to assume care responsibility of child – Exercise of parens patriae jurisdiction – Orders made restoring the child to the care, custody and control of the mother as contemplated by District Court

CIVIL PROCEDURE — subpoena to produce — seeks Court documents from Victorian proceedings — consent orders made on settlement of Victorian proceedings — whether order was under r 28.05 Supreme Court (General Civil Procedure) Rules 2015 (Vic) or Open Courts Act 2013 (Vic) — not a suppression order — order under r 28.05 limits access to non-parties to files in registry — does not absolve party in possession of documents which happen to be on the court file from compliance with subpoena.

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Where the demand relates to an order for the plaintiff to pay the defendant’s costs of a previous proceedings — Where the quantum of costs were not agreed and not assessed — Whether there is a genuine dispute about the existence or amount of a debt to which the demand relates — Whether there is some other reason why the demand should be set aside. COSTS — Application for costs on an indemnity basis — Whether indemnity costs are appropriate.

CIVIL PROCEDURE — interim preservation — application for extension of freezing order

EQUITY — Equitable remedies — Injunctions — Where injunction sought is an attempt to interfere with orders of the Federal Circuit and Family Court of Australia

ADMINISTRATIVE LAW — whether judicial review proceedings ought to proceed concurrently with statutory appeal — not satisfied there are circumstances making it appropriate for concurrent appeal and judicial review proceedings

COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.

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.

CONTRACTS — construction — where the plaintiff is a property developer borrower and the defendant is a finance broker — where the parties entered into a contract titled ‘Mandate to Act’ which provides for the payment of a facilitation fee by the plaintiff in exchange for the defendant procuring the approval of a finance facility — where the defendant procured a satisfactory finance facility from a third-party lender but, prior to the drawing-down of the loan, the plaintiff caused the reduction in the amount of security available under the loan resulting in the alteration of the terms of the facility by the lender which the plaintiff did not proceed with — whether the facilitation fee remains payable — HELD — the facilitation fee remains payable — whether the cancellation fee which provides for 100% of the facilitation fee to be payable after the lender issues security documents is void as a penalty — HELD — the cancellation fee is not a penalty — whether the services provided by the defendant to the plaintiff are “financial services” and, if not, is the cancellation fee unenforceable as an unfair contract term CONTRACTS — construction — whether the second cross-defendant is jointly and severally liable as guarantor of the plaintiff’s obligations under the Mandate to Act — HELD — second cross-defendant is jointly and severally liable

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.

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.

EQUITY — trust and trustees — judicial advice — obvious mistake in execution of trust deed STATUTORY INTERPRETATION — principles of statutory interpretation — meaning of “party to a deed” in Conveyancing Act 1919 (NSW), s 38(1) — whether a beneficiary and appointer defined under the trust deed is a party to the deed

HIGH RISK OFFENDERS — Extended supervision orders — Whether interim supervision orders should be made — Whether unacceptable risk of committing a further serious sexual offence posed — Assessment of risk — Crimes (High Risk Offenders) Act 2006 (NSW) — Risk assessments of risks posed — History of relevant offending — High degree of probability that defendant does pose an unacceptable risk of committing a serious sexual offence if not kept under the proposed supervision — What conditions of supervision should be imposed — Orders made

CRIMINAL LAW – appeal – sentencing – application of Crimes (Sentencing Procedure) Act 1999 (NSW), s 59 – whether commencement date of a sentence should be varied to preserve the sentencing judge’s intention as to the period of concurrence between two sentences served by the Applicant for unrelated offences – where the Applicant brought a successful appeal against sentence in relation to the earlier of the two sentences – where considerable delay in bringing the application