Cases and authorities

HIGH RISK OFFENDERS — Extended Supervision Orders — Preliminary hearing

COMMERCIAL — Property development venture — P introduces D1 (a friend) to an investor (P’s then boyfriend) and D1 by the trustee of his family trust (D2) suggests and enters into a project with the investor through the mechanism of a Unit Trust to develop property at Meadowbank purchased by a company (D3) — D1 commits his time and expertise to the project and investor commits initial funds pending further investors providing more substantial funds — P requested by investor to act as a “gatekeeper” for investor’s money but starts to make payments to D3 at the request of the investor — Subsequent dispute as to whether the payments are made on behalf of the investor or funds contributed by P by way of loan to D3 — P’s relationship with the investor breaks down and P presses claims for recognition of her contribution of funds — A Unitholders Agreement recognising adjustment of rights to accommodate more substantial investors makes no provision for P’s payments — P sets up a meeting to confront D1 regarding recognition for her payments — P fails to attend meeting but her new boyfriend (2XD) attends the meeting and allegedly assaults D1 — Subsequently, following the meeting, D1 makes an immediate payment of $10,000 to 2XD and later on pays sums totalling $200,000 to 2XD for P and after negotiations D1 enters into a Deed of Settlement and Release acknowledging payments made to P and providing for transfer of D2’s beneficial interest in units to P — Later still, D1’s solicitor sends correspondence purportedly affirming Deed — Ultimately, P sues for specific performance of obligations in Deed to effect transfer of beneficial interest in units — Later, D1 brings a cross-claim alleging Deed entered into under duress and seeks to “void” Deed and recover payments against P and new boyfriend — Held assault occurred, Deed entered into as a result of duress, purported affirmations occurred whilst duress persisting, Defendants entitled to avoid Deed UNIT TRUSTS — Doctrinal differences between shares and units discussed CONTRACTS — Duress — Forms — Duress to the person — Assault — Whether will deflected in entering into Deed of Settlement and Release — Whether Deed was affirmed on several occasions — Whether duress still operative EVIDENCE — Principle in Jones v Dunkel — Failure of 2XD (P’s ex-boyfriend) to be called to give evidence — Discussion of principles regarding failure to call the witness on issue of alleged assault — Whether inference should be drawn where witness may be asked about assault — Discussion regarding whether the potential availability of protection afforded by a s 128 Evidence Act 1995 (NSW) certificate impacts whether a Jones v Dunkel inference may be drawn — It is necessary to distinguish between cases in which the witness, if called, would have been asked by the party calling them to admit to a crime of some seriousness from cases in which (as here) the witness would likely (consistent with the defence to the claim) deny any such crime — Held on the facts Jones v Dunkel inference able to be drawn consequent upon the failure of 2XD to give evidence in defence of the cross-claim and the failure of P to call 2XD in her case WITNESSES — Principle that there is no “property” in a witness — Rules regarding legal representatives conferring with a client of other legal representatives PLEADINGS — Expression “at all material times” — Unhelpful in clarifying issues in circumstances where anything connected with a time period is a pleaded fact EQUITABLE REMEDIES — Rescission — Discussion regarding availability of restitution — Differences between rescission at law and in equity — Onus of proof — Once the party seeking rescission demonstrates that they are entitled to rescind a contract, the onus falls to the party opposing rescission to demonstrate that restitutio in integrum is no longer possible or that the rescinding party is otherwise disentitled to rescind LIMITATION DEFENCES — Whether the right and title to the debt of a person having a cause of action to recover a debt is extinguished automatically pursuant to s 63 Limitation Act 1969 (NSW) independently of whether s 14(1)(a) is pleaded as a (limitations) defence to that cause of action

APPEAL – special federal matters – exclusive jurisdiction of federal courts – whether appeal involved a matter “arising under” a Scheduled Commonwealth Act – appeal arising under Vexatious Proceedings Act 2008 (NSW) - Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7(5) not engaged APPEAL – application for leave to appeal – failure to allow opportunity to replead – whether applicants had frequently instituted vexatious proceedings – whether error on part of primary judge that was more than merely arguable – whether issue of general principle – whether clear case of injustice

EVIDENCE — appellate review of witness evidence — competing accounts of central factual issue — whether primary judge’s findings were most likely affected by impressions about the credibility and reliability of the witnesses — advantage of primary judge in seeing and hearing the witnesses give evidence — whether primary judge’s findings also informed by assessment of evidence as a whole including plausibility of the accounts of various witnesses having regard to documentary evidence — whether primary judge’s findings were glaringly improbable or contrary to compelling inferences EQUITY — appeals — fiduciary duties — where parties were equal shareholders in freight company — where labour divided between shareholder companies — whether parties relationship gave rise to fiduciary duty — whether appellants placed trust and confidence in respondents not to act to their detriment — whether fiduciary duty breached

CIVIL PROCEDURE – Dismissal of proceedings – where first defendant applied for security for costs order – where second defendant joined to proceedings when security for costs order made – no security for costs order in favour of second defendant – security for costs not provided – construction of Uniform Civil Procedure Rules 2005 (NSW), r 42.21 – whether power to dismiss proceedings under r 42.21 against second defendant

CONTRACTS — Implied contract — Where agreement automatically terminates upon termination of another contract — Where party fails to notify that first contract has terminated and parties continue acting as if agreement in force — Where parties agree there was an implied agreement which continued after termination — Whether implied agreement terminable on reasonable notice CONSUMER LAW — Misleading or deceptive conduct — Where agreement automatically terminates upon termination of another contract — Whether party engaged in misleading or deceptive conduct by failing to notify other party that other contract had terminated and by representing that agreement was “binding” and remained in force — Whether but for this conduct other party would not thereafter have taken a specific course by entering into a particular agreement

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors — Medical examination in relation to capacity — UCPR Part 23 r 23.4

EQUITY – Equitable Remedies – Injunctions – application for interlocutory relief – contract for ovine meat processing – injunction obtained to restrain termination of contract – whether injunction obtained by non-disclosure on misrepresentation – whether injunction should be dissolved – serious question to be tried – balance of convenience.

CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — cy-près scheme — In 1981, a charitable unincorporated association, “the Our Lady of Snows Society” (OLOSS), was formed by two now deceased siblings — Various administrative issues emerged over time and other issues became manifest consequent upon the siblings’ deaths in respectively February 2009 and late March 2016 — The son and executor of last surviving trustee of the trust applied to the Court for a first tranche of relief relating to OLOSS addressing identification of trust purposes and also financial and administrative issues — Various orders were made including a declaration as to the OLOSS’ trust purpose and new trustees appointed (Hickey v Attorney General of the State of New South Wales [2021] NSWSC 772) — Following investigations and enquiries the trustees shortlisted a number of charitable organisations which are regarded by the trustees as having purposes and operations most like that of the OLOSS trust — Following further communications with the shortlisted charities, a single charity, the Rev. Bill Crews Foundation Ltd (the Foundation), was proposed to be the recipient in accordance with a scheme the trustees (with the consent of the Foundation) sought to have approved by the Court CHARITABLE GIFTS AND TRUSTS — cy-près scheme — Distinction between administrative schemes and cy-près schemes — Reference to widening of the cy‑près jurisdiction in New South Wales brought about by the enactment of s 9 Charitable Trusts Act 1993 (NSW) (CTA) — General observations regarding the effect of ss 9 and 10 CTA including contrast of general law and statutory cy-près provisions — Approach to construction of s 9 CTA and identification of the “spirit of the trust” CHARITABLE GIFTS AND TRUSTS — cy-près scheme — Discussion of legal provisions bearing upon duration of trusts and expenditure of permanent endowment capital CHARITABLE GIFTS AND TRUSTS — Considerations regarding “spirit of the trust” in relation to services provided, geographic focus and choices as between proposals which would exhaust the trust capital and a proposal permitting the trust (real estate) property to be kept in specie and having an enduring operation

HIGH RISK OFFENDER – application for interim detention order – serious offence – interim detention orders granted

NEGLIGENCE – breach of duty of care – lawful occupant of gym – foot plate of leg press collided with head of user – duty to warn – whether failure to decide material issue – where primary judge made findings relevant to duty to warn – no evidentiary basis that warning would have prevented accident from occurring APPEALS – from findings of fact – inferences from primary facts – where primary judge not satisfied leg press fitted with spring – where evidence of spring related to a different machine – no proper evidentiary basis for finding leg press fitted with spring APPEALS – from findings of fact – inferences from primary facts – negligence – damages – where primary judge not satisfied conversion disorder caused by accident – whether primary judge erred – evidence did not support a finding that conversion disorder caused by accident

BAIL – undesirability of applications for release on bail to Supreme Court with no prior application in another court – liberty sought only to enable medico-legal examination for personal injuries claim in unrelated civil matter – novelty of an application for release with a condition to surrender in three months’ time and apply for the bail to be revoked – question of power to grant bail on such terms – bail refused

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.

Appeal from Local Court decision – Local Court dismissed plaintiff’s claim – dispute over failure of chairs to be delivered – the defendant found not to be in breach of contract with plaintiff.

PARTNERSHIPS AND JOINT VENTURES – dissolution – date of termination – parties agree that partnership terminated but disagree on date – insufficient evidence to establish terminated at earlier date – partnership taken to have been dissolved at later date PARTNERSHIPS AND JOINT VENTURES – winding up – taking of partnership accounts

LAND LAW – possession of land – application to stay writ of possession – default judgment – valid service – no arguable defence on the merits – application dismissed – costs

NEGLIGENCE – Duty of Care – Breach – Causation – Damages – Non-Economic Loss - Economic Loss – Earning Capacity – Measure of Damages – Personal injury damages – Gratuitous attendant care services – Injury by being struck by attachment in claw of excavator operated by Defendant – Plaintiff in exclusion zone – Defendant owed a duty of a care to plaintiff – Defendant failed to take precautions – Defendants negligent – No obvious risk – No contributory negligence

Proposed further amended statement of claim – leave granted – doctor’s reports – clinical notes – medico-legal reports – negligence – injustice – delay – prejudice – plaintiff to pay costs of amendments – withdrawal of claim in trespass, battery and exemplary and aggravated damages.

ADMINISTRATIVE LAW — Judicial review — Jurisdictional error — Application for review of District Court decision dismissing appeal against sentence imposed by Local Court — Where applicant pleaded guilty to charge of dishonestly obtaining financial advantage by deception — Where applicant claimed he was criminalised for no reason — Where leave to appeal against conviction not sought — Whether District Court committed jurisdictional error in determining sentence appeal

CRIME – Appeals – Appeal against conviction – Inconsistent verdict – Where applicant had been convicted of two counts of sexual intercourse without consent and one count of attempted sexual intercourse without consent – Where the applicant was acquitted of two counts of sexual offences, the conduct of which preceded the conduct which formed the basis of the three convictions – Whether the verdicts of guilty were inconsistent with the verdicts of acquittal

CRIMINAL LAW – appeals – appeal against conviction – coincidence evidence – whether evidence of a previous conspiracy to commit a similar offence was properly admitted as coincidence evidence – whether dissimilarities “undercut” the improbability of the events having occurred coincidentally – significant probative value of coincidence evidence – probative value substantially outweighed prejudicial effect – evidence properly admitted as coincidence evidence – appeal dismissed CRIMINAL LAW – appeals – appeal against conviction – whether verdict unreasonable or cannot be supported having regard to the evidence – judge alone trial – circumstantial case – no rational inference available other than guilt – appeal dismissed CRIMINAL LAW – appeals – appeal against sentence – whether sentencing judge failed to advert to the fact that the sentence imposed on the applicant would result in him serving more than 75% of his effective head sentence before being eligible for release on parole – cumulation of sentences for separate offences – no error established – appeal dismissed

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Joint criminal enterprise and extended joint criminal enterprise — Where admissions were made by the applicant against own interests — Where admissions are inconsistent — Whether admissions sufficiently reliable to found a guilty verdict — Whether jury had a natural advantage in hearing phone intercepts and viewing police interviews CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle

APPEALS — CRIME — appeal against conviction — indecent assault of a person under 16 — aggravated sexual intercourse — directions — consciousness of guilt reasoning — evidence of applicant’s conduct in response to allegations — whether implied admission of guilt — whether miscarriage of justice occasioned by prosecutor inviting consciousness of guilt reasoning in closing address — whether trial judge failed to direct jury adequately — difference between Edwards and Zoneff directions

CIVIL PROCEDURE – Amendment to cross-claim – difficulties in understanding the amendments – joinder of non-party to the cross-claim

EQUITY – Injunctive relief – Employee’s contractual post-employment restriction – Application for injunction restraining the first and second defendants from engaging in business that is in competition with the plaintiff – Whether there is a reasonable question to be tried – HELD – Injunction granted EQUITY – Injunctive relief – Application for injunction restraining the first and second defendant from disclosing or using confidential information of the plaintiff – HELD – Injunction granted

SUCCESSION – family provision – claim by grandchildren of the deceased – whether plaintiffs are eligible persons under s 57(1) of the Succession Act 2006 (NSW) – whether plaintiffs were wholly or partly dependent on deceased at any particular time – where plaintiffs did not receive money from the deceased’s estate – whether plaintiffs warranted provision – extent of the provision

COSTS – application for costs where proceedings dismissed by consent – whether plaintiff acted reasonably in commencement and continuation of proceedings – importance of proper regard to principles regarding costs application JUDGMENTS AND ORDERS – amending, varying and setting aside – where first defendant brought application to vary order of another judge of equal standing – where judge was not misled or under a misapprehension – application dismissed

ADMINISTRATIVE LAW – judicial review – Personal Injury Commission – review of the decision of an Appeal Panel – where plaintiff discontinued proceedings prior to the application for judicial review

COSTS — Party/Party — Bases of quantification — Indemnity basis — Gross sum — Whether claimant acted unreasonably in opposing stay in favour of arbitration — Where both parties understood that the contract in question was governed by an arbitration clause — It was plain that the Court was required to refer the matter to arbitration — Costs recoverable as gross sum on an indemnity basis

CIVIL - Representative Proceedings – Whether any Common Questions – Issues of Commonality – Importance of practicality and common sense – The Chief Judge at Common Law was right in Rodriguez (No 5) – Merck Orders made CIVIL - Representative Proceedings – Whether any Common Questions – Issues of Commonality – Importance of case management principles – Merck Orders made

CIVIL – PERSONAL INJURY – Where the plaintiff suffered injury on Nauru – Law of Nauru applicable – English common law as at 1968 – Where English common law does not allow claims for gratuitous domestic care – Whether Australian common law applies to allow such claims – Claim disallowed – Judgment against both defendants – assessment of damages at common law

COSTS — Party/Party — Bases of quantification — Indemnity basis — Calderbank offer — “Walk away” offers — Offers were not genuine offers of compromise

CONTRACT – interpretation – entitlement to fees under an introducer mandate agreement – whether loan offer complied with interest rate requirement – offer contained “standard rate” and “concessional rate” – standard rate so described to avoid penalty – intention that standard rate be within prescribed range – fees not payable for non-compliant offer ESTOPPEL – common assumption – fee entitlement crystallised only with offer of loan secured by unregistered second mortgage and caveat – claimant estopped from obtaining fees where offer non-compliant with fee assumption REAL PROPERTY – caveats – equitable charges – where introducer mandate agreement and loan offer grant equitable charges over the land to secure the payment of fees – whether equitable charges extended to judgment debt

INSURANCE — Claims — Where insurer denied insured’s claim to total and permanent disablement benefit on basis that it was not “on risk” for injury or illness causing disablement — Where parties consented to determination of separate questions which could not decide that issue — Issue remitted to Equity Division for decision CIVIL PROCEDURE — Separate determination of questions — Where primary judge dismissed whole of proceedings following answers to separate questions — Where separate questions asked whether there were breaches by insurer in denying and failing to reconsider insured’s claim — Whether separate questions capable of disposing of whole of proceedings — Whether parties’ agreement justified making an order under UCPR r 28.4 dismissing proceedings

CIVIL PROCEDURE - order made under s 151D of the Workers Compensation Act 1987 - plaintiff granted an extension of time to bring and maintain proceedings

CIVIL PROCEDURE – interlocutory applications – payment of money into court – lease dispute – tenant alleges abatement of rent – tenant applies for order that it pay rent into court pending the determination of the proceedings – utility – power to make order – rule that interlocutory relief can only be granted in aid of final relief – application refused LEASES AND TENANCIES – rent and outgoings – abatement – tenant put out of possession by landlord – failure to complete landlord’s works allegedly breaches terms of lease – tenant does not go into occupation – alleged failure to give “exclusive possession” – construction of lease – whether tenant’s entitlement to possession deferred - whether abatement rule applies

BANKING AND FINANCE – banker and customer – mutual bank – bank’s standard terms & conditions incorporate Customer Owned Banking Association Code of Practice – customer’s banking facilities terminated without explanation – concession that termination required valid commercial reason – alleged possibility of onerous obligations under Anti-Money Laundering and Counter-Terrorism Act – evidentiary onus not discharged – termination invalid – Code requires bank’s terms & conditions to strike “fair balance” between legitimate needs and interests of customer and interests and obligations, including prudential obligations, of bank – terms permit termination without reasons – terms non-compliant BANKING AND FINANCE – interaction between Anti-Money Laundering and Counter-Terrorism Act obligations and notice to produce for inspection procedure – whether any disclosure of privileged documents required

PRACTICE AND PROCEDURE ­– Pleadings – Amendment – Application by plaintiff for leave to amend shortly prior to final hearing – leave refused in relation to contentious amendments – no question of principle.

APPEALS – leave to appeal – Workers Compensation Act 1987 (NSW) s 151A – whether payment made under a deed of settlement recovered in respect of an injury – whether payment inclusive of costs constituted “damages” under Workers Compensation Act 1987 (NSW) s 149 – appeal filed as of right – amount in issue $825 – appeal incompetent – leave to appeal refused

CRIME – appeals – application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) – application for separate trials – alleged home invasion – where case against each applicant is weak – where not established that there will be any evidence led at a joint trial which will be inadmissible as against the applicants – leave granted – appeal dismissed

CRIMINAL LAW — Hearsay evidence — Evidence contained in police statements — Where witness refers to statements to refresh memory — Where portions of statements read aloud — Whether evidence of previous representations read aloud pursuant to s 32(3) of the Evidence Act is hearsay — Direction warning the jury that the evidence may be unreliable — Significant forensic disadvantage caused to the accused by reason of the witness’s lack of recollection

CIVIL PROCEDURE – Registrars – Review of Registrar’s decision under rule 49.19 of the Uniform Civil Procedure Rules 2005 – Claim by executor for management fees and commission – Registrar disallowed the executor’s claim for management fees and allowed the executor’s claim for commission – Registrar’s decision upheld – No orders as to costs

COSTS – Costs in family provision cases – General rule that costs follow the event – Greater than usual liberality is exercised in deciding whether to depart from the general rule in family provision claims – Whether the Court should depart from the general rule in the circumstances of this case – Plaintiff to pay the costs of the proceeding on the ordinary basis

LAND LAW – possession of land – calculation of amount owing – no point of principle

CORPORATIONS — Creditors voluntary winding up of two companies — Where validity of resolutions appointing administrators, and by extension resolutions passed at second creditors’ meeting to wind up companies in question — Application by liquidators for validation of administrators appointment under s 447A of the Corporations Act 2001 (Cth) — Making of orders under s 447A consistent with the objectives of pt 5.3A of the Act

JUDICIAL REVIEW – judicial review of decision under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – where primary judge dismissed applicant’s request for inquiry into his convictions ADMINISTRATIVE LAW – Jurisdictional error – where applicant claimed primary judge’s dismissal of his application was unreasonable – where applicant claimed primary judge was biased and took into account irrelevant consideration – whether primary judge breached procedural fairness requirements – where applicant claimed primary judge based the dismissal on no evidence and failed to consider evidence – whether primary judge did not adhere to scope of statutory function CONSTITUTIONAL LAW – Commonwealth Constitution – where applicant claimed ss 7(1)(c) and 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) are unconstitutional – Kable doctrine - whether provisions offend institutional integrity of NSW courts – whether provisions unconstitutional because they require the Court to create “new offences”

PRACTICE AND PROCEDURE — interlocutory application — freezing order — orders made by consent

COSTS — Appeals — offer of compromise — whether applicants entitled to indemnity costs on basis of two offers — first offer made prior to applicants retaining lawyers after Defamation proceedings first commenced by respondent — second offer made before hearing of appeal — whether genuine compromise — whether respondent unreasonably failed to accept offers COSTS — Appeals — order for restitution — repayment of judgment sum

CRIMINAL LAW – conviction appeal – applicant pleaded guilty to supplying cannabis plant – no evidence to establish that offence – should have been charged with supply cannabis leaf – Crown concedes error

CRIME – appeals – conviction appeal – judge alone trial – driver found not guilty of dangerous driving but guilty of negligent driving – whether verdict of not guilty of dangerous driving consistent with verdict of guilty for negligent driving – inconsistency found – appeal allowed