Cases and authorities

SUCCESSION – FAMILY PROVISION – Claim for family provision order under the Succession Act 2006 (NSW), Ch 3 by Plaintiff – whether Plaintiff is an eligible person under s 57(1)(b), or alternatively s 57(1)(e) or (f), of Succession Act – Whether Plaintiff and deceased were in a de facto relationship – Will of deceased made no provision for Plaintiff – Whether circumstances justified the making of a family provision order, and if so, the nature and quantum of the provision to be made – provision ordered to be paid out of the deceased’s estate in the sum of $220,000

BUILDING AND CONSTRUCTION — Adjudication of payment claim under Security of Payment Act — Stay of judgment — Whether judgment based on an adjudication determination should be stayed pending determination of an appeal that has been heard — Whether judgment should be stayed pending determination of proceedings under the construction contract — Whether unfavourable inferences should be drawn regarding the claimant’s financial position — Where evidence falls short of proving claimant will be unable to repay amounts if it is unsuccessful in the contractual proceedings

CIVIL PROCEDURE – interlocutory applications –where earlier notice of motion seeking revocation of restraining orders was withdrawn – where defendants were given incompetent legal advice because of ignorance of relevant provision – where defendants disposed of earlier notice of motion and made a related undertaking – whether defendants can reinstate earlier notice of motion – applications under ss 29 and 73 of Proceeds of Crime Act 2002 (Cth) do not have the same substantive effect – different proof requirements amount to material disadvantage to defendants if motion is not reinstated – orders sought granted CIVIL PROCEDURE – interlocutory applications – where orders for compulsory examination of the first defendant exist – where AFP received mutual assistance request from Austria – first defendant seeks orders under s 266A(2)(b) of Proceeds of Crime Act 2002 (Cth) prohibiting disclosure of compulsorily obtained material to law enforcement in foreign countries – power of the Court to make disclosure prohibition orders must be undertaken on sure footing – clear prejudice has not been demonstrated – legislative provisions address and approve of information being provided to a foreign country – notice of motion dismissed

EVIDENCE – recording of conversation in cell – unfair for jury to be aware of prison term for accused – other evidence to like effect – any unfair prejudice outweighed by probative value – further, the directions of the Court to the jury will ameliorate issues of unfairness otherwise agitated

CIVIL PROCEDURE – Medical examinations – claim for work injury damages – where defendant seeks orders that the plaintiff attend a further psychological examination – r 23.4 of Uniform Civil Procedure Rules 2005 (NSW) – whether the further examination is reasonable in all the circumstances – whether further examination of the plaintiff will be injurious to his health – motion dismissed

CIVIL PROCEDURE — Stay of proceedings – historical child sexual abuse – claims of negligence and vicarious liability on two different bases – delay – absence of critical witnesses and documents – whether the defendant’s own conduct caused prejudice – whether the defendant can have a fair trial

LEASES AND TENANCIES — Renewals and options — Exercise of option — Lessee in breach of obligations — Whether Lessor issued a valid noticed under s 133E of the Conveyancing Act 1919 (NSW) — Whether Lessee entitled to relief under s 133F of the Conveyancing Act 1919 (NSW) LEASES AND TENANCIES — Repairs, maintenance and alterations — Damage to premises — Whether Lessor acted in good faith in considering repair to damaged premises was “impracticable or undesirable” — Whether Lessor entitled to terminate lease — Whether right to terminate unavailable by reason of waiver or estoppel

CRIME – sentencing - juvenile offender – murder – 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 – doubtful prospects of rehabilitation – special circumstances to allow for parole flexibility

CONTRACTS – formation – contract for sale of land – whether contract made by exchange of counterparts – no direct evidence of exchange – evidence insufficient to establish exchange by inference CONTRACTS – illegality – whether contract void for breach of court order – where court orders made by consent in other proceedings – scope of principle in Clarke v Chadburn CONTRACTS – parties – standing of third parties to seek declaration that contract void – where no proprietary interest in subject property – where third party claims to be a creditor with a negative pledge

BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Security of Payment Act (SOPA) — Whether Adjudicator considered relevant material — Where Adjudicator does not consider material filed after payment schedule — Adjudicator committed a jurisdictional error BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Security of Payment Act (SOPA) — Whether Adjudicator considered merits of the claim at all — Where Adjudicator accepts one party’s expert findings based on credibility without reference to inconsistent evidence — Adjudicator committed a jurisdictional error

NEGLIGENCE — Damages — Workplace injury of mining engineer — Where liability admitted —Primary judge’s assessment of damages — Assessment of future economic loss, non-economic loss and future expenses — Whether House v The King error shown

PROCEDURE — application for permanent stay of proceedings — where in earlier proceedings respondent was successful in establishing breach of fiduciary duty against a separate party — where current proceedings seek to establish that applicants are accessorily liable for conduct of other party — whether forensic decision made not to join applicants to earlier proceedings — whether primary judge erred in assessment of prejudice — whether there was delay by respondent in bringing proceedings

CRIME – sentence appeal – whether sentencing judge erred in excluding the applicant’s disadvantaged childhood as a consideration mitigating the sentence or justifying leniency – no submission inviting the sentencing judge to make a finding that the applicant’s moral culpability was reduced because of his childhood adversity – those matters can be taken into account in instinctive synthesis rather than reduced moral culpability – no error – leave to appeal granted – appeal dismissed

CRIME – appeals – appeal against sentence – serious drug supply offences – complaint of erroneous disparity with sentence imposed upon co-offenders – parity ground upheld – no requirement to deal with other unmeritorious proposed grounds of appeal

CRIME – appeal – appeal against conviction – sexual offences – where Crown said to have invited impermissible lines of reasoning – whether Crown sought jury to draw adverse inference from applicant’s exercise of right to silence – where subsequent direction by trial judge’s efficacy never challenged – whether Crown in closing submissions misrepresented state of the evidence – whether Crown re-opened their case impermissibly via admitting exhibit – where admission not objected to

CRIME — sentence appeal — consideration of intensive correction order when sentencing for federal offence – three-step approach – whether sentencing judge required to consider s 3A of the Crimes (Sentencing Procedure Act) 1999 (NSW) – material differences between s 3A of the Sentencing Procedure Act and 16A of the Crimes Act 1914 (Cth) – error established – applicant resentenced – exceptional circumstances found CRIME — sentence appeal — consideration of intensive correction order – community safety paramount – community safety incudes non-violent harms to the community – other purposes of sentencing subordinate where sentencing judge found an ICO would be favourable for community safety

CRIMINAL LAW – sentence – federal offenders – conspiracy to cause loss to the Commonwealth – money laundering conspiracy – significant loss to the Commonwealth – persistent course of conduct

COSTS – defendant agreed at last minute to orders as sought by the plaintiff – whether costs should follow the event

CIVIL PROCEDURE — proceedings commenced in NSW Dust Diseases Tribunal — cross vesting application — transfer to Supreme Court of NSW —transfer to ACT Supreme Court — interests of justice

CRIMINAL LAW – sentence – federal offenders – conspiracy to cause loss to the Commonwealth – money laundering conspiracy – significant loss to the Commonwealth – persistent course of conduct

CORPORATIONS – voluntary administrator – where doubts raised by shareholder and creditor about the validity of the administrators’ appointment – where doubts lack substance – declaration made pursuant to Corporations Act 2001 (Cth), s 447C(2) that appointment of administrators was valid.

CIVIL PROCEDURE – Possession of land – application for default judgment – default judgment entered

JUDGMENTS AND ORDERS – amending, varying and setting aside – slip rule – misdescription of parties in partnership accounting orders – orders varied on appeal – relief nevertheless granted

CIVIL PROCEDURE – Setting aside a default judgment – Irregularities – Sufficient cause – Explanation for delay – Bona fide defence – Injustice.

ADMINISTRATIVE LAW — Bias rule — Particular factual matter giving rise to alleged bias — Prejudgment — Whether prior involvement on judicial review of refusal of prior application for review into conviction under s 78 of Crimes (Appeal and Review) Act 2001 (NSW) evinces reasonable apprehension of prejudgment of subsequent application for judicial review of refusal to inquire into conviction — Disqualification application refused

PRACTICE AND PROCEDURE – recusal application – reasonable apprehension of bias – earlier rulings unfavourable to applicant in related proceedings – court limited to determining errors of law – no basis to find that a fair-minded lay observer might think that the judge might not bring an impartial mind to the determination of the case PRACTICE AND PROCEDURE – prohibition on judge sitting on appeal from own judgment – judicial review of decision of different judge – whether judicial review an “appeal” within Supreme Court Act 1970 (NSW), s 110 – whether claim that decision under review wrongly concluded that the matter had been dealt with in earlier judgment constituted an appeal from the earlier judgment

COSTS - Party/Party - Bases of quantification - offer of compromise/Calderbank offer - where global offer made to resolve appeal and two related bankruptcy proceedings - reasonableness of conduct - limited information before the Court concerning other proceedings - conduct of appellants not so unreasonable as to justify an order for indemnity costs

HUMAN RIGHTS – Privacy and Personal Information Protection Act 1998 (NSW) – personal information collected by university – application for postgraduate study by overseas student – university participated in Simplified Student Visa Framework – whether university collected personal information on behalf of Commonwealth – whether university collected personal information in order to form a view on likelihood of applicant being granted a student visa – whether direct relationship between lawful purpose of collecting personal information and one of university’s functions or activities – whether lawful purpose required express authorisation or merely meant something not prohibited APPEALS – leave to appeal – where decisions favourable to university in NCAT and in the Supreme Court were based on a misapprehension of facts – where that misapprehension not corrected by university until hearing in Court of Appeal – where concurrent hearing granted on basis of misapprehension – significance of misapprehension of facts for grant of leave and making of special costs orders

CRIME — conviction appeal — where applicant acquitted of three sexual offences but convicted of a further three sexual offences — whether verdicts returned by the jury were inconsistent CRIME — conviction appeal — admission of evidence of “bad character” of applicant — whether trial judge should have made an anti-tendency direction — application to discharge jury made and denied in course of trial — anti-tendency direction not requested by applicant’s trial counsel — whether failure to give direction led to miscarriage of justice

CHILD WELFARE – adoption – discharge of adoption order made in 1957 – whether exceptional reason shown – whether declaration of parentage should be made

COSTS — where plaintiff was successful in part — where defendant was successful on cross-summons — whether costs order made against successful plaintiff in application for interim relief should now be vacated

CIVIL PROCEDURE – notice of motion - application by defendant to stay proceedings pending outcome of High Court Special Leave Application – hearing vacated and proceedings adjourned – motion otherwise dismissed

COSTS — successful application to withdraw caveat — whether usual rule that costs follow the event should apply — no issue of principle

COURTS AND JUDGES — Supreme Court — Supervisory jurisdiction — availability of judicial review — no issues of principle

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Contradictory testimony — Complainant’s evidence not inherently implausible — Advantages of the jury over appeal court include the way in which juries are constituted and operate — Jury’s verdict not unreasonable CRIME — Appeals — Appeal against conviction — Miscarriage of justice — Whether directions were required under ss 292-292E of Criminal Procedure Act 1986 (NSW) — Transitional provisions — Phrase “the hearing of the proceedings began” refers to time of first arraignment not commencement of the trial —Value of certainty in the law — Where parties and trial judge were under shared misapprehension as to directions applying — Where directions not challenged by counsel at trial where it was open to do so even on assumption provisions applied — No miscarriage of justice caused by directions CRIMINAL PROCEDURE — Trial — Directions to jury — State of mind requirements in sexual offences — Whether directions regarding inadvertent recklessness were correct — Distinction between advertent and inadvertent recklessness — No miscarriage of justice caused by directions

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 – where proceedings are representative proceedings – leave granted

LAND LAW — Caveats — Lodgment of caveat claiming same interest as previous caveat — Lodgment with leave of court — No issue of principle

CIVIL PROCEDURE – transfer of proceedings from District Court to Supreme Court – Civil Procedure Act 2005 (NSW) ss 56-58 and 140 – where application based on proposed cross-claim – where matter currently listed for hearing in District Court, in circumstances where it was previously listed for hearing, and vacated, in 2022 – where prejudice if hearing vacated for a second time – where no explanation for delay in raising proposed claim – transfer order refused

CIVIL PROCEDURE — freezing orders — application to extend interim freezing orders until further orders of the court — satisfied that the defendant was served with the application and interim freezing orders — defendant listed one of his properties for sale — steps taken by the defendant suggesting he is attempting to make himself ‘judgment proof’ — defendant was in a de-facto relationship with the plaintiff’s mother — plaintiff alleges that the defendant sexually abused her whilst she was between ages 9 and 16 — plaintiff has more than a good arguable case — risk if plaintiff establishes her case she will no uncompensated — application for extension of freezing order acceded to

BUILDING AND CONSTRUCTION – contract – whether email constitutes a valid payment schedule for purpose of s 14 of the Building and Construction Industry Security of Payment Act 1999 (NSW) – whether email indicated the amount the respondent to the payment claim proposed to pay – whether email indicated the reasons the respondent to the payment claim withheld payment

COSTS — indemnity costs — stay of costs order

CORPORATIONS — Winding up — Statutory demand — Failure to comply with statutory demand — No application to set aside statutory demand — Leave sought under s 459S to oppose winding up application on the ground that the existence or amount of debt disputed — Where dispute is material to proving that the debtor company is solvent — Where serious question to be tried established — Where explanation for failure to apply to set aside the statutory demand insufficient — Applicant unreasonably failed to attend to correspondence delivered to its registered office

CONTRACTS — oral contract — formation of contract

HIGH RISK OFFENDERS — Crimes (High Risk Offenders) Act 2006 (NSW) — defendant’s index offending occurred when aged 13 — murder of 3-year-old female neighbour — defendant previously subject to final continuing detention order — consideration of expert evidence — defendant had a deprived childhood — multiple expert opinions — Severe Personality Disorder with antisocial and psychopathic features — Psychopathic Personality Disorder and Anti-Social Personality Disorder — expert opined that the broad consensus amongst assessing experts is that SLD’s main presenting feature is severe Personality Disorder — well satisfied to the requisite high degree of probability that SLD poses an unacceptable risk of committing a serious violence offence and serious sexual offence — no dispute between the parties as to the necessity of an extended supervision order — not beneficial for SLD to remain on a continuing detention order — dispute as to whether the extended supervision order should be 4 or 5 years in duration — the conditions have discretionary flexibility if SLD makes good progress

PROCEDURE – adjustments and allowances – retransfer of land held to be on constructive trust – plaintiff to account for payments discharging mortgage – defendant to account for rent received less expenses reasonably incurred in the maintenance of the land – calculation of interest – relevance of principle in Ghana Commercial Bank v Chandiram [1960] AC 732 ORDERS – construction of court orders – ambiguity – regard to reasons – regard to context

CRIMINAL LAW – return of seized property – LEPRA s 219 – related criminal proceedings not yet determined – question over “lawful entitlement” – intervention by DPP – temporary stay in respect of certain defendants

HIGH RISK OFFENDER – application for extended supervision order – dispute about scheduling conditions – conditions agreed upon – extended supervision order imposed

BUILDING AND CONSTRUCTION – Grosvenor or Brodyn stay – couple enter into contract for home renovation – payment claim for variations – adjudication determination and judgment in favour of builder – principles at [45]-[46] – cashflow problems natural consequence of principal withholding payment – not satisfied of “certainty” that judgment sum not recoverable if plaintiffs succeed in substantive proceedings.

PERSONAL PROPERTY — sale of goods — auctions — online auction of classic car — vendor and bidders agree to auctioneer’s User Agreement — online auction closes early due to technological error — plaintiff made last recorded bid at $464,800, being less than it expected to pay and less than the second defendant was trying to bid — plaintiff receives automatically generated email “YOU HAVE WON” — technological error immediately detected – plaintiff promptly that auctioneer wants to re-open auction – irate plaintiff threatens to sue – auctioneer vacillates, initially minded to take path of least resistance and proceed with sale to plaintiff — plaintiff receives automatically generated invoice and rushes to pay — after further consideration, auctioneer cancels auction under User Agreement and holds second auction — second defendant wins auction for $860,100 — plaintiff seeks $1.6M to $2.3M damages. AUCTIONS – whether contract of sale between vendor and purchaser included terms of User Agreement – principles at [120]-[126] – Smythe v Thomas followed — User Agreement created a framework for auction in which bidders and vendor were willing participants — User Agreement incorporated into sale of contract between vendor and purchaser — whether exercise of auctioneer’s power to re-open or cancel auction resulted in cancellation of contract of sale – construction of User Agreement – customers agreed that, if the auctioneer exercised its powers, then the contract of sale was null and void. CONTRACTS — breach of contract — auctioneer must be “acting reasonably” when taking action after technological error — auctioneer vacillated — initial inaction did not preclude subsequent action — question is whether auctioneer was “acting reasonably” when it did act — action reasonable and clearly correct — no breach of contract — plaintiff not entitled to damages. RELEASE – auctioneer released from claims “you now or may have” – whether applied to claims arising after conclusion of online auction – auctioneer released from claims which were “connected with, arise out of, relate to or are incidental to” the use of the online auction platform – release applied to claims arising from action taken by auctioneer as a result of technological errors. WORDS AND PHRASES – “cancel” – “acting reasonably” – “in connection with” – “arise out of” – “relating to” – “incidental to”. MORTGAGES AND SECURITIES — plaintiff registered security interest over car — Personal Property Securities Act 2009 (Cth) — “security interest” — whether plaintiff had reasonable belief that they were a secured party, s 151 — no consensual transaction by which the auctioneer gave the plaintiff an interest in the car to secure transfer of title or delivery.

HIGH RISK OFFENDERS – extended supervision order – unacceptable risk of committing a serious offence – serious sexual offending – application opposed – extended supervision order imposed