Cases and authorities

BAIL - conditional bail previously granted – variation application – application refused

SUCCESSION – Family Provision – Claim by member of household for provision from deceased’s estate – Where former de facto partner claims entitlement to family provision as a dependent member of deceased’s household – Where no provision made for partner in deceased’s will – Where competing claims made by partner and estate as to beneficial ownership of three properties – Whether partner not left with adequate provision for proper maintenance, education and advancement in life – Order for provision made, subject to adjustment orders. EQUITY – Estoppel – Proprietary estoppel – Detrimental reliance – Common intention trust – Where parties agreed on purchase of a property in the name of one for the benefit of others – Where others claim beneficial ownership of property on terms – Relief granted on terms.

APPEALS — leave to appeal — where applicant in proceedings in Industrial Relations Commission seeks production of documents under a notice to produce — where first respondent claims public interest immunity — where ruling of Commissioner denying immunity claim in part the subject of an appeal to Full Bench — claim to immunity substantially upheld — application for judicial review of that decision — whether primary judge erred in finding no jurisdictional error on part of Full Bench — leave refused

CONSUMER LAW – Unfair practices – Pyramid schemes – Characteristics of pyramid schemes – Virtual platform involving exchange of legitimate currency for variety credits – Where new members of scheme required to purchase from existing members of scheme – Where recruitment of new members resulted in payment of bonuses to other members of scheme – Where primary judge found scheme not to be pyramid scheme because new members received virtual benefits and recruitment benefits were conferred by mechanics of platform – Whether scheme bore statutory characteristics of pyramid scheme – Held that scheme meets description of pyramid scheme in Australian Consumer Law, s 45(1) CONSUMER LAW – Where respondent alleged to have made series of misrepresentations to recruit appellant and others into investing in scheme – Where misrepresentations said to have conveyed legitimacy, profitability, and safety of scheme – Where respondent acted as conduit for investments in scheme EVIDENCE – Tendency evidence – Civil proceedings – Tendency to make misrepresentations about legitimacy, profitability, and safety of investing in pyramid scheme – Where appellant sought to lead evidence at trial from other investors in pyramid scheme recruited by respondent – Where evidence of respondent making similar misrepresentations to other investors as those alleged to have been made by respondent to appellant – Where primary judge ruled evidence inadmissible on grounds that no tendency notice had been served and tendency evidence lacked significant probative value – Whether lack of service of tendency notice ought to have led to rejection of evidence – Whether evidence from other investors had significant probative value – Held that tendency evidence ought to have been admitted by primary judge APPEALS – Evidence – Credibility findings – Basis and scope for appellate intervention upon primary judge’s findings of fact and credit – Where primary judge’s credit findings based on witnesses’ inability to recall verbatim conversations said to have occurred years earlier – Where witnesses only professed to recall substance or gist of conversations – Whether appellate court entitled to infer error from manner in which primary judge treated evidence – Held that new trial required by reason of primary judge’s treatment of evidence and credit findings

CONTRACTS — construction — on the termination of the defendant’s employment with the plaintiff, the parties executed a Deed of Release (the Deed) containing a non-disparagement clause — the defendant, a journalist and academic, published a newspaper article (the Article) disparaging of the plaintiff — whether on the proper construction of the Deed, disparaging comments were captured only if they related to the defendant’s employment with the plaintiff or its termination — whether the Article was not disparaging because it was based on public information and concerned matters where the plaintiff’s reputation had already been tarnished — RESTRAINT OF TRADE — Restraints of Trade Act 1976 (NSW) ss 2(2), 4(1), 4(3) — whether the non-disparagement clause is a restraint of trade and, if so, whether it is against public policy — EQUITY — equitable defences — unclean hands — whether the plaintiff has approached the Court with unclean hands because of representations said to have been made by it to the defendant concerning the operation of the non-disparagement clause — REMEDIES — whether a declaration should be made and an injunction granted — HELD — on its proper construction, the defendant breached the non-disparagement clause — the non-disparagement clause is not a restraint of trade but, if it is, it is not against public policy — the alleged representation concerning operation of the non-disparagement clause was not made out and in any event, the plaintiff does not have unclean hands — declaration as to breach should be made but no injunction granted

CIVIL PROCEDURE — Representative proceedings — Settlement — Court approval — Protracted proceedings involving claims by passengers on a series of cruises in Europe — Proceedings the subject of multiple appeals which are now finalised — Parties agreed to Short Minutes of Order with respect to the proposed settlement, including a Distribution Scheme — Settlement approved with amendments to the orders relating to the Distribution Scheme

HIGH RISK OFFENDERS — preliminary supervision — interim supervision orders — index offence committed as a minor — murder of another minor — no other offending — consideration of statutory test and nature of preliminary application — defendant’s recalcitrance regarding his child protection obligations — offender potentially has not accepted responsibility for the index offence — consideration of appropriate ISO conditions

CRIME – sentence after trial – verdict of guilty to charge of murder – shooting – domestic violence offence – partial defence of substantial impairment rejected by jury – motive for crime not able to be determined – offender suffering from depression

REAL PROPERTY – Crown Land – Permissive Occupancy – Crown Land Management Act 2016 (NSW), s 13.1 – Crown Lands Act 1989 (NSW), ss 170(1)(d), 170(5)(b)(1) – Crown Lands (Continued Tenures) Act 1989 (NSW), s 11 – Limitation Act 1969 (NSW), ss 27, 38, 65 – claim by Crown for possession of Crown land upon which is constructed a residence which is, and has been, occupied by the defendant for 25 years – defence by defendant to claim by the Crown for possession of Crown land that the claim is statute barred on the basis that the land has been in adverse possession for over 30 years – claim by the defendant that the cottage on the land, which has been occupied by him, is a chattel owned by him which cannot be removed because it is Heritage Listed – where land was subject to a Permissive Occupancy – where defendant claims that prior occupiers were in adverse possession in respect of which he has the benefit – HELD – defendant’s claim to adverse possession is unmaintainable against the Crown by reason of s 13.1 of the 2016 Act – neither the defendant’s predecessors, nor the defendant, were in adverse possession – building not a chattel but a fixture – order for possession made

SUCCESSION – contested probate – validity of will propounded by plaintiffs – whether the will was duly executed in accordance with s 6 of the Succession Act 2006 (NSW) – whether suspicious circumstances attended the preparation and execution of the will – whether the testator signed the will with knowledge and approval of its contents – where no evidence given by independent witnesses to the preparation and execution of the will – lack of acceptable evidence that attesting witnesses signed the will in the presence of the testator – due execution of the will not established – suspicious circumstances attended the preparation and execution of the will – plaintiffs failed to discharge burden of showing that the testator signed the will with knowledge and approval of its contents – application for grant of probate in solemn form of the will dismissed

CIVIL PROCEDURE — application for transfer of proceedings from NSW District Court to NSW Supreme Court — application for consolidation of proceedings — consideration of consolidation of contempt proceedings with civil proceedings

CRIMINAL LAW – sentence – murder – offender found guilty of murder after trial – possible vigilante attack – where deceased living at offender’s mother’s home – “lured out” for attack – no intention to kill but prolonged attack – intention to inflict grievous bodily harm – severe beating - very unlikely to reoffend – excellent prospects of rehabilitation – young man – first time in custody

CONTRACTS — Joint rights and obligations — Whether payment to one joint lender discharged a debt owed by the borrower — Whether repayment of a debt otherwise than in accordance with the terms of the loan agreement amounted to a breach of contract CONTRACTS — Implied terms — Whether there is a duty to exercise reasonable care in making repayments under a loan agreement AGENCY — Authority of agent — Actual authority —Ostensible authority — Whether actual authority impliedly terminated — Whether representation founding ostensible authority continued to be operative at the time of the agent’s acts AGENCY — Creation of agency — Ratification — Where plaintiff sued her husband in previous proceedings for the money she now claims against the defendants — Whether the plaintiff ratified her husband’s conduct by commencing proceedings against him — Held ratification implied where principal, knowing the facts, makes an unequivocal election to enforce rights that would only be available to the principal upon ratification

COSTS – Claim for damages for historical sexual abuse – Permanent stay ordered – Whether each party should pay own costs – General rule that costs follow the event – Impecuniosity of plaintiff not sufficient basis to otherwise order – Plaintiff on notice of evidence advanced in support of permanent stay application – Costs to follow event

HIGH RISK OFFENDERS – extended supervision orders – application for revocation – sexual offending occurred 27 years ago – defendant released on parole eight years ago – ESO imposed seven years ago – where repeated ESO breaches result in incarceration – positive drug tests – no further sexual offending – application to revoke order brought by the State – defendant supports application – evidence of significant changes in behaviour and attitude of defendant – length of time since index offences – Court independently satisfied of material change in circumstances – where defendant is currently on a Community Correction Order for 18 months – Court not satisfied to high degree of probability that defendant poses an unacceptable risk – order revoked

CRIME – appeal and review – appeal from Local Court to Supreme Court – by offender after being committed for trial on three indictable matters and two summary matters – first case conference held almost a year after charges were laid – magistrate refused further adjournments and entered pleas of not guilty by the Court – where negotiations between prosecution and defence were active and ongoing – where offender indicated he wanted to continue to negotiate – magistrate erred by prejudging without hearing why the parties were seeking an adjournment – magistrate failed to consider different pathways available under s 76 of the Criminal Procedure Act– decision deprived offender of significant right of discount for a plea – grounds of appeal involving questions of law alone upheld – decision of the Magistrate set aside – proceedings to be remitted before a different magistrate

CRIME – appeal against sentence – aggregate sentence – manifest excess by misapplication of totality principle – no error – parity with sentence of asserted co-offender – applicant a supplier of drugs purchased from a syndicate in which co-offender was a participant – not co-offenders in same criminal enterprise for purpose of parity principle

CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — sexual offending and breach of ADVOs — whether sentencing judge failed to take into account impact of COVID-19 pandemic on custodial imprisonment — where Crown concedes error on that point — whether sentencing judge erred in consideration of two aggravating factors said to be inherent in the criminality of the offence — appeal allowed on COVID-19 ground — applicant resentenced

CRIME — Bail — Detention application – where offender works as a complex care worker and seeks time to hand over care – where offender asserts the need to obtain a psychiatric opinion – whether special or exceptional circumstances exist –application granted

CRIME — Bail — Detention application – where offender suffers from autism spectrum disorder and other health problems – where offender requests time to undergo testing and treatment prior to entering into custody – whether special or exceptional circumstances exist – application refused

CIVIL PROCEDURE – Consolidation of proceedings – Where plaintiff claimed damages against first and second defendant in relation to sexual assaults – Where plaintiff commenced separate proceedings against third defendant concerning alleged conspiracy with first defendant to intimidate the plaintiff to change her evidence – Significant factual cross-over between proceedings – Risk of inconsistent judgments if heard separately – Consolidation ordered

REAL PROPERTY – possession of land – default under mortgage – where default admitted – where defence discloses no defence to the claim for possession – defence struck out

CONTRACTS – interpretation – implication or inference from express terms – deed of settlement of monetary claims in ongoing charitable trust proceedings – deed obliged parties to pursue claims for declarations that corporate defendants’ assets were held on charitable trust – Court held that corporate defendants’ assets were not held on charitable trust – whether implied or inferential obligation on parties to “restructure” basis on which corporate defendants held and administered their assets

LEASES AND TENANCIES — Rent and outgoings — Failure to pay — Where lessee under commercial lease operated hotel and nightclub — Where operation of hotel affected by COVID-19 pandemic — Where COVID-19 regulations required landlords and lessees to negotiate in good faith — Whether landlord and lessee negotiated in good faith — Where lessee did not pay any rent at all — Where landlord made several offers and concessions — Where landlord negotiated in good faith — Where rental arrears recoverable CONSUMER LAW — Where landlord had contractual right to purchase lessee’s liquor licence — Where lessee claims to avoid rental arrears by sale to prospective purchaser — Whether there was a common intention that landlord would not purchase licence — Whether landlord’s failure to acknowledge a common intention constitutes misleading and deceptive conduct — Whether landlord’s failure to acknowledge a common intention is unconscionable conduct — Whether landlord’s failure to acknowledge a common intention gives rise to a common intention constructive trust or estoppel — Where no common intention established — Where common intention inconsistent with the express terms of the lease agreement — Where no obligation on landlord to clarify its intention under the contract — Where lessee did not otherwise seek rectification

LAND LAW — Easements — Creation of easements — Creation by order of court — Application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway — Plaintiffs are owners of rural land and defendants are neighbours — Where no other practical means of vehicular access to plaintiffs’ landlocked rural land exists — Whether easement reasonably necessary for effective use and development of plaintiffs’ land where alternative access route proposed by defendant — Where effects of proposed easement relatively minor — Where alternative access route is inferior — Whether plaintiff made all reasonable attempts to obtain easement or easement having same effect — Proper construction of an easement having the “same effect” — Whether discretion to impose easement should be exercised — Whether defendant could be adequately compensated for imposition of easement — Whether possible to assess compensation for diminution in land value — Adequacy of monetary compensation for intangible losses — Factors relevant to assessment of compensation — Easement imposed — Determination of costs deferred

CONTEMPT – civil contempt – admission of further evidence on appeal – whether psychiatrist’s report should be admitted as evidence of appellant’s vulnerable mental health condition and his father’s occupation – appellant must demonstrate punishment orders are the result of legal, factual or discretionary error – where not contended that with the benefit of further evidence the primary judge must have made different punishment orders – application to admit further evidence refused because evidence not capable of establishing error – appeal dismissed APPEALS – admission of further evidence – appeal by way of rehearing – appellant must demonstrate order the subject of appeal the result of legal, factual or discretionary error

COSTS – party/party – costs orders in interlocutory proceedings – whether costs thrown away should include costs of mediations – whether costs should be payable forthwith under rule 42.7(2) Uniform Civil Procedure Rules 2005 (NSW) – where amended cross-summons and cross-claim statement filed on discrete issue separate to principal proceedings

APPEAL – Leave to appeal – Whether there were reasonably arguable errors of law or fact LIMITATION OF ACTIONS – Personal Injury – Child abuse – Whether actions of police constituted child sexual abuse – Where actions did not have sexual connotation LIMITATION OF ACTIONS – Discoverability – Personal Injury - Whether capable persons knew or ought to have known facts where applicants were underage – Whether advice provided was enough to induce capable persons to seek further legal advice

TORTS – negligence – occupiers’ liability – where pedestrian injured following trip on uneven surface of footpath created by up to 1cm height differential between utility pit lid and surrounding metal frame – whether risk of tripping on uneven surface an “obvious risk” – characterisation of “risk of harm” – obvious risk engaging s 5H(1) of Civil Liability Act 2002 (NSW)

ENVIRONMENT AND PLANNING — appeal from Land and Environment Court — appellant lodged development application for construction and operation of an energy from waste facility — application refused — appellant commenced Class 1 proceedings — respondents contended application could not be granted by reason of Pt 4 of Ch 9 of the Protection of the Environment Operations (General) Regulation 2022 (NSW) (the “Thermal Energy from Waste Regulation”) — appellant commenced separate Class 4 proceedings seeking declaration that Thermal Energy from Waste Regulation is beyond the regulation-making power in s 323 of Protection of the Environment Operations Act 1997 (NSW) (“POEO Act”) — whether reg 143, which prohibits “thermal treatment of waste” except at certain locations, is a regulation “with respect to” any matter permitted to be prescribed — reg 143 is a regulation “with respect to” the prohibition of “processing… of… waste” as referred to in cl 5(6) of Sch 2 to the POEO Act — whether reg 143 is inconsistent with POEO Act including licensing scheme in Ch 3 — no inconsistency — licence granted under Ch 3 does not grant “authority” beyond avoiding prohibitions under Ch 3 — not the scheme of the POEO Act to only regulate Sch 1 activities by licence conditions — whether reg 145 which, inter alia, prohibits grants of licences under POEO Act which purport to authorise work prohibited by reg 143 invalid so far as it applies to “State significant development” because of inconsistency with provisions of the Environment Planning and Assessment Act 1979 (NSW) (“EPA Act”) — whether s 32 of Interpretation Act 1987 (NSW) permits “general words or expressions” in reg 145 to be read down so not inconsistent with provisions of other legislation — words read down — no inconsistency with EPA Act — appeal dismissed RELIEF — declarations — where Div 28 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) came into force after primary judgment — whether Div 28 removed potential for inconsistency between reg 145 and provisions of EPA Act — declaration as to operation of reg 145 not appropriate in circumstances where construction and applicability of Div 28 was not in issue before the primary judge but is reasonably expected to be in issue in Class 1 proceedings on foot between appellant and other parties — no declaratory relief granted

CRIME – appeals – appeal against conviction – judge alone trial – accessory before the fact to murder – where deceased fatally shot by unknown intruders while asleep in apartment – where intruders entered apartment by unlocking front door with copied key in their possession – circumstantial case – finding that the applicant had provided the copied key to the intruders disputed – whether the verdict was unreasonable – whether Crown was obliged to prove beyond reasonable doubt that a named person had been one of the principal offenders– open to trial judge to return verdict of guilty – identification of particular person as one of the perpetrators not an indispensable intermediate fact – no requirement for identity of principal offender to be proven beyond reasonable doubt – sufficient that applicant believed person had been involved in the murder – leave to appeal granted – appeal dismissed

CRIME – appeal – appeal against sentence – whether the sentence imposed was manifestly excessive – armed robbery with an offensive weapon – tomahawk and petrol – offending occurred at RSL Club in small country town – sentence imposed not unreasonable or plainly unjust – appeal dismissed

CRIMINAL PROCEDURE — Trial — Jury — Application to discharge jury – where jury inadvertently had access to folder containing MFIs from trial – where foreperson gave evidence that folder had not been opened by any jury member – whether substantial miscarriage of justice – application refused

ORDERS — Construction of orders — Reasons for Judgment address the question as to whether a trust had been determined by certain payments — Reasons conclude trust not so determined — Specific orders crafted with a view to trustees being appointed and reporting regarding the corpus and income of the trust and any claims for indemnity — Trustees issue interim report with qualifications — Process of issuance of interim report(s) contrary to the regime envisaged by Court’s orders and apt to give rise to unwieldy process of disputation — Queries of trustees to be addressed not by issuing interim report but by invoking liberty to apply for the Court’s direction prior to issuing of a final report TRUSTS — Report to Court directed to be provided — Interim report provided raising qualifications such as (1) which of differing approaches in identifying corpus and income of trust is appropriate and (2) what assumptions are appropriate — Court orders do not envisage issuance of an interim report but rather for the trustees to seek direction on matters relating to the report prior to production of one final report

CIVIL PROCEDURE – production of documents – secrecy provisions in Crime Commission Act 2012 (NSW) – alteration to provisions – determination of requirement to produce in relation to each document in accordance with the legislation that came into effect on 1 February 2023

COSTS — appeal from decision of Local Court — where plaintiff successful on some issues but not all — whether offer an offer of compromise or a walk away offer — costs order against the liquidator personally

COSTS – security for costs – relevant factors – whether there has a been a change of circumstances since first application for security for costs – other factors

CIVIL PROCEDURE – originating process – amendment – leave to rely on expert report – whether there is a material change between amended statement of claim and proposed amended statement of claim – no material change – leave granted to rely on expert report

CONTRACTS – Option to renew lease – Where conditions said to be waived by lessor – Whether terms amount to conditional contract or irrevocable offer – Whether there is need to resolve issue of conditional contract or irrevocable offer – Where lessee revokes notice given to lessor to exercise option before all contractual conditions performed – Whether lessee bound to exercise option CONTRACTS – Construction – Interpretation – Where variation or waiver must be signed and in writing by party or parties – Whether lessor can unilaterally waive performance of contractual conditions until a later time

CORPORATIONS — Winding up — Statutory demand — Application to set aside — No issue of principle

CORPORATIONS — Winding up — Voidable transactions — Unfair preferences — Separate question — Whether company was insolvent in the six months prior to its entry into external administration, or at some date in that period —Liquidator’s report clearly establish that the Company could not pay its debts, as and when they fell due

APPEALS — right of appeal — who may exercise — where plaintiff seeks leave to appeal against decision of NCAT Appeal Panel pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – where plaintiff was not a party to the NCAT proceedings – proceedings incompetent due to an absence of standing

SUCCESSION — Family provision — Orders made giving effect to reasons for judgment and addressing disputed issues regarding various matters including mechanics of timing of payment and amounts of payment of orders for provision from the sale of the deceased’s real property, terms of liberty to apply and timing for running of interest

CRIME – bail – release application – alleged murder and kidnapping – where applicant has had multiple release applications refused – two detailed judgments already published – appropriateness of conciseness – s 74 Bail Act 2013 engaged – test for revisitation assumed to have been established for the sake of substantive determination – conceded by Crown that cause shown based on medical conditions – resources to escape justice – significant ties to criminal organisation – troubling criminal record – unacceptable risk that applicant will commit a serious offence of violence, fail to appear, and endanger the safety of a witness – bail refused

COSTS — costs orders in interlocutory proceedings — application of Lai Qin principles

COSTS – Party/Party – Where administrator sought costs of appearance – Whether administrator’s costs should be ordered CORPORATIONS – Deed of company arrangement – Trusts – Where deed of company arrangement terminated – Whether funds held in the deed fund are held on trust ORDERS – Determination as to form of orders to give effect to earlier judgment

APPEALS – costs – costs assessments – “interim” or “pre-completion” certificates – ability of assessor to issue such certificates – whether certificates “on account of” liability or “for” specific items – whether parties given a reasonable opportunity to be heard

CRIME – appeal – appeal against sentence – parity – whether justifiable sense of grievance by reason of sentence imposed on co-offender – whether same total sentences imposed on applicant and co-offender justified

CRIME – appeals – appeal against conviction – use offensive weapon with intent to commit an indictable offence, namely intimidation, contrary to the Crimes Act 1900 (NSW), s 33B(1)(a) – where trial judge gave herself a warning pursuant to the Evidence Act 1995 (NSW), s 165, and a Murray direction in relation to the evidence of the key Crown witness – where trial judge held that the account of the key witness as to the identity of the shooter was supported by text message and phone call records, among other evidence – whether direction under s 165 insufficient and not applied to the evidence – whether trial judge erred in admitting two text messages as admissions as to involvement in the shooting – whether verdict was unreasonable CRIME – appeals – appeal against sentence – use offensive weapon with intent to commit an indictable offence, namely intimidation, contrary to the Crimes Act 1900 (NSW), s 33B(1)(a) – engaging in police pursuit, contrary to the Crimes Act, s 51B(1) – not stopping at a stop sign, contrary to the Road Rules 2014 (NSW), reg 68(1) – driving while disqualified, contrary to the Road Transport Act 2013 (NSW), s 54(1)(a) – aggregate sentence of 6 years and 9 months imposed – whether sentencing judge failed to apply the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and R v Fernando (1992) 76 A Crim R 58 – whether sentencing judge failed to consider hardship of incarceration – whether sentence was manifestly excessive

STATUTORY INTERPRETATION – Children (Education and Care Services) National Law 2010 (NSW) – where delegate of regulator issued to plaintiff/authorised childcare provider a compliance notice – where original compliance notice alleged multiple breaches of provisions of the Act – where plaintiff sought internal review of decision to issue compliance notice – where second delegate of department conducted internal review – decision to “confirm” original notice but where particulars of alleged breaches materially different to original – where plaintiff sought internal review of secondary notice – issuance of second compliance notice amounted to fresh exercise of statutory power rather than confirmation of previous exercise – amenable to internal review