Cases and authorities

CONTRACT – construction of engagement letter – whether contract is void – where contract was executed by plaintiff who did not have the capacity to bind the company to the loan agreement – where magistrate determined that the plaintiff, an individual, was party to the contract – where money owed to defendant for services provided of procuring finance for plaintiff

JUDGMENT – Final orders – Entitlement of plaintiff to not accept satisfaction of judgment against second defendant – costs against second defendant – offer of compromise – reasonable rejection of offer

COSTS — application for indemnity costs on the basis of unsuccessful plaintiffs’ failure to accept Calderbank offer — where offer made following pleadings, exchange of evidence and mediation — whether “walk away offer” represented genuine compromise — indemnity costs awarded

HIGH RISK OFFENDERS — preliminary supervision — interim supervision orders — whether plaintiff complied with s 24(2) disclosure obligation — defendant never convicted of an offence involving an element of infliction of physical violence — defendant disputes that he is a convicted New South Wales terrorism activity offender — plaintiff relies on records said to demonstrate the defendant was developing a plan to commit murders of persons of certain races, in particular Aboriginal men who are middle aged — consideration of Corner Report — views if proved could constitute support for violent extremism — potential ideologies associated with white supremacy and ultranationalism may be attributed to the defendant at final hearing — the documents if proved indicate a plan to commit racial driven murders — conditions for supervision imposed

COSTS — party/party — general rule that costs follow the event — proceedings discontinued or dismissed

CORPORATIONS — Statutory demand — Debt arising out of adjudication under Building and Construction Industry Security of Payment Act 1999 (NSW) — Where statutory demand issued in respect of judgment debt for adjudicated amount — Whether application to set aside statutory demand on grounds of offsetting claim supported by affidavit served within 21-day statutory period — Claim for declarations that adjudicated amount not truly payable is not an offsetting claim within the meaning of s 459H — Where claim for damages for breach of contract for defective building work — Where plaintiff relied on costs of rectifying defects as measure of damages — Where plaintiff’s evidence did not disclose that building has been sold — Where no evidence raising plausible contention as to reasonableness of undertaking rectification work in those circumstances — Proceedings dismissed

HIGH RISK OFFENDER – final hearing – extended supervision order – child sexual offences – whether unacceptable risk of committing a serious offence – extended supervision order not opposed by defendant – length of supervision order not opposed – dispute limited to some of the conditions – extended supervision order imposed – some conditions adjusted to accommodate potential requirements of employment – rehabilitation of offender whilst bearing in mind the primary object of safety and protection of the community

CONTRACTS — formation — agreement — whether parties entered into a binding agreement to settle these and related proceedings upon signing settlement document at mediation — where no lawyers present at mediation and settlement document drafted by mediator described as a deed — where parties signed as directors of corporate parties and not separately as individual parties — where signed settlement document does not take effect as a valid deed — whether parties objectively intended to be immediately bound — whether individual parties objectively intended to be bound

ADMINISTRATIVE LAW – judicial review – error of law on face of record – assessment of culpability for motor accident – cessation of statutory benefits – failure to apply correct legal principles – factual finding without evidence – whether material – whether finding of contributory negligence manifestly unreasonable TORTS – negligence – contributory negligence – motor vehicle colliding with pedestrian – whether contributory negligence greater than 61% - application of Motor Accident Injuries Act 2017 (NSW), s 3.11

CRIME – Sentence – Enter dwelling with intent to intimidate in company – Offender found guilty after trial – Relative youth of offender – Parity not significant consideration in the circumstances – Prospects of rehabilitation

JUDICIAL REVIEW – Appeal from NCAT – reinstatement order – psychologist’s registration – abuse of process – summons dismissed

APPEAL – Local Court – whether magistrate erred in failing to consider argument raised in closing submissions – costs of cross-claim – argument not pleaded – leave refused – appeal dismissed

CIVIL PROCEDURE - bankruptcy – alleged fraud – insolvent companies – lack of standing.

CIVIL PROCEDURE – Review of Registrar’s decision – subpoenas – to produce documents or things – application to set aside – whether subpoenas were a fishing expedition – whether subpoenas had forensic value

CRIME — Sentence — Manslaughter — Unlawful and dangerous act — Cause of death asphyxiation by neck compression — Mid-range objective seriousness — Young adult — Onerous conditions in custody by virtue of COVID-19 restrictions, cultural and language barriers and isolation — Special circumstances

COSTS – Security for Costs – Where plaintiff effectively impecunious – Where plaintiff effectively in position of defendant – Where contractual debt claimed from plaintiff significantly exceeds security sought – Motion refused CIVIL PROCEDURE – Pleadings – Where cross-defendant pleaded it was not obligated to obtain price capping insurance – Request for further and better particulars – Pleading raises issue of contractual interpretation – Cross-claimant entitled to know whether cross-defendant relies on contextual facts

CIVIL PROCEDURE – Pleadings – Application for leave amend defence to cross-claim – Whether the pleading constitutes an ‘admission’ – Whether pleading provides any benefit or forensic value – No prejudice to defendant established – Amendment allowed CIVIL PROCEDURE – Subpoenas – Application to set aside – Whether two paragraphs in subpoena have legitimate forensic purpose – Only third paragraph of apparent relevance – Subpoena set aside in part

JUDGMENTS — Execution of orders for costs — The first plaintiff claims to be a trustee of a unit trust holding property at Point Piper previously registered in the name of the second and third plaintiffs. The defendant, the mortgagee of the property, sold it in 2006 following mortgage default. The plaintiffs commenced proceedings in 2009 claiming relief against the defendant in respect of the mortgagee sale surplus funds. The 2009 proceedings were dismissed. Subsequently, the plaintiffs commenced further proceedings in 2012, 2015, 2016 and 2018 all raising issues arising from the defendant’s handling of the surplus funds. In 2014, orders were made precluding the plaintiffs from commencing relief in respect of the initial cause of action. In 2017, orders were made staying the proceedings conditional upon the plaintiffs paying what were then 10 separate costs orders in favour of the defendant subject to three specified set-off items. The defendant in 2015-2016 served a statutory demand notice against the first plaintiff and bankruptcy notices against the second and third plaintiffs which notices were set aside. The defendant took steps to have costs under what were then 13 costs orders assessed and had certificates registered in the Local Court in November 2019 creating 13 separate Local Court judgments. The defendant apart from an earlier attempt to seek an examination order at no stage attempted to issue execution by means of a writ for the levy of property or a garnishee order or a charging order in respect of the 13 costs orders and judgments. In 2020, the third plaintiff died and as yet no grant of representation has issued in his estate. In early 2023, the defendant sought by notice of motion the appointment of a receiver and the issue of a writ of sequestration. The plaintiffs’ then solicitor ceased to act for the plaintiffs subsequent to the filing of the motion. The Registrar in Equity listed the motion for hearing. The plaintiffs appeared by counsel, seeking an adjournment, the setting aside of the Registrar’s orders and opposing the appointment of a receiver and issue of a writ — The defendant by failing to use an available statutory and administrative means to register a single judgment instead of 13 separate judgments created a cumbersome platform for enforcement of costs — Nonetheless, the Court’s incidental power to regulate its own processes when informed by the overriding purposes of the Court’s approach to proceedings dictates that in the particular prevailing circumstances the appointment of a receiver on specific terms is appropriate CIVIL PROCEDURE — Restraining proceedings — The Court has no inherent power to restrain or preclude a litigant from commencing fresh or new proceedings without leave of the Court but does have inherent power to restrain a litigant from making frequent vexatious applications in pending proceedings — The Court has statutory power on the dismissal of proceedings to place terms preventing a litigant from bringing fresh proceedings or claiming the same relief in fresh proceedings JUDGMENTS — Enforcement — Ordinary means of enforcement of judgments — Distinction between judgment for payment of monies and judgments requiring a party to do an act or abstain from doing an act RECEIVERS — Appointment of receiver to facilitate execution of costs — Directions and powers to be given to the receiver are purpose-based to facilitate the simplification of the process of execution COSTS — Discussion of the character of costs orders — Distinction between declaration of liability for costs and quantification of costs — Costs orders are orders for payment of money — Discussion regarding when a costs order is enforceable — Fragmentation of proceedings across two or more courts is generally undesirable — However, the statutory regime for assessment of costs envisages and mandates that a costs order creating a liability in one court may be quantified by an assessment process and a certificate registered as a judgment in another court COSTS — Costs certificates — Distinctive characteristics — The entry of judgment on a registered costs certificate is a ministerial act. It is not a judgment of a court as such. It takes its force from the statutory provisions. Statutory provisions make the certificate enforceable as a judgment but otherwise do not alter its legal effect as an adjudication of a costs assessor — A Supreme Court costs order does not ‘merge’ in a ‘judgment’ of another court upon registration in that other court of a certificate of assessment of such costs order COSTS — Multiple costs orders — The regime for assessment and registration of certificate of costs depends upon the legal profession legislation in force at the time of the proceedings to which the costs assessment relates were commenced — The regimes since 2004 allow for registration of a single judgment instead of multiple separate judgments for each costs order WRITS — Writ for sequestration — Consideration of requirements for issue of writ of sequestration — Requirements differ as between orders for payment of money and orders that a party do or abstain from doing a particular act PRACTICE — Failure of party to formulate a claim despite various opportunities — Court imposes leave requirement for commencement of any further proceedings — Repeated applications to ventilate issues covered by leave requirement — Whether commencement of proceedings without prior leave of the Court gives rise to a nullity or merely makes proceedings susceptible to being stayed or dismissed PRACTICE — Notice of ceasing to act —Requirement to serve notice on parties to the proceedings in addition to service of notice on the client PRACTICE — Appearance — Procedure — Representation of company by director PARTIES — Representation of interests of a deceased’s estate COURTS — Tipstaff — Functions CAVEATS — Caveatable interests — A judgment debt is not ordinarily a secured interest and does not create a caveatable interest — A writ, whether or not it is recorded in the Register, does not create any interest in land

TAXES AND DUTIES – land tax – appeals – appeal against land tax assessment notice – exemption under Land Tax Management Act 1956 (NSW) – plaintiff operates approved education and care service – land divided into two parcels of the one registered lot – childcare centre situated on one parcel of land and septic system situated on second parcel of land – whether second parcel of land containing ancillary services necessary for the operation of the land being exempted is also entitled to land tax exemption – whether commissioner entitled to assess individual parcels as designated by Valuer-General – whether septic system was the sole use of the parcel of land is a question of fact – question of fact not appellable – appeal dismissed STATUTORY INTERPRETATION – definitions – Interpretation Act 1987 (NSW) s 21 – “land” – whether same word has the same meaning in different parts of an Act APPEALS –right of appeal – scope of right – error of law - leave to appeal – principles for grant of leave

CIVIL PROCEDURE – interim preservation – freezing orders – application for freezing order pending appeal – UCPR r 25.11 and r 25.14 – good arguable case not established – danger that prospective judgment will be wholly or partly unsatisfied not established

MENTAL HEALTH – criminal proceedings – person unfit to be tried – special hearing – appeal from qualified findings of guilt after special hearing – where appeal successful in respect of some, but not all, qualified findings of guilt – where offender sentenced to individual limiting terms – consequential power to vary limiting terms attached to remaining undisturbed counts, even where no appeal against sentence was brought – proper approach to s 7(1) of the Criminal Appeal Act 1912 (NSW) CRIME – appeals – appeal against conviction – where person convicted of multiple offences – appeal successful in respect of some, but not all, counts – where offender sentenced to individual sentences for each offence – consequential power to vary sentences attached to remaining undisturbed convictions, even where no appeal against sentence was brought – proper approach to s 7(1) of the Criminal Appeal Act 1912 (NSW)

CRIME – appeal – sentence appeal – whether the sentencing judge erred in determining that each offence fell within mid-range of objective seriousness – whether the sentence was manifestly excessive – sexual offending against very young children – finding of mid-range of objective seriousness was open to the sentencing judge – sentence imposed not unreasonable or plainly unjust – grounds of appeal dismissed.

EVIDENCE — plaintiff seeks to orally adduce evidence in chief from expert which is not contained within the substance of the expert’s reports — whether there are exceptional circumstances warranting leave to elicit such additional evidence

CIVIL PROCEDURE — plaintiff unable to provide instructions on evidence classed as terrorism intelligence and currently subject to confidentiality orders under the Terrorism High Risk Offenders Act 2017 (NSW) — issue as to whether confidentiality regarding that evidence ought to subsist — consideration of scope to protect terrorism intelligence and competing the interest of natural justice — application for adjournment to enable full consideration of the issue

CIVIL PROCEDURE – leave to amend defence – substantial change of circumstances – failure to grant leave would substantially prejudice the defendant’s case

CIVIL PROCEDURE – costs – defendant’s opposition to plaintiff’s application to proceed out of time reasonable – Court assisted by defendant’s counsel’s submissions – plaintiff to pay defendant’s costs

FAMILY LAW – Children – Adoption – Where adoption order made in a Hague Convention country – Where order not obtained in accordance with the Hague Convention – Whether declaration of recognition of foreign adoption can be made FAMILY LAW – Children – Adoption – Where adoption alternatively order sought ab initio – Where evidence not led to satisfy ss 8 and 90 of the Adoption Act 2000 (NSW) – Whether adoption order can be made

JUDGMENTS AND ORDERS — Enforcement —— where plaintiff successful in claim for possession of land —stay of execution lifted subject to undertaking by plaintiff to allow period of reasonable access to land to enable removal of property — reports on progress in removal of property

WORKERS COMPENSATION — Medical assessment certificate — judicial review of decision of appeal panel dismissing appeal from medical assessment certificate — appeal panel failed to address application to consider further documents and documents themselves — documents claimed to evidence plaintiff’s further deterioration and development of consequential injury post-assessment — operation of Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 328 — decision of appeal panel quashed — application and appeal remitted to a differently constituted appeal panel CIVIL PROCEDURE — Judicial review — application for judicial review brought outside three-month time period — Uniform Civil Procedure Rules 2005 (NSW), r 59.10 — interests of justice — leave granted to bring application

CORPORATIONS — Securities — Registration — Registration more than 20 business days after security agreement came into force and less than six months before grantor went in liquidation — Application to fix later registration time to avoid security interests vesting in grantor pursuant to s 588FL(4) — Where failure to register securities earlier due to inadvertence — Whether interests of unsecured creditors would be prejudiced — No question of principle.

PROFESSIONAL NEGLIGENCE – medical negligence – bariatric surgery – whether failure to warn of risks – s 5O Civil Liability Act standard of care for professionals – where s 5O defines the liability inquiry – s 5P Civil Liability Act – warnings are treated differently – warnings given were comprehensive – plaintiff unreliable – s 5I inherent risk – verdict for defendant

ENVIRONMENT AND PLANNING – Court of Appeal – practice and procedure – documents sought under UCPR r 33.13 – judicial review sought against decision of Commissioner – applicants not parties to decision challenged on review – where applicants seek documents in Land and Environment Court file in aid of judicial review – where respondents claim documents are confidential under Land and Environment Court Act s 34(11) CIVIL PROCEDURE – case management – where documents sought would be inadmissible in review proceedings without respondents’ consent – where consent not forthcoming – inconsistent with Civil Procedure Act Pt 6 to allow production

TORTS – negligence – breach of duty – public authority – responsibility for care and management of shared pathway – identifying risk of harm – whether risk not insignificant - duty to pedestrians and cyclists – fall by cyclist in avoiding bollard – precaution of removing remaining bollard of pair – purpose of bollard to create obstacle – whether single bollard had social utility – burden of precautions to avoid similar risks – whether reasonable authority would have taken precaution of removing bollard

NEGLIGENCE – personal injury – workplace accident –claim against labour hire company and host employer – where plaintiff was operating heavy high-pressure hosing equipment to clean out pits –where origin of injury is contested – where plaintiff received minimal training and induction – whether defendants knew or ought to have known of tripping hazard and unsafe system of work – whether precautions should have been taken in relation to reasonably foreseeable risks – apportionment of liability – parties to draft final orders in respect of out-of-pocket expenses and cross-claims

TORTS – trespass to the person – assault and battery – historical sexual misconduct – claim for damages due to psychiatric harm – turns on its own facts TORTS – trespass to the person – damages – whether defendant’s conduct displayed contumelious disregard of the plaintiff’s rights – aggravated and exemplary damages awarded

COSTS – examination pursuant to s 68 of the Civil Procedure Act 2005 concerning compliance with a subpoena – whether the examinee should pay the costs of the motion seeking examination

COSTS – party/party – costs of claims for declaratory relief by way of cross-claim – where separate hearing of claims for declaratory relief – where claims for declaratory failed – whether order for costs of those claims should be made now or be costs in the cause - where plaintiff’s claims yet to be determined and defendant intends to advance other defences

SUCCESSION - Family Provision – Claim by adult son of deceased and his spouse and children

RESTITUTION – Common counts – Money had and received to the use of the first respondent – Where second appellant and respondent conducted partnership for quarrying, marketing, and sale of gabbro – Where first respondent received additional payments out of partnership moneys from financial manager of quarry without knowledge and consent of appellants – Where respondents pleaded no defence to restitutionary liability – Whether prior opportunity to plead breach of fiduciary obligation and seek equitable remedies precludes maintenance of action for money had and received – Whether unauthorised receipt of moneys belonging to partnership by person who is not a bona fide purchaser for value without notice falls within established category of restitutionary liability – Whether unauthorised receipt by third-party of partnership moneys is a qualifying or vitiating factor – Held in absence of pleaded defence that appellants entitled to restitution of moneys received by first respondent CONTRACTS – Implied terms – Terms implied in fact – Where appellants allege existence of two parol contracts generally relating to extraction of gabbro from quarry and marketing and sale of extracted gabbro by respondents – Where appellants allege terms implied in those contracts obliged respondents to ensure acquisition of approvals as and when necessary for conduct of quarry on land – Where commercial context inconsistent with terms of parol contracts as alleged by appellants – Whether implied term asserted by appellants necessary for reasonable or effective operation of contracts – Held that such implied term not necessary nor reasonable

LEAVE – application for leave to appeal summary dismissal – conferral of federal jurisdiction in Supreme Court by Judiciary Act 1903 (Cth) and Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – special federal matter – no alternative conferral of jurisdiction by the Administrative Decisions (Judicial Review) Act 1977

SENTENCING – Appeal against sentence – where primary judge failed to apply a discount pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in relation to one offence – where primary judge erroneously applied a discount for the pleas of guilty to the aggregate sentence and not the indicative sentences – sentencing discretion exercised afresh – whether lesser sentence appropriate

CRIME – appeal – interlocutory order – Crown appeal pursuant to Criminal Appeal Act 1912 s 5F(3A) – appeal relating to ruling about admissibility of tendency evidence and severance of counts – where primary tendency asserted in notice did not comprehend certain alleged sexual acts of the respondent – where circumstances of tendency notice strictly confined to complainants indicating that sexual touching and/or digital penetration “unwelcome” – decision by trial judge that counts 16 and 17 pertaining to third female complainant were to proceed separately – ground whether trial judge erred in determining there were exceptional circumstances pursuant to s 97A(5) Evidence Act 1995 that overcame statutory presumption of significant probative value – whether error in in determining that the probative value of the evidence did not outweigh the danger of unfair prejudice – correct decision for different reasons – even assuming counts 16 and 17 had significant probative value as tendency evidence, decision to sever was appropriate due to extreme prejudice in light of specificity of tendency notice – appeal dismissed

CRIME – appeal – sentence appeal – whether sentencing judge’s factual finding about the applicant’s purpose for entering the premises was open – aggravated break, enter and commit serious indictable offence – aggravated sexual assault against sleeping child –surrounding evidence led to finding which was open beyond reasonable doubt – it was open to find the applicant’s purpose for entering the home was to commit the sexual assault

EMPLOYMENT AND INDUSTRIAL LAW – Industrial organisation – Cancellation of registration under s 227 of the Industrial Relations Act 1996 (NSW)

COSTS – Party/party – Where plaintiff has had ultimate success in the application – Where multiple issues in proceedings – Whether reason to depart from the ordinary rule that costs are awarded to the party successful overall by ordering apportionment of costs. COSTS – application for costs on an indemnity basis – where defendants did not act unreasonably in not accepting Calderbank offers – whether an indemnity costs order should be made.

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

CIVIL PROCEDURE – pleadings – amendment – application for leave to amend Commercial List Statement – proposed causes of action for money paid under a mistake of fact, for knowing assistance in a dishonest and fraudulent design, for breach of common law duty of care, for misleading or deceptive conduct and for unconscionable conduct

CIVIL PROCEDURE — Applicant brings several claims including a misleading and deceptive conduct claim against respondents — Respondents deny representations but say in any event there are reasonable grounds for making any such representations — Lengthy process of discovery between parties — Little or no documents produced by respondents in respect of categories recording their USA parent company’s strategy and documents relating to consideration by the USA parent of shutting down car sales and various operations in Australia — Applicant seeks Court’s endorsement of proposed §1782 application under Title 28 of the United States Code to seek production of documentation — Application granted CIVIL PROCEDURE — Principles of case management — Production of documents — The fact that categories of documents do not refer to knowledge of an employee or other relevant person is not decisive in determining the relevance of the document for production purposes — The proposed categories of documents which record or evidence a “comprehensive strategy” of the USA parent and consideration by the USA parent recording or evidencing GM considering shutting downs sales and operations in Australia is important material for the purposes of cross-examination or other testing of a reasonable grounds defence as to (1) what the relevant employees actually knew, and further, what they are to be taken to have known in the circumstances and (2) what the corporate representor in fact took into account and relied upon to make the 2017 express representations and whether its reliance was objectively reasonable in the circumstances CONSUMER LAW — Misleading and deceptive conduct claim — Consideration of legal principles regarding defence of reasonable grounds — Consideration of knowledge of employee extends to what each employee relevantly actually knew and is to be taken to have known in the circumstances — Determination regarding knowledge includes any inferences that may be drawn from circumstances as to each party’s ability to call evidence and any failure to call evidence — Consideration of issues in identifying whether a representor had reasonable grounds for a representation

ADMINISTRATIVE LAW – judicial review – Appeal Panel of Personal Injury Commission – appeal from medical assessor – error of law as to jurisdiction – taking into account exacerbation of injury caused by later conduct of employer – effect of later conduct determined in favour of employer by earlier award WORKERS COMPENSATION – medical assessment – psychological injury – causation – bullying and harassment at work – award for worker as to conduct up to deemed date of injury – award for employer as to subsequent conduct – medical assessor took into account exacerbation of injury caused by later conduct of employer

APPEAL – Crime – Appeal pursuant to s 19AY Crimes Act 1914 (Cth) – order refusing to set a non-parole period following the revocation of parole by the Attorney-General – whether prescribed authority required to re-consider material relied upon by the Attorney-General in revoking parole – whether basis of revocation of parole required to be proved to the criminal standard – question of the seriousness of the breach