Cases and authorities

CIVIL PROCEDURE – medical examination – whether primary judge erred in relying on cl 5(c) Sch 7 of the Uniform Civil Procedure Rules 2005 (NSW) – Clause 5(c) does not confer power on the Court to direct expert witnesses as to how they conduct assessment for the purpose of preparing expert report – whether primary judge took into account irrelevant considerations and failed to take into account relevant considerations – no right to have assessment recorded; JURISDICTION – whether orders made by the primary judge were within power – Rule 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) – Section 61 of the Civil Procedure Act 2005 (NSW) – inherent jurisdiction; JUDGMENT AND ORDERS – Amending, varying and setting aside – Court of Appeal – Re-exercise of discretion under r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW)

COSTS — Security for costs — whether special circumstances for ordering security for costs established — rule 50.51 of the Uniform Civil Procedure Rules 2005 (NSW) — whether complete identity between appellants established — Corporations Act 2001 (Cth) s 1335 — status of respondents in security for costs application

NEGLIGENCE – professional negligence – where insurance broker breached duty of care owed to the appellant to exercise reasonable care and skill in advising on and obtaining insurance cover – where appellant took out new policy based on insurance broker’s advice which, unlike previous policy, contained certain exclusion clauses – where claim made by appellant in relation to accidental damage to a pool and pool building was denied on the basis of those exclusion clauses – whether insurance policy which appellant would have obtained but for the breach of duty would have responded to a claim for damage to pool and pool building – whether primary judge erred in relation to the onus of proof – whether primary judge erred in finding the appellant would have taken out insurance cover which did not contain the relevant exclusion clauses – whether primary judge erred by failing to find that it had not been proven that an alternative insurer would have covered the appellants’ claim

APPEALS – Appeal from Local Court to Supreme Court – Where defendant issued subpoena to Commissioner of Police – Magistrate declined application by Commissioner to set aside subpoena – Commissioner sought leave to appeal pursuant to s 53(3)(a) of Crimes (Appeal and Review) Act 2001 –Section 53 provides avenue of appeal to defendants only, not third parties – No jurisdiction to grant leave to appeal – Summons dismissed STATUTORY INTERPRETATION – Crimes (Appeal and Review) Act 2001, s 53(3)(a) – Whether s 53(3)(a) provides avenue of appeal to third party subpoena recipient – Meaning of “any person” – Purpose, context and history of provision considered – Commissioner of Police v Chidgey followed

CORPORATIONS — Voluntary administration — Deed of company arrangement — Terminating deed of company arrangement under s 447A of the Corporations Act 2001 (Cth) — Terminating deed of company arrangement under s 445D(1)(e)-(g) of the Corporations Act 2001 (Cth) — Deed of company arrangement only supported by creditors related to or associated with company or its director — Company ceased operations prior to entry into deed of company arrangement — No evidence operations would recommence — Whether deed of company arrangement an abuse of process of Pt 5.3A of the Corporations Act 2001 (Cth)

REAL PROPERTY – EASEMENTS – dispute in relation to the use of various easements for the use of an inclinator, the supply of services, giving rights-of-way, and other related easements between the plaintiff and the defendants – Court resolves minor incidental dispute about invoices relating to the operation of a joint sinking fund that was ordered by the Court to be established by the parties – dispute is causing aggravation to the parties – the parties request reasons for orders.

EQUITY – equitable estoppel – relief hearing – Court upholds claim for a constructive trust – the defendant/cross claimant, the son, farms two properties (and at times other associated properties) held in the name of his father, the plaintiff/cross-defendant – in the principal hearing the Court found that the father made representations to the son, or caused the son to assume, that the son would have the benefit of the properties upon the father’s retirement from farming the properties – the Court found that the son acted upon the representations to his detriment and that the father holds the properties on constructive trust for him to make good the representations relied upon or the assumptions made – the Court finds it would be inequitable if the father did not make good the representations relied upon or the assumptions made by the son – relief hearing – consideration of the appropriate remedy – the Court found that the father had indicated he wished to retire from the family farming property and conduct a small business – the Court requires the son to elect whether he will return to the family farming property as the basis for moulding of final relief and the son so elects - how should the Court provide equitable relief in the circumstances.

CIVIL PROCEDURE — Subpoenas — to produce documents or things — application to set aside — where documents relate to obtaining instructions, preparation and filing of defence — whether subpoena has legitimate forensic purpose — whether legal professional privilege applies to documents — where no claim of waiver advanced — Evidence Act 2005 (NSW), ss 118, 119 — privilege established — subpoena set aside

COSTS — whether indemnity costs order should be made against defendant — defendant’s failure to complete sale after service of notice to complete did not establish necessary delinquency in the litigation — refusal of Calderbank offer — defendant advanced case with no real prospect of success — indemnity costs order to be made COSTS — whether a lump sum costs order to be made payable out of the defendant’s share of estate — order just in circumstances — consideration of Civil Procedure Act 2005 (NSW), ss 60, 98 — lump sum order to be made SUCCESSION — Executors and administrators — order for possession of property — order sought by executor against co-executor — where writ of possession issued — whether defendant to be given further 90 days to vacate property — refused

CIVIL PROCEDURE –– whether liability be heard and determined separately to issue of quantum – where multiple claims of relief sought – where question of liability is contested – where plaintiff suffers catastrophic injuries – where parties suffer consternation and hardship from lengthy and ongoing litigation – where no good reason warranting separate determinations – application dismissed

PRECEDENT — whether NCAT decisions binding on tribunal — whether District Court judgments binding on NCAT — principles at [21] — neither binding but legally persuasive. COSTS – plaintiffs sue insurer for $215,000 in NCAT – case turns on legal issue already determined by NCAT and District Court in insurer’s favour – insurer makes Calderbank offer when serving defence – $10,000 inclusive – insurer does not refer to NCAT and District Court decisions – no evidence plaintiffs aware of these decisions — rejection of offer not unreasonable in circumstances. COSTS — offer of compromise — ‘walk away’ — proceedings on foot for a year — legal issues fully ventilated — application of Regency Media considered at [28]-[31].

PROFESSIONS – legal practitioners directed to show cause why the papers should not be referred – submissions and affidavit supplied to Court confirmed appropriateness of referral

CRIMES — appeals — appeal against conviction — sexual intercourse with child under 10 years — applicant 13 years old at time of offending — whether a miscarriage of justice was occasioned by trial judge’s failure to give a “lies direction” or “Zoneff direction” in response to Crown Prosecutor’s submissions — Crown Prosecutor’s reliance on applicant’s silence and alleged lie to rebut the presumption of doli incapax involved appeal to consciousness of guilt reasoning — to ensure a fair trial it was necessary for trial judge to have given an Edwards or Zoneff direction — majority verdict — Jury Act 1977 (NSW), s 55F(2)(b) — whether it was open to trial judge to conclude that the preconditions for taking a majority verdict were satisfied — in the circumstances it was open to trial judge to be satisfied of the requirements of s 55(2)(b) — leave to appeal allowed — appeal allowed — whether retrial or acquittal should be entered — notwithstanding the Crown having a reasonably strong case the cause of the error favours entering an acquittal — applicant acquitted

HIGH RISK OFFENDERS — preliminary hearing — objection to risk assessment report — whether risk assessment report complies with the requirements of the Terrorism (High Risk Offenders) Act 2007 (NSW) and s 79 of the Evidence Act 1995 (NSW)

SUCCESSION – FAMILY PROVISION – Claims for family provision order by two, now adult, children of the deceased, in separate proceedings – Each proceeding commenced outside the time prescribed by the Act for making the application – The Defendant, in each matter, a spouse of the deceased, the stepmother of each applicant – Deceased died leaving a Will in which the Defendant the sole beneficiary – Probate of the Will not sought – No actual estate out of which any order for provision could be made – The Defendant the proper person to represent the estate and notional estate of the deceased for the purpose of the proceedings - As Defendant does not consent, whether “sufficient cause” shown for making order extending time for making each application - No sufficient explanation given by either Plaintiff for not commencing proceedings within time – Order not made - In case that conclusion wrong, consideration also given, assuming, without deciding, order for provision were to be made, whether jointly held property which passed by survivorship to the Defendant should be designated as notional estate for the purposes of making an order for provision – Whether “other special circumstances” established – Designating order not to be made with the result that there is no actual or notional estate out of which order for provision may be made – Each of the proceedings is dismissed – The Defendant does not seek any order for costs even though each Summons is dismissed.

HIGH RISK OFFENDERS – Application for interim supervision orders – Application for mandatory psychiatric and/or psychological examinations – Long and substantial history of violent offending – Unacceptable risk of committing another serious offence – Dispute confined to conditions – Applications granted

CIVIL PROCEDURE – notice of motion – separate question - separate trial severing liability and quantum – whether severing of liability and quantum will create delay – application dismissed CIVIL PROCEDURE – notice of motion - cross-claim – whether cross-claim is arguable – leave granted to file cross-claim

EQUITY – interlocutory injunctions – application for freezing order – the plaintiffs bring proceedings against the defendant for misleading and deceptive conduct – the plaintiffs claim the defendant misled them into investing money in a foreign exchange investment scheme which the plaintiff claims was fraudulent – the plaintiffs allege the defendant benefited from the scheme – the defendant claims she was also a victim of the scheme, and was not an actor on its behalf – whether the circumstances are such that there is a danger of the defendant absconding or removing her assets out of the jurisdiction or disposing of them within the jurisdiction, or otherwise dealing with so that there is a danger that the plaintiffs, if successful, will not be able to have their judgment satisfied – whether a freezing order should be granted over the defendant’s assets and if so in what terms.

EQUITY — Resulting trusts — where first defendant purchased property using proceeds of bank loan plus funds paid by plaintiffs — where evidence of actual intention that plaintiffs’ payment was a loan by plaintiffs to first defendant — no resulting trust MORTGAGES AND SECURITIES — unregistered second mortgagee — order for judicial sale — whether mortgagee or mortgagor should be appointed to effect sale CONTRACTS — Proper construction of terms of deed of loan concerning rate of interest — no question of principle

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff was in custody for serious indictable offences when proceedings commenced – where proceedings commenced before leave was sought – where plaintiff alleged he was sexually assaulted by priest at the school he attended – leave granted

CONTRACTS – Construction – Interpretation –Meaning of the word “recommend” – Where the commercial context requires the recommendation of a tenant to involve more than finding or introducing one – Whether finding a witness unreliable affected the construction of the agreement CONTRACTS – Termination – Repudiation of contract – Whether there was a breach of an essential term amounting to repudiation of a deed

APPEALS – Procedure – Time limits – Extension of time – where default judgment entered for respondent for possession of land owned by applicant – where delay of three years since filing notice of intention to appeal – whether explanation for delay satisfactory – whether fairly arguable case – where applicant took issue with documents relied on in Statement of Claim – where default judgment as no defence filed – where applicant did not identify error with decision to enter default judgment – leave to extend time to move on Summons refused

CRIME – sentence – appeal against sentence – statutory sentencing discount – whether applied to indicative sentences – where no reference to discount in judgment as published – amendment to judgment 21 months after sentence imposed and 27 days after appeal raises ground of appeal – hyperlink to JusticeLink entry added suggestion 25% discount applied – unusual course – amendment to judgment ignored – ground of appeal upheld – applicant sentenced afresh

CRIME — federal offences — bribing a foreign public official — elements of offence — “obtain or retain business” — whether limited to directly obtaining or retaining business — where alternative purpose element of offence is “obtain or retain a business advantage” — whether meaning of “obtain or retain business” should be narrowed beyond ordinary meaning to allow effective application of “obtain or retain a business advantage”

CRIMINAL APPEAL – Application for leave to appeal out of time – Case management – Directions for the timely and efficient conduct of proceedings – Failure to prosecute appeal diligently– Failure to comply with direction to file a summary of submission not exceeding 200 pages – Proceedings dismissed but dismissal order not to take effect for a period to allow applicant further time to comply with direction

CRIME – appeals against conviction – death arising from assault by three accused – unreasonable verdict – murder – extended joint criminal enterprise – reasonable doubt on analysis of evidence of mental element – reasonable doubt that participants agreed to inflict grievous bodily harm – reasonable doubt that each participant contemplated that one of them might intend to inflict grievous bodily harm – conviction quashed – remitted for trial for manslaughter (by majority) – appropriateness of substituting verdict discussed; CRIME – appeals against conviction – directions on admissions – failure to direct adequately on evidence of consciousness of guilt – evidence not used in a manner requiring directions sought – grounds dismissed – use of evidence against deceased to prove tendency to act irrationally and violently when drug affected – open to judge to question whether tendency proved against deceased

CRIMINAL PROCEDURE – conviction appeal – extension of time – lengthy delay – whether possibility of substantial injustice if extension refused CRIMINAL PROCEDURE – multiple counts of sexual abuse of young girls – three co-offenders – tendency evidence against one co-offender relating to prior convictions for sexual offences with own daughter – application by applicant for separate trial refused – whether prejudice to applicant caused substantial miscarriage of justice

CRIME – appeal – appeal against sentence – multiple child sexual offences – where two child victims the natural children of the applicant – offending found to be at or below the mid-range of objective seriousness – whether starting points of indicative sentences too close to maximum penalty – whether aggregate sentence manifestly excessive – grounds of appeal directed at aggregate term on the basis that indicative terms were erroneously imposed not prohibited – starting points only two months short of the maximum penalty for two counts not appropriate given the applicant’s objective and subjective case – error in imposition of indicatives sentences found to have influenced the aggregate term imposed – appeal allowed – sentence imposed at first instance set aside – resentence

CRIME – Appeals – Appeal against sentence – Advocating terrorism and related offence of failing to lawfully store ammunition – Where notional starting point for ammunition offence equivalent to maximum penalty – Whether sentence manifestly excessive – Whether lesser sentence warranted CRIME – Appeals – Appeal against sentence – Advocating terrorism – Where advocating terrorism a minimum non-parole offence – Whether intensive correction order (ICO) an available sentencing option – Whether an ICO is a sentence or order that “involves” imprisonment for the purposes of s 20AB(6) Crimes Act 1914 (Cth) – Whether 20AB(1A) permits an ICO to be made for federal offence without first imposing a sentence of imprisonment pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

CRIME – appeals – appeal against conviction – one count of domestic violence related intimidation – multiple firearm offences – three related offences on a s 166 certificate – unreasonableness arising from inconsistent verdicts – physical and verbal domestic argument – where applicant waved a gun at the complainant – three other firearms found at the premises – evidence of an admission the applicant had possession of the guns – where applicant acquitted on some counts but not others – where complainant’s evidence essential to each count - whether acquittals can be explained without doubting complainant’s credibility – where jury rejected allegation by applicant of a set-up by the complainant – detailed evidence by the complainant of the guilty verdict count – minor discrepancies in complainant’s evidence – appeal dismissed CRIME – appeals – appeal against sentence – by applicant – whether sentencing judge failed to take into account general and specific deterrence – where applicant had mental health issues – where matters related to mental health and the reduced need for deterrence were put to the judge – where such matters were not considered – failure to give adequate reasons – ground upheld – no lesser sentence warranted – appeal dismissed

CRIMINAL PROCEDURE — Trial — murder — plea of guilty to charged alternative of accessory after the fact not accepted by Crown — whether accused to be put in charge of the jury on both counts

CORPORATIONS — Winding up — Statutory demand — Application to set aside – Where client serves statutory demand for an amount subject to a solicitors’ lien - Whether seriously arguable dispute as to whether the debt is due and payable to client– Whether some other reason to set aside statutory demand

CIVIL PROCEDURE — Interim preservation — Freezing orders — The plaintiff a building contractor entered into a construction contract with the first defendant (D1) a corporate entity — D1 is the trustee of a discretionary trust (the trust) owning property on which the construction works are to be carried out — D1 has an ABN in its own capacity — D1 as trustee of the trust has a separate ABN — The construction contract in its terms describes D1 (with the ABN in its own capacity) as being the contracting party and the standard terms provides (relevantly) that each person who executes the contract does so solely in its own legal capacity and not as agent or trustee of any other person — Four progress payments were made and paid, with the fourth payment being paid from an account referable to the trust — The plaintiff lodged an adjudication application — An adjudication was made and subsequently registered as a judgment in the District Court — Within three days of the adjudication determination the third defendant (D3) being the sole director and shareholder of D1 incorporated the second defendant (D2) — Attempts were made to execute on the judgment — Subsequently, D1 transferred the property to D2 — The plaintiff applied ex parte to the Court for freezing orders seeking final relief declaring the alienation of property void pursuant to s 37A Conveyancing Act 1919 (NSW) — Initial freezing orders were made and the matter adjourned — Freezing orders were continued and evidence served — The defendants’ evidence disclosed to the plaintiff the existence of the trust — Held that weak prima facie case established, balance of convenience favours plaintiff but plaintiff’s undertaking as to damages challenged on the basis of material adduced and the plaintiff failed to adduce further evidence going to capacity to meet undertaking — Freezing orders discharged LAND LAW — Alienation of property — Conveyancing Act 1919 (NSW), s 37A — Criteria summarised — Intent to defraud element explained PARTIES — The capacities of a trustee and the person of a trustee are different matters/concepts — A trustee in its personal capacity and in its capacity as a trustee remains the same legal person — Except as permitted by statute, whilst a trustee can contract in two different capacities it cannot contract with itself AGENCY — A legal person cannot act as agent for itself TRUSTS — Nature of a trust — The capacities of a trustee and the legal personality of a trustee are different matters/concepts — A trustee in its personal capacity and in its capacity as a trustee remains the same legal person — Except as permitted by statute, whilst a trustee can contract in two different capacities it cannot contract with itself CONTRACT — Parties — The capacities of a trustee and the legal personality of a trustee are different matters/concepts — A trustee in its personal capacity and in its capacity as a trustee remains the same legal person — Except as permitted by statute, whilst a trustee can contract in two different capacities it cannot contract with itself TRUSTS — Liabilities — A trustee is personally liable both for debts and liabilities incurred in the administration of the trust and those incurred in its personal capacity — Whether the trustee has incurred a liability in the performance of the trust depends on that being the correct legal characterisation of what occurred — That characterisation cannot be determined by the label or description given to the relevant conduct by the parties to it. Rather, it depends upon whether the conduct or action was, or must be taken to have been, undertaken in the proper execution of the trust TRUSTS — Reimbursement and exoneration — A trustee’s right of reimbursement and right of exoneration distinguished — A right of reimbursement may be subrogated to by both “trust creditors” and creditors of the trustee in its personal capacity — Where the trustee has a right of exoneration, only a trust creditor may have recourse to trust assets to meet the liability by subrogating the trustee’s right of indemnity CONSTRUCTION — The capacity in which a party contracts is determined objectively in the same manner as the contract itself is construed — Post-contractual evidence may not be used to identify the parties to a contract which is wholly written and which is not said to be a sham or to involve fraud or sought to be rectified in equity

APPEALS – procedure – leave to appeal against summary judgment of District Court Registrar - plaintiff/judgment debtor ordered to pay unanswered progress claim for building works undertaken by defendant/judgment creditor pursuant to s 15 of the Building and Construction Industry Security of Payment Act 1999 (NSW) – where summary judgment entered against plaintiff/judgment debtor due to absence of triable defence CONTRACTS – parties – agency – whether second plaintiff entered into contract with defendant for building works – where corporate agent empowered to enter into trade contracts on behalf of second plaintiff with prior approval – where no evidence that second plaintiff did not give prior approval in circumstances from which approval could be inferred – corporate agent acted with express actual authority to bind second plaintiff – no triable issue that second plaintiff was not a party to the contract BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – where defendant/judgment creditor was uninsured – statutory prevention to recover costs of work for failing to insure under s 94(1) not applicable to parts of the work that are not “residential building work” under the Act – where defendant/judgment creditor was unlicensed – where statutory consequences of being unlicensed do not include loss of entitlement to progress payments under s 15 of the Security of Payment Act – no triable issues arise due to the defendant/judgment creditor being uninsured or unlicensed

CONTEMPT – Civil contempt – Breach of orders – orders required the first defendant to take steps to give the plaintiff access to certain rural premises – motion for contempt brought by the plaintiff for alleged breach of the Court’s orders by the first defendant – whether the defendant denied the plaintiff access to the premises, or failed to take steps to give the plaintiff access to the premises – who was responsible for various obstructions to entry to the premises – whether an AVO existed which modified the Court’s orders – whether the defendant denied the plaintiff access to the premises on an ongoing basis – whether the contempt charges exhibit duplicity - whether the plaintiff’s allegations have been proved beyond reasonable doubt.

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff was in custody awaiting sentence for serious indictable offences at the time proceedings commenced – where proceedings commenced before leave was sought – where plaintiff alleged he was sexually assaulted by a teacher at school run by the defendant – leave granted

CRIMINAL LAW – procedure – investigation – application under s 35A Crime Commission Act 2012 to examine accused person concerning charged offences – where charged offences in a state outside New South Wales – whether s 35A applicable - public interest – prejudicial effect – whether supporting evidence establishes requisite belief and suspicion –conditions to minimise prejudice to accused person

CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — Whether summary judgment should be ordered in favour of plaintiff — Whether no defence reasonably arguable on facts — Where arguable defence that statutory right of rescission can be waived or contract for sale can be affirmed — Where not appropriate to make such a determination on summary judgment motion CIVIL PROCEDURE — Separate determination of questions — Where appropriate — Where pleadings had not closed — Where separate hearing would not narrow issues for trial — Where separate hearing could lead to extra delay and expense — Where separate hearing is not appropriate in the circumstances LAND LAW — Conveyancing — Contract for sale — Rescission — Where purchaser exercised call option to purchase residential property — Where purchaser seeks to exercise statutory right of rescission — Where basis for rescission turns on absence of swimming pool certificate — Whether there was a “swimming pool” under s 3 of the Swimming Pools Act 1992 (NSW) — Where vendors contend the purchaser waived the right to rescind — Where vendors contend the purchaser elected to affirm the call option and exchange contracts

PRACTICE AND PROCEDURE – Discovery – further and better discovery – whether discovery given was inadequate – whether reasonable search undertaken – whether defendant is in possession of relevant documents – whether the conclusiveness of the affidavit as to discovery can be challenged

CHILD WELFARE — adoption — adoption of child relative from Ghana — whether Court has jurisdiction to make order under s 23 of the Adoption Act 2000 (NSW) — whether Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption applies — where child has resided in Australia since February 2020 — whether child lost habitual residence in Ghana — whether child is non-citizen child for purpose of s 31 of the Adoption Act 2000 (NSW) — where child is over 12 but less than 18 years old and has given sole consent — where birth parents and Head of Ghana Central Adoption Authority have given consent — whether requirements under Adoption Act 2000 (NSW) satisfied — whether adoption order is in best interests of child — adoption order made — change of name approved

APPEALS – interlocutory appeal – leave to appeal – procedural order – notice to produce financial records – whether error demonstrated – whether issue of principle raised – purpose for which records sought not pursued – failure of judge to advert to lack of purpose – production otherwise not justified – practice of interlocutory stays likely to undermine statutory scheme BUILDING and CONSTRUCTION – adjudication of payment claim – payment of amount of adjudicator’s determination – injunction pending determination of contractual dispute – policy of Building and Construction Industry Security of Payment Act 1999 (NSW) – risk of insolvency of claimant – onus of proof – production of financial records of claimant

PARTNERSHIPS — Winding up — Accounts — Whether monies advanced were contributions made to the partnership then loaned to a partner, or a direct loan outside the partnership — Parties not manifesting legal sophistication — Application of Occam’s Razor APPEALS — From finding of fact — Proof of undocumented payments of large sums of cash is fraught — Inherent unlikelihood of payment using very large sums in physical cash for a commercial transaction APPEALS — From finding of fact — Contribution of a sum of $200,000 was documented — Does not matter whether the payments were made to assist in the purchase of one property or another, or made in cash or otherwise, where account is to be taken CONTRACTS — Remedies — Declarations — Pleadings — Claimed contractual entitlement to consultancy fees not pleaded nor an issue fairly raised in the proceedings

EDUCATION – financial assistance to non-government schools – entitlement conditioned on school not operating for profit – recovery of payments made while school operating for profit – recovery by reduction of future assistance LIMITATION OF ACTIONS – cause of action to recover money recoverable by virtue of an enactment – recovery by reduction of future entitlements – whether such recovery an “action” – whether extinguishment of statutory debt affects power to recover by reducing future payments STATUTORY INTERPRETATION – presumption that statutory scheme for recovery of over-payments constitutes a code

COSTS – where only a binary outcome possible in proceedings – winner takes all – where defendant/cross-claimant successful – whether plaintiff/cross-defendant should nonetheless only be liable for a proportion of defendant/cross-claimant’s costs

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff in custody for serious indictable offence – where proceedings commenced before leave was sought – where plaintiff claimed to have been sexually assaulted by school teacher – leave granted

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff in custody for serious indictable offence – where proceedings commenced before leave was sought – where plaintiff claimed to have been sexually assaulted by school teacher – leave granted

LAND LAW – possession of land – where plaintiff is the executor of deceased’s will – land and residence is the only asset in estate – where estate to be divided equally between plaintiff and defendant – no defence filed – plaintiff entitled to default judgment

BUILDING AND CONSTRUCTION – multi-storey residential development – dispute between developer and builder – whether there was an “arrangement” or “further arrangement” outside the contract – whether developer engaged in misleading or deceptive conduct – developer’s claim under “handwritten agreement” – whether developer’s final payment certificate effective – whether director of developer appointed as developer’s principal’s representative – purported variations – whether work in question was within scope of works under the contract EVIDENCE – witness evidence – interpreter – where interpreter reported that plaintiff’s director’s translator had advised director as to the evidence he should give in their native tongue during court adjournment – whether such conduct is established

PROCEDURE — Separate question — Oral application for determination of separate question relating to revocation of grant of Probate and a grant of letters of administration with the copy Will annexed to the Plaintiff — Whether suitable for separate determination — No dispute that the order for the hearing of the separate question should be made — Separate question ordered and determined SUCCESSION — EXECUTORS — REMOVAL AND DISCHARGE — REVOCATION OF PROBATE - Parties are siblings — Where the two Defendants are the substitute executors of the Will of the deceased — Deceased died in 1997 — Probate granted in November 2000 — Where the only significant asset of the deceased was a residential property — Where the Will required the deceased’s estate to be collected, debts, funeral, and testamentary expenses to be paid, and the balance of the estate to be divided equally between her 6 children — Where one of the Defendants resided in the real property until about 2019 — Plaintiff seeks revocation of grant of Probate and her appointment as administrator and other relief against executors — Lack of due and proper administration of the estate — First Defendant consents to order for revocation of Probate and appointment of the Plaintiff to complete the administration — Second Defendant not an active party in the proceedings and did not appear at the hearing — Revocation justified as executors failed to fully administer the estate — Order for revocation of grant, with fresh grant of letters of administration with copy Will annexed to the Plaintiff

HIGH RISK OFFENDERS — interim supervision orders — index offence relates to breach of interstate child protection prohibition order taken to be a NSW order by statute — interstate conviction for a serious sex offence — matters if established at the final hearing would justify the making of an extended supervision order — consideration of disputed conditions