Cases and authorities

CIVIL PROCEDURE – whether proceedings should be dismissed for want of prosecution with due dispatch

CORPORATIONS – Members’ rights and remedies – Register - Where no evidence that companies maintained registers of members – Whether the Court can make a declaration that the purported transfer and issue of shares are void and of no effect – Whether Court can order that the companies’ register of members be established and rectified CORPORATIONS — Members’ rights and remedies — Whether winding up on just and equitable grounds should be ordered

CRIME — sentence — manslaughter by unlawful and dangerous act — plea of guilty — historical offending in 1988 — punch by offender that caused victim to fall off nearby cliff — where offender did not seek assistance or alert authorities after victim’s fall — offender’s cognitive impairment did not affect objective seriousness of offending — serious instance of manslaughter — victim impact statements — victim’s family and partner experienced decades of grief and unanswered questions — offender’s youth, degree of cognitive impairment and violent, dysfunctional background at the time of offending both contributed to offending and reduced offender’s moral culpability — offender’s remorse given little weight due to cognitive impairments — “ceiling principle” — sentenced imposed not to exceed offender’s previous sentence for murder — sentencing principles as at the time of offending to be applied

CORPORATIONS – Corporations Act 2001 (Cth) ss 459H and 459S – winding up application where leave is sought by the defendant company to rely on grounds relied upon in an application by it for a Creditor’s Statutory Demand to be set aside – approach to such applications considered – HELD: leave refused and company to be wound up

NEGLIGENCE — Duty of care — single motor vehicle accident — employee driving home from successive 12 hour shifts at coal mine — employee sued employer for damages for negligence — scope of duty — whether duty extends to travelling home from workplace — whether duty owed by employer to insist on employee providing travel management plan for journey home NEGLIGENCE — Causation — whether accident caused by work-induced fatigue — whether rest break of 20 to 30 minutes would have eliminated risk of injury — whether plan would have been followed by employee

APPEALS – Leave to appeal – Whether leave required – Monetary threshold COSTS – Party/Party – General rule that costs follow the event – Proceedings discontinued or dismissed – Where applicant raised 66 grounds of appeal – Where Calderbank offer made by the applicant

CIVIL PROCEDURE – court administration – case management – where proceedings pending in Commercial List and Common Law Division arising out of same industrial accident – whether proceedings should be heard together – factors pointing in favour of concurrent hearing – possibility of inconsistent findings – other factors pointing against concurrent hearing – desirability that the two proceedings be case managed so as to avoid possibility of inconsistent findings

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime - restraining order – ancillary orders – ex parte - orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining order – ancillary orders – ex parte – orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining order – ancillary orders – ex parte – orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining order – ancillary orders – ex parte – orders made

CIVIL PROCEDURE — hearings — consolidation of proceedings — claims made by 54 separate doctors concerning payments due to them for unpaid, un-rostered overtime and unpaid compensation for meal breaks which could not be taken — where one proceeding concerning 20 of those doctors commenced in 2021 — where three further proceedings concerning the other doctors each commenced in 2022 — whether to consolidate proceedings — whether consolidation would be pragmatically the most efficient course consistent with the requirements of fairness — consolidation ordered

EQUITY — Trusts and trustees — Declaration of trust — Construction of a will — Where executrices sought declarations — Whether clause in a will created an express trust — Where clause claimed the deceased held property on trust for deceased’s mother — Where deceased’s mother a possible beneficiary under a vendor purchaser constructive trust — Where no evidence of any uncompleted sale contract — Where the mother in any event disclaimed the beneficial interest — Where the only contradictor would be the deceased’s former wife — Where the deceased’s former wife consents to the declarations sought

HIGH RISK OFFENDER – Final hearing – Application for continuing detention – serious violent and sexually violent offender – history of random attacks on women and vulnerable persons – lack of insight – psychopathic traits – unwilling to acknowledge past offences – community safety paramount concern – CDO imposed

CIVIL PROCEDURE – representative proceedings in Hong Kong – equitable discovery in aid of Hong Kong proceedings sought from defendant banks

EQUITY – fiduciary obligations – purchase of property by entity associated with director – where purchase funded by company and by borrowings – where property then leased to company - whether director of company breached no conflict and no profit duties – whether knowing receipt of trust property – whether remedial constructive trust is established – whether cause of action is time barred TORTS – Negligence – where director caused the company to leave a large industrial property dormant – where director did not wind up the company and paid himself a salary and caused the company to continue to pay rent to a company associated with him while trading at a loss - whether director breached his general law duty of care and diligence – whether cause of action is time barred PROCEDURE - fraudulent concealment – where Plaintiff relied on s 55 of the Limitation Act 1969 (Cth) to overcome limitation defences – whether knowledge of claims should be imputed to the corporate Plaintiff CORPORATIONS – Directors’ duties – whether director should be relieved from liability under s 1318 of the Corporations Act 2001 (Cth)

CONTRACTS — express terms — incorporation of terms — whether purchaser’s standard terms and conditions incorporated by reference into contract CONSUMER LAW — sale of goods – respiratory ventilators – whether goods were accepted — whether there was a sale by description – whether purchaser made known particular purpose for which ventilators were required – whether there was an implied condition as to fitness for purpose – whether ventilators were suitable for use in any clinical setting CONSUMER LAW – misleading or deceptive conduct – whether vendor made misleading or deceptive representations in ventilator user manual brochure – whether vendor provided purchaser user manual brochure as an intermediary or principal

MENTAL HEALTH – application for extension of status as forensic patient – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – final order – where three prior orders made over a 6 year’ period – whether defendant continues to pose unacceptable risk of harm to others – no substantial change in defendant’s condition – whether defendant could be managed by less restrictive means – length of order – extension granted

CRIMINAL LAW – sentence – aggravated dangerous navigation occasioning death – prosecution appeal against asserted inadequacy – intensely sad case – death of four year old child – where kayak capsized – respondent extremely intoxicated – child not wearing life jacket – whether judge erred in assessment of objective criminality – erroneous use of personal features of the respondent to reduce assessment from “high” to “mid-range” – parsing of terminology – utility of placing offences on putative scale of objective seriousness – applicability of guideline judgment on dangerous driving to kayaking accident – where error established but sentence appropriate – discretion to dismiss prosecution appeal

CRIME – appeals – interlocutory appeal by Crown against pre-trial ruling on significant probative value of tendency evidence – standard of review by appellate Court – whether correctness test or House v The King standard to be applied CRIME – appeals – interlocutory appeal by Crown against pre-trial ruling on admissibility of tendency evidence – evidence of tendency to have a sexual interest in children and to act on that interest – ss 97 and 97A of the Evidence Act considered – whether the presumption of significant probative value rebutted – whether the significant probative value of evidence outweighed by unfair prejudice to respondent

CRIME — APPEALS — Appeal against sentence — Attempting to import a commercial quantity of a border-controlled drug — Failure to take into account a willingness to facilitate the course of justice — Whether a finding of involvement at ‘an intermediate level’ was open — Whether the sentencing judge erred in the assessment of objective seriousness of the offence — Parity

HIGH RISK OFFENDERS — Extended Supervision Orders — Preliminary hearing

COSTS – application for lump sum costs order – two directions re joinder of party – submissions that Court lacked jurisdiction and insufficient material to make order – jurisdiction to make order in relation to “party” to costs order and/or motion, s 98(4) of the Civil Procedure Act 2005 (NSW) – sufficient material – order made – discount to claim

HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for adjournment of final hearing – xxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxx

CIVIL PROCEDURE — Registrars — review of Registrar’s decision — where Registrar declined to extend time to defendant to serve further expert reports and amend Defence — where no trial date set — whether plaintiff would be prejudiced — whether to set aside Registrar’s decision — Registrar’s decision set aside

CORPORATIONS - Statutory demand - Application to set aside creditor's statutory demand - Whether there is a genuine dispute about the existence or amount of the debt - Whether it is open to the defendant to support the statutory demand on a basis other than that referred to in the demand and accompanying affidavit

CIVIL PROCEDURE – Application for leave under s 4 and 5 of the Felons (Civil Proceedings) Act 1981 – claim for damages following an alleged sexual assault by officer - Leave granted nunc pro tunc

CIVIL PROCEDURE - appeal from a decision of registrar pursuant to Uniform Civil Procedure Rules 2005 – medical examination of a plaintiff – plaintiff claims to be totally and permanently disabled within the meaning of two insurance policies under which he claims to be entitled to benefits – plaintiff required to attend medical examination in July 2022 – plaintiff’s legal representatives objected to holding the medical examination but it proceeded – the plaintiff presented in person to the medical examination but was unable to participate – medical expert terminated the examination – plaintiff refuses to undertake further medical examination – defendants seek a stay in the event the plaintiff does not undertake further medical examination – whether the plaintiff should be required to undertake further medical examination.

ADMINISTRATIVE LAW – application to update gaming machine entitlements – conditions imposed on hotel licenses – whether decision maker exercising power under Gaming Machines Act 2001 (NSW) is empowered to impose conditions pursuant to another statute – whether purported exercise of discretion by the Independent Liquor and Gaming Authority to impose conditions was ultra vires – whether gaming machine entitlements are regulated solely by the regime set out in the Gaming Machines Act or, whether s 53 of the Liquor Act 2007 (NSW) provides the Independent Liquor and Gaming Authority additional discretionary power to impose other conditions – Gaming Machines Act and Liquor Act are related but regulate different subject matter – no overriding direction in s 53 of the Liquor Act – Gaming Machines Act and Gaming Machines Regulation 2019 (NSW) contain standalone regime – decisions of the Independent Liquor and Gaming Authority quashed.

SUCCESSION — Family provision — Large estate ($14.4M - $17.4M) — Claim by a widower of a lengthy marriage. Lump sum provision given to widower in lieu of $1M trust fund under Will allowing for purchase of accommodation and availability of income on balance of trust fund monies after cost of accommodation — Provision sought to cover claims for accommodation, and a lump sum for contingencies and to address a potential contingent liability arising from a potential payback to Centrelink of an amount arising from receipt of a disability support pension — Determination that widower not given adequate provision and order made for provision in lieu of trust fund provisions — Claim for a sum to address potential contingent liability rejected SUCCESSION — Family provision — Discussion of statutory scheme and nature of the evaluative task — What is “proper provision” is not limited by some fixed concept or defined content. It requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances — The Court is left to form opinions on the basis of its own general knowledge and experience of current social conditions and standards. In each case the Court applies a standard appropriate to all the circumstances of the case SUCCESSION — Family provision — Fact finding in family provision cases — Difficulties of fact finding in respect of historical family disputes — Little point in attempting to make concluded findings about matters of only marginal significance or otherwise irrelevant — However, the Court is assisted by cross-examination on significant matters regarding contributions or significant claims for provision SUCCESSION — Family provision — Discussion of approach to applications involving large estates characterised by no competing claims SUCCESSION — Family provision — Discussion of approaches to large “windfall” increase in value of main asset of the estate SUCCESSION — Family provision — Discussion of relevance of nature of marriage to assessment of family provision claims SUCCESSION — Family provision — Discussion of whether any differing approach applies to family provision claims by widowers as distinct from claims by widows EVIDENCE — Discussion of provisions of evidentiary effect of death certificate pursuant to provisions of Births, Deaths and Marriages Registration Act 2005 (NSW) STATUTORY INTERPRETATION — Discussion of provisions of evidentiary effect of death certificate pursuant to provisions of Births, Deaths and Marriages Registration Act 2005 (NSW) SUCCESSION — Family provision — Discussion regarding obligations of disclosure in family provision cases including early disclosure of information and obtaining Centrelink records. Distinction between “full and frank disclosure” and disclosure for the purposes of assessing the family provision claim SUCCESSION — Family provision — Discussion regarding claim for a potential contingent liability for Centrelink debt

LAND LAW — Strata title — Strata managing agent – where three owner corporations of Finger Wharf development at Woolloomooloo passed resolutions terminating appointment of strata managing agent and appointing new one – where strata managing agent is different to managing agent appointed for Wharf as a whole by building management committee as a result – where clause of strata management statement (“SMS”) required owners’ corporations to “appoint and retain” the same strata managing agent as the building management committee appoints as strata manager for Wharf as a whole – whether clause of SMS inconsistent with Strata Schemes Management Act 2015 (NSW), not authorised by Strata Schemes Development Act 2015 (NSW) or uncertain

ADMINISTRATIVE LAW – jurisdictional error – consent of parties – agreed facts – Court satisfied of error – orders in the nature of certiorari granted

CIVIL PROCEDURE — hearings — adjournment — where previously unrepresented plaintiff has now the benefit of pro bono legal representation — where new legal team seek to conduct further investigations before trial — adjournment granted

CRIMINAL PROCEDURE – trial – murder – application for certificate under Suitors’ Fund Act 1951 – application following discharge of jury - discharge was not attributable to the act, neglect or default of the accused or her counsel or solicitors – application allowed

CHILD WELFARE — Jurisdiction — Children’s Court of New South Wales — Care order — Variation —Where children outside of New South Wales

EQUITY — trusts and trustees — application by four plaintiff trustees for orders conferring powers — where applicable law of trusts is that of Victoria or Queensland — whether proposed dealing falls within the relevant provisions — whether proposed dealing is expedient — whether dealing could be effected without the assistance of the Court

CRIMINAL LAW – trial proceedings – murder – application for trial by judge alone – application within 28 days of the day the matter fixed for trial –leave sought – where previous application refused – where application sought after dismissal of first jury – media reporting on previous trial – delay and efficiency – partial defence of substantial impairment to be raised – leave refused

PRACTICE AND PROCEDURE – Interlocutory injunctions – applicant companies in provisional liquidation – provisional liquidators contend that, if companies are wound up, liquidators may cause one of the companies to bring a claim against its secured creditor alleging that no moneys are owed to the creditor or secured by the creditor’s registered mortgage over the company’s real property – creditor in the process of selling property as mortgagee in possession – provisional liquidators applied in the name of the companies for interlocutory injunctions restraining creditor from disposing of sale proceeds and requiring creditor to pay sale proceeds into court – where interlocutory injunction sought rather than freezing order – potential future claim did not raise serious question to be tried – discretionary factors would have favoured refusal of injunctive relief in any event

CONTRACTS — brothers undertake property development through two companies — defendant company owns land and provides funds — related company is project manager — oral agreement — project manager charges $14.8M fee for construction including cost of build — fee recorded in “financial records” of both companies — defendant claims tax deduction but does not pay fee — project manager does not remit GST on fee — project manager wound up by ATO — brothers’ explanation of arrangement logically uninviting — post-contractual conduct — claim in debt successful. SET-OFF — whether right to set-off loans made by defendant — contractual right of set-off — principles at [182]-[184] — whether right of set-off inferred from conduct — oral agreement — post-contractual conduct — no contractual right of set-off. RESTITUTION — Quantum meruit — principles at [208]-[210] — defendant freely accepted benefit of project manager’s services — reasonable person would have realised project manager would expect to be paid — unjust for defendant to retain benefit without making restitution.

CIVIL PROCEDURE – Appeal – Application for leave to appeal against summary dismissal of proceedings – Application for leave against costs orders – where applicant has history of instituting proceedings – where no error shown

CORPORATIONS LAW – liquidator – orders pursuant to s 90-15 of Sch 2 to the Corporations Act 2001 (Cth) – whether liquidator justified in proceeding on basis that company assets were not held on trust – scope and nature of power – whether errors in evaluation of evidence – appeal dismissed

ENVIRONMENT AND PLANNING – Development application – Where parties settled earlier proceedings relating to breach of terms of development consent by consent orders – Where appellant now seeks to alter designated development without obtaining further development consent – Whether consent orders themselves render development “approved” – Whether consent orders merge in prior development consent so as to render development “approved” – Held that development not “approved” ENVIRONMENT AND PLANNING – Words and phrases – Approved development – Environmental Planning and Assessment Regulation 2000 (NSW) Sch 3, Pt 2, cl 35 JUDGMENTS AND ORDERS – Classification of orders – Classification of consent orders – Judgments in rem – Judgments in personam – Whether consent orders settling proceedings as to breach of terms of development consent operate in rem for the purpose of rendering development an approved development – Held that consent orders do not give rise to judgment in rem

CONTRACTS – unconscionable conduct – special disability or disadvantage – unjust contracts – Contracts Review Act 1980 (NSW) (“the Act”) – where real property was transferred to defendants by the plaintiff without monetary consideration – where plaintiff seeks to have the transfer to the defendants declared void or set aside on various grounds – whether transfer is an unconscionable dealing – whether transfer should be held to be an unjust contract within the meaning of the Act – whether defendants committed a breach of trust by failing to establish a family trust – whether transfer should be declared void on the ground of non est factum – whether the transfer was procured by fraud – held that the plaintiff was not under any special disability which was taken advantage of at the time of the transfer – held further that the transfer was not unjust in the circumstances relating to it at the time it was effected – held further that the plaintiff did not raise the topic of establishing a family trust with the defendants and no agreement to establish a family trust was reached between the parties – held that the plaintiff was well aware of the nature of the transfer to the defendants – allegations that transfer was procured by fraud rejected – held that defendants as registered proprietors of the property were entitled to sell the property and are entitled to the proceeds of sale

Summary dismissal – no question of principle

Summary dismissal – no question of principle

CRIMINAL PROCEDURE — murder — application for trial by judge alone — whether trial by judge alone is in the interests of justice — central issue is whether the accused has a mental health impairment and could satisfy the defence or a substantial impairment partial defence — accused’s drug use, immoral conduct and criminal conduct said to be intertwined in relevant records

BUILDING AND CONSTRUCTION — Contract — Recourse to unconditional bank guarantees — Application by contractor for interlocutory injunction to restrain recourse to security — Construction of security clause — Principal able to call on guarantee in the circumstances — Contractor unable to demonstrate unconscionable conduct

COSTS – Costs order sought in interlocutory proceedings - Notice of motion filed by non-party to set aside subpoena – No dispute that the Defendants, who had issued and served the subpoena, would pay the reasonable expense incurred in complying with the subpoena – Before notice of motion determined by, and after discussion at a directions hearing with, the Court, the scope of documents to be produced identified in the subpoena reduced – Therefore unnecessary to determine notice of motion to set aside subpoena – No evidence of any attempt, by either party, thereafter, to resolve costs of notice of motion despite encouragement from the Court that they do so considering s 60 of the Civil Procedure Act 2005 (NSW), with the result that more substantial costs, including costs of additional evidence and having a contested hearing, incurred – Exercise of Court’s discretion - Only partial costs order made in favour of the Applicant – Otherwise no order as to costs

INSURANCE — Claim — Plant and equipment policy — Non-disclosure and misrepresentation — insurer entitled to reduce liability to nil

SUCCESSION – Adult children appointed as substitute executors - Probate of the Will not being sought by one – Application brought by other for grant of administration with the deceased’s Will annexed to be made to independent administrator – Where due and proper administration of deceased’s estate not able to be completed – Respondent is non-active party who has rarely appeared, who has not filed an appearance, or any affidavits and who did not appear at the hearing – Court concerned with the due and proper administration of the deceased’s estate according to the terms of her Will and to promote the orderly, efficient, and proper, administration of the estate according to the terms of the Will – Application granted