Cases and authorities

CIVIL PROCEDURE — subpoenas — to produce documents or things — appellant seeks leave to issue subpoenas requiring respondents to produce for inspection email accounts and computer devices — whether sought for legitimate forensic purpose — where primary purpose is to identify the person accessing online accounts and digital information rather than to prosecute appeal — no question of principle

CIVIL PROCEDURE — Court of Appeal — Stay of proceedings — Stay pending application for special leave to appeal to High Court — Nature of test — Requirement of “exceptional circumstances” — Applicant need not show likely to obtain special leave — Sufficiently significant prospects established to warrant a stay in all the circumstances — Stay granted

CONSUMER LAW – Misleading or deceptive conduct – Passing on misrepresentations –Where representations made in drawdown and rollover notices – Whether the representations were false at the time of the notices – Whether employees are personally liable for authorising the notices containing the misrepresentations CONTRACTS – Construction – Interpretation – “change in financial position” – Whether decrease in bid value of asset was a material change in financial position –Whether inception of Going Concern Note a change in financial position – Whether “financial position” can be interpreted as limited to accounting standards CORPORATIONS – Insolvency – Whether company insolvent – Application of test under Corporations Act 2001 (Cth) – Whether practice of company regarding debt arrangements relevant – Whether cyclical nature of business relevant – Where negotiations occurred between borrowing company and (perhaps acersecomic) lenders regarding a “haircut” to debts owed CORPORATIONS – Voluntary administration – Power to appoint administrators under Corporations Act 2001 (Cth) s 436A before company becomes insolvent – Resolution to appoint administrators – Whether company insolvent at that time COSTS – Party/Party – Bases of quantification – Indemnity basis – Relevant considerations in relation to an indemnity costs order NEGLIGENCE – Causation – Misrepresentation – Whether reliance on misrepresentation causing loss NEGLIGENCE – Duty of care – Novel categories – Whether a company as borrower owed a duty of care to its lenders NEGLIGENCE – Liability of accessories in tort – Liability of employee where making representations on behalf of employer – Where employee not acting in a personal capacity NEGLIGENCE – Misleading or deceptive conduct – Joint tortfeasor – Where standard of knowledge is “knowingly concerned”

LAND LAW – caveats – removal of caveat – removal by order of court

EVIDENCE – admissions – criminal proceedings – telephone intercept recordings – admissions made on the telephone – conversations in Tagalog and translated into English – admissions not regarded as unambiguous confessions – probative value – assessing probative value – assessing the danger of unfair prejudice – significance of expert’s opinion EVIDENCE – tendency evidence – criminal proceedings– tendency to engage in violence towards the deceased while in a relationship – tendency to create or recount false stories – tendency to engage in violence in previous relationship – hearsay objection – where evidence to be relied upon for a non-tendency purpose – where sought to be relied upon for count 1 and count 2 – significant probative value

CRIMINAL PROCEDURE – suppression and non-publication orders – application for suppression orders – concealing covert strategy and methods used by undercover police officers – protecting identity of undercover police officers – extending open justice principles as far as possible within legislative constraints – suppression orders granted

LOCAL GOVERNMENT – council lands – land acquired in 1965 by resumption under the Local Government Act 1919 for use as a carpark – whether “subject to a trust for a public purpose”

HIGH RISK OFFENDER – preliminary hearing – application for Interim Supervision Order – application for mandatory psychiatric and/or psychological examinations – serious sex offence – dispute confined to conditions – application granted

CIVIL PROCEDURE – Cross-claims – Against plaintiff

CRIME – Sentence – Constructive murder– Juvenile at time of offending – plea of guilty – totality and parity – special circumstances

CRIMINAL PROCEDURE – evidence – expert evidence – voir dire – expert report – objection EVIDENCE – admissibility of evidence – forensic pathologist – whether stab wound was self-inflicted or inflicted by another – whether expert can give evidence about likelihood – objection upheld

CIVIL PROCEDURE – application for permanent stay of proceedings – historical child sexual abuse – alleged perpetrator deceased in 2022 – whether the defendant undertook all reasonable enquiries prior to alleged perpetrator’s death – whether proceedings would be oppressive or bring administration of justice into disrepute

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

NEGLIGENCE – General principles – Duty of care – Foreseeability of risk – Causation – Personal injury – Expert medical evidence – Liability – Contributory negligence – Liability not found.

COSTS – whether offer of compromise limited to costs contained requisite degree of compromise COSTS – whether costs ought be ordered in a gross sum COSTS AGAINST LEGAL PRACITIONER – whether legal practitioner ought be ordered to indemnify plaintiff for costs for which the plaintiff is liable to the defendant

HIGH RISK OFFENDERS – preliminary hearing – interim supervision orders not opposed – risk of repeat serious violence offending

SUCCESSION — Contested application for administration of the intestate estate of the deceased, – Whether the Plaintiff a spouse of the deceased, being a party to a domestic partnership with him immediately before his death – Whether de facto relationship had ended prior to deceased’s death – Meaning of breakdown of de facto relationship SUCCESSION – FAMILY PROVISION - Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 by Plaintiff – Claim by Plaintiff under s 57(1)(e) or s 57(1)(f) of Succession Act – Each ground of eligibility disputed – Whether factors warranting the making of the application – If not the spouse of the deceased, no provision made for Plaintiff under the operation of the rules of intestacy – Whether adequate and proper provision not made for the Plaintiff and, if not, the nature and quantum of the provision to be made for her Order for provision made

COSTS — Civil Procedure Act 2005, s 98(4)(c) — application by plaintiff and first defendant for gross sum costs orders against the second defendant — where indemnity costs order had been previously been made against the second defendant — whether appropriate to make gross sum costs order — where second defendant did not oppose the making of a gross sum costs order but sought a discount on the claimed costs — gross sum costs order made — no discount applied on the claimed costs — order against the second defendant for costs of the motion seeking the gross sum costs order also made

CONTRACTS — Construction — Interpretation — Expression “Base Date Index Value” — Where expression not defined in the Contract — Where definition of “Base Date” not determinative — Where formulae construed as a whole in the context of the Contract

COSTS – assessment – jurisdiction of costs assessor to make binding finding as to liability to pay costs – effect of finding as to breach of disclosure obligations by applicant for assessment – effect of certificate determining amount of costs payable – whether finding that costs due and payable COSTS – disclosure obligations – costs agreements – agreement between law practices – payment contingent on solicitor being funded by client – barrister’s disclosure obligations to solicitor – barrister issued invoice for amount grossly in excess of costs estimate – contravention of disclosure obligations – costs agreement void – effect on contingent liability – statutory protection from liability for more than due under void contract – effect of s 185(2) of Legal Profession Uniform Law (NSW) JUDGMENTS AND ORDERS – certificate of determination of costs – effect of filing of certificate and entry as judgment of court – whether taken to be a judgment of that court if no liability to pay fees –whether judgment entered irregularly, illegally or against good faith – whether judgment given in absence of a party

CIVIL LAW – appeal from the Local Court – whether successful plaintiff should have an order for costs – moment of optimism – parties unable to agree – fairness in the circumstances – no substantial question of principle – cost orders made

PROBATE AND ADMINISTRATION – Application to amend Probate parchment to exclude the address of one of the executors to whom Probate was granted

GUARANTEE AND INDEMNITY – contract of guarantee – unincorporated association – whether guarantee had contractual effect – whether creditor engaged in unconscionable conduct for the purposes of s 12CB of the Australian Securities and Investments Commission Act 2001 – whether operative term of guarantee unfair for the purposes of s 12BF of the Australian Securities and Investments Commission Act 2001 – whether guarantee an unfair contract for the purposes of the Contracts Review Act 1980

TAXATION – agreement between landowner and developer preserving call options previously granted to developer to acquire land in stages, granting rights to developer to obtain exclusive possession of parcels of the land for the purpose of development without exercising those call options and granting other extensive rights to developer to develop the land – landowner entitled to be paid a sum determined in accordance with an agreed methodology for the parcels of land that the developer acquires or takes exclusive possession of the purpose of the development project – landowner entitled to terminate the agreement and exercise step-in rights if developer commits an event of default – whether the agreement includes a clause recording the landowner’s acknowledgment and agreement that the developer “has a beneficial and equitable interest in” the land – whether the agreement effected or evidenced a declaration of trust within the meaning of s 8 of the Duties Act 1997 (NSW) in respect of the land – whether requisite intention to create express trust – held that agreement did not effect or evidence a declaration of trust in respect of the land. CONTRACTS – interpretation – whether parties can be taken to have created an express trust in respect of the land having regard to the language of the agreement and other agreements that the parties entered into at the same time, the nature of the transactions and the circumstances attending the parties’ relationship – whether permissible to have regard to clause in agreement expressly disallowing any intention to create a relationship of trustee and beneficiary.

COSTS — Costs on appeal — Where appeal allowed in part — Apportionment of costs where mixed outcome on appeal COSTS — Costs at first instance — Re-exercise of costs discretion where different outcome on appeal — Where finding by primary judge of disentitling conduct by successful appellants — Where causation argument not pleaded or put in manner it succeeded on appeal

PRACTICE AND PROCEDURE – proceedings commenced by plaintiff in this Court for specific performance of agreement pursuant to which defendants promised to transfer certain real property to the plaintiff – where that agreement included an agreement to submit to exclusive jurisdiction of the courts of New South Wales - where defendants are former husband and wife engaged in ongoing adjustive property proceedings under the Family Law Act 1975 (Cth) in the Federal Circuit and Family Court of Australia (Division 1) – where plaintiff is not a party to the family law proceedings – where defendant wife has filed points of claim in the family law proceedings seeking to set aside the agreement that is the subject of the proceedings in this Court and has applied to join the plaintiff as a respondent to the family law proceedings – where the plaintiff had foreshadowed the commencement of proceedings in this Court before the defendant wife filed the points of claim and joinder application in the family law proceedings on 6 and 7 October 2022 – where joinder application had still not been heard by the time the plaintiff commenced the proceedings in this Court on 13 February 2023 – where the defendant wife applied to stay the proceedings in this Court pending the determination of joinder application in the family law proceedings on the basis that the proceedings in this Court were an abuse of process or, alternatively, on the basis of forum non conveniens – where the evidence adduced on the stay application did not disclose a proper basis for joinder of the plaintiff to the family law proceedings – application for stay refused.

COSTS – Costs of interlocutory applications

PRACTICE AND PROCEDURE – application for extension of time for service of Originating Process despite non-compliance with Uniform Civil Procedure Rules 2005 (NSW) r 6.2(4) and r 2.7 of the Supreme Court (Corporations) Rules 1999 (NSW) – where delay in serving Originating Process – where prejudice to several Defendants has occurred as result of delay – whether the proposed Statement of Claim referred to in the Originating Process adequately identifies the case the Defendants must meet – whether issue estoppel prevents that case being brought against financier Defendants.

ADMINISTRATIVE LAW – Review of medical assessment by Appeal Panel – Judicial review of Appeal Panel Decision – consideration of nature of appeals from medical assessor to Appeal Panel – fresh evidence before Appeal Panel – whether worker had reached maximum medical improvement

CIVIL PROCEDURE – pleadings – whether pleadings disclose a reasonable cause of action – pleadings struck out

CRIME — the accused’s diagnosis of schizophrenia was not in dispute — whether the accused was entitled to the mental health impairment or cognitive impairment defence — whether the accused could reason with a moderate degree of sense and composure regarding the wrongfulness of his acts — the application of the mental impairment defence required consideration of the circumstances as a whole — held because of symptoms of his schizophrenia the accused could not reason with a moderate degree of sense and composure for the aggravated attempted armed robbery count and the murder count CRIME — attempted armed robbery with an offensive weapon — bizarre modus operandi in the execution of the robbery and in the accused’s behaviour throughout, before and after the attempted robbery CRIME — murder — following an altercation the accused used a knife to fatally stab the deceased — whether this conduct could be separated from his schizophrenia such that he was not entitled to the mental health impairment defence — held the attack on Mr Palmer was a product of the accused’s psychosis

COMMERCE — restraint of trade — validity and reasonableness — length and scope of restraint — whether restraints void — whether length of restraint reasonable

COSTS – costs assessment – specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – protracted legal proceedings between the plaintiff estate and three defendants – the proceedings now continue only as between the plaintiff and the second defendant – the first defendant is bankrupt and the third defendant, a company, is in liquidation – general costs orders have been made in the second defendant’s favour against the plaintiff estate – particular costs orders have been made in favour of the plaintiff estate against the second defendant – whether the evidence advanced on behalf of the second defendant is sufficient to allow s 98(4)(c) orders to be made – what specified gross sum orders should be made instead of assessed costs in favour of each of the plaintiff and the second defendant – whether any gross sums fixed should be set-off against one another.

CORPORATIONS - managed investment scheme - thoroughbred horse investment schemes - whether schemes were managed investment schemes for purposes of s 9 of Corporations Act 2001 (Cth) - whether contravention of s 601ED by operating unregistered scheme - whether exemptions under s 1012E established - where primary judge made qualified factual findings as to extent of appellant's involvement, limited to sale of interests in horses for purpose of racing competitively - where no notice of contention - scheme as found by primary judge not a managed investment scheme - other challenges dismissed

LAND LAW – caveats – application for extension of caveat – cross-application for compulsory withdrawal of caveat – property acquired by defendant on behalf of plaintiff and on terms that plaintiff would pay for mortgage and holding costs – dispute between plaintiff and defendant about payment – defendant enters into contract to sell property to third party – prima facie case – delay – balance of convenience – third party rights – application for extension refused and caveat removed

CRIMINAL LAW – murder – stabbing – special verdict – mental health impairment – where victim and accused took drugs together – where accused formed delusional belief that victim poisoned him – where parties agree that defence of mental impairment is established – evidentiary hearing – hearing conducted before trial commenced – procedural provisions – where accused made repeated complaints of physical symptoms and belief that victim tried to kill him – opinions expressed by psychiatrists retained by both parties – joint opinion that accused suffered mental impairment and did not know his actions were wrong – special verdict entered – consequential orders – receipt of victim impact statement – privacy and non-publication order

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

CRIME – Sentence – Constructive murder – Offender pleaded guilty – totality and parity – special circumstances

CRIMINAL LAW – inquiry into convictions relating to sexual and indecent assault against daughter – self represented at trial – judge alone trial – alleged breaches of procedural fairness – whether the Dietrich principle enlivened – alleged breaches of prosecutor’s duties – no doubt or question as to applicant’s guilt, any mitigating circumstances in the case or any part of evidence in the case – application refused

SUCCESSION — Contested probate — Testamentary capacity — Lack of knowledge and approval — Significant change in nature of will — Suggestion of hepatic encephalopathy — Dispute about deceased’s hearing capacity — Dispute about deceased’s ability to understand Mandarin EVIDENCE — Standard of proof — Civil cases — Principle in Briginshaw v Briginshaw — Nature and strength of evidence required to establish a fact depends on nature of fact and on context in which fact sought to be proved — No general requirement of a higher degree of satisfaction in cases of contested probate

CRIME — Appeals — Appeal against conviction — child sex offences — unreasonable verdict — whether open to jury to believe complainant — inconsistency in evidence — delay in reporting CRIME — Appeals — Appeal against conviction — whether trial judge erred in form of Liberato direction CRIME — Appeals — Appeal against sentence — applicant previously sentenced in Local Court for offences against complainant — whether trial judge erred in application of totality principle

APPEAL – Appeal from Local Court to Supreme Court – Local Court Act 2007 (NSW) ss 39(1) and 40 – Local Court proceedings concerning rental arrears –whether the Covid-19 regulations were raised as a defence to the proceedings in the Local Court – whether good reason exists for the applicant failing to attend court – where deficiencies exist in appellants evidence – summons dismissed

COSTS — historical sexual assault claim – where judgment amount was close in value to offer of compromise made before the hearing – whether defendant entitled to rely on its offer of compromise – whether plaintiff should be entitled to indemnity costs based on defendant’s conduct

CRIMINAL LAW – murder – trial by judge alone – not guilty plea entered – accused and deceased were neighbours – difficult relationship between accused and deceased – missing body – publicity surrounding the trial – local sighting of bone on property – kangaroo tailbone or human backbone – deceased skull fragments found during trial - witnesses that might be involved in the alleged crime – inconsistent versions between key crown witnesses – key witnesses affected by drugs and alcohol on the night in question – benefits received for cooperation – listening device and surveillance recordings – not guilty verdict

CONTRACTS – formation of contracts – agreement – intention to make concluded bargain – lessee sought to obtain a new five-year lease with lessor following expiry of the former lease – whether the conduct of the parties exhibits an intention to be immediately bound by the terms of a new lease – consideration of the written communications between the lessee and the lessor’s managing agent – consideration of the conduct of the parties following the alleged formation of the agreement – held that the overall conduct of the parties does not reveal an intention to be immediately bound by the terms of a new lease – existence of agreement for a new lease not established

STATUTORY APPEAL — Appeal from decision of the Local Court — Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(b) — where plaintiff sought leave to withdraw guilty plea for offence of larceny as a bailee before Local Court — leave refused — issues of apprehended bias and procedural fairness — whether to grant leave to appeal and remit matter to Local Court as parties agreed — leave granted COURTS AND JUDGES — Bias — Apprehended bias — pre-existing association between Magistrate and person involved in proceedings — where need for recusal earlier accepted — reasonable apprehension of bias established

HUMAN RIGHTS — Discrimination — Grounds — Racial discrimination — where plaintiff lives in premises managed by defendant — where plaintiff alleges violations of Anti-Discrimination Act 1977 (NSW) after defendant’s service of eviction notice on him and that the Residential Tenancies Act 2010 (NSW) applied to the premises CIVIL PROCEDURE — Jurisdiction — operation of Anti-Discrimination Act 1977 (NSW) under which complaints about breaches are to be made to the President of the Anti-Discrimination Board and unresolved complaints dealt with by NCAT — NCAT also empowered to determine disputes about whether Residential Tenancies Act 2010 (NSW) or Boarding Houses Act 2012 (NSW) applied to the premises — Supreme Court incorrect forum for plaintiff’s claims CIVIL PROCEDURE — notice of motion filed by defendant — whether to set aside summons and dismiss proceedings as frivolous and vexatious — whether to strike out summons — Uniform Civil Procedure Rules 2005 (NSW), rr 12.11, 13.4, 14.28 — whether an order under Vexatious Proceedings Act 2008 (NSW), s 8 is appropriate — proceedings dismissed EVIDENCE — Course of evidence — where orders made for service of evidence not complied with by plaintiff — whether to admit evidence plaintiff sought to rely on at hearing — where some evidence included handwritten comments, a voice recording in a foreign language, and undated photographs unexplained by affidavit — objection taken — plaintiff given fair opportunity to serve evidence and advance case — evidence not admissible

MORTGAGES AND SECURITIES — priorities — where first-ranking mortgagee exercised power of sale and paid balance of funds into court — where second and third-ranking mortgagees each applied for payment out of court pursuant to r 55.11(1), Uniform Civil Procedure Rules (NSW) — where second-ranked mortgagees also judgment creditors, and question of merger raised — whether obligation to repay loan granted by second-ranked mortgagee to mortgagor extinguished by exercise of option to purchase real property under collateral deed of guarantee and indemnity

JUDGMENTS AND ORDERS — orders giving effect to reasons for judgment

ASSOCIATIONS AND CLUBS — where plaintiff sought orders that alleged disputes with social tennis association be referred to mediation or arbitration in accordance with dispute resolution clause of Associations Incorporation Regulation 2022 (NSW) model constitution — where plaintiff found not to be a member of association