Cases and authorities

CIVIL PROCEDURE – summary disposal – whether the pleadings have a tendency to cause prejudice, embarrassment or delay – where causes of action may be out of time if struck out CIVIL PROCEDURE – originating process – application to amend current pleadings – whether grant of leave in accordance with the dictates of justice

CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — notice of motion seeking leave to file further amended statement of claim — where proceedings have been on foot since 2019 — where plaintiffs comprise a group which operates waste management facilities — where dispute regards use of property in Goulburn as waste disposal depot — whether to join proposed fourth plaintiff to proceedings — Civil Procedure Act 2005 (NSW), s 56 — leave denied CIVIL PROCEDURE — Pleadings — Amendment — where current pleading does not identify parties to bridging finance — leave to amend granted CIVIL PROCEDURE — where evidence filed is deficient and requires updating and extension — where plaintiffs propose timetable for service of evidence — plaintiff to meet timetable and matter to be listed for directions COSTS — Party/Party — plaintiffs to pay defendant’s costs occasioned by amendments

EVIDENCE — admissions — criminal proceedings – murder trial – objections on voir dire – whether evidence from body worn video and subsequent recorded interview should be admitted or excluded – conceded denial of LEPRA rights – whether discretion to admit unlawfully obtained evidence should be exercised – whether oppressive conduct by police – whether circumstances raised unreliability of admissions – whether unfairness discretion regarding admissions should be exercised – probative/prejudicial evaluative judgment discussed – segmentary approach adopted – various portions of body worn video product and recorded interview excluded and admitted

PRACTICE AND PROCEDURE: parties to proceedings – whether applicants for joinder ought to have been joined as parties to the proceedings – whether applicants for joinder are persons whose joinder is necessary to the determination of all matters in dispute in the proceedings – whether rights or liabilities of joinder applicants liable to be directly affected by orders sought in those proceedings (if made).

PROCEDURE — Contracts for sale of land — terminated by vendor — Supreme Court proceedings seeking relief against forfeiture of deposits — later District Court proceedings by vendor seeking damages for contamination of land with asbestos in circumstances where vendor did not initially bring cross-claim — whether District Court proceedings estopped by Anshun estoppel — whether District Court proceedings should be stayed for abuse of process EVIDENCE — denial of procedural fairness on basis of refusal to grant applicant leave to cross-examine vendor in Supreme Court proceedings — whether primary judge in Supreme Court proceedings erred in referring to respondent’s evidence as “unchallenged”

COSTS — Party/Party — Self represented litigant – application by defendants for gross sum costs orders – whether gross sum costs orders should be made CIVIL PROCEDURE — Application to restrain plaintiff from commencing further proceedings without paying the costs of these proceedings — where plaintiff has indicated he will commence further proceedings on same or similar facts — whether a restraining order against plaintiff should be made

HIGH RISK OFFENDER

EQUITY – Breach of Confidence – claim for breach of confidence – plaintiff attends business meeting in February 2013 in which he provides information to executives of the defendant about a marketing concept that might be used to promote the tour to Australia of the boy band One Direction – when the band tours Australia the defendant uses a marketing concept with features bearing resemblance to those explained by the plaintiff in the February 2013 meeting – plaintiff sues the defendant for breach of confidence and seeks an account of profits for the defendant’s use of the claimed confidential information – whether the information imparted by the plaintiff to the defendant’s executives qualifies as confidential information – whether the information was imparted in circumstances importing confidentiality – whether the defendant used the information – whether if the plaintiff’s case is otherwise made out, the defendant should account to the plaintiff for any profits it made from its use of the information.

CIVIL PROCEDURE – settlement approval – compromise – whether settlement in best interests of person under a disability – settlement disapproved

CRIMINAL LAW – application under Part 7 Crimes (Appeal and Review) Act 2001 for inquiry into three convictions for murder – where applicant had already appealed unsuccessfully to the Court of Criminal Appeal and made three previous applications for a Part 7 inquiry – no special facts or special circumstances justifying further action – application dismissed

COSTS — security for costs — security resisted given merit of plaintiff’s case — irresistible adverse credit findings said to follow from defendant’s questionable business practices — adverse credit findings said to support acceptance of plaintiff’s substantive case — undesirable to reach views of credibility on security for costs application — principles at [47]-[50] — security for costs ordered.

CIVIL PROCEDURE — interim preservation — search orders — grounds on which ordered — where parties are both in the business of supplying rubber products in Wagga Wagga — where defendant is former employee of plaintiff, but resigned in 2017 — where search order granted and executed in 2022 — where applicant made materially defective disclosure by failing to disclose correspondence between parties’ solicitors — where there is a high probability that disclosure would have caused the Court to dismiss the application — where Court ordered that plaintiff not to have access to any of the material produced pursuant to the search unless and until further order of the Court, but that the material is to be preserved COSTS — security for costs — relevant factors — impecuniosity — where it is a matter of rational possibility that plaintiff company would not be able to pay defendant’s costs — where plaintiff ordered to give security for defendant’s costs, but in an amount significantly less than that proposed by defendant

CIVIL PROCEDURE — application for preliminary discovery — fire during manufacturing process — escape of fire to adjoining property — whether sufficient information to decide whether to commence negligence proceedings

MORTGAGES AND SECURITIES – Mortgages – Duties, rights and remedies of mortgagee – Possession APPEALS – Procedure – Injunction pending appeal – Application for leave to appeal – Application for stay of judgment treated as one for writ of restitution pending the hearing of application for leave to appeal and injunction to restrain exercise by bank of powers of sale – Where default judgment granted in 2019 in default of defence – Failure satisfactorily to explain three year delay in filing leave to appeal – Availability of alternative remedy in Common Law Division, in itself, fatal to an application for leave to appeal CIVIL PROCEDURE – Default judgment – Setting aside – Application further considered as an application to set aside default judgment – Insufficient explanation for failure to file defence – Insufficient explanation for delay in application to have judgment set aside – No arguable defence on the merits

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — want of due despatch or strike out of statement of claim — where defendant brought a Notice of Motion that the proceedings be dismissed for want of due despatch, or alternatively, that the statement of claim be struck out — where defendant did not have any basis for the relief sought in the Motion — Notice of Motion dismissed

REAL PROPERTY — co-ownership — statutory trust for sale — appointment of trustees — no issue of principle

CRIMINAL LAW – Sentencing – Murder – Single stab wound – Use of a weapon – Tragic consequences – Killing in the context of a domestic relationship – Intention to cause grievous bodily harm – Offence committed in victim’s home an aggravating feature – Offence committed in the presence of a child an aggravating feature – Assessment of objective seriousness – Considerable remorse – Dysfunctional childhood – Relevance to sentencing – Reduction in moral culpability – The conflicting purposes of sentencing – Special circumstances – Adjustment to non-parole period

APPLICATION FOR STAY – No draft defence – Imminent eviction – One of three properties only affected

ADMINISTRATIVE LAW — judicial review — Supreme Court Act 1970 (NSW), s 69 — where plaintiff seeks judicial review of decision of Full Bench of Industrial Relations Commission of NSW — prohibition notice issued by SafeWork NSW inspector under Work Health and Safety Act 2011 (NSW) — owner/builder building own house — application for external review commenced before Industrial Relations Commission — Commission’s jurisdiction to consider claim of public interest immunity STATUTORY INTERPRETATION — construction of Work Health and Safety Act 2011 (NSW) — whether plaintiff a “worker” — meaning of “undertaking” and “workplace”— whether building site a “workplace” — whether owner/builder conducting an “undertaking” EVIDENCE — Privileges — public interest immunity — notice to produce — documents produced in redacted form — objection to disclosure of identity of person who drew safety risks investigated to attention of SafeWork NSW — whether Industrial Relations Commission fell into jurisdictional error by finding that public interest immunity attached to documents — no jurisdictional error — Industrial Relations Act 1996 (NSW)

LIENS – enforcement of liens – statutes of limitation – Limitation Act 1969, s 68 – plaintiff’s legal files held by the defendant solicitors, a firm – plaintiff claims return of files from the firm – in a previous judgment the Court determined that the firm’s action for recovery of legal fees against the plaintiff is statute barred – whether the firm may maintain a lien over the files notwithstanding the extinguishment of the firm’s action against the plaintiff.

COSTS - specified gross sum cost order – Civil Procedure Act 2005 s 98(4)(c) – plaintiff successful in specific performance suit – defendant unsuccessfully appeals – contest about consequential orders including costs – both sides accept that the proceedings are appropriate for the making of a gross sum costs order – defendant contest the quantum of the plaintiff’s claim for a specified gross sum instead of assessed costs – what specified gross sum instead of assessed costs should be fixed in the circumstances.

NEGLIGENCE — Breach — Duty of care — Professional Negligence — Lawyer and client — advice as to prospects of success – no negligence – no causally relevant loss – claim fails

HIGH RISK OFFENDERS — Extended supervision orders — Application — where plaintiff sought a 3-year extended supervision order with respect to the defendant, with certain conditions attached — where defendant accepted that he should be the subject of an extended supervision order — where defendant claimed that the more appropriate period would be 2 years — where defendant disputed some of the plaintiff’s proposed conditions — whether an extended supervision order should be made — for how long such an order should apply — which conditions should apply to the order — whether conditions attached to the order should be expressed in simpler English — extended supervision order made for 3 years with certain conditions attached

CIVIL PROCEDURE — Separate determination of questions — Where appropriate — Whether evidence of judgments admissible to prove findings of fact — Where ordering separate question may not save costs and time

CONTRACTS — formation — agreement — intention to make concluded bargain — whether agreement signed at conclusion of mediation was immediately binding — where term of agreement required parties to enter into subsequent deed — application of Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 — where agreement sufficiently certain to be enforceable and intended to be immediately binding on parties — where specific performance ordered LAND LAW — conveyancing — requirements of writing — agreement to create or dispose of interest in land — where term of agreement required parties to apportion payment for real property after obtaining independent accounting and taxation advice — Duties Act 1997 (NSW), s 274 — where identification of real property sufficiently certain that composite price for interest in real property, trust and partnership property met requirements of s 54A of Conveyancing Act 1919 PARTNERSHIPS AND JOINT VENTURES — partnership property — identification — property purchased with partnership money

COSTS — application for security for costs — where plaintiff has minimal paid-up share capital — where sole director of plaintiff offered personal undertaking — where detailed financial circumstances of plaintiff and sole director not in evidence — plaintiff to provide security for costs

CONTRACTS – loan agreement – where the plaintiff advanced funds to the first defendant – where the first defendant defaulted on its repayment obligations – where the second defendant provided a guarantee in respect of the ultimate balance owing under the loan agreement – action to recover amount owing and enforce guarantee – estoppel – where the defendants alleged that an oral agreement was reached between the parties whereby the plaintiff agreed not to enforce its rights until sales of real property were settled – existence of oral agreement not established – not shown that defendants acted to their detriment in reliance upon what was said – held that the plaintiff is not precluded from enforcing its rights against the defendants

CONTRACTS — construction — interpretation — whether terms of unit trust deed gave registered unit holder equitable interest in the whole of the property of the trust, including land — where terms of deed of loan entered into by registered unit holder created charge over unit holder’s equitable interest in land in favour of lender

SENTENCING — murder — acts of physical violence — inflicted by co-offender — plea of guilty — constructive murder — joint criminal enterprise — specially aggravated kidnapping — offender the instigator of the foundational offence — objective seriousness in the mid-range — offender subjected to domestic violence in childhood — schizoaffective disorder with symptoms of mania involving over-confidence and assertiveness at the time of offending

CORPORATIONS – financial services – misleading or deceptive conduct – whether oral representations misleading or deceptive – where claim relates to alleged oral representations in Mandarin as to safety of investment in financial products relating to property development – whether oral representations made to effect that investment had little or no risk – where borrower did not own properties to be developed or have contracts in place for their acquisition or development CORPORATIONS – financial services – misleading or deceptive conduct – whether written representation misleading or deceptive – where claim relates to alleged written representation in Mandarin as to the safety of financial products – where primary judge found use of Mandarin term “anquan” misleading or deceptive insofar as it described investment – where borrower did not own properties to be developed or have contracts in place for their acquisition or development

TORTS – negligence – duty of care – breach of duty – orange barricades placed on unmade verge of roadway along construction site – cyclist collided with barricade at night – streetlight not at full capacity – light not under control of builder – whether builder should have known light malfunctioning – whether duty of builder to illuminate barricade or place warning signs LIMITATION OF ACTIONS – personal injury – date cause of action discoverable – when plaintiff knew injury caused by fault of defendant – when plaintiff knew injury sufficiently serious to justify bringing proceedings – actual knowledge established more than three years prior to commencement of proceedings – trial judge erred in relying on principles relevant to constructive knowledge

LEASES AND TENANCIES – Repairs, maintenance and alterations – Obligation to make good including repairs to leaking roof – whether the contractual obligation to repair required the replacement of the roof – whether the meaning of the terms of the contract were construed objectively by the primary judge – whether appellants were prevented from performing their make good obligation by reason of the respondent’s refusal to grant access

CRIME – SENTENCE – application for leave to appeal out of time – sole ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – “Totaan error” – evidence taken into account on sentence in general mix of subjective features

CORPORATIONS – Winding up – Statutory demand – Application to set aside – Whether a genuine dispute is established in respect of the amount claimed in the demand – Whether there is a defect in the demand – Whether an offsetting claim is established

CORPORATIONS — Winding up — Proceedings against company — Stay of proceedings — Where plaintiff claims proprietary relief — Leave to proceed granted under s 471B of Corporations Act CIVIL PROCEDURE — Stay of proceedings — Where stay ordered pending final determination of criminal proceedings — Where defendant is convicted but not sentenced — Stay lifted CIVIL PROCEDURE — Access to sealed affidavits — Where assets affidavits provided in connection with freezing order — Where affidavits sealed due to privilege against self-incrimination

LAND LAW — Caveats — Extension of operation of caveat — Balance of convenience — Serious question to be tried — Where no undertaking as to damages proffered LAND LAW — Caveats — Formal requirements — Requirement to specify particulars of estate or interest claimed — Where caveat claimed an estate in fee simple by virtue of a mortgage granted under sublease — Whether caveat should be extended — Where caveator accepted the interest was incorrectly described but should be disregarded under Real Property Act 1900 (NSW) s 74L — Where caveat otherwise incurable and no evidence of any technological limitations with PEXA — Where no leave granted for a further caveat under s 74O

CIVIL PROCEDURE – preliminary discovery – determination of precise scope of preliminary discovery – costs of the application for preliminary discovery – costs of compliance with orders for preliminary discovery

DAMAGES – assessment – where damages awarded on default judgment – Civil Liability Act 2002 (NSW) DAMAGES – assessment of claimed heads of damage – motor bike accident – where plaintiff thrown over motorcycle handlebars and suffers brain damage and chronic pain

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) – adjudication determination – whether adjudication determination was affected by jurisdictional error – whether the Act can operate in favour of a claimant which is insolvent or whether abuse of process

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – whether proceedings constituted collateral attack on prior judicial decision

CRIME – SENTENCING – murder and malicious wounding – aggravating and mitigating factors – youth of offender – youth of victims – sentence imposed/

CIVIL PROCEDURE — Hearing – Defendant litigant in person – Adjournment – Where the Defendant applies for adjournment by email sent at 1:00 a.m. on the date of the hearing – Non- appearance by the Defendant at the hearing - Application opposed at the hearing – Applicable principles – Procedural history relevant as are repeated suggestions made to the Defendant, at various directions hearings that he should be legally represented – Whether to grant the application — Interests of justice – Application for adjournment refused SUCCESSION – Uncontested application for Probate – Defendant, adult son of the deceased files caveat which lapses through effluxion of time – Statement of Claim filed by Plaintiffs – Defendant does not file an Appearance or any Defence although does send numerous emails to the Court and appears at some of the directions hearings – Many opportunities given to Defendant to file Defence and also the evidence to support his assertion that Will not valid – Failure to do so – Evidence that Will duly executed – Notice of motion filed seeking grant of Probate in solemn form - - Orders made COSTS - Indemnity costs sought against a litigant in person – Whether such an order should be made

CONTRACT — settlement deed — whether settlement sum constituted surplus bond moneys held on trust — whether settlement sum in excess of amount required to meet contractual obligations supported by performance bonds CONTRACT — performance bonds — deed of indemnity relating to issue of performance bonds — whether trust provisions in deed of indemnity created security interest for purposes of Personal Property Securities Act 2009 (Cth)

CRIMINAL PROCEDURE — Admissions by suspects — where admission took place in the course of official questioning by police – whether reasonable excuse for failure to record the admission – no reasonable excuse made out – tender of evidence rejected

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

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

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 – proceeds of crime – ex parte – orders made.

COSTS — Where proceedings are discontinued by leave — Where no determination on the merits — Presumption as to costs under UCPR r 42.19.

CIVIL PROCEDURE - pleading – possession pleadings – defences pleading the general issue – no defence disclosed

CIVIL PROCEDURE – subpoenas – application to set aside – whether an abuse of process – whether issued for legitimate forensic purpose – whether fishing – whether a subversion of process for preliminary discovery – where subpoena issued by applicant for preliminary discovery