Cases and authorities

COSTS – Gross sum costs order – Indemnity basis –Where applicant and another interested party sought stay of writ of possession – Where stay application refused – Where subsequent attempts to reagitate stay application

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – status as forensic patient – Interim Order extending status pending final assessment – unacceptable risk established – no less restrictive means available to manage risk – assumption that matters alleged are proved – proved to high degree of probability – interim extension granted

ADMINISTRATIVE LAW – JUDICIAL REVIEW – jurisdictional error – materiality – procedural fairness – where decision-maker denied procedural fairness by not giving opportunity to address adverse report of a third party – where decision-maker and plaintiff gave evidence about what they would have done in counter factual scenario where procedural fairness was afforded – where decision-maker makes finding of dishonesty – test for materiality – whether the court should resolve factual disputes about what would have occurred had procedural fairness been afforded – whether denial of procedural fairness is material

EQUITY – Equitable remedies – injunctions – interlocutory injunctions – proceedings brought by beneficiary of development trust against the trustee for an account and for the distribution of profits from the trust – in a cross claim, the defendant trustee seeks recovery of a loan made to the beneficiary –loan agreement provides a restraint upon the sale of the plaintiff/beneficiary’s residential property – plaintiff seeks to sell residential property which is heavily mortgaged in order to fund the litigation – defendant/cross claimant obtains interim restraint against the plaintiff upon the sale of the plaintiffs residential property – plaintiff enters a contract for sale of the property which is shortly due for completion – dispute about whether the sale is in breach of the Court’s previous orders – doubts about the substance of the quality of the plaintiff’s undertakings to damages – plaintiff has pressing need for funds to continue the litigation – four caveators currently not served with notice of the motion for continuation of the injunction – serious question to be tried conceded – whether upon consideration of the balance of convenience completion of the contract should be restrained.

DECEIT – whether deliberate concealment of information about ownership of company with which plaintiff entered into convertible note agreement pursuant to which plaintiff paid $2,000,000 to the company. MISLEADING OR DECEPTIVE CONDUCT ­– whether deliberate concealment or misleading non-disclosure of information – whether reasonable expectation of disclosure in all the circumstances.

COSTS – successful respondents separately represented – no conflict or likely possibility of conflict – whether unsuccessful applicant should pay two sets of costs – unsuccessful applicant ordered to pay costs of one set of respondents, with other respondents bearing their own costs

APPEALS — Procedure — Injunction pending appeal — application to restrain respondent trustee using monies ordered to be paid out of Court for payment of legal costs in defending appeal — Where no application to discharge or vary orders made by single judge of appeal for payment of monies out of Court to the trustee — Whether circumstances had materially changed since order made — Supreme Court Act 1970 (NSW), s 46(4)

APPEALS – leave to appeal – university collection of personal information for purpose of pre-visa assessment – whether compliance with Privacy and Personal Information Protection Act 1998 (NSW) – other proposed grounds of appeal not warranting grant of leave – concurrent hearing of question whether compliance with Privacy and Personal Information Protection Act – other grounds dismissed

CRIME - murder trial – Crown case relies upon extended joint criminal enterprise and being an accessory before the fact in combination with doctrine of constructive murder – pre-trial rulings – digital product sought to be relied upon by the Crown – disputes about discrete portions only of product – whether portion relevant – assessment of probative value of portion – assessment of danger of prejudicial effect arising from product – various rulings made

CRIME – murder – trial by jury – jury discharged without verdict before summing-up--pre-trial rulings – whether accessoryship before the fact founded on foresight of possibility can be combined with constructive murder – meaning of “some accomplice with him or her” within the offence-creating provision for murder – rulings provided, but possibly superseded by subsequent binding authority

EVIDENCE — expert evidence — whether opinion within expertise

CIVIL PROCEDUURE – application for leave under s 4 Felons (Civil Proceedings) Act 1981 – claim for damages following alleged sexual assault by officer in juvenile detention – leave granted nunc pro tunc

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where specific performance of agreement granting easement and alternatively s 88K relief sought — Where after commencement easement lodged by consent — Where defendant servient owner was unresponsive to plaintiffs’ correspondence prior to commencement — Where no evidence of terms of consent to easement – Where no consent terms for dismissal or discontinuance of proceedings or costs

CONTRACTS — unjust contracts — Contracts Review Act 1980 (NSW) — claim for declaration that land is charged for payment of $620,000 — cross-claim by defendant to set aside contract — where plaintiff and defendant are brothers — where defendant acknowledged amount owing of $620,000 and charge over property for mortgage repayments, transfer of half-interest in family property and other payments — where defendant pressed to sign to avoid potential legal proceedings — where $620,000 amount unsubstantiated and misleading — where agreement has disadvantageous legal and practical impacts on defendant — where defendant did not understand significance of agreement on legal rights — where defendant denied opportunity to take independent advice — where inequality of bargaining power between parties — contract held to be unjust and set aside

CHILD WELFARE – Adoption – Aboriginal placement principles – definition of “Aboriginal child” CHILD WELFARE – Adoption – Aboriginal placement principles – placement for adoption of Aboriginal children – relationship between s 35(4) and ss 35(2) and 35(3) of the Adoption Act 2000 – whether s 35(4) displaces ss 35(2) and 35(3) – where Aboriginal child has one Aboriginal parent and one non-Aboriginal parent – where child placed with non-Aboriginal prospective adoptive parents CHILD WELFARE – Adoption – Aboriginal placement principles – reasonable inquiries – whether placement of child has been made in consultation with relevant Aboriginal organisation for the purposes of s 33(2) of the Act

CONTEMPT — civil contempt — breach of orders — where plaintiff alleged breach of freezing orders due to winding up of defendant company — where notice of motion dismissed CONVEYANCING — where plaintiff alleged fraudulent conveyance with intention to defraud creditors — where plaintiff sought declaration share transfer void pursuant to s 37A of the Conveyancing Act 1919 (NSW) COSTS — party/party — exceptions to general rule that costs follow the event — where plaintiff was initially justified in bringing claim — where costs order subsequently made in favour of defendant in related proceedings — where defendant company was deregistered — where plaintiff continuing these proceedings following judgment in related proceedings was unreasonable

CIVIL PROCEDURE — parties — joinder — where Applicant for joinder is a judgment creditor JUDGMENTS AND ORDERS — orders — application for payment of funds out of court — where proceeds paid into Court by mortgagee under Trustee Act 1925 (NSW) — where there may be other unsecured creditors — where application made pursuant to rr 55.11 or 41.3 of the Uniform Civil Procedure Rules 2005 (NSW) — where formal service not required

EQUITY — equitable remedies — equitable compensation — where plaintiffs’ beneficial interest in real property not established — where parties have agreed on proposed orders JUDGMENTS AND ORDERS — costs — no order as to costs with the intent that the parties bear their own costs

SUCCESSION — executors and administrators — proceedings against executors and administrators — application for removal — where removal justified as administrator does not recognise jurisdiction of Court, and has failed to fully administer the estate — order for revocation of grant, with fresh grant to independent administrator

EQUITY — fiduciary duties — power of attorney — absence of authority to give gifts or to confer benefits on others — where evidence prima facie establishes that defaulting fiduciary misappropriated funds — where second defendant received misappropriated funds, but quantum not definitively established by evidence — where defendants used misappropriated funds to purchase real property — where making of orders deferred to allow plaintiffs to make further submissions

LAND LAW — conveyancing — contract for sale — completion — where the plaintiff seeks orders requiring the defendant to perform its obligations under a deed — where the plaintiff seeks declaration that it has paid a deposit for the purchase of real property

EQUITY — general principles and maxims — they who seek equity must do equity — defendant successful in defending enforcement of deed on grounds of unconscionable conduct and Contracts Review Act 1980 (NSW), s 7 — Court finds that defendant ought to pay plaintiff compensation as condition to making order declaring deed void — plaintiff entitled to $400,000 in compensation — order that the total amount of costs payable by the plaintiff to the defendant be set off against compensation payable by plaintiff to defendant COSTS — party/party — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — where Calderbank offer made on an “inclusive of costs” basis — where it was not unreasonable for the defendant to decline plaintiff’s Calderbank offer COSTS — party/party — bases of quantification — ordinary basis — where costs determined on a gross sum basis

CIVIL PROCEDURE — pleadings — amendment — late application for amendment — where plaintiff’s application for leave to file amended pleadings and join tenth defendant made unjustifiably late

CRIME — Application for leave to vary or set aside judgment dismissing application to set aside or vary judgment dismissing conviction appeal

CRIME – murder trial – whether recorded interview between arrested suspect and investigating detectives should be admitted into evidence – whether evidence obtained illegally or improperly – where unsuccessful attempts to contact lawyer in the early hours of the morning – whether statutory regime pertaining to arrested persons breached – whether right to silence impugned by persistent questioning by police – evaluative judgment and findings of fact that neither illegality nor impropriety established on either basis – contingent discussion of whether evidence, if obtained illegally or improperly, should nevertheless be admitted in exercise of statutory discretion

CRIME – murder – trial by jury – constructive murder – act causing death relied upon for constructive murder an element of foundational offence – reasons for pre-trial determinations as to what needed to be proven by the Crown – reasoning arguably superseded by subsequent authority of the High Court of Australia

COSTS – Party/Party – Gross sum costs – Indemnity basis – No issue of principle

CRIMINAL LAW — Murder — Trial by judge alone — Whether the accused intended to cause grievous bodily harm or kill the deceased — Where cause of death is neck compression — Unlawful and dangerous act — Whether the prosecution has excluded the reasonable possibility that the accused acted in self-defence

SECURITY FOR COSTS — additional security — claim for $745,000 – cross-claim for $27 million — undertaking not to press cross-claim if security not provided and proceedings stayed — undertaking does not entitle defendant to secure costs of cross claim — other discretionary factors to be considered – total security sought is 90% of plaintiff’s claim –disproportionate – application dismissed.

CIVIL PROCEDURE – discovery – Practice Note SC Eq 11 – where defendant has already given preliminary discovery of numerous documents – where categories of documents sought by plaintiff in discovery application include documents already disclosed by the defendant in the course of preliminary discovery – whether application for discovery is unduly burdensome and repetitive – whether disclosure is necessary for the resolution of the real issues in dispute in the proceedings

CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — where pregnant juror medically advised to cease participation in jury service – juror discharged.

EQUITY – equitable remedies – receivers – appointment of a receiver –commercial landlord enters leased premises and seeks the appointment of a receiver over the former tenants perishable goods – tenant seeks removal of the goods to another location to continue its business – dispute about the value of the goods, the feasibility of removal and the appointment of a receiver – Court considers having preliminary appointment of the proposed receiver as a Court expert under UCPR, r 31.46 to ascertain the value of the goods so that the Court can consider whether the potential alternatives to a receivership are realistic.

CIVIL PROCEDURE — Parties — Joinder of insurer of existing defendants CIVIL PROCEDURE — Pleadings — Amendment

CIVIL PROCEDURE – service – notice of motion by plaintiff – seeking default judgment against sixteen defendants – notices of motion by some of the defendants seeking summary dismissal – personal service not effected – no merit to application for default judgment CIVIL PROCEDURE – summary disposal – where plaintiff previously involved in Federal Circuit Court litigation concerning bankruptcy of late husband and previous Federal Circuit Court family law proceedings – issue estoppel – Anshun estoppel – extended estoppel - whether an abuse of process is demonstrated – where all claims made had been decided in earlier proceedings – where abuse of process to attempt to relitigate in present proceedings – where proceedings should be dismissed – r 13.4 UCPR OCCUPATIONS – legal practitioners – solicitors – where solicitors acted for opposing party in contentious proceedings – where solicitors acted for trustee in bankruptcy to sell property in which plaintiff had no interest - no duty owed to plaintiff

CIVIL PROCEDURE – costs – variation of order – motion seeking to have the unsuccessful plaintiff pay costs of two defendants – defendants appearing in same interest and jointly represented – defendants both emanations of the State – one set of costs awarded

CRIME — appeals — appeal against sentence — whether there is a miscarriage of justice on the basis that evidence was not before the sentencing judge – where the applicant suffers from Foetal Alcohol Spectrum Disorder – whether an impairment in executive functioning in the context of offending impacted the assessment of objective seriousness – where new evidence had the capacity to undermine the case led on sentence – where the sentencing judge gave significant weight to the applicant’s subjective case – refusal to admit new evidence – appeal dismissed

CRIMINAL LAW – appeal against severity of sentence – elderly offender – whether sentencing judge failed to properly consider the offender’s advanced age in sentencing – applying principles in Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539

CRIMINAL LAW – evidence – leave to cross-examine – evidence unfavourable to prosecution – evidence inconsistent with previous statements – witness not making genuine attempt to give evidence of things of which she was aware in earlier interviews – leave granted CRIMINAL LAW – evidence – leave to cross-examine – credibility evidence – where witness speaks to accused as she left court – where solely referrable to her credibility – leave refused

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Whether leave to bring derivative action should be granted

HIGH RISK OFFENDER – final hearing – serious sex offender – application for extended supervision order (“ESO”) – imposition of ESO not opposed – dispute limited to duration of ESO and conditions imposed – consideration of conditions for monitoring, drug/alcohol testing and search/seizure

CRIMINAL LAW – fitness to stand trial – alleged murder of wife – reason to doubt that the accused understands the nature of proceedings and nature of evidence against him – cause of presentation unclear – agreement between parties – accused presently unfit to stand trial and may become fit within 12 months – referred to Mental Health Review Tribunal

CIVIL LIABILITY ACT — owners corporation sues builder and developer for building defects — breach of statutory duty imposed by s 37 Design and Building Practitioners Act — non-delegable duty by reason of s 39 Design and Building Practitioners Act — proportionate liability — apportionable claims — whether ss 5Q, 39(a) Civil Liability Act operate such that claim is not apportionable.

CIVIL PROCEDURE — Hearings — Three separate proceedings, each seeking different relief and involving the same estate — Agreement by parties that all proceedings should be heard consecutively, with the evidence in one being evidence in the other — Uniform Civil Procedure Rules 2005 (NSW) r 28.5 — Proceedings involve “a common question” and otherwise “desirable to make an order” under the rule — Order that proceedings be heard consecutively LEGAL PRACTITIONERS — Undesirability of solicitor acting for a party when he, or she, is a material witness in proceedings — Question whether risk posed to the administration of justice when solicitor formerly on record is also a witness — Need to protect the administration of justice SUCCESSION — Contested probate — Lack of testamentary capacity and lack of knowledge and approval asserted — Suspicious circumstances — Application of the test in Banks v Goodfellow —Consideration of evidence of the solicitor to whom instructions given — No contemporaneous file notes available due to destruction of the Will file after 7 years ESTOPPEL — Equitable estoppel – estoppel by encouragement – estoppel by acquiescence – Requirements – Family relationship – Sons expend capital renovating property – Quantum of capital expenditure on renovations unsubstantiated by documentary evidence of expenditure – Sons claim to have done so upon representations by parents, both since deceased, that they would become sole owners of property – Sons reside on the property between 1989 and the date of death in 2020 and thereafter – Onus of proof on sons to prove reliance – Whether deceased aware of intended reliance – Whether Court satisfied that any promise or assurance to give property to sons made – Whether detrimental reliance established EVIDENCE – Principles requiring caution when relying on uncorroborated statements said to have been made by deceased person – Father and mother both deceased prior to commencement of proceedings – No contemporaneous or near contemporaneous documents – Credibility of each son’s evidence when events alleged to have taken place many years before claim made – Property held by father and mother as joint tenants and passes to mother by survivorship – Will made by mother devises property to the sons – Challenge to validity of mother’s Will – Will made by father provides substitutionary devise of property to sons SUCCESSION — Claims for family provision order under the Succession Act 2006 (NSW), Ch 3 — Claim by adult sons of the deceased — Whether adequate and proper provision not made in the Will of the deceased for each applicant and, if so, the nature and quantum of the provision to be made for him, respectively

CRIME – appeal and review – application to Supreme Court under Part 7 – intimidation and common assault – three convictions in the Local Court – confirmed on appeal to the District Court – focus by applicant upon asserted lack of facility of young victim in particular language said to have been used by applicant in commission of offences – material in recorded interview of applicant to contrary effect – application refused

COSTS – mixed outcome on appeal – where quantum of damages awarded to the respondent at first instance was substantially reduced on appeal – where principal issue on appeal was resolved in favour of the appellant – where settlement offers made by both parties before the proceedings at first instance – whether it was unreasonable for the respondent to reject the appellant’s settlement offers – appropriate costs orders with respect to the costs of the trial and the appeal

APPEALS — Leave to appeal — Re decision to refuse application for an adjournment and consequent dismissal of cross-summons — Matter of practice and procedure — Decision reached not unreasonable or plainly unjust — No material consideration ignored — House v The King error not made out — Leave to appeal refused

EVIDENCE — voluminous telephone records in summary form — whether inapt to adduce prior to expert evidence regarding telecommunications — whether presentation of designated telecommunications cell towers in summary form is prejudicial — direction to jury to limit use

COSTS — appeals — suitors’ fund — appeal allowed due to apprehended bias — no evidence of misconduct by defendants

HIGH RISK OFFENDERS – Interim Supervision Order – assumption that allegations with some support will be proved – discussion of conditions – ISO imposed

CRIMINAL LAW – proceeds of crime – restraining orders