Cases and authorities

EQUITY — Trusts and trustees — powers, duties, rights and liabilities — remuneration — where order made that trustees be authorised to charge at their usual hourly professional rates subject to the total sum not exceeding $20,000 — where trustees claim remuneration significantly in excess of $20,000 —where other parties contend that the order imposed a binding and invariable cap — separate question ordered — Court may authorise increase in remuneration — duties of trustees to discharge onus — just, fair and reasonable

WORKERS COMPENSATION – Workers Compensation Guidelines – whether Appeal Panel erred in applying relevant Guidelines

PRIVILEGE – CLIENT PRIVILEGE – Evidence Act 1995, s 125 – plaintiffs are trustees of the estate of a bankrupt – the plaintiffs contend that in 2016 the executor of an estate, the first defendant, held certain real property on trust for the bankrupt – the second and third defendants are creditors of the estate of the bankrupt – the fourth defendants are the solicitors for the second and third defendants – the second and third defendants secure the appointment of the plaintiffs as trustees of the estate of the bankrupt in place of the Official Trustee – the second and third defendants seek freezing orders against the real property said to be held by the first defendant on trust for the bankrupt – the plaintiffs claim that the second and third defendants pursued the freezing orders acting as fiduciaries on behalf of the plaintiffs for the benefit of the general creditors of the bankrupt’s estate – the second and third defendants reach a settlement agreement with the first defendant in which real property held by the first defendant is sold, and the proceeds of sale are distributed partly to the second and third defendants and partly to the first defendant – the plaintiffs allege the settlement agreement was made dishonestly in breach of the second and third defendants’ claimed fiduciary duty to the plaintiffs and concealed from the plaintiffs and had the effect of fraudulently disadvantaging the other creditors of the bankrupt estate – the plaintiffs contend that client privilege has been lost in the documents because the documents were created in furtherance of the commission of a fraud or were communications which ought reasonably to have been known to have been prepared in furtherance of an abuse of power, within Evidence Act, s 125 – whether client privilege has been lost in the documents by reason of Evidence Act, s 125.

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Frivolous or vexatious proceedings – Whether proceedings constituted collateral attack on prior judicial decision

CIVIL PROCEDURE — Parties — Addition of defendant – personal injury claim – where insurer sought to disclaim liability on the basis of non-disclosure by insured – where insurer raised limitation defence – issue estoppel – Anshun estoppel

CIVIL LAW – proceeds of crime – huge money laundering scheme – execution of search warrants imminent – need to deal with the matter urgently and in camera – where some involved already convicted – multiple orders sought for restraint of property – ancillary orders – no question of principle

PRIVATE INTERNATIONAL LAW — forum non conveniens — application for a stay — insurance — claim by plaintiff insurer against defendant insurer for equitable contribution on the basis of coordinate liability for the same risk — where the defendant insurer’s liability said to arise for one or both of two policies, one in English and governed by the laws of this State and another in French, arguably governed by the law of France — defendant contends that whilst this Court is an appropriate forum to determine issues pertinent to the English policy, it is clearly an inappropriate forum to determine issues pertinent to the French policy and that the Court should stay the proceedings so far as the issues relating to the French policy are concerned — defendant contends that it is oppressive to require it to deal with issues concerning the French policy in this Court — whether this court is a clearly inappropriate jurisdiction to determine the issues arising under the French policy — HELD — it is undesirable for components of the same overall dispute to be separated out and decided by separate courts — that it is not oppressive to require the defendant to deal with the French component in this Court, but if it were, it would be equally oppressive to require the plaintiff to deal with the French component separately from the local component in a foreign court — this Court is the more appropriate forum for the determination of the whole of the dispute — the Court does not anticipate any significant difficulty in dealing with any factual or legal issues to be determined in accordance with the law of France to the extent that it applies — seen as a whole, this jurisdiction is the one to which the dispute has the closest connection — application dismissed with costs

BAIL — Release Application — Consideration of s 22B of the Bail Act 2013 (NSW) — Where applicant satisfies “special circumstances” threshold — Where applicant’s wife brutally murdered — Where the applicant has a role in the arrangements for the care of his children — Bail granted

EMPLOYMENT AND INDUSTRIAL LAW – awards and enterprise agreements – breach – determination of civil penalty for admitted breaches of industrial agreement – where parties agreed as to proposed pecuniary penalty – whether proposed pecuniary penalty is appropriate – exercise of discretion under s 403 of the Industrial Relations Act 1996 (NSW) to award penalty to industrial organisation

RESTITUTION – unjust enrichment – unauthorised withdrawals from company bank account – company’s claim for restitution against defendants who withdrew those funds CORPORATIONS LAW – voidable transactions – insolvent and uncommercial transactions – defence under Corporations Act 2001 (Cth), s 588FG(1)

CIVIL PROCEDURE — Leave to file amended defence and cross-claim — Where leave sought by defendant on day two of a hearing — Where amendment sought to clarify equitable interest claimed — Where plaintiffs resisted amendment on the basis that only constructive trust was pleaded —— Where plaintiffs’ success would deprive possible creditors of a bankrupt of real property — Where adjournment otherwise necessary for trustee in bankruptcy to be heard

JUDICIAL REVIEW – Jurisdictional error – Decision of the District Court affirming a guilty verdict entered against the applicant in the Local Court for an offence under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) – Challenges primarily to District Court judge’s fact-finding – No jurisdictional error demonstrated

CRIMINAL LAW – appeal – appeal against sentence – robbery armed with a dangerous weapon – parity principle – whether applicant had a justifiable sense of grievance in light of sentence imposed on co-offender – where offenders sentenced for the same offence but delay, other sentences for other offending and totality considerations affected sentences imposed – no justified sense of grievance – leave to appeal granted – appeal dismissed

CIVIL LAW – proceeds of crime – restraining order in existence – examination order – where target resides overseas – little enthusiasm for return to Australia – where husband to stand trial for drug offences – no question of principle

CORPORATIONS – dissolution – reinstatement – application to reinstate registration of company – where applicant for reinstatement has claims against deregistered company – whether it is just that the company be reinstated. CORPORATIONS – winding up – whether applicant has standing to seek winding up orders – whether it is just and equitable that companies be would up.

CRIMINAL PROCEDURE – Trial – Adjournment

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

COSTS – costs of application for appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) – where usual order would be for all co-owners’ costs to be paid out of the proceeds of sale of the land – where unreasonable conduct of the defendants caused costs to be incurred unnecessarily

COSTS – costs of plaintiff’s unsuccessful claim for orders restraining alleged breaches or apprehended breaches of post-employment restraints and obligations of confidence – whether successful defendants’ costs should be paid by plaintiff on ordinary or indemnity basis – whether costs should be payable forthwith.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under ss 411 and 1319 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

CORPORATIONS – application for rectification of records maintained by ASIC – where registers maintained by ASIC evidences change to shareholders and officeholders – where no corporate step undertaken to effect such changes – whether court should order rectification of registers maintained by ASIC. DECEIT — Where representations made in connection with acquisition of interest in company or sporting rights – Where unclear whether interest was to be acquired by issue of shares by company or sale of shares by shareholders – Where documents were fabricated and purported to be signed by non-existent persons - whether order for exemplary damages should be made MISLEADING OR DECEPTIVE CONDUCT — Where representations made in connection with acquisition of interest in company or sporting rights – Where unclear whether interest was to be acquired by issue of shares by company or sale of shares by shareholders – Whether the representations were misleading and deceptive and causative of loss suffered by the Defendants/Cross-Claimants – whether knowing involvement established on the part of several Cross-Defendants. FALSE IMPRISONMENT – Whether circumstances of meeting gave rise to claim in false imprisonment.

CRIMINAL PROCEDURE – trial – jury – access to transcript – whether to grant jury request for copy of transcript of summing up

COSTS – succession – claim by adult plaintiff for family provision – no provision orders – where defendant applies for indemnity costs – where plaintiff applies for each party to pay costs or cap on costs – Calderbank offers – Offers of Compromise – UCPR rr 20.26 and 42.15A – whether the Court should “otherwise order” – whether rejection of Calderbank offer unreasonable – impecuniosity – significant adverse impact on financial position – size of the estate – conduct of the hearing – indemnity costs not ordered – plaintiff is to pay defendant’s costs on the ordinary basis – cap on costs made

BAIL — Where the applicant is a 33-year-old Aboriginal woman with mental health issues — Where unlikely that a term of full-time imprisonment would be imposed if convicted — Reference to the Bugmy Bar Book Chapter — Impacts of Imprisonment and Remand in Custody

CIVIL – mental health – forensic patient – interim order for extension of forensic patient status – order appointing two qualified psychiatrists, registered psychologists or registered medical practitioners to conduct examinations and furnish reports – order requiring defendant attend examinations – interim orders not opposed – aggravated break and enter and commit larceny – intellectual disability – substance use disorder – risk of causing serious harm to others – no less restrictive means to adequately manage risks – interim orders made

ORDERS — Variation of orders — Urgent application to vary orders to permit a source of funds to be available to pay a judgment debt no longer the subject of an appeal — Applicants submit that they will suffer prejudice in the form of committing an act of bankruptcy if application is refused — Respondent opposes variation in the context in which the mechanism for funding is contended to perpetuate an alleged contempt by the applicants and say it will be exposed to prejudice in creating further difficulty in unwinding transactions it says ought not have been entered into as a result of the alleged contempt — Some lack of clarity over precise reason for making the limitation in the order sought to be varied on drawdown of funds — Unnecessary to decide whether concern regarding contempt was the sole justification for the order sought to be varied — In context it appears to have been a significant consideration for the order — Disputed contentions regarding applicants’ financial position — Variation application refused

CRIMINAL PROCEDURE – Trial – Jury – Discharge of individual juror

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order – no controversy regarding imposition of order – dispute limited to conditions imposed

MENTAL HEALTH - Protected Estates – the plaintiff applies for a declaration and orders under the New South Wales Trustee and Guardian Act 2009, s 41(1)(a) (“the TAG Act”) that the estate of his father, the first defendant, be subject to management orders under the TAG Act – the first defendant is taken out of the jurisdiction by his nephew, the second defendant – the first defendant now lives with the second defendant – the plaintiff applies for declarations that various powers of attorney and enduring guardian appointments executed by the father are void and of no effect – whether the first defendant is a person “incapable of managing his or her affairs” – whether the estate of the first defendant should be subject to management under TAG Act.

Restraint of trade — employee's contractual post-employment restriction — Enforcement and remedies — Interlocutory injunction

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – where formal requirements satisfied – whether scheme of arrangement should be approved.

COSTS — Party/Party — Where orders made striking out substantial cross-claim and claims against several Cross-Defendants were dismissed by consent

LAND LAW — Caveats — Extension of operation of caveat — Balance of convenience — Serious question to be tried — Undertaking as to damages LAND LAW — Caveats — Formal requirements — Requirement to specify particulars of estate or interest claimed — Where dropdown boxes on PEXA system do not permit interest to be described accurately — Whether description due to requirements of PEXA system a failure to comply with legislation which can be disregarded — Recommendation that PEXA system be changed to provide options which better describe trust claims — Real Property Act, 1900 (NSW), s 74L

CORPORATIONS — Winding up — Liquidators — Appointment of special purpose liquidator — Where question arises as to apparent independence of general purpose liquidator — Whether special purpose liquidator should be appointed to conduct certain investigations and possible proceedings.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under ss 411 and 1319 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

COSTS – Whether application for indemnity costs open in the circumstances – Whether order for costs should be made against the Plaintiff’s solicitor.

COSTS – interlocutory costs order – costs thrown away by amendment – application for payment on account – claim under competition covenant no longer pursued – whether discrete issue – whether it was unreasonable to pursue the claim

CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – forensic patient – interim extension order due to expire – application for extension order – whether unacceptable risk of causing serious harm if status as forensic patient ceases – whether risk can be managed adequately by less restrictive means – where no dispute as to second limb or as to duration should orders be made

TORTS – negligence – occupier’s liability – duty of gym to member – question of breach – use of weight machine – allegation of defect EVIDENCE – witness – allegation of subornation – onus and standard of proof DAMAGES – personal injury – Conversion Disorder – no question of principle

APPEAL — order made in Equity Division prior to final hearing for removal of caveat — Real Property Act 1900 (NSW) s 74MA — balance of convenience considered — appeal allowed and discretion re-exercised

CIVIL PROCEDURE – Freezing orders – Variation application – application to increase the maximum amount the defendants may spend on reasonable legal expenses – nature of defence not yet finalised – application premature

SUCCESSION – contested probate – principles for grant of probate in solemn form – where probate on common form granted – where will gives equal share of deceased’s estate to former spouse and six children – where issue raised by a beneficiary about authenticity of will and whether original provided for probate - whether the will was duly executed and last valid original will of the deceased– consideration of value of deceased’s estate and disputed expenses – grant of probate in solemn form CIVIL PROCEDURE – where hearing proceeded in absence of plaintiff – where no evidence read in support of plaintiff’s claims – where claims made by the plaintiff lack merit – plaintiff’s amended statement of claim dismissed COSTS – whether ordinary or indemnity costs should be ordered – Calderbank offers – whether unreasonable to not accept

TORTS - Negligence – Fall over balcony wall – Reasonable foreseeability – Foreseeability of harm NEGLIGENCE – Duty of care – Leased premises –– Landlord’s duty of care – Whether landlord breached duty of care TORTS – Negligence – Contributory negligence – risk of harm – Formulation of risk of – Whether defendants knew or should have known of risk of harm NEGLIGENCE – Causation – Onus of proof - Factual causation – Scope of liability NEGLIGENCE — Defences — Intoxication

EQUITY – LAND LAW – SUCCESSION – Real Property Act 1900 (NSW) s 74MA – where deceased made a will and signed a memorandum of wishes which was countersigned by his wife (the second defendant) who survived him – where under the memorandum of wishes he bequeathed to her a real property on the understanding and agreement with her that she would leave it or any other property bought to replace it or the proceeds of its sale to a son of the deceased’s first marriage (the plaintiff) and a child of the marriage between her and the deceased in equal shares – where the plaintiff lodged a caveat on the property contending that she holds it in trust for the two sons – HELD – no trust created, no caveatable interest, caveat to be removed

CRIME – Appeals – Crown appeal against sentence – whether sentencing judge erred in assessment of length of journey during which others were exposed to risk – whether sentence manifestly inadequate – offences of dangerous driving occasioning two deaths and one grievous bodily harm – grossly overloaded caravan – appeal allowed – sentence below quashed – sentence increased

CIVIL PROCEDURE – medical negligence – application for interim payment – where first plaintiff is a person under a legal incapacity – where no defence yet filed – whether the proposed interim payment is for the benefit of the first plaintiff

Restraining orders – leased premises – outstanding rent

PROCEDURE – Whether confirmation of substituted service of proceedings interstate available is subject to the requirements of the Service and Execution of Process Act 1992 (Cth) MEETINGS – Whether Defendants held 5% of votes carried by units at time of calling general meeting of unitholders COSTS — Whether order for costs should be made against one or all Defendants

CONTRACTS – contract for civil works – proper construction – where subcontractor in breach of contract failed to pay secondary subcontractors – whether principal thereby entitled to withhold payment on basis that funds reasonably required to meet contingent loss or damage – where payments of payment claims by principal to subcontractor provisional and on account only – whether principal entitled to de-certify previously certified provisional payments – whether an implied term of the contract that principal act reasonably and in good faith – whether principal acted in breach of obligation to act in good faith in de-certifying previously certified provisional payments – whether principal under subcontract entitled to terminate subcontract – measure of damages recoverable – whether principal has established quantum of its loss BUILDING AND CONSTRUCTION – whether principal under subcontract entitled to terminate subcontract – measure of damages recoverable – whether principal has established quantum of its loss BUILDING AND CONSTRUCTION – where principal required to take over construction works – where principal incurred greater costs than subcontractor – principles to be applied when assessing damages claimed by a principal who completes work after the default of the subcontractor CORPORATIONS – insolvency – whether subcontractor became insolvent by reason of principal’s conduct in breach of contract – whether subcontractor was insolvent at all times from October 2012 – unfair preferences claim – alternate claim brought in circumstances where non-payment of certified amounts not found to be in breach of contract – whether withholding of monies amounts to unfair preferences for the purposes of s 588FA of the Corporations Act 2001 (Cth) – whether conduct characterised as a retention or set-off