Cases and authorities

RESTRAINT OF TRADE – unsuccessful application for injunctions – final orders

APPEALS – Appeal from NSW Civil and Administrative Tribunal (“NCAT”) to Supreme Court – whether Appeal Panel costs decision should be set aside – where underlying NCAT proceedings resolved by consent orders

SUCCESSION – COSTS – Probate dispute (subject of Cross-Claim by Defendants) and family provision dispute (subject of the Plaintiffs’ claim) – In addition, shortly prior to the hearing, Plaintiffs commenced separate proceedings – In allocation of costs by reference to issues, parties agree that costs are equally divided between Probate and family provision proceedings – No agreement regarding costs in separate proceedings – In probate claim, in which Cross-Claimants successful, whether circumstances warranted investigation and whether the litigation caused by the conduct of the deceased – In family provision claim, which was dismissed, an Offer of Compromise had been made by Defendants – In separate proceedings, consent to dismissal if Defendants successful on Cross-Claim – Costs incurred in regard to separate proceedings dealt with separately

CONTRACT – commercial contracts – agreements to negotiate – informal written agreement for purchase of ten properties, specifying price and settlement period – purchase subject to due diligence – special purpose vehicle to be nominated by purchaser – parties obliged to use “all reasonable endeavours to agree the terms of a Contract for Sale” during due diligence period – construction – enforceability – obligation on vendor to make offer – failure to incorporate nominated special purpose vehicle – breach REAL PROPERTY – options – formal requirements – Division 9 of Part 4 of the Conveyancing Act – whether informal written agreement an option over the properties – whether land “residential property”

APPEAL – appeal against conviction – carrying out of project in contravention of conditions of approval – condition requiring bulk earthworks on site not to exceed a maximum exposed disturbed area – construction of condition – “site” on which bulk earthworks carried out – whether only parts of site on which earthworks carried out under condition or site more generally – misconstruction of “site” – bulk earthworks authorised but not undertaken under other consents – whether changes calculation of maximum exposed disturbed area – whether areas disturbed by winning of fill and placing of fill are both exposed disturbed areas – whether ambiguity of condition should have resulted in construction in favour of defendant – whether error in construction of “site” material – no substantial miscarriage of justice – maximum exposed disturbed area limit still exceeded

CIVIL PROCEDURE – Jurisdiction – Where claim commenced in name of person without consent or notice – Person entitled to have orders made against them set aside – Power of Court to set aside – Removal of parties

CRIMINAL CODE – post-sentence order – extended supervision order – protection of community – risk the defendant will commit serious Part 5.3 offence – risks associated with significant mental illness and substance abuse disorder – improvements in custody – extremist beliefs – fluctuation in extremist beliefs – need for fresh expert assessment given fluctuation in beliefs and fluctuation in reporting of auditory hallucinations – whether offender poses unacceptable risk of committing a serious Part 5.3 offence – whether each of conditions and combination of them is reasonably necessary and reasonably appropriate and adapted to protect community from unacceptable risk

NEGLIGENCE – Medical practitioner – Failure to diagnose – Whether failure to diagnose caused harm – Loss of chance APPEAL – Function of appellate court – finding of fact purely based on analysis of the medical evidence

PRACTICE AND PROCEDURE – appeal from interlocutory order – refusal of trial judge to grant leave to apply for trial by a judge alone less than 28 days prior to the date fixed for the trial – Crown opposed leave but if leave granted consented to order – accepted that application did not involve “judge shopping” – trial judge refused application because of “appearance” of judge shopping – trial judge erred in not considering that one accused could not apply earlier because other accused did not consent – trial judge erred in acting on basis that appearance of judge shopping could remain where it was accepted that neither applicant engaged in judge shopping – appeal allowed – leave granted – orders for judge alone trial made

CRIME – Appeals – Appeal against sentence – Covid-19 pandemic – where sentencing judge acknowledged the impact of the Covid-19 pandemic during the proceedings on sentence – where remarks on sentence did not expressly acknowledge the likely impact of Covid-19 on conditions of imprisonment – whether sentencing judge erred by failing to take into account that the Covid-19 pandemic renders conditions of imprisonment more onerous CRIME – Appeals – Appeal against sentence – Parity – where applicant and a co-offender were each sentenced by a different sentencing judge – whether there is a disparity in the sentence of the applicant and the co-accused that gives rise to a justifiable sense of grievance on the applicant’s behalf – discussion of how the respective ratios of the non-parole period to the head sentence of each co-accused are compared

CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — whether trial judge erred in limiting consideration of Bugmy and Fernando factors to special circumstances finding — where no such error demonstrated having regard to reasons as a whole CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — whether trial judge erred in not finding that lack of planning was a mitigating factor — domestic violence offence — where no error shown CRIME — Appeals — Appeal against sentence — Re-sentence — calculation error for commencement date of sentence

CRIME – appeals – appeal against conviction – unreasonable verdict – sexual intercourse with a child under 10 years and aggravated indecent assault – victim three years old – no direct evidence of acts the subject of the offences – evidence of witness about applicant sending videos by phone recording the two acts – WhatsApp exchanges between applicant and witness relied on as admissions and tendency evidence – evidence of second witness shown video of indecent assault by applicant on her phone CRIME – appeals – appeal against conviction – extension of time in which to seek leave to appeal

COSTS – where plaintiff unsuccessful – where two offers of compromise made by successful defendant – where first offer a walk away offer – whether the Court should order that costs not be on an indemnity basis as a result of that offer – where common ground that later offer warrants indemnity costs order

CRIMES — sentencing — murder — objective seriousness of offending — offender in psychotic state at time of offending — moral culpability — subjective factors — special circumstances

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.

NEGLIGENCE — Duty of care — Particular relationships — accountant and client — factual case — whether negligent advice given — where evidence showed such advice not given EVIDENCE — credibility — importance of contemporaneous documents

COSTS – apportionment of costs - mortgagee’s costs – multiple issues – where mortgagor partially successful on cross-claim – where partial success on that issue affected amount recoverable by mortgagee – where mortgagee acted unreasonably in resisting issue raised on cross-claim – mortgagor should pay 80% of costs

CONTRACTS — Construction — Interpretation — Interpretation of a clause in a nomination deed for the development of a residential apartment building — Where the clause provided for a specific mix of one, two and three bedroom apartments but included a proviso that the mix “may be varied pursuant to” statutory and Council requirements — Whether the inclusion of studio apartments was a variation falling within that proviso. CONTRACTS — Rectification — Intention — Common intention CONTRACTS — Implied terms — Terms implied in fact ESTOPPEL — Estoppel by representation — “Silence” EVIDENCE — Affidavit evidence — Where substantial parts of the affidavits of three witnesses were copied between them. WORDS AND PHRASES – “varied pursuant to”

ADMINISTRATIVE LAW – Particular administrative bodies – Personal Injury Commission of New South Wales – Application to President to refer a medical assessment to a review panel for review under s 63 of the Motor Accidents Compensation Act 1999 (NSW) – Decision of delegate of the President to dismiss application – Whether jurisdictional error in deciding to dismiss – Submitting appearances by all defendants – Jurisdictional error found ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Unreasonableness – Whether delegate of the President of the Personal Injury Commission could reasonably have been satisfied that there was no reasonable cause to suspect that the medical assessment was incorrect in a material respect – Whether President’s delegate fundamentally misunderstood the task required to be performed – Submitting appearances by all defendants – Decision legally unreasonable – Misunderstanding of statutory task to be performed.

EVIDENCE — documentary evidence — tender of documents — email between first defendant and solicitor — no relevance to any issue between the parties — request to tender rejected

ADMINISTRATIVE LAW – Judicial Review of NCAT decision –Self-Represented Litigants – Denial procedural fairness – Actual or Apprehended bias – Matter remitted

COSTS – Party/Party – Application for costs to be paid out of Estate – Bases of quantification – Ordinary basis

APPEALS – procedure – stay of judgment pending appeal – where appellant company has no substantial assets – where sufficiently arguable case on appeal – whether real risk of prejudice to appellant in event appellant wound up and prosecution of appeal stayed – whether prejudice to respondent in event application to wind up delayed in challenging “uncommercial transactions” of appellant – no question of principle

COSTS –Party/Party – Indemnity

DEFAMATION – Requirement of “serious harm” to reputation under Defamation Act 2013 (UK), s 1 – Limited publication – Time at which harm falls to be determined – Relevance of duration of period of harm – Relevance of delay in complaint and commencement of proceedings – Whether imputation regarding specific instance of conduct supports general imputation – Whether Court is required to determine that each conveyed imputation is defamatory in nature – Primary judge’s conclusion that serious harm threshold not satisfied upheld DEFAMATION – Defences – Common law qualified privilege – Where matter complained of was an email sent to complainant’s parents by his ex-wife’s parents regarding family matters – Defining of privileged occasion – Relevance of conveyed imputations to occasion – Whether privilege lost by publication being actuated by malice

CONTRACTS – Construction and interpretation – Where shareholders agreement entitled company to project management fees in respect of development project – Whether fees became payable after development approval was granted, or at completion of project by sale – Project management expressly not limited to work in relation to development application – No source of funds for fee contemplated other than sale proceeds – Held that fees became payable only at completion of project by sale

BUILDING AND CONSTRUCTION – Contract – Whether contract existed – Whether respondent engaged as either builder or supervisor – Alleged partly written and partly oral contract – No contract in existence BUILDING AND CONSTRUCTION – Defective work – Duty to mitigate loss – Whether appellants acted reasonably to mitigate loss

CRIME — Appeals — Application for leave to appeal against sentence — Sole ground of proposed appeal manifest excess — Where the applicant was sentenced to five years and six months imprisonment for a number of drug related offences — Whether the sentencing judge wrongly focused on the applicant’s significant assets as opposed to the applicant’s subjective circumstances APPEAL — Leave to appeal — Principles governing

SENTENCING – parity – no question of principle

CRIME – appeals – appeal against sentence – four counts of using carriage service to menace, harass or offend contrary to s 474.17(1) Criminal Code (Cth) – offending occurred while applicant an inmate at various prisons – offending involved use of phone accounts of other inmates to call various entities and describe fictitious abuse of young daughter and other girls under the age of ten – calls made for purpose of sexual gratification – offending latest manifestation in persistent and identical offending over number of years despite earlier imprisonment – whether sentencing judge erred in applying principle of totality – where approach of backdating sentence to make it partly concurrent with sentence applicant had been serving was open to sentencing judge - whether sentence manifestly excessive – where notional accumulation within sentencing judge’s discretion – no House v The King error demonstrated

BAIL APPLICATION – applicant charged with five counts of drive manner dangerous causing death – 18 years old – no prior convictions – deteriorating mental health – bail concerns addressed by proposed bail conditions – bail granted

NON-PUBLICATION ORDERS – materials produced on bail application – open justice – access to materials provided to the Court

REAL PROPERTY – easements – extinguishment of easements – Cross-Claim seeking extinguishment of right of carriageway pursuant to Conveyancing Act 1919 (NSW) s 89(1) on the grounds of obsolescence, impediment of reasonable user of servient tenement, or abandonment – where right of carriageway has never been used as a means of vehicular access to the dominant tenement – where several obstructions have been erected on right of carriageway – where evidence suggests that right of carriageway has been used historically only as a footway – whether right of carriageway obsolete in circumstances where Council approval for construction of a driveway is very unlikely to be given – whether it is possible to reasonably enjoy servient tenement while right of carriageway subsists – whether acts or omissions of previous dominant owners evinced an intention to abandon right of carriageway in whole or in part – held that right of carriageway not obsolete, inconsistent with reasonable use of servient tenement, or abandoned in whole or in part – held further that dominant owners would suffer a substantial injury if right of carriageway were extinguished – defendants to be ordered to remove obstructions placed on right of carriageway without dominant owners’ assent

APPEALS – right of appeal – appeal from Local Court General Division – appeal on question of law – appeal by leave on mixed law and fact – leave not sought – challenge to primary facts not a question of mixed law and fact – challenged findings not dispositive – assessment of damage in absence of evidence BAILMENT – storage of goods in unit controlled by owner – use of storage unit pursuant to licence – licensor obtaining possession of goods on termination of licence – whether gratuitous bailment – goods lost and damaged – no reliable evidence as to lost goods being in storage unit – no evidence as to condition of goods before removal from storage unit CONTRACT – intention to enter legal relations – mutual benefits not sufficient to establish intention – arrangement result of social relationship – no formalities – short term storage of goods in exchange for work on electronics

CONSTITUTIONAL LAW – constitutional implications – whether ss 81 and 83 of the Constitution provide an implied basis for the recovery of ultra vires payments by the Commonwealth – where proceedings brought by Commonwealth to recover ultra vires payments mistakenly made to former Navy officer after his separation from Navy – whether s 14(1)(a) of Limitation Act 1969 (NSW) is rendered inoperative or invalid in its application to the Commonwealth’s claim by reason of ss 81 and 83 of the Constitution RESTITUTION – bars and defences to restitutionary claims – limitation periods – where Commonwealth brought proceedings to recover ultra vires payments mistakenly made to former Navy officer after separation from Navy – application of principle in Auckland Harbour Board v The King [1924] AC 318 – whether recovery of some payments statute-barred by reason of limitation period – whether Auckland Harbour Board claim is a claim in “quasi contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – meaning and historical development of claims in “quasi contract” – whether limitation period should be postponed pursuant to s 56 of the Limitation Act RESTITUTION – public authorities – claims by public authorities – where Commonwealth mistakenly continued to make payments to former Navy officer for six years following separation from the Navy – where mistaken payments were made ultra vires – application of principle in Auckland Harbour Board v The King [1924] AC 318 – historical development and juristic nature of claim pursuant to Auckland Harbour Board principle – whether recovery of some payments statute-barred by reason of limitation period – whether claim based on the Auckland Harbour Board is a claim in “quasi-contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – whether former Navy officer liable for payments made to third parties at his direction prior to separation from Navy RESTITUTION – nature of restitutionary liability – common counts – money had and received to the use of the plaintiff – where Commonwealth mistakenly continued to make payments to former Navy officer for six years following separation from the Navy – where mistaken payments were made ultra vires – application of principle in Auckland Harbour Board v The King [1924] AC 318 – historical development and juristic nature of claim pursuant to Auckland Harbour Board principle – whether recovery of some payments statute-barred by reason of limitation period – whether claim based on the Auckland Harbour Board is a claim in “quasi contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) LIMITATION OF ACTIONS – quasi-contract and restitution – construction of “quasi contract” for the purposes of s 14(1)(a) of the Limitation Act 1969 (NSW) – where Commonwealth brought proceedings to recover ultra vires payments mistakenly made to former Navy officer after separation from Navy – application of principle in Auckland Harbour Board v The King [1924] AC 318 – whether recovery of some payments statute-barred by reason of limitation period – whether Auckland Harbour Board claim is a claim in “quasi contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – meaning and historical development of claims in “quasi contract” – whether limitation period should be postponed pursuant to s 56 of the Limitation Act

EVIDENCE – documentary evidence – authenticity of documents – admissibility of a photocopy of original documents

EVIDENCE – documentary evidence – authenticity of documents – documents admitted

CORPORATIONS — Winding up — Court ordered winding up — Application to adjourn a winding up application — Where a winding up application is brought against an Australian company which holds shares in entities incorporated in Singapore, which in turn hold shares in other companies incorporated in Vietnam — Where the Australian company seeks an adjournment of the winding up application on the basis that it hopes to access restructuring relief in Singapore. CORPORATIONS — Winding up — Statutory demand — Failure to comply with statutory demand — Whether Australian company should be wound up under s 459A of the Corporations Act 2001 (Cth).

CIVIL PROCEDURE — Settlement or discontinuance — Person under a legal disability Court approval — Substantial fund to be paid to private trustees — Civil Procedure Act 2005 (NSW), s 77(3)

HIGH RISK OFFENDER – final hearing – application for extended supervision order – whether unacceptable risk of committing another serious sexual offence if not kept under supervision – defendant conceded that the statutory test met and of 4 years is open on the evidence – 4 years extended supervision order imposed with conditions

EQUITY — Trusts and trustees — Constructive trusts — Common intention — Where two sisters claimed various beneficial and legal interests in four properties — Whether loan or trust in respect of one property — Whether there was an agreement that plaintiff sister would remain the sole beneficial owner of one property — Whether sisters’ original intention to purchase one property as equal co-owners was changed to tenants in common with interests of 99% and 1% by agreement BANKING AND FINANCE — Banks — Bank accounts — Joint accounts — Whether property purchased using funds from joint account entitled each account holder to co-ownership — No joint account found

EQUITY — Trusts and trustees — Express trusts — Intention to create — Statute of Frauds — Requirement of writing — Part performance — No question of principle CONTRACTS — Formation — Conditional promises — Whether contract labelled “draft agreement” is subject to contract or binding

CORPORATIONS — Shares — Conflicting methods of valuation —Where experts disagree on valuation methodology — Where experts disagree on applicable earnings multiple — Where experts disagree on valuation - Where Court asked to determine price to be paid for equity of company by reference to expert valuation — Where Court accepted one valuer’s opinion — Price fixed accordingly

TORTS — General principles — Intentional torts — Joint tortfeasors — Assault — Common design — Procurement — Agency — Damages — Exemplary damages — Aggravated damages — Whether accessory procured or had common design with principal wrongdoer to threaten accessory’s business partner with a gun CONTRACTS — Duress — Forms — Duress to the person — Gun attack — Whether will deflected in entering into termination agreement after a gun attack — Whether termination agreement was affirmed PARTNERSHIPS AND JOINT VENTURES — Joint venture agreements — Rights and duties between joint venturers — Fiduciary relationship — Position of conflict EQUITY — Fiduciary duties — Breach — Whether company director in a joint venture entered into termination agreement — Whether entry into termination agreement was a breach of the no conflict principle — No termination agreement on the facts — No real and sensible possibility of conflict — No breach of statutory directors’ duties

CRIMINAL LAW – murder – trial by judge alone – joint trial of seven co-accused –extended joint criminal enterprise – whether in the course of an agreement to assault a fatal injury was inflicted with intention to inflict grievous bodily harm – whether the accused foresaw the possibility of infliction of grievous bodily harm by one or more of the accused with the intention to inflict grievous bodily harm –circumstantial case – no eyewitnesses – limited forensic evidence – Crown failed to establish joint criminal enterprise agreement as particularised

COSTS – offer of compromise and Calderbank offer – motions for special costs orders – apportionment of costs – plaintiff sues five defendants in contract and for misleading and deceptive conduct – plaintiff succeeds in contract against the first, second and third defendants – plaintiff fails against all defendants in the misleading and deceptive conduct claim – claims against fourth and fifth defendants dismissed – plaintiff makes offer of compromise and then a Calderbank offer to all defendants to resolve proceedings – offers were open to acceptance only by all defendants – offers not accepted – whether the judgment the plaintiff obtained against the first, second and third defendants was no less favourable than the offers not accepted by them – consequences of the plaintiff’s failure on the misleading and deceptive conduct claim – whether the misleading and deceptive conduct claim was clearly dominant or severable from the contract claim – whether the final costs order should differentiate between the outcomes of the contract claim and the misleading and deceptive conduct claim.

RESTRAINT OF TRADE – vendor of shares in company carrying on software reselling business – competition restraint – supplier solicitation restraint – employee solicitation restraint – whether vendor’s new software reselling business competitive with former business – admissibility of opinion from consultant economist – reasonableness of restraints CONTRACT – construction – defined term – “means and includes” – Fitzgerald v Masters – parol evidence rule – exceptions – exchanges of drafts

CIVIL PROCEDURE – pleadings – striking out – no reasonable defence – tendency to cause embarrassment – where defence pleads contract void for illegality or a sham COSTS – security for costs – relevant factors – impecuniosity – whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct – other relevant considerations

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders