Cases and authorities

PRACTICE – appeals – security for costs – variation – liberty to apply – order to pay $25,000 into court or as otherwise agreed by way of security for costs – appellant unilaterally offers alternative form of security – respondent rejects offer – no basis to vary regime

APPEALS – jurisdiction of appellate court – Court of Appeal – where jurisdiction of Supreme Court of NSW invoked pursuant to cross-vesting legislation – where Commercial Arbitration Act 2012 (WA), s 13(5), provides first-instance decision that is “within the limits of the authority of the Court” is “final” – whether s 13(5) precludes appeal to Court of Appeal by way of a rehearing pursuant to Supreme Court Act 1970 (NSW), s 101 – whether s 13(5) precludes appeal to Court of Appeal from decisions of courts, including superior courts, for jurisdictional error COMMERCIAL ARBITRATION – composition of arbitral tribunal – grounds for challenge to arbitrator – where presiding arbitrator’s now wife acted for respondents in connection with transactions relevant to the arbitration, in 1994, while in relationship with him – where applicants sought termination of arbitrator’s mandate – whether “justifiable doubts” as to arbitrator’s impartiality or independence – whether necessary to consider whether combined effect of circumstances gives rise to justifiable doubts when individual circumstances do not – whether erroneous to consider whether doubts overcome by rational arguments distancing wife from respondents – whether decision of primary judge involved finding that Commercial Arbitration Act 2012 (WA), s 12(3), sets higher threshold than Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 – no arguable error warranting grant of leave

CHILD WELFARE – Care proceedings – Care order – Order allocating parental responsibility – Second appeal – Appeal from Equity Division decision upholding Final Care Order of Children’s Court – Best interests of the child – Where child has undertaken substantial course of medical treatment by consent of Community Services with limited contact with parents – Where child approaching adult age and permanency planning underway – Whether child should be restored to mother’s care – Holding that there are insufficient prospects that alternative order would be made on appeal to justify granting of leave to appeal – Summons seeking leave to appeal dismissed

CRIME — Appeal — Appeal against conviction — Whether the trial Judge was required to warn himself pursuant to ss 165(1)(a) and 165(1)(d) of the Evidence Act 1995 (NSW) — Whether the complainant might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings — No request by trial counsel that the trial Judge give himself the relevant warnings — No miscarriage of justice demonstrated — Unreasonable verdict — Whether it was open to the trial Judge to be satisfied beyond reasonable doubt of the elements of Count 2 — Appeal dismissed

Immigration – Visas – Review of cancellation decision – Application for extension of time – Where then Minister for Home Affairs cancelled plaintiff's visa pursuant to s 501(3)(b) of Migration Act 1958 (Cth) – Where plaintiff applied pursuant to s 477A(2) for extension of time to file application for review of Minister's decision – Where primary judge heard application for extension of time concurrently with underlying substantive application – Where primary judge refused application for extension of time on basis that proposed ground of review had no merit – Whether primary judge misapprehended or misconceived nature of statutory power in s 477A(2) – Whether primary judge committed jurisdictional error – Whether exercise of discretion in s 477A(2) may involve more than impressionistic assessment of merits of proposed grounds of review. Words and phrases – "extension of time", "impressionistic assessment", "jurisdictional error", "misapprehended or misconceived", "necessary in the interests of the administration of justice", "reasonable prospects of success", "reasonably arguable". Migration Act 1958 (Cth), ss 476A, 477

Defamation – Publication – Where appellant operated internet search engine – Where search engine produced search results to users in response to user-designed search queries through use of computer programs and algorithms – Where each search result relevantly comprised title of webpage, snippet of content, and hyperlink to another webpage on World Wide Web – Where inputting respondent's name into search engine returned search result ("Search Result"), which included hyperlink to article published on newspaper's website containing matter defamatory of respondent – Where defamatory matter not reproduced in Search Result – Whether appellant "publisher" of defamatory matter – Whether providing Search Result amounted to act of participation in communication of defamatory matter to third party. Words and phrases – "act of participation in the communication of defamatory matter to a third party", "content-neutral", "defamation", "Google search engine", "googling", "hyperlink", "incorporation", "incorporation by reference", "instrumental in, or contributes to any extent to, the publication of defamatory matter", "internet search engine", "lends assistance to the publication", "mere reference", "navigate information on the World Wide Web", "publication", "publisher", "search engine", "search query", "search result", "search terms".

Administrative law – Judicial review – Jurisdictional error – Requirement that error must be material – When error will be material – Where appellant's visa cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where delegate of Minister for Home Affairs decided not to revoke cancellation – Where appellant sought review of non-revocation decision by Administrative Appeals Tribunal ("AAT") – Where AAT denied appellant procedural fairness by not giving opportunity to address relevance of incidents of domestic violence to primary consideration prescribed by direction made under s 499 of Migration Act – Whether denial of procedural fairness material – Whether, in discharging onus, appellant required to establish nature of evidence or submissions that might have been presented had AAT hearing been procedurally fair. Words and phrases – "judicial review", "jurisdictional error", "material", "materiality", "natural justice", "onus of proof", "practical injustice", "procedural fairness", "realistic possibility of a different outcome", "reasonable conjecture".

Patents – Invention – Manner of manufacture – Where appellant manufactured electronic gaming machines ("EGMs") – Where appellant owned four innovation patents concerning various embodiments of EGM – Where specification described claimed invention as combination of player interface, being physical features of EGM, and game controller, being computerised components interacting with player interface to implement base game and feature game – Where player interface and game controller part of common general knowledge – Where delegate of respondent revoked innovation patents on ground that claim in each not "manner of manufacture" within meaning of s 18(1A)(a) of Patents Act 1990 (Cth) – Whether claimed invention "manner of manufacture" within meaning of s 18(1A)(a) of Patents Act. Words and phrases – "abstract idea", "artificially created state of affairs", "characterisation", "common general knowledge", "computer‑implemented invention", "electronic gaming machine", "generic computer technology", "improvement in computer technology", "innovation patent", "invention", "manner of manufacture", "mere scheme or plan", "patent", "patentable subject matter", "proper subject of letters patent", "Statute of Monopolies", "useful result". Patents Act 1990 (Cth), s 18, Sch 1.

CORPORATIONS — Receivers and managers — Appointment by court — Application for approval of costs, disbursements and expenses and remuneration — Where a receiver of a trust and former liquidator of a company seeks approval for his remuneration — Where monies were previously paid into Court in the proceedings, a portion of which the trustee of the trust is entitled to — Whether the receiver and former liquidator’s remuneration was properly incurred and payable out of Court

MENTAL HEALTH – forensic patient – extension of status as forensic patient – history of sexual offending against children – where the defendant poses an unacceptable risk of serious harm to others if he ceases to be a forensic patient – defendant cannot be managed adequately by less restrictive means – dispute as to duration of extension order – order made extending status as forensic patient for four years

JUDGMENTS AND ORDERS – variation – rule 36.16(1), rule 36.16(3A), Uniform Civil Procedure Rules 2005 (NSW) – Autodesk – no issues of principle.

SUCCESSION — Statutory wills, Succession Act 2006 NSW, s 18, s 19, s 22 — Plaintiff applies for Statutory Will in her favour – Plaintiff is guardian of protected person and beneficiary in alleged informal Will made in her favour – Protected person without family – Death without a Will might result in estate passing to the State – Application for leave to apply for Statutory Will refused – Court not satisfied of matters prescribed by section 22

CRIMINAL LAW — murder — trial — judge alone — young person — defence of mental health impairment — special verdict of act proven but not criminally responsible

CRIME — Appeals — Appeal against convictions – sexual offences and assault offences committed against wife – arranged marriage – failure to call two character witnesses at the applicant’s trial due to the failure by the applicant’s former solicitors to notify trial counsel of their availability – whether miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW) established – approach to miscarriage considered – whether no substantial miscarriage – where evidence not called, difficulty for the court’s ability to assess guilt being established beyond reasonable doubt – appeal allowed – convictions quashed – new trial ordered

CRIME – Appeal against sentence – procedural fairness – limited prior criminal history – where written submissions referred to leniency – not raised on oral submissions by the parties or the Judge – whether procedural fairness denied as issue not opened up by the Judge – whether applicant had a legitimate expectation that written submissions would be accepted – discretionary matter for the Judge – whether Judge had made the finding that grounded the appeal – whether leniency extended because of limited prior criminal history

SENTENCING — appeal against sentence — subjective considerations on sentence — special circumstances — failure to give effect to finding of special circumstances — error requiring resentencing SENTENCING — appeal against sentence —informers — sentence reduced because of assistance provided to law enforcement authorities SENTENCING — appeal against sentence — co‑offenders — disparity between sentences

PERSONAL PROPERTY - Personal Property Securities Act 2009 (Cth) – where secured property in possession of third parties – where third parties not on notice and not otherwise party to the proceedings – scope of ss 20 and 123 of the PPS Act – no power of the Court to grant a unilateral licence to enter premises – process available to join third parties

CORPORATIONS – statutory demand – application by plaintiff to set aside the defendant’s statutory demand under s 459G of the Corporations Act 2001 (Cth) (the Act) – where plaintiff argues that the demand should be set aside because an alternative dispute resolution provision in their contract precluded the defendant from issuing it – where the plaintiff did not raise this issue in its primary material in support of its originating process – whether plaintiff has raised a genuine dispute about the existence or amount of debt which is claimed under the statutory demand – requirements for genuine dispute – genuine dispute not established – HELD – proceedings dismissed with costs

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – leave sought pursuant to Felons (Civil Proceedings) Act 1981 (NSW) – where proceedings commenced before leave sought – plaintiff alleged he was sexually abused as a pupil of a school run by the defendant – leave granted

CIVIL PROCEDURE – application for plaintiff/applicant to appear by audio visual link – leave granted

APPEAL – Procedure – Vexatious litigant – Purported appeal to the Supreme Court from decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal dismissing appeal from a profession decision of the Occupational Division – No right of appeal to Appeal Panel of NCAT from a profession decision of the Occupational Division – In dismissing appeal the Appeal Panel did not have to be constituted in accordance with s 165B of the Health Practitioners Regulation National Law (NSW). APPEAL – Purported appeal to the Supreme Court from decision of Appeal Panel dismissing an appeal from a profession decision of the Occupational Division of NCAT – Whether order of the Court of Appeal under the Vexatious Proceedings Act 2008 (NSW) prohibiting plaintiff instituting proceedings stayed because of institution of appeal against the dismissal of an appeal to the Appeal Panel from a profession decision of the Occupational Division of NCAT– No stay. CIVIL PROCEDURE – Vexatious litigant – Institution of proceedings without leave – Proceedings stayed from institution and taken to be dismissed after 28 days if not ordered to be dismissed earlier by operation of s 13 of the Vexatious Proceedings Act 2008 (NSW) - Declaratory orders made formally recording dismissal under the statute. CIVIL PROCEDURE – Recusal for Bias – Apprehended bias – Mere fact of being President of NCAT at the time of the decisions appealed against does not provide a basis to conclude that a fair-minded lay observer, being aware of ordinary judicial practice, might reasonably apprehend that a former President might not bring an impartial mind to the resolution of an appeal from those decisions.

CIVIL PROCEDURE – application to access court files – objection to production of documents or things – legitimate forensic purpose

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.

EQUITY — Trusts and trustees — Trust powers — Powers of appointment — Application for appointment of independent trustees — Whether trust was determined by payments by trustee to person who was an object of a discretionary trust — Where payments made from an account in which trust funds were mixed with personal funds — Whether payment made in breach of trust — Where trustee died and administrator of his estate is an object of the discretionary trust

SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for relief – Application for removal – Rule against self-dealing – Whether the sale of estate property to an executor of the will was authorised by the will – Whether the beneficiaries consented to the sale of the property – Whether the beneficiaries made an election in respect of the breach of trust by the executors EQUITY — Equitable remedies — Rescission – Whether restitutio in integrum was possible

COSTS – appeal – Civil Procedure Act 2005 (NSW) s 98 – Uniform Civil Procedure Rules 2005 (NSW) r 42.1 – discretion as to costs – costs should follow the event – order as to costs of appeal – costs of Local Court proceedings

COSTS – judgment in favour of both plaintiff and defendant in actions for damages – notice of motion – costs for both parties – offer of compromise – indemnity costs – gross sum costs – orders made.

CIVIL PROCEDURE – application to vacate hearing date – medical grounds – previous delay – no issue of principle

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Amendment of scheme – dispatch of supplementary explanatory booklet.

LAND LAW – possession of land – default on mortgage – where first defendant is bankrupt – mortgagee entitled to possession – leave granted to issue writ of possession – no point of principle

CIVIL PROCEDURE – notices to produce – notice to produce for inspection (r 21.10) – notice to produce to Court (r 34.1)

HIGH RISK OFFENDERS — Extended supervision orders — Unacceptable risk of committing a serious offence — Determination of risk

APPEALS – Procedure – Leave to appeal – No discretionary error of kind referred to in House v The King identified – Application out of time – Extension of time in which to bring application for leave to appeal refused

CRIME – bail – detention application – application following conviction and before sentencing – s 22B Bail Act 2013 – whether conditions limiting Court’s power to make bail decision met – whether convicted person will be sentenced to full-time imprisonment – where condition involves state of satisfaction as opposed to a fact – where deference given to view of trial judge as to likely disposition of sentence

CRIME – Appeal and review – Stated case – Question of law – Construction of s 58 of Crimes (Sentencing Procedure) Act 1999 (NSW) – Whether “existing sentence” determined at the time the “new sentence” is being imposed or at the time the “new sentence” commences – Determined at time the “new sentence” is being imposed CRIME – Appeal and review – Stated case – Question of law – Construction of s 58 of Crimes (Sentencing Procedure) Act 1999 (NSW) – Whether s 58 constrains the length of the sentence that can be imposed or is limited to constraining the extent of accumulation of sentences – Section 58 effectively constrains the length of a new sentence that can be imposed

VENDOR AND PURCHASER – Put and call option deeds – block of 10 units sold in one line – interdependence of contracts – single conveyancer authorised to liaise with buyer and give permissions and receive notices under deeds – option period extended – initial buyer nominates corporate entity of which vendors’ agent is sole director and shareholder unbeknownst to vendors – but known to vendors’ conveyancer – contracts exchanged and notices to complete issued – dispute regarding notices and termination and ability of buyer to complete VENDOR AND PURCHASER – Principles regarding electronic conveyancing – PEXA – co-operation requirements – principles regarding completion and tender of performance in electronic settlement – nomination of a particular hour of the day for completion – construed as a matter of convenience – whole day available to complete VENDOR AND PURCHASER – duty of care owed by a conveyancer ordinarily excludes financial and commercial advice – agency obligations of conveyancer CONTRACTS – Conveyancing – Principles regarding notices to complete – Making time of the essence – Requirements of form and content of notices – Construction of notices to complete – Equitable context to requirements for a valid notice – Whether failure to intimate a right to terminate invalidates notice CONTRACTS – Notices to complete – whether purported nomination of place of settlement other than completion in electronic workspace invalidates notice EQUITY – Equitable remedies – Differences as between common law and equity as to time stipulations – Whether vendors waved essentiality of time or elected to affirm the contracts EQUITY – Equitable remedies – Specific performance – Whether vendors ready, willing and able to complete – Requirements of readiness in electronic conveyancing and workspace – Whether alleged late provision of settlement adjustment details precludes readiness – Dispute regarding default interest claim – Whether vendors’ interest in preferring to sell elsewhere demonstrates lack of willingness to complete and precludes entitlement to terminate EQUITY – Equitable remedies – Defences to specific performance – Whether purchaser had available finance – Dispute regarding whether purchaser had unconditional or sufficient finance – Whether purchaser ready, willing and able to complete AGENTS – fiduciary duties of disclosure – duration of obligations of agents CONTRACTS – Illegality – Contract entered into in contravention of s 49 Property Stock and Business Agents Act 2002 (NSW) – Whether legislation has effect of making void or voidable contracts of sale EQUITY – Equitable remedies – Defences to specific performance – Unclean hands – different effects of doctrine of illegality and maxim of unclean hands – Whether unclean hands permanently disbars equitable relief – “washing one’s hands” – “Washing” by imposing terms on specific performance EQUITY – Equitable remedies – Defences to specific performance – Delay EVIDENCE – Admissibility of evidence of what a party would have done in a hypothetical situation INTERPRETATION – What use can be made of extrinsic materials – Second Reading Speeches

COSTS – lengthy estate administration – review of Registrar’s decision under Uniform Civil Procedure Rules 2005, r 49.19 – claim for executors’ commission – the Registrar awards commission under Probate and Administration Act 1898 – the beneficiaries allege maladministration of two estates by the executors – Registrar’s decision upheld and various costs orders, including a specified gross sum costs order, made against the beneficiaries in three prior judgments of the Court – two groups of general issues remain: (1) whether the executors are entitled to any additional administration costs incurred between 17 March 2015 and 8 October 2018 and if so, in what sum should those costs be quantified; and (2) what order should be made to indemnify the executors as to costs of this litigation since 17 June 2021 up to and including the conclusion of the proceedings.

RECTIFICATION – principles at [72]-[75] – agent seeks rectification of agency agreement to secure repayment of commissions earnt prior to agreement – whether proof of common intention – evidence falls short of clear and convincing proof – no common intention – agency agreement not rectified. EQUITY – equitable charge – right to lodge caveat – real estate agent and property developer enter into agency agreements on large development – agent owed $3M commission for apartments already sold –– agent requests ‘security’ when negotiating further agency agreement – agent drafts caveat clauses ‘to protect’ commission – whether implied equitable charge – principles and case law review at [91]-[112] – no objective, contractual intention to confer proprietary interest – no equitable charge. REAL ESTATE AGENT – agency agreements – whether unenforceable for illegality – Property and Stock Agents Act 2002 (NSW) s 49(1) – agent must not obtain beneficial interest in property – exemption if client consents in approved form – contravention of s 49(1) does not render agency agreement unenforceable per se – client consents by agency agreement but not in approved form – agreement enforceable.

TRAFFIC LAW AND TRANSPORT – traffic law – motor accident legislation – claim for damages – psychiatric injury – medical assessment – clinical examination ordered to address inconsistencies on the materials – no psychiatric injuries caused by motor accident ADMINISTRATIVE LAW – bias – actual or apprehended – no prejudgment – medical assessor formed firm but preliminary view on the papers – plaintiff given opportunity to address inconsistencies ADMINISTRATIVE LAW – ground of review other than procedural fairness – irrelevant and relevant considerations – medical assessor must form own opinion based on expertise – medical assessor may disregard or assign little weight to evidence – relevance of evidence is factual issue for medical assessor ADMINISTRATIVE LAW – remedies – discretionary factors – review of medical assessment certificate – refusal of relief if internal review on available ground not sought – refusal of relief if President’s delegate not satisfied of error in material respect – concurrent internal appeal and judicial review

TAXES AND DUTIES — Landholder duty — Landholdings — Threshold value — Whether Power Stations located on land were landholdings within the meaning of the Duties Act 1997 (NSW) — Whether Power Stations were fixtures or innominate sui generis property TAXES AND DUTIES — Dutiable transactions — Dutiable value — Property — Whether methodology in SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue (2021) 113 ATR 24; [2021] NSWSC 395 applicable TAXES AND DUTIES — Dutiable transactions — Dutiable property — Goods — Whether Power Stations could be characterised as “goods”

CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW) – Whether contract unjust in the circumstances at the time the contract was made – Contract not unjust in the relevant sense despite cross claimant having been under some pressure to sign it. POSSESSION – Leave to issue writ of possession –Leave granted.

CONTRACTS — Construction — Context — Whether implied novation and supersession of agreement intended CONTRACTS — Implied terms — Terms implied in fact — Whether implied term to pay interest consistent with express terms of the contract CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Opinions — Representations as to present facts — Representations as to future matters — Whether reasonable grounds for making representation GUARANTEE AND INDEMNITY — Discharge of guarantor — Novation of principal contract — Where amounts guaranteed to different entity to that in the novated contract CORPORATIONS — Financial services — Whether second plaintiff provided financial product advice without licence — Whether right to rescind under s 925A of the Corporations Act 2001 (Cth)

MORTGAGES AND SECURITIES – mortgages – plaintiff and defendant tenants in common in equal shares – parties operating under joint venture agreement to develop quarry on land – agreement that parties would contribute equally to proposed business and share equally in profits – defendant unable to come up with funds to complete purchase of land – funds advanced by plaintiff and mortgage taken as security - enforceability of mortgage – whether representation that mortgage would only be enforced if the Australian Tax Office issued a notice to take land to satisfy tax liabilities owed by defendant – construction of terms of mortgage – where principal sum repayable on demand - whether mortgage enforceable prior to final repayment date - dispute over moneys said to be owing – whether money owed by plaintiff to defendant could be set-off against plaintiff’s claim - whether equitable set-off – where Referee determined amounts owing

CRIME – bail – detention application – application made by prosecution following conviction and before sentencing – s 22B Bail Act 2013 – whether conditions limiting Court’s power to make bail decision met – whether convicted person will be sentenced to full-time imprisonment – where condition involves a state of satisfaction as opposed to a fact – whether special or exceptional circumstances exist to grant bail STATUTORY INTERPRETATION – meaning of “will” – assessment of disposition of sentence in light of available sentencing alternatives – meaning of “special” or “exceptional” circumstances – where same words appear in different parts of statute – where reference to dictionary definitions is of limited assistance

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – where applicant convicted by jury of single count of sexual intercourse with a three year old girl – where complaint made in response to leading question of complainant’s parents – whether verdict of guilty open to jury – where video exhibits of complainant’s evidence available to Court of Criminal Appeal – where applicant relied on a number of identified inconsistencies in the evidence – consideration of reliability of complainant’s account CRIME – Appeals – Appeal against sentence – Manifest excess – where applicant sentenced to term of imprisonment – where maximum penalty for offence was life imprisonment – where finding of special circumstances made – whether sentence manifestly excessive – where applicant relied on comparable cases – where assessment of objective seriousness not challenged

PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 – motion to “revive” extant proceedings – leave refused

HIGH RISK OFFENDER – application for extended supervision order for three years – limited criminal record – one very significant incident of explosive violence – young Aboriginal man – incarcerated for over 8 years – successful time on parole and on interim supervision order – ESO called for – 2 years appropriate – inappropriate to impose more rigorous conditions as sought – potential to be regressive and criminogenic – continuing unacceptable risk despite positive signs – extended supervision order imposed

PRACTICE – appeals – stay of execution – whether appellant had made out appropriate case for a stay – appeal brought promptly – whether appeal reasonably arguable – undertaking not to sell or encumber real property – whether judgment substantially exceeded appellant’s assets – where respondent threatened to execute judgment – where respondent had in breach of inter partes agreement taken steps to levy execution – stay ordered on appellant’s undertaking

APPEAL – alleged assault by police – appeal from dismissal – appellant said he was assaulted as he confronted police over alleged failure to protect his father from neighbour – claims excessive force applied – claimed femur deliberately broken – police claim appellant represented threat to neighbour who was in their custody – claimed only applied “check drill” and appellant fell over – primary judge preferred evidence of police officers – dismissed claim – whether primary judge afforded proper weight to medical notes recording that applicant was assaulted – whether primary judge made finding that appellant and his mother concocted and colluded in their evidence – whether primary judge was obliged to make finding that police witnesses participated in a re-enactment of incident and their evidence was contaminated – all grounds rejected – appeal dismissed

PROCEDURE – compromises and settlements – litigation compromised by defendant accepting plaintiff’s offer – defendant declined to execute deed – Court determined binding settlement reached – Court then authorised Registrar to execute deed on defendant’s behalf – deed as executed by Registrar departed from terms of binding settlement – legal effect of recitals in deed – subsequent proceedings brought by defendant summarily dismissed – whether decision materially affected by deed – appeals allowed, deed ordered to be delivered up for cancellation