Cases and authorities

FREEZING ORDERS - through various corporate entities the first plaintiff enters various real estate joint ventures with the second defendant – plaintiff claims she was misled by the second defendant to invest in the joint ventures and claims Australian Consumer Law compensation and the setting aside of the joint venture agreements – the second defendant disposes of three properties after the commencement of the proceedings – the plaintiff obtained freezing orders ex parte – the plaintiff seeks to extend the freezing orders and the second defendant opposes their extension – whether the freezing orders should be extended.

APPEALS – appeal from determination of Presidential member of the Personal Injury Commission – error-based jurisdiction in reviewing decision of arbitrator – jurisdiction of Court of Appeal – decision in point of law – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 APPEALS – applicant bearing burden of proof of employment-related injury cannot invert onus by pleading no evidence of pre-existing injury – applicant bearing burden of proof cannot rely on own evidence to assert no evidence of pre-existing injury WORKERS COMPENSATION – definition of “injury” – “disease” to be given broadest meaning – categorisation of “biological” and “pathological” changes rejected – Workers Compensation Act 1987 (NSW), s 4(b)

GUARANTEE – contract of guarantee – construction – where respondents executed guarantee in favour of partnership “and its successors and assigns” – where partnership subsequently incorporated and assigned business to company – whether company could rely on guarantee to recover payments respondents owed for goods supplied after assignment

CIVIL PROCEDURE — hearings — duty list — frequent interlocutory applications invoking parens patriae jurisdiction — listing considerations – application for listing declined in context of applicant failing to adequately engage with existing regime for specified materials to be provided to enable consideration of leave for listing UNREPRESENTED LITIGANTS — obligations to Court to assist with identifying relief and furthering the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings CIVIL PROCEDURE — Registrars — lack of clarity regarding whether applicant seeking review of Registrar’s decision — failure to identify orders REMOVAL TO COURT OF APPEAL — lack of background to enable proper consideration of request before the Court of Appeal JUDGMENTS AND ORDERS — Statement of reasons for judgment — Duty to give reasons — Extent of duty — Manner of delivery

HIGH RISK TERRORISM OFFENDER – final hearing – extended supervision orders – whether offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision – statutory threshold conceded – argument limited to the form of some of the conditions of supervision – extended supervision orders made for a period of 3 years

COSTS – no issue of principle

LIQUIDATORS – remuneration of liquidator of company – where company’s business undertaken as trustee of trust – remuneration sought for both past and future work – no question of principle – remuneration to be paid out of assets and undertakings of the trust – distribution of remaining funds to creditors of the company in its capacity as trustee RECEIVERS AND MANAGERS – remuneration of court-appointed receiver of trust of which company in liquidation was trustee – remuneration sought for both past and future work – no question of principle – remuneration to be paid out of assets and undertakings of the trust – distribution of remaining funds to creditors of the company in its capacity as trustee – discharge and release of court-appointed receiver

SUCCESSION – Statutory wills, Succession Act 2006 (NSW), s 18, s 19, s 22 – Person lacking capacity – Application seeking leave to apply for, and then, an order authorising, a will to be made on behalf of a person lacking testamentary capacity – Whether a will in accordance with that proposed by the Plaintiff, the financial manager of the person lacking testamentary capacity, who is a friend, and one of the beneficiaries, named in the proposed Will, with balance being divided equally between two other friends is, or is reasonably likely to be, is a will that would be made by the person who lacks testamentary capacity if he had that capacity – Whether it is appropriate for an order authorising such a will to be made – Report obtained from the NSW Trustee and Guardian because it has oversight over the Plaintiff as the private financial manager of Robert – Order made subject to person to be appointed as executor of statutory Will

PERSONAL PROPERTY – Gifts – Perfection of gifts inter vivos – Intention to make gift – Intention to accept gift – Presumption of assent – Capacity to make gift – Disclaimer by donee ESTOPPEL – Proprietary estoppel – Encouragement – Detrimental reliance

COSTS – where second defendant wholly unsuccessful in its opposition to the relief claimed by plaintiff – where second defendant’s involvement increased time and costs of proceedings – whether offer made by plaintiff could be said to be a compromise for the purposes of indemnity costs

HIGH RISK OFFENDERS – interim detention order – renewal after 28 days – whether court is required to make fresh independent decision – where no change of circumstances since order made – whether court can review reasons for the earlier order – order for renewal made

DAMAGES – Quantum of compensation – overvalue purchase of boat – competing valuation evidence – whether judge had regard to extraneous material not in evidence – where judge questioned defendant’s expert about “publicly available information” relevant to perception of buyers – where judge’s reasons on the valuation issue unrelated to “publicly available information” CORPORATIONS – Directors and officers – where real and substantial conflict between duty as director and interest as shareholder – where director paid company’s money to same solicitor retained by company and director in shareholder dispute – whether breach of fiduciary duty PROCEDURE – whether breach of rule in Browne v Dunn – where affidavit evidence of defendant’s belief that solicitor retained in the ordinary course of company’s affairs and business – where out-of-court representations by the solicitor as to nature of work – where defendant paid company’s money to solicitor – absence of cross-examination of defendant regarding nature of work to which payments related – where fair notice given of plaintiffs’ case on timing of payments to solicitor CORPORATIONS – Member’s rights and remedies – oppression – compulsory transfer order – transfer of oppressor’s shares to other shareholder without payment in return – where relief in derivative action did not fully address oppression – where defendant failed to contribute promised skill and goodwill to the company – where company did not commence its intended business – where compulsory transfer order in the nature of recission of shareholder agreement

INSURANCE – motor vehicle – compulsory third-party insurance – collision causing stationary traffic on highway – driver injured avoiding stationary traffic – whether stationary traffic a “situation” – whether original collision caused “dangerous situation” –Motor Accidents Compensation Act 1999 (NSW), s 3A(1)(d) NEGLIGENCE – duty of care – scope of duty – whether negligent driver owed duty of care to road users not involved in collision – injury to second driver distant in time and place from original collision NEGLIGENCE – breach – whether risk “not insignificant” – levels of risk – error to focus on precise mechanism by which harm occurs NEGLIGENCE – defences – contributory negligence – speed not excessive – no failure to keep lookout – driver injured in avoiding stationary cars on highway – whether contributorily negligent

CRIME – TRIAL – accused charged with murder – jury of 15 empanelled to hear trial – jury panel given list of witnesses and other significant persons – outline of alleged offence provided to jury panel – after empanelment juror reported an acquaintance with a witness – juror discharged

MENTAL HEALTH — Guardianship — Inherent Jurisdiction – Accommodation of incapable person

COSTS — whether successful party entitled to a costs order — exceptions to general rule that costs follow the event — rule 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) — operation of s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) and reg 53 of the Legal Profession Uniform Law Application Regulation 2015 (NSW) — misconduct of a party resulting in unnecessarily protracted proceedings and costs unnecessarily incurred — whether costs order should be made against successful party — whether lump sum costs order should be made — referral to Registrar

CIVIL PROCEDURE — parties directed to confer on orders — order in issue — order that statement of claim be amended to reflect findings of prior judgement

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – by person serving a sentence for a serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleges he was sexually abused by a teacher at a state primary school – leave granted

REAL PROPERTY – EASEMENTS – a complex and protracted dispute in relation to the use of easements for the use of an inclinator, the supply of services, giving rights-of-way, and other related easements – dispute has been a perennial subject of litigation between the plaintiff and the defendants who are neighbours – hearing in May 2022 – proceedings relisted in July 2022 as a result of further incidents – whether interlocutory orders should be made pending determination of the final issues, and if so what should be the form of those interlocutory orders – what is the best course for quelling the parties dispute in the near term, consistent with their respective rights under the easements.

STOCKBROKING – shares – plaintiff had ‘cornerstone’ shareholding in publicly-listed company – stockbroker made ‘firm’ bid on behalf of client to acquire plaintiff’s shares for $10 million – plaintiff ‘matches’ with ‘firm’ offer – shares to be transacted by block trade – plaintiff and client yet to open accounts with broker – client yet to provide broker with cleared funds – plaintiff’s offer expires – plaintiff and client continue to negotiate directly, to no avail – shares now worth nothing. AGENCY – breach of warranty of authority – principles at [3]-[10] – whether broker warranted authority of client to contract – broker acted within scope of authority – no contract entered into. WORDS AND PHRASES – meaning of ‘firm’ in stockbroking – whether word had a specific, technical meaning – ‘firm’ not a term of art. CONTRACTS – whether contract formed by acceptance of ‘firm’ bid – acceptance amounted to counter-offer – no intention to create legal relations – post-contractual conduct indicated no contract formed.

PRACTICE – appeals – stay of execution – whether judgment sum should be paid into court – respondent a listed company based in Singapore – no local assets against which execution readily available – risk of expense and inconvenience if necessary to enforce NSW judgment in Singapore – no evidence of any prejudice – applicant proffering expedited appeal – stay granted

APPEALS — Procedural fairness — Motion to amend statement of claim — Application for an adjournment CONTRACT – Release – Whether a defence based on a release is strong enough to justify summary dismissal CONSUMER LAW — Consumer credit — National Credit Code AUSTRALIAN CONSUMER LAW — Unconscionable conduct

CRIME – appeals – appeal against sentence – conspiracy to import commercial quantity of MDMA – tobacco smuggling – Commonwealth offences – aggregate sentence - whether and the extent to which an undercover operation and the role of an undercover operative operate to reduce culpability – where sentencing judge found applicant was willing and trusted participant who expected significant financial gain – where sentencing judge did not err in finding that involvement of undercover operative did not substantially diminish applicant’s culpability – principles of sentencing offenders involved in controlled operations – relevance of specific and general deterrence in controlled operations – discount of 25% afforded for applicant’s guilty plea – where discount was appropriate – issues of parity with co-offender –where applicant could have no justifiable sense of grievance – whether aggregate sentence manifestly excessive – where undiscounted indicative sentences fell outside range of reasonable sentences in circumstances of offending – where notional accumulation was unreasonable – appeal against sentence allowed – imposition of aggregate sentence for multiple Commonwealth offences – applicant re-sentenced

PRACTICE AND PROCEDURE – Evidence (Audio and Visual Links) Act 1998 (NSW), s 5B – contested application for witness to give evidence by audio visual link (AVL) from Beijing, China – where witness will give evidence through a translator – where witness claims an inability to travel to Australia because he is not permitted to do so as he is assisting government authorities in an investigation – where witness does not wish to travel to Australia because of the risks posed by COVID-19 – where defendant opposes AVL evidence on the basis that it will be unfair to him because credit is in issue, the allegations are serious and he is an individual, a translator will be used, and there is increased risk of a protracted hearing due to technical difficulties – where the Court is not satisfied that making the order for AVL evidence will be unfair to the defendant in all the circumstances, including where the Court imposes specific conditions including giving the defendant the election to have his evidence taken remotely as well – exercise of discretion – where the Court considers the witness’ claimed inability to travel to Australia not made out, but considers that credence should be given to COVID-19-related travel concerns – HELD – order for AVL evidence made – orders a NSW legal practitioner to be present with witnesses and translators to be present in Court – plaintiffs to arrange facilities and bear costs, to become costs in the cause – Court may revoke orders if necessary

CIVIL PROCEDURE — hearings — suppression and non-publication — whether necessary to make order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) to suppress certain parts of a transcript of proceedings before this court

CIVIL PROCEDURE - discovery, subpoena and production - grounds for resisting - objection to production and inspection - public interest immunity - immunity granted - no issue of principle discussed - judgment supplementary to earlier judgment of the Court - disclosure of redacted sections of documents granted.

SUCCESSION – PRACTICE AND PROCEDURE – succession – Filing and verification of estate accounts

CONTRACTS – deposit – contract for the sale of land – where purchasers did not pay the full deposit due under the contract upon exchange – where vendors extended cooling-off period to accommodate purchasers’ inability to secure finance approval – where purchasers ultimately failed to complete the contract by the time stipulated in a Notice to Complete – where vendors terminated the contract and sought to recover unpaid portion of the deposit – where vendors sold the property at a profit soon after terminating the contract – whether purchasers entitled to relief against forfeiture pursuant to Conveyancing Act 1919 (NSW) s 55(2A) – where purchasers provided no explanation of circumstances in which they failed to complete – whether the vendors’ profitable resale of the property is enough to justify relief against forfeiture – vendors held to be entitled to recover unpaid portion of the deposit – not shown that it would be unjust or inequitable to allow the vendors to forfeit the deposit

ADMINISTRATIVE LAW – jurisdictional error – workers compensation – medical assessment – appeal to medical panel – judicial review of decision of appeal panel – where appeal panel confirmed medical assessment certificate determining worker’s whole person impairment at 13% – whether the appeal panel asked itself the wrong question by confining itself to the precise grammatical meaning of the terms of the referral

ADMINISTRATIVE LAW – judicial review – motor accident compensation – submitting appearances by both defendants – error on the face of the record – extension of time – delay explained – incorrect legal test applied by delegate – no point of principle

CIVIL PROCEEDINGS – summary disposal – dismissal of proceedings – statement of claim naming 12 defendants – unrepresented plaintiff seeking compensatory and aggravated damages – claim arising out of care proceedings under Children and Young Persons (Care and Protection) Act 1998 – defendants were police officer, caseworkers, solicitors, and Magistrate who heard care proceedings – plaintiff claiming defamation in documents and affidavits prepared for care proceedings – defence of absolute privilege available – where plaintiff cannot make claim on behalf of her husband for defamation – witness immunity – advocates’ immunity – judicial immunity –whether plaintiff raising tort of misfeasance of public office in relation to police officer named as defendant – no harm caused to plaintiff – no reasonable cause of action disclosed – abuse of process – orders pursuant to r 13.4 UCPR CIVIL PROCEDURE – parties – misjoinder – no relief sought against two defendants named in statement of claim – order removing parties – rule 6.29 UCPR CIVIL PROCEEDINGS – summary disposal – claim for breach of privacy of plaintiff’s husband – tort of privacy – whether such tort recognised in Australian law – standing of plaintiff to bring proceedings – no reasonable cause of action disclosed

CRIME – appeal and review – appeal as of right from Local Court decision under s 56(1)(c) Crimes (Appeal and Review) Act 2001 (NSW) – where first defendant a police officer – where first defendant struck a young person a number of times with a baton – where young person intoxicated – where Magistrate dismissed charge of common assault against first defendant – meaning of “reasonably necessary” in s 230 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether Magistrate failed to determine whether first defendant’s use of force was “reasonably necessary” – whether Magistrate failed to provide adequate reasons for decision

CIVIL PROCEDURE — Interlocutory applications — Ex parte — No question of principle

CIVIL PROCEDURE — Interim preservation — distinction between an asset preservation order and an injunction to preserve an asset CIVIL PROCEDURE — Interim preservation — Freezing orders — alleged scheme making use of a corporations to misappropriate or divert funds, property or corporate opportunities from its proper channels — application of principle in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 that evidence in relation to the establishment of a prima facie case can also support the inference of a risk of dissipation of assets — Onus of establishing risk on applicant — Ex parte freezing orders ought be of limited duration with an early as practical return date — Applicant duty of full and frank disclosure

COSTS – commercial list proceedings – application for costs order against successful party – offer of compromise – offer proposed orders not within the scope of relief sought in the proceedings – no reason to depart from rule that costs follow the event – indemnity costs – abandoned claims – costs awarded on the ordinary basis

ADMINISTRATIVE LAW – NCAT Appeal – Leave to appeal – Whether the Appeal Panel erred in joining parties – Whether there was an injustice going beyond what was reasonably arguable – Whether there is an issue of principle or a question of public importance – Appeal dismissed

PRACTICE AND PROCEDURE – pleadings – whether plaintiff should have leave to amend its Commercial List Statement – whether List Statement should be struck out

SUCCESSION — Family provision — Claim by person who was, at any particular time, wholly or partly dependent on the deceased and was, at that particular time, or at any other time, a member of the household of which the deceased was a member, for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – No dispute as to eligibility – Then, question whether, having regard to all the circumstances of the case (past or present), there are factors which warrant the making of the application – Dispute about whether there are any such factors – Whether order under the Act should be made and if so, nature and amount of the provision – Order for provision made

CRIMINAL LAW – application under s 78 of the Crimes (Appeal and Review) Act 2001 – general principles – jurisdiction – power to consider application for inquiry – where offender was convicted and sentenced for only offences against a law of the Commonwealth – Huynh v Attorney General (NSW) (2021) 396 ALR 422; [2021] NSWCA 297 – no power to determine application – application dismissed – want of jurisdiction

SENTENCING — murder — judge alone trial — child victim — prior good character — unlikely to reoffend — reduction for facilitating the administration of justice —special circumstances

COSTS — Security for costs — Relevant factors — Whether plaintiff’s claim is properly classified as defensive where it relates to its rights under a contract the subject of a prior adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) — Whether plaintiff’s impecuniosity was brought about by the defendant’s conduct

CRIME – complicity – joint criminal enterprise – directions to the jury – whether accused joined a joint criminal enterprise between four men to assault the deceased – joinder said to arise tacitly at the scene of the crime – whether the accused had to be aware of the fourth assailant in order to agree in the common purpose – consideration of conspiracy cases regarding agreement with unknown co-conspirators – no prior communication by the accused to any assailant of intention to join the criminal enterprise

MENTAL HEALTH — jurisdiction — Supreme Court — protective jurisdiction — applicant daughter seeks personal access to father lacking capacity living in aged care facility — access precluded by decisions of applicant’s mother and brothers and aged care facility — daughter earlier declared incapable of managing her own affairs and subject to estate management orders — father unable to communicate or perceive his circumstances — father appointed mother as enduring power of attorney and enduring guardian — whether exercise of Court’s protective jurisdiction can enjoin mother from precluding personal access of daughter to father — whether for the benefit or in the interests of father that daughter have personal access to father before death — Court cannot enjoin mother where she lacks authority to preclude personal access to father — Court cannot enjoin mother or brothers from expressing opinions to aged care provider — personal access to father in remit of aged care provider AGENCY — enduring power of attorney — enduring power of guardian — scope of authority — whether appointee of enduring power of attorney pursuant to Powers of Attorney Act 2003 (NSW), Pts 2 and 4 has authority to preclude personal access to appointee — attorney has no such power — whether appointee of enduring power of guardian pursuant to Guardianship Act 1987 (NSW), Pt 2 has authority to preclude personal access to appointee — attorney has no such power unless specified in instrument of appointment

COSTS — Indemnity costs – Party/party costs

CIVIL PROCEDURE – amendment – pleadings – application for leave to file Amended Technology and Construction List Statement – where new building defects alleged – whether defendants prejudiced by proposed amendments CIVIL PROCEDURE – whether the proceedings should be dismissed as against the developer defendant – whether allegations of fact if proven capable of establishing that developer engaged in construction work for the purposes of the Design and Building Practitioners Act 2020 (NSW)

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Calderbank offer

INSURANCE — Liability insurance — Directors and Officers — Claim for indemnity and declaratory relief against two consecutive insurance towers — Claim for declaratory relief sought in the alternative against later insurance tower — Costs incurred by insured for securities litigation, investigations and a settlement arising from a file note — Whether costs caught under policy— Whether settlement reasonable — Retention — Statutory interest INSURANCE — Insurance Contracts Act 1984 (Cth) — Duty of disclosure — Non-disclosure and misrepresentation — Construction of insurance policy — Whether parties contracted out of statutory remedies — Whether continuity clause allowed a claim against the later insurance tower — Relationship between liability limits in policies — Whether but for relevant failure insurer would have entered into contract — Whether cover should be reduced to nil INSURANCE — Cross-claim in relation to one insurance policy — Contract — Formation — Rectification — Intention — Common intention — Signed placing slips INSURANCE — Cross-claim by one insurer against two other insurers — Equitable contribution — Double insurance — Coordinate liabilities — Proper measure of contribution INSURANCE — Whether insured barred from its alternative case — Election, waiver and estoppel — Futility — Whether declaratory relief hypothetical — Construction of notification clause — Whether late notification possible under the policy LIMITATION OF ACTIONS — Equity — Application of limitation periods by analogy — Indemnities and insurance — Analogies in Contract and contribution between joint tortfeasors — Whether some claims for costs out of time

HIGH RISK OFFENDERS – Extended supervision orders – Unacceptable risk of committing a serious offence – Relevance of conditions to risk

APPEAL – appeal from Civil and Administrative Tribunal to Supreme Court – judicial review – home building – pre-contractual work – scope of contract compensation mechanism – interpretation and construction of clause 14.7 in contract – no jurisdictional error – no substantial miscarriage of justice – supervisory jurisdiction not exercised – summons dismissed – plaintiffs to pay defendant’s cost of proceedings