Cases and authorities

PRACTICE AND PROCEDURE – final hearing – application for adjournment – where plaintiff has failed to comply with directions to file and serve a statement of claim which complies with the Uniform Civil Procedure Rules 2005 (NSW) in circumstances where he apparently wishes to allege fraud and conspiracy – where the Court considers that he will not comply with this requirement – where the plaintiff’s application to appear at the final hearing remotely has been refused and the Court is not persuaded that he will travel to Australia for the hearing – where the Court considers an adjournment to be inutile – HELD – adjournment refused – where principal proceedings involve extension of a caveat claiming a 50 per cent interest in land and the defendant undertakes to the Court to pay 50 per cent of the net proceeds of sale of the land into Court for the plaintiff’s benefit or to the plaintiff – proceedings dismissed – order for withdrawal of caveat made

CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — Whether cy-près or administrative scheme can be ordered — Termination of Australian trust and transfer of Sterling denominated assets to English trust — “Original purposes of a charitable trust” — Charitable Trusts Act 1993 (NSW), s 9(1)

COSTS — indemnity order —Civil Procedure Act 2005 (NSW), s 98 — forensic decision to pursue second defendant and failure of case pressed against that party rests with the plaintiff — order not made

CRIMINAL PROCEDURE – trial – joint trial of three accused, one charged with murder, two with accessory after the fact to wounding with intent – where two accused (accessories) granted bail following delay due to COVID-19 – where one accused absconded and not apprehended – whether to proceed with trial in his absence – Crown case almost finished – absconder not presenting case – counsel for absconder refused leave to withdraw and later remained as amicus curiae – jury directed not to speculate – no application to discharge jury – order that trial continue in absence of absconded accused CRIMINAL PROCEDURE – right of accused person to be present at trial – waiver – exercise of discretion by trial judge to continue in absence of accused

HIGH RISK OFFENDERS — Interim supervision orders — Application – serious sexual offending – where defendant already subject to ESO – imposition of scheduling conditions – application granted

CRIMINAL PROCEDURE – summary proceedings – where Magistrate dismissed charges on submissions by the accused without sworn evidence – where Magistrate prompted to hold a hearing but refused – where hearing was apparently not “justified” and would “waste the Court’s time” – where prosecutor was denied the opportunity to make submissions on the law – process fundamentally flawed – proceedings seriously miscarried CRIMINAL PROCEDURE – hearing – examination and cross-examination of witnesses – discussion of statutory obligations in summary proceedings – Criminal Procedure Act 1986 (NSW) ch 4 pts 2 and 3 APPEALS – from Local Court to Supreme Court – procedural fairness – hearing rule – failure to comply with statutory provisions – failure to give adequate reasons – grounds of appeal upheld – consideration of judicial review or statutory appeal APPEALS — jurisdiction of appellate court — Supreme Court – whether remittal available on statutory appeal – power to make “such other order as it thinks just” – Crimes (Appeal and Review) Act 2001 (NSW) ss 56 and 59 – remittal ordered

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — abuse of process — frivolous or vexatious proceedings — no reasonable cause of action disclosed — no prospects of success and hopeless — where relief sought to “suspend” or “remove” judicial officers — where proceeding sought to relitigate or reagitate matters that had been finally determined by Supreme Court and Court of Appeal — where plaintiff alleges criminal conduct or misconduct by judicial officers — judicial review of decisions of the Supreme Court and Court of Appeal — judicial review of decision of Judicial Commission — proceedings summarily dismissed in their entirety

PROCEDURE – application for pro bono assistance – judicial review of dismissal of appeal by District Court against Local Court conviction – applicant suffers from significant hearing impairment – strength of case – complaint against solicitor formerly retained – application refused

SUCCESSION – family provision – claim by alleged de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – whether eligible person – whether in a de facto relationship at time of death – whether there were factors warranting the making of the application for family provision CIVIL PROCEDURE – appeals – standard of appellate review regarding a decision as to whether a criterion for a claimant to be an eligible person for the purposes of s 57(1) of the Succession Act 2006 (NSW) has been met

CRIME – application under the Jury Act 1977 to discharge individual juror – whether the observed conduct of the individual juror gave rise to an apprehension of bias

CIVIL PROCEDURE — approval of settlement — by consent — whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity — settlement approved

CHILD WELFARE – Parens patriae – Application for secure accommodation orders – Child in custody – To be released tomorrow – Risk if released into community – Orders made

COSTS – Suitors’ fund – Whether cost fund certificate should be granted – Certificate granted

CIVIL PROCEDURE – unrepresented defendants – possession – oral request for referral – initially insufficient information supplied to satisfy Court of matters in 7.36(2) – application initially refused – further representations by email – demonstrated inability of defendants to understand and pursue issues for determination – application granted

COMMERCE — restraint of trade — interlocutory relief — whether there is a serious question to be tried that the post-contract restraint in the franchise agreement is valid — whether the balance of convenience favours the granting of interlocutory relief

CIVIL PROCEDURE – application to vacate hearing date – notice to cross-examine plaintiff – plaintiff is a Chinese citizen residing in China – where Chinese internet firewall believed to prevent access to Court audio-visual link system – plaintiff to seek consent from Chinese authorities – delay – possible prejudice to defendant CIVIL PROCEDURE – audio-visual link – legislation authorising evidence by video link – whether taking evidence by video link to foreign country intrudes on sovereignty of foreign country – relevance of international comity – application of Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B – application to state court of principles in Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213; [2011] FCAFC 95 EVIDENCE – witness evidence – oaths and affirmations – application of Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5D

CIVIL PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) rr 13.4(1) and 14.28 – Application for dismissal – Whether proceedings frivolous or vexatious – Exclusion order from Casino – Monetary claim – No Loss – No cause of action – proceedings dismissed.

CORPORATIONS — Scheme of arrangement — Application for approval of communications to shareholders by way of telephone calls — Where plaintiff seeks to have a third party call and communicate information to shareholders in accordance with a script. CIVIL PROCEDURE — Hearings — Ex parte — Duty of disclosure — Where plaintiff previously made an announcement without Court approval to the Australian Securities Exchange (“ASX”) which highlighted the asserted advantages of the scheme but omitted potential disadvantages — Where plaintiff issued a subsequent correcting announcement to the ASX identifying potential disadvantages — Where plaintiff did not disclose to the Court the announcements made to the ASX nor issues raised by the Australian Securities and Investments Commission in relation to those announcements.

MORTGAGES AND SECURITIES – equitable charge – finance broker and customer – customer agrees to charge real property with payment of brokerage fees – broker assigns its “right title and interest” in its “debts” to assignee – whether assignee entitled to enforce charge against customer

COSTS – security for costs – plaintiff resident outside jurisdiction – alternative proprietary claims against two defendants arising from property investment venture – costs orders not enforceable in plaintiff’s home jurisdiction – possible stultification of plaintiff’s claims – prospects of success against one defendant or the other – proportionality of security to amount at stake in proceedings – security ordered in favour of both defendants

HIGH RISK OFFENDER – Extended Supervision Order – IQ in low/average range – Use of “plain English conditions” – Conditions must not be unjustifiably onerous

CORPORATIONS – winding up – trading company – relationship between directors and shareholders broken down – whether provisional liquidator should be appointed

CRIME — bail — detention application — application made following conviction and before sentencing — consideration of section 22B of the Bail Act 2013 — whether the accused person will be sentenced to imprisonment to be served by full-time detention — whether special or exceptional circumstances exist STATUTORY INTERPRETATION — legislative purpose — where meaning of provision ambiguous in the context in which it appears — construction which promotes purpose of provision preferred

CORPORATIONS – directors and officers – company sues director and de facto director for breach of duty – company borrows US$35m to fund Gold Coast development – development costs over-stated – directors raise false invoices to divert $3.4m to personal project in West Wyalong – sham sub-contracts created to substantiate $23m drawn down on Gold Coast facility – multiple payments to directors’ company – unaware of fraud, company enters into contracts for further development in Wagga – $2.05m of Gold Coast facility used to buy Wagga land but by directors’ company– negotiations – partial repayment. CIVIL PROCEDURE – pleadings in Commercial List – further questionable transactions emerge during trial – whether plaintiff entitled to additional relief – where evidence establishes matters beyond pleadings – principles at [368]-[376] – given serious nature of allegations, held to pleaded case. DIRECTORS – de facto director – principles at [329]-[333] – not necessary for de facto director to make decisions independently of other directors – directors’ duties – whether fiduciary duties modified by inherent conflict of interest in corporate structure – not modified in absence of disclosure of wrongdoing.

COSTS – general principles – INTEREST – date of calculation whether include date of advance – JUDGMENTS AND ORDERS – the rule against double recovery or double satisfaction

CIVIL PROCEDURE — Pleadings — Amendment — Form and content of pleading — Whether proposed amendment alleges design deficiencies with sufficient clarity — Whether proposed amendments alleging certain other defects should be allowed where, had the allegations been made earlier, the defendants could have brought a cross-claim

HIGH RISK OFFENDER – final hearing – serious sex offender – application for extended supervision order – where defendant has committed multiple offences over a number of years – where defendant has spent only two years in the community as an adult – where defendant has had minimal exposure to therapeutic programs and treatment – no controversy regarding imposition and duration of extended supervision order – dispute limited to conditions imposed – discussion of conditions regulating defendant’s scheduling, accommodation, curfew and disclosure of criminal convictions

CONTEMPT — alleged breaches of order made under Court Suppression and Non-publication Orders Act 2010 (NSW) — summary dismissal applications — where contempt application made against barrister who disclosed information potentially in breach of order in course of other proceedings — whether suppression order should be read down to exempt disclosures made in furtherance of the administration of justice — operation of s 15 of Court Suppression and Non-publication Orders Act 2010 (NSW) — whether defence to contempt charges where breach of court order committed in furtherance of the administration of justice — where Attorney-General was a party to the proceedings in which the suppression order was made — where contempt application also brought against Attorney-General — whether Attorney-General has a duty to enforce suppression order CIVIL PROCEDURE — Registrars — Review of Registrar’s decision — Court of Appeal — where Registrar granted leave to amend notice of motion on condition that various paragraphs be omitted

CONTRACTS – construction – loan agreement – construction of clause imposing default interest – whether interest accrued only on outstanding principal, or entire indebtedness – whether default interest unenforceable as penalty

CRIME – appeals – appeal against sentence – domestic violence offences – dysfunctional background – reduced moral culpability – specific deterrence – general deterrence – rehabilitation – community protection – maximum penalties reserved for worst category offences – resentenced

LAND LAW — Caveats — Extension of operation of caveat — Summons must seek final relief — Where plaintiff seeks an extension of operation of a caveat or, alternatively, leave to lodge a further caveat — Where plaintiff sought a declaration that it has a caveatable interest in the property as final relief — Whether the summons properly identified the final relief sought by the plaintiff.

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.

SUCCESSION – Family provision – Practice –Succession Act 2006 (NSW), s 62 – Application for interim order for provision made by Plaintiff pending the determination of his claims, including for provision under Chapter 3 of the Act – Claim disputed by the Defendant – Question whether the Court is of the opinion that no less provision than that proposed in the interim order would be made in favour of the Plaintiff/applicant concerned in the final order

CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — where juror falling asleep during evidence — juror discharged CRIMINAL PROCEDURE — Trial — Jury — order that the trial continue with remaining jurors

CORPORATIONS – directors and officers – breach of duties under ss 181 and 182 of the Corporations Act 2001 (Cth) – whether person alleged to have breached directors’ duties was a director at the time of the breaches – finding that he continued to act as a de facto director of the company after the date 14 October 2014 as at which ASIC was notified that he had resigned – finding that he was a de facto director at the time of the alleged breaches of duties – where director required to take into account the interests of the company’s creditors – where director caused the company to make a number of payments to companies he was associated with – where the company derived no benefit from those transactions – finding that director breached his duties under ss 181 and 182 of the Corporations Act CORPORATIONS – voidable transactions – where director caused the company to make payments to a real estate agent to discharge the liability of companies associated with the director to pay the deposit under a contract to purchase a property – whether unreasonable director-related transactions within the meaning of s 588FDA of the Corporations Act – finding that transactions were unreasonable director-related transactions and therefore voidable transactions

SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow — Where deceased suffered from mild cognitive impairment and various physical ailments SUCCESSION — Family provision — Claim by alleged member of household and dependant of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3

CONTRACTS – construction – contract for the provision of services in relation to water treatment facility – “step-in” clause requiring subcontractor to “assist” principal contractor – whether clause authorises the principal to direct the subcontractor to operate the facility and provide the services and requires subcontractor to comply with such direction – whether “Facility” as defined in the contract had come into existence as a condition to the exercise of step-in rights

BAIL – release application – reckless wounding –interpretation of s 16B(1)(d)(i) Crimes Act 1900 (NSW) – whether s 16B(1)(d)(i) relates to any offence that constitutes a serious indictable offence under Part 3 or 3A Crimes Act 1900 (NSW) or only those involving the use of a firearm – not a show cause offence – unacceptable risk test – bail granted – conditions imposed

FAMILY LAW AND CHILD WELFARE – surrogacy – parentage order – uncontested application for parentage order under s 12(1) of the Surrogacy Act 2010 (NSW) – where the child the subject of the proposed parentage order was stillborn – where applicants have not complied with all statutory requirements and preconditions for the making of parentage order – whether the Court has the power to make parentage order transferring parentage in relation to a stillborn child – whether it is possible to satisfy the mandatory precondition in s 22(1) of the Surrogacy Act 2010 (NSW) where the child the subject of the proposed parentage order is not born alive – held that the Court cannot make parentage order in relation to a stillborn child – held further that the applicants had not satisfied the Court that the proposed order would be in the child’s best interests WORDS AND PHRASES – “child” – “born” – “child of a surrogacy arrangement” – “child born as a result of a surrogacy arrangement” – “child … who is the subject of a surrogacy arrangement”

ESTOPPEL – estoppel by deed – where deed of loan and guarantee contained acknowledgement by defendant borrower of receipt of $2,000,000 from plaintiff lender and indebtedness of the borrower to the lender for that amount – where lender did not pay $2,000,000 to borrower but procured $2,000,000 reduction on purchase price payable by borrower for purchase of business from companies controlled by lender – whether receipt clause in deed of loan and guarantee was a diction adopted by the parties as a convenient description of lender’s obligation to procure purchase price reduction – whether borrower and guarantor estopped from denying receipt acknowledged in deed – whether defendant borrower liable to plaintiff lender for failure to repay loan – whether defendant guarantor liable to plaintiff lender for failure to pay amount owing demanded by lender after borrower failed to repay loan

APPEALS – Leave to appeal – Appeal against multiple interlocutory orders, relevantly including an order declining to adjourn proceedings after applicant sought and was granted expedition – Where new psychiatric evidence suggests continuance of proceedings would adversely impact applicant’s mental health – Appellate court may interfere with case management decision of trial judge to prevent possible miscarriage of justice – In interests of justice, proceedings below stayed pending hearing of application for leave to appeal; hearing of application for leave to appeal adjourned

CIVIL PROCEDURE – jurisdiction – exercise of non-federal jurisdiction by State Court – territorial limits – where applicant for leave under s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) must be capable of properly bringing proceedings against insured in New South Wales – where insured is New Zealand company in liquidation with no presence in New South Wales – where claimant is domiciled in New Zealand – where insured did not submit to jurisdiction of Supreme Court of New South Wales – where relevant loss and damage occurred entirely in New Zealand – where service on insured not authorised by schedule 6 to the Uniform Civil Procedure Rules 2005 (NSW) – whether service pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) generated personal jurisdiction over insured in New South Wales – whether those provisions are invalid under the Constitution as vesting Supreme Court of New South Wales with non-federal jurisdiction CIVIL PROCEDURE – jurisdiction – multiple meanings – personal jurisdiction – distinct from subject matter jurisdiction and federal jurisdiction – importance of distinction CIVIL PROCEDURE – service outside Australia – service under Trans-Tasman Proceedings Act 2010 (Cth) – where underlying claim in New South Wales against New Zealand domiciled defendant is not in federal jurisdiction – where chapter III of the Constitution carries negative implication that Commonwealth Parliament cannot vest Supreme Court of New South Wales with non-federal jurisdiction – where underlying claim could not proceed but for service on defendant pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) – whether ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) are invalid under the Constitution – whether those provisions vest the Supreme Court of New South Wales with non-federal jurisdiction CONSTITUTIONAL LAW – Commonwealth Constitution – legislative power – external affairs – principles of construction – heads of legislative power to be given broad plenary construction without limitation or implication not found in express words – heads of legislative power not to be read down by reference to other heads of power – whether external affairs power in s 51(xxix) capable of supporting law as to service and execution of process of Australian courts in New Zealand – where external affairs power is subject to chapter III of the Constitution – where s 51(xxiv) makes provision for service and execution of process throughout Commonwealth CONSTITUTIONAL LAW – the judiciary – chapter III – federal jurisdiction – Court of a State – negative implication that Commonwealth Parliament cannot confer State Court with non-federal jurisdiction – where claim brought in New South Wales against New Zealand domiciled defendant in non-federal jurisdiction – where claim could not proceed but for service on defendant pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) – whether those provisions confer Supreme Court of New South Wales with federal jurisdiction and are therefore invalid under the Constitution – whether argument for invalidity inconsistent with decision of High Court in Flaherty v Girgis (1987) 162 CLR 574 INSURANCE – third party claim – application for leave to bring proceedings against insurer pursuant to s 5 of Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – where insured is New Zealand company in liquidation with no presence in New South Wales – where claimant obtained judgment against insured in New Zealand proceedings concerning subject matter with no connection to New South Wales – where territorial hinge of Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) is that claimant must be capable of properly bringing proceedings against insured in New South Wales – where service on the insured not authorised by schedule 6 to the Uniform Civil Procedure Rules 2005 (NSW) – whether service pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) resulted in Supreme Court of New South Wales having personal jurisdiction over insured – whether those provisions are invalid under the Constitution PRIVATE INTERNATIONAL LAW – jurisdiction – personal jurisdiction – service outside of the jurisdiction – Trans-Tasman Proceedings Act 2010 (Cth) – where underlying claim against New Zealand domiciled defendant is not in federal jurisdiction – where chapter III of the Constitution carries negative implication that Commonwealth Parliament cannot vest Supreme Court of New South Wales with non-federal jurisdiction – where underlying claim could not proceed but for service on defendant pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) – whether ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) are invalid under the Constitution

CRIMINAL APPEAL – remittal from High Court – High Court set aside some but not all of appellant’s convictions – appellant given aggregate sentence – remittal to Court of Criminal Appeal to consider resentence or remittal to District Court – matter remitted to District Court – no question of principle

CRIME – appeals – appeal against conviction – applicant charged with sexual offences upon 13 year old girl – absence of consent an element of two of the counts – oral and written jury direction identified five pathways Crown could establish knowledge of absence of consent – fifth pathway was lack of reasonable basis for belief that complainant was consenting – addition “not” erroneously included in fifth pathway in oral and written direction – error unnoticed during trial – whether error amounted to miscarriage of justice – where absence of reasonable grounds for honest belief removed from issues at trial – where error wholly to advantage of accused because it denied one pathway by which Crown could establish knowledge of absence of consent – no miscarriage of justice established CRIME – appeals – appeal against sentence – aggregate sentence imposed for five sexual offences – all offences committed upon same complainant, at same location, as a single episode – extremely high level of effective concurrency required – aggregate sentence did not reflect sufficient level of effective concurrency – Evans v R [2017] NSWCCA 281 applied – sentence quashed and applicant resentenced

Application by young person to be relieved of giving evidence in the trial

COSTS – Whether costs should follow the event – No point of principle

CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action and file originating documents – Stay of orders refused by NSW Civil and Administrative Tribunal – Whether leave should be granted – No authority cited by plaintiff for orders proposed – Leave refused

COSTS – trusts and trustees – discretionary family trust – nominator purports to remove trustee – without notice of purported removal trustee purports to amend trust deed to appoint additional nominators – trustee’s action upheld – costs inter partes – costs out of the trust assets

APPEALS — Procedure — Time limits — Extension of time — Leave to appeal required — Error by court below in not ascertaining whether plaintiff was pleading guilty or not guilty before committing the plaintiff to trial — Error established — Order made in Local Court set aside and matter remitted to the Local Court for continuation of committal proceedings

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 – Application under s 63 of the Trustee Act 1925 (NSW) for judicial advice with respect to the implementation of trust scheme.