Cases and authorities

EQUITY — Fiduciary duties — solicitor and client —solicitor transferred money from trust account to a financial services firm which made payments from funds in accordance with his directions — conflict of interest— whether informed consent was obtained from clients — breach of duty established EQUITY — Fiduciary duties — Barnes v Addy claim against solicitor’s wife — funds transferred to wife’s bank account— whether wife had requisite knowledge of the breach of duty to render her personally liable — not established EVIDENCE — credibility and reliability — conflict of witnesses’ evidence

EQUITY – Trust and trustees – Constructive trusts – Common intention

COSTS — Indemnity costs COSTS — Non-party costs COSTS — Security for costs — Release of amount paid into Court

SUCCESSION — family provision — complete determination of final substantive and costs orders to be made following earlier judgments — no point of principle

CIVIL PROCEDURE – application for transfer of proceedings from District Court to Supreme Court – First Defendant in People’s Republic of China – need to effect service on First Defendant who is not prepared to submit to jurisdiction of District Court – transfer sought to facilitate service outside jurisdiction – order for transfer made

COSTS – claims by successful defendant for indemnity costs and specified gross sum instead of assessed costs – whether walk-away offer of compromise made under r 20.26 of the UCPR involved real element of compromise – whether one business day for acceptance of a Calderbank offer was reasonable – whether defendant’s failure to produce documents constituted disentitling conduct for a costs order – whether circumstances warranted gross sum costs – indemnity costs order and gross sum costs order refused – plaintiff ordered to pay the defendant’s costs on ordinary basis as agreed or assessed

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.

TORTS — Trespass to the person — Assault — whether police conduct caused plaintiff to fear police and attempt to flee TORTS — Trespass to the person — whether Civil Liability Act 2002 (NSW) excluded by operation of s 3B(1)(a) — where intent was to cause injury not subject of claim TORTS — Trespass to the person — Battery — Defences — whether actions constituting battery were lawful under various statutes — Crimes Act 1900 (NSW), Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Mental Health Act 2007 (NSW), Police Act 1990 (NSW) —where actions permitted under statute — where defences made out TORTS — Trespass to the person — Battery — Defences — defences under Civil Liability Act 2002 (NSW) — intoxication, no award to criminals, self-defence NEGLIGENCE — Duty of care — where no duty owed by defendant toward plaintiff NEGLIGENCE — Defences — Illegality — use of illicit substances NEGLIGENCE — Defences — Intoxication — illicit substance NEGLIGENCE — Defences — Self-defence — where defendant attempting to protect plaintiff, bystanders and police NEGLIGENCE — Defences — Voluntary assumption of risk — use of illicit substances DAMAGES — where plaintiff self-employed tradesperson — where no evidence of past earnings or typical earnings — where plaintiff’s proposed use of average weekly earnings unsuitable DAMAGES — where plaintiff sought aggravated and exemplary damages — where award excluded by Civil Liability Act 2002 (NSW), s 21 — where award not justified in any event even if not statute barred

CORPORATIONS – directors and officers – breach of duties under ss 180 and 181 of the Corporations Act 2001 (Cth) by making unsecured interest-free loan to foreign company associated with director with doubtful capacity to repay loan CORPORATIONS – voidable transactions – payments to or for the benefit of director in circumstances where company is presumed insolvent – director was a creditor of the company but payments prejudiced company’s ability to pay other creditors – whether unreasonable director-related transactions within the meaning of s 588FDA of the Corporations Act 2001 (Cth)

COSTS — party/party — general rule that costs follow the event — Court orders termination of strata scheme and winding-up of owners corporation — numerous appearances in Supreme Court and New South Wales Civil and Administrative Tribunal — parties achieve compromise in fact with assistance of Court and compulsory manager — application of principles in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 — no order as to costs

COSTS — party/party — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — plaintiff makes Calderbank offer to defendant — certain issues in dispute arise only after service of Calderbank offer — whether not unreasonable for defendant to accept Calderbank offer in light of subsequent issues in dispute — treatment of certain issues subsequent to Calderbank offer separately to other issues in making costs orders — interest on costs

MISLEADING AND DECEPTIVE CONDUCT – plaintiff transfers approximately $3.8 million from China to an Australian bank account and gives the defendant authority to operate the account – plaintiff alleges that the defendant was authorised to apply the funds to assist the plaintiff in obtaining a business investment visa for him to migrate to Australia – plaintiff alleges the defendant misrepresented the amount that was required for him to apply for a business investment visa from the Australian Government, which in fact was only $3,000,000 – plaintiff says that but for the misrepresentation he would not have transferred the additional $800,000 to the account, which funds were allegedly lost because of the misrepresentation. ACCOUNT – claim for an account in equity – plaintiff alleges the defendant misapplied the funds for purposes other than those for which she was authorised to conduct the account – whether the defendant misapplied the funds in the Australian bank account – whether an account should be ordered against the defendant.

LEASES AND TENANCIES — retail leases — retail shop lease — whether to make declaration that defendant lessor unable to take “prescribed action” as defined in Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) against plaintiff lessee in respect of any shortfall in rent plaintiff otherwise obliged to pay to defendant for period of two months

ESTOPPEL — issue estoppel — decisions to which applicable — Court made orders by consent as to agreed facts in accordance with Evidence Act 1995 (NSW), s 191 — parties agreed on monetary amount of one-third share of net income of property in the case that the Court found the plaintiff to be entitled to one-third share in income — order quantifies amount that remained unpaid — order qualifies amount as calculated up to the date of the hearing or beyond — plaintiff seeks further accounting in respect of net profits — whether plaintiff prevented from such relief by Evidence Act 1995 (NSW), s 191 COSTS — party/party — general rule that costs follow the event — application of the rule and discretion — five costs orders already made in the proceedings — defendants achieve some degree of success on certain issues — whether degree of success achieved by defendants justifies order that plaintiff pay proportion of defendants’ costs — plaintiff ordered to pay 60 per cent of defendants’ costs on ordinary basis

COSTS — Party/Party — Orders against non-parties — where Plaintiffs unsuccessfully brought an application to appoint a special purpose liquidator —where non-parties opposed the application and appeared under r 2.13 of the Supreme Court (Corporations) Rules 1999 (NSW) — whether the Plaintiffs should pay the non-parties’ costs of the application

COSTS — Party/Party — General rule that costs follow the event — where an incorporated association was wound up on the just and equitable ground — where a party appeared under rule 2.13 of the Supreme Court (Corporations) Rules 1999 (NSW) — where various issues were agitated in proceedings, many of which were not determined — whether and against whom should any party be entitled to an order for costs CORPORATIONS — Winding up — Liquidators — Receivers and managers — Voluntary administrators — Remuneration — where association progressed through voluntary administration, receivership and liquidation — whether the Court should approve the remuneration of the administrator and court-appointed receiver

FAMILY LAW – children – adoption – whether a declaration should be made to the effect that the Secretary holds parental responsibility for the child pursuant to s 78 of the Adoption Act – where parental responsibility for the child will rest with the Secretary pursuant to s 75 of the Adoption Act if no orders made

ADMINISTRATIVE LAW – Whether statutory source for impugned decisions ADMINISTRATIVE LAW – Hearing rule – Notice ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Irrationality and/or Legal Unreasonableness ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Irrelevant and relevant considerations – Consideration bound to take into account ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Improper purpose

CRIME – murder – sentencing – unplanned attacked caused by offender’s self-induced intoxication – intent to cause grievous bodily harm – longstanding mental health issues

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — where plaintiff succeeded on several intervening issues but ultimately did not obtain the relief sought — where defendants succeeded on a narrow issue raised in submissions — whether order for costs should be made against either party

HIGH RISK OFFENDERS – Extended Supervision Order – unacceptable risk – intellectual disability – simple English conditions – duration – requirement that direction for therapy can reasonably be afforded by defendant.

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise — whether to follow UCPR r 42.15A to order indemnity costs or order otherwise — where circumstances such that court ought to order otherwise — where costs awarded on an ordinary basis only

CIVIL PROCEDURE — pleadings — representative proceedings — amendment — whether leave should be granted to file the amended statement of claim — whether amended statement of claim should be struck out — whether sufficient facts pleaded — whether pleading at too high a level of generality — leave to file amended statement of claim granted

COSTS — Security for costs — relevant factors — deficiency of appeal — where applicant for security for costs concedes irregularity in orders of court below

CRIME – Sentence Appeal – operation of pre-conditions to s 21A(3)(I) OF Crimes (Sentencing Procedure) Act – failure to take account of mandatory consideration – mistake of fact as to extent of applicant deprivation – non-acceptance of unchallenged and uncontroverted evidence – appeal upheld – resentence.

CRIMINAL LAW – murder trial – significant public interest in the trial proper – proceedings held in camera – application by a media representative for access to view or hear a record of that evidence – whether it is in the interests of justice to grant such an application

BUILDING AND CONSTRUCTION – malicious damage to property – action for trespass – standing of plaintiff to bring action for trespass – whether plaintiff had exclusive possession of the property – whether plaintiff entitled to recover loss for damage to the reversion – measure of damages for damage to the reversion – whether second defendant caused the malicious damage – whether second defendant carried out construction work for the purpose of the Design and Building Practitioners Act 2020 (NSW) – whether second defendant acted in breach of his statutory duty of care under that Act in relation to that construction work

BUILDING AND CONSTRUCTION – contract – whether claimed variations within contractual scope of work – builder’s margin – GST – no question of principle

EVIDENCE ON COMMISSION – ex parte application – orders sought pursuant to ss 32 and 33 of the Evidence on Commission Act 1995 (NSW) – Request for Assistance by the United States District Court for the District of New Jersey for documents to be produced – orders made – no question of principle

CIVIL LAW – procedure – leave to commence proceedings – plaintiff in custody at the time proceedings commenced – Felons Act – institutional abuse suffered as a child – whether parties should bear their own costs when leave sought retrospectively

REAL PROPERTY – specific performance – contract for the purchase of residential property – vendors refusing to complete – purchasers fail to pay all of the deposit on time – vendors decide to terminate but fail to communicate termination – purchasers pay balance of deposit – vendors refuse to complete – hardship – vendors not having alternative accommodation – specific performance ordered

RECEIVERS AND MANAGERS – court-appointed receiver – remuneration – no question of principle CORPORATIONS – where receiver appointed to assets and undertaking of corporate trustee of self-managed superannuation fund – where directors of trustee unable to work together – where directors are also the members of the fund – where directors and members consent to receiver’s application under Corporations Act 2001 (Cth) ss 420(2)(u) and 461(1)(k) to wind up the trustee with a view to the liquidator then causing the trustee to exercise its powers under the trust deed to wind up the fund – where company’s powers under trust deed (including power to wind up trust) may have ceased upon appointment of receiver due to ipso facto clause in trust deed – where winding up would result in the trustee being a disqualified person under Superannuation Industry (Supervision) Act 1993 (Cth), s 120(2)(e) and any step taken by trustee company in liquidation to wind up the fund (assuming it had power to do so) would be an offence under s 126K of that Act – winding up order refused

CONTRACTS – formation – where defendant sold property to plaintiff with right to vacant possession – where defendant alleges existence of oral contract entitling it to remain in possession until vendor finance repaid – where plaintiff denies existence of oral contract – existence of oral contract not established on the balance of probabilities – plaintiff held to be entitled to vacant possession

EQUITY — Trusts and trustees — Judicial advice — Appropriate distribution of judgment sum plus post-judgment amounts

CIVIL PROCEDURE – Preliminary discovery – Where prospective defendant purported to terminate an employment contract upon company’s alleged repudiation and commenced work at a competitor – Whether it appears that applicant may be entitled to make a claim for relief – Whether applicant has made reasonable enquiries – Whether applicant has sufficient information available to commence action in respect of some claims for relief – Where discovery sought relates to whether claim for relief exists, strength of defences to some claims, extent of breaches and loss and damage – Preliminary discovery available but more limited than sought

CIVIL PROCEDURE – summary disposal – judgment for the plaintiff – no appearance - no defence DAMAGES – assessment – general damages – sexual assaults – Civil Liability Act 2002 NSW not applicable by operation of s 3B(1)(a) – significant psychiatric and physical injury – aggravated damages TORTS – intentional torts – trespass to the person – assault – battery – dissociative identity disorder – egregious repeated abuse and gratuitous cruelty

APPEALS – leave to appeal against pre-trial rulings – s 5F(3) Criminal Appeal Act 1912 (NSW) – undesirability of fragmenting and delaying resolution of criminal proceedings at first instance not outweighed by arguments mounted by applicant

CRIMINAL PROCEDURE — s 5F Criminal Appeal Act 1912 — temporary stay of proceedings granted to enable applicant to seek leave to appeal against a decision of the District Court refusing a permanent stay application — reluctance of appellate courts to fragment criminal proceedings at first instance — prospects of appeal succeeding and balance of convenience considered CRIMINAL PROCEDURE — whether plea bargains are a form of contractual undertaking — whether arguable that an abuse of process on the part of the Crown to reinstate charges that it agreed not to prosecute pursuant to a plea bargain with the applicant

SENTENCING – appeal against sentence – co-offenders – different discounts for respective pleas – difference in accumulation due to applicant’s greater culpability and additional Form 1 offence – difference in non-parole period due to differences in motive, health needs and prospects of rehabilitation – disparity justified

PRACTICE AND PROCEDURE – application to set aside or stay subpoena – served during discovery process – whether there is a parallel process of issuing subpoenas during course of discovery

CIVIL PROCEDURE – Notice of motion seeking to set aside Judgment – Whether registration of certificates of costs assessors apply to the Taxation Officer of the High Court – Whether Judgment was entered Regularly – Notice of motion dismissed

CRIMINAL PROCEDURE – autrefois convict – double jeopardy – oppression – separate offences to prior conviction in form, elements and for all practical purposes – extraordinary nature of stay of criminal proceedings – public interest immunity – public interest immunity granted – procedure available for disclosure of information if shown to be material

CONTRACTS – Construction of Terms of Settlement – Claim on covenant for indemnity upheld – Other claims, for loss of opportunity damages, dismissed

PRACTICE AND PROCEDURE – order for possession of land granted by NCAT under Agricultural Tenancies Act 1990 – whether NCAT has power to issue warrant for possession to enforce NCAT order – whether application for writ of possession ought be made to Supreme Court – held NCAT has power to issue warrant for possession of land to enforce order for possession under the Agricultural Tenancies Act 1990

HIGH RISK OFFENDER – final hearing – application for extended supervision order – no controversy about making of order – dispute limited to conditions imposed

PRACTICE AND PROCEDURE – Costs – Gross sum costs orders – Whether such orders appropriate – History of proceedings – Gross sum orders made

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – Whether unreasonable not to have accepted Calderbank offer

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 – requirements for valid resolution to effect capital reduction and necessary disclosure

CORPORATIONS – corporate contracting – agency and authority – authority of directors to bind company to contract for the sale of land – contract executed in accordance with s 127(1)(a) of the Corporations Act 2001 (Cth) – where company claims that directors executing contract lacked actual or ostensible authority to bind company – whether plaintiff entitled to make assumptions in s 129 of the Corporations Act 2001 (Cth) – whether company precluded from asserting that assumptions are incorrect – not established that plaintiff actually knew or actually suspected that the company’s constitution had not been complied with, or that directors were not properly performing their duties to the company – held that company precluded by s 128(1) of the Corporations Act 2001 (Cth) from asserting non-compliance with its constitution or improper conduct on part of its directors – held that binding contract for sale came into existence EQUITY – specific performance – contract for the sale of land – discretionary defences to specific performance – where defendant claims lapse of time and protracted negotiations should defeat plaintiff’s claim for specific performance – where defendant claims plaintiff was tricky in procuring contract – where defendant claims specific performance would occasion great hardship upon it – where defendant claims that damages would be an adequate remedy – held that no bar to decree of specific performance had been demonstrated – held appropriate to order specific performance

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts EQUITY — Trusts and trustees — Resulting trusts — Presumption of advancement EQUITY — Trusts and trustees — Constructive trusts — Common intention