Cases and authorities

HIGH RISK OFFENDERS – interim supervision order – no question of principle

CRIMINAL PROCEDURE – trial – jury – access to transcript – whether to grant jury request for copy of transcript of opening address

CIVIL PROCEDURE – Motion to agitate issues underpinning proceedings listed for hearing on 4 July 2022 – abuse of process – significant number of repetitive applications seeking identical relief or substantially identical – motion dismissed – order made preventing further interlocutory proceedings before 4 July 2022 hearing determined.

PROCEDURE – Motion to reopen following judgment and appeal – Application of UCPR r 36.16(3)

COSTS — Party/Party — Bases of quantification — Indemnity basis

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW), s 62 – application for further assessment – whether further medical opinions were consider ‘additional relevant information’ – whether further medical opinions capable of having material effect on the outcome of the previous assessment – Proper Officer’s decision upheld

TRAFFIC LAW AND TRANSPORT — traffic law — licensing of drivers — appeals and applications — cancellation of licence — powers of Transport for NSW — powers of Local Court — medical examination — licence conditions — declarations and injunctions – orders

HIGH RISK OFFENDERS — application for interim supervision order and for examination by court-appointed psychiatrists/psychologists — nature of statutory test — whether defendant poses an unacceptable risk of further serious offending if not subject to ongoing supervision where he has committed only one serious sex offence — risk established — how appropriate conditions should be devised — orders made

TRUSTS – powers of trustee – discretionary trust – nominator having power to replace trustee – trustee purports to amend trust deed by changing identity of nominator – whether permissible – tripartite deed not signed by nominator – whether effective EQUITY – powers of appointment – nominator’s power to replace trustee – whether purported exercise involved fraud on the power – whether appointment effective before notification to existing trustee – replacement of existing trustee without bank consent would have been event of default – whether deed of appointment escrowed

MENTAL HEALTH – forensic patient – extension of status as forensic patient – application for interim extension order – whether making of extension justified on assumption matters alleged in supporting documentation proved – extension order would be justified – orders for examination made – interim extension order made

LIMITATION OF ACTIONS – discoverability – personal injury – when plaintiff “ought to know” facts – whether plaintiff knew that the injury was caused by the fault of the defendant NEGLIGENCE – duty of care – particular relationships – employer and employee – where employer has non-delegable duty of care – whether there was a failure to institute a safe system of work – systemic or casual negligence – question of vicarious liability WORKERS COMPENSATION – injury – personal injury – arising in the course of employment – assessment of damages – possible interplay between ss 151A, 151Z(1)(b) and 151Z(2)(b) of the Workers Compensation Act 1987 (NSW)

SUCCESSION – Family provision – Claims by adult children of deceased’s first marriage – Where one or more proceedings not commenced within time – Whether sufficient cause shown to extend time – Whether adequate and proper provision not made for claimants and, if so, what provision if any should be made for claimants – Notional estate – Whether superannuation death benefit available to be designated as notional estate – Whether order designating property as notional estate should be made

CRIMINAL PROCEDURE – trial – jury – discharge of individual juror

CIVIL LAW – proceeds of crime – forfeiture orders – leave to deal with forfeited property – “bounce back emails” – no appearance by defendant with interest in property – no question of principle

CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court — application to transfer proceedings from Supreme Court of New South Wales to Supreme Court of South Australia — whether in interests of justice to transfer proceedings — where lawyers and parties based in multiple states in Australia — where chattel subject of proceedings based in New South Wales and Queensland — where claim in tort — where no clear forum for proceedings — where court not satisfied that transfer is in the interests of justice — where application dismissed COSTS — Party/Party — Exceptions to general rule that costs follow the event — Nature of the proceedings — where matter finely balanced — where matter brought to the attention of the court to assist in administration of justice — where order made that costs of the motion be costs in the cause

CIVIL LAW – high risk sex offender – extended supervision order – dispute as to conditions and duration of order – efficient and co-operative conduct of legal representatives – time constraints and workload of court – brief and truncated reasons – no question of principle

CIVIL PROCEDURE – REPRESENTATIVE PROCEEDINGS – APPEAL AGAINST NCAT – 52 respondents to NCAT appeal proceedings – application for appeal to be representative proceeding – meaning of “claim” – broad meaning – overriding purpose of Civil Procedure Act. COSTS – Review of Registrar’s order in light of result of application – Registrar’s costs order set aside – costs be costs in the cause.

CONTRACTS — Implied terms — Terms implied in fact — Necessary to give business efficacy – Licence defined by reference to listed patents – Implied term that patents were, and would remain, current INTELLECTUAL PROPERTY – Patents – Claims – Construction INTELLECTUAL PROPERTY – Patents – Licences

CONTRACTS – deeds – where third defendant retained plaintiff finance broker in relation to proposed refinancing transaction – where first and second defendants guaranteed third defendant’s obligations under agreement – dispute as to whether a service fee became payable under agreement – where defendants subsequently executed a deed acknowledging plaintiff’s right to service fee under agreement – where deed contains undertaking to pay service fee plus interest – where second defendant claimed to have executed deed due to abuse and intimidation by plaintiff – held that execution of deed not procured by unfair or illegitimate pressure – held that first and second defendants obliged to pay service fee plus interest in accordance with deed MORTGAGES AND SECURITIES – charge – where charge expressed to secure moneys that become due and payable under agreement – where service fee did not become due and payable under agreement – where subsequent deed acknowledges that service fee is payable under agreement and refers to charging clause in agreement as valid – whether defendants precluded by estoppel by deed from asserting that there is no amount secured by the charge – where enforcement of charge is not an action on deed to enforce rights arising under deed – held no estoppel by deed precluded defendants from asserting that no moneys became due and payable under the agreement such as to be secured by the charge – plaintiff held not to be entitled to enforce charge to recover amount due under deed

CONTRACT – restraint of trade – sale of business – 2018 contract for the sale of business supporting certain Microsoft software products – vendors give covenant not to compete for a period of seven years from the date of contract – cascading covenants for lesser terms also agreed – covenants apply to markets defined in the schedule to the agreement purchaser acquires and conducts the business – in December 2021 the vendor launches what the purchaser claims is a competing business – purchaser applies for an interlocutory injunction restraining the vendor from conducting a competing business – vendor contends the business is not a competing business and is not caught by the restraint – whether there is a serious question to be tried – what is the balance of convenience.

EQUITY – Fiduciary duties – Breach – Where director of corporate trustee caused trust funds to be distributed to himself – Whether written resolutions effecting valid distribution were adopted by relevant date – Whether director had been delegated authority to make distributions alone – Whether trust monies held on constructive trust EQUITY – Trusts and Trustees – Constructive Trusts – Whether director liable for breach of trust as trustee de son tort – Pre-requisite that one must assume the trust by purporting to act as trustee – Finding that acting in capacity as director of corporate trustee, even without authority and in breach of fiduciary duties, does not alone constitute assumption of the trust – Holding that director not liable as trustee de son tort EQUITY – Trusts and Trustees – Whether director acted “dishonestly” in the context of postponement of the statutory limitation period or equitable equivalent – Where director of corporate trustee was entrusted by other director to manage most company affairs alone – Whether director held honest belief that he was entitled to deal with trust proceeds as he did – Finding that director deliberately withheld information from other director that may have caused her to object to his decisions regarding trust assets – Finding that director’s conduct involved dishonesty in the form of conscious wrongdoing and active concealment EQUITY – Defences – Laches – Knowledge of ability to bring claim – Whether means of knowledge is as good as knowledge – Requirement of knowledge of the relevant facts, although not necessarily of the rights to which they give rise EQUITY – Tracing – Whether property and its commercial proceeds were traceable – Extent to which property was purchased with proceeds of sale of trust assets in breach of trust – Where trust monies were loaned by constructive trustee to purchaser of property and repaid before property was purchased – Where purchaser was alter ego of constructive trustee – Finding that property was effectively purchased by constructive trustee and was therefore traceable property, along with its proceeds LIMITATION OF ACTIONS – Equity – Application of Limitation of Actions Act 1958 (Vic) – Section 21(2) does not apply to actions for breach of fiduciary duty in respect of remedial constructive trusts imposed by Court – Section 5 does not apply to claims for an account in equity, except by analogy LIMITATION OF ACTIONS – Equity – Application of limitation periods by analogy – Claims for proprietary relief and equitable compensation – Claims determined to be within analogy of Limitation of Actions Act 1958 (Vic), s 5, for application of equivalent equitable limitation period

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for sexual abuse by teacher – leave granted nunc pro tunc – costs

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for sexual abuse by teacher – leave granted nunc pro tunc – costs

HIGH RISK OFFENDER – Preliminary proceedings – Application by the defendant to revoke an interim detention order – Further application by the plaintiff that the defendant be subject to an interim supervision order – Where the defendant was severely injured after the interim detention order had been made – Where injuries rendered him a tetraplegic – Where defendant had also been charged with terrorism offences in respect of which he had been released on bail – Test for revocation – Interim detention order revoked – Interim supervision order made

CIVIL PROCEDURE – show cause hearing – application to have proceedings dismissed for want of due despatch – plaintiff’s statement of claim dismissed – costs

CIVIL PROCEDURE – notice of motion – application for referral to Pro Bono Panel for legal assistance – application granted

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for sexual abuse by teacher – leave granted nunc pro tunc – costs

PROCEDURE – Contempt, attachment and sequestration – Contempt of Court – Sentence –whether custodial sentence is appropriate.

EQUITY — Trusts and trustees — Judicial advice — Variation of trusts — Whether trustee can amend vesting day — Whether objects of the powers to appoint income and capital of the trust estate can be extended — Whether the terms of the Trust Estate may be amended so that successor trustees cannot benefit for the purposes of s 54(3) of the Duties Act — Whether trustee can define the term “income” to include statutory income such as capital gains

CIVIL PROCEDURE – time for service of originating process – application for extension of time – whether good reason to grant extension – extension granted CIVIL PROCEDURE – substituted service – where numerous attempts to serve first defendant – documents to be brought to attention of first defendant by service on various addresses and notification by text and LinkedIn account

Judicial review – challenge to decision of Registrar Local court - notice of motion seeking leave to intervene - application by Attorney General granted

CRIME – SENTENCE – Murder – plea of guilty - offence that occurred in 1988 – offender arrested in 2020 – sentencing patterns from the period of the commission of the offence – impact of delay upon sentence – offender aged 18 at time of offence and 51 at time of sentence – offender with cognitive impairment – disputed facts hearing – impact on statutory discount on sentence - remorse

RECEIVERS AND MANAGERS — Court-appointed receivers — remuneration — no question of principle LIQUIDATORS — renumeration of liquidator of company — where company’s only business undertaken as trustee of trust — no question of principle

GUARANTEE AND INDEMNITY — construction of contract of guarantee — creditor’s claim was a claim in debt for a liquidated sum as distinct from a claim for damages for breach of contract — distinction important as principles of mitigation only apply to the latter MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — power of sale — no duty to sell at any particular time or at all CIVIL PROCEDURE — Court of Appeal — costs orders — interest component of a judgment is included when determining whether a judgment meets the $500,000 threshold in UCPR r 43.34

EVIDENCE – admissibility of lay opinion evidence – screenshots of conversations themselves between witness and accused probative and admissible – lay opinion of witness not admissible – where Evidence Act 1995 (NSW) s 76 not engaged – subsequent acts of witness founded on their opinion also inadmissible

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 CIVIL PROCEDURE – protective jurisdiction – management of settlement – whether defendant incapable of managing his affairs – incapacity found – settlement sum committed to the NSW Trustee and Guardian

EVIDENCE – witness evidence – unfavourable witnesses – application to cross-examine witness pursuant to s 38 Evidence Act 1995 (NSW)

CIVIL PROCEDURE – notice of motion – injunction – urgent relief sought – horse trainer – disqualified for 9 months – judicial review sought – arguable case – balance of convenience favours the granting of the injunction – serious question to be tried – interim injunction granted

CIVIL PROCEDURE – Election – defendants contended plaintiff has elected to have abandoned a cause of action through statements made on behalf of the plaintiff to the court – whether the cause of action was abandoned or not – stay of proceedings – plaintiff seeks proceedings be stayed pending resolution of referral of issues to the NSW Police and the NSW Judicial Commission – whether proceedings should be stayed.

CONTRACTS — misleading conduct under statute — misleading or deceptive conduct — third and fourth defendants operate residential development business through second defendant — second plaintiff through her agent arranges for residential development project with third and fifth defendants — first defendant incorporated to purchase land on unit trust for second plaintiff, third defendant and fifth defendant themselves as trustees of separate discretionary trusts — plaintiffs claim enforcement of contract between unit holders containing clause giving rise to breach of contract by third defendant and liability of first defendant to second plaintiff for loan at substantial interest rate — whether particular clause of contract void for misleading or deceptive conduct by agent of second plaintiff — development arrangements made in quasi-familial context — request by third defendant of agent of second plaintiff whether legal or financial advice required in respect of contract — response by agent of second plaintiff that contract contained ‘standard’ or ‘simple’ terms — failure by agent of second plaintiff to bring third defendant’s attention to unusual term — declaration that particular clause void ab initio EQUITY — trusts and trustees — breaches of trust — plaintiffs claim that first defendant as corporate trustee breached its duties by securing loan over trust property to pay other corporate vehicle of third and fourth defendants — plaintiffs claim that first defendant breached its duties by making unauthorised repayment of third and fifth plaintiffs’ contribution to development arrangement — plaintiffs claim that first defendant breached its duties by entering into costs agreement with defendants’ solicitors — plaintiffs seek replacement of first defendant as trustee of unit trust — plaintiffs seek account of unit trust AGENCY — liability of principal — relations between principals and third parties — second plaintiff bound by misleading or deceptive conduct of agent in respect of third defendant

COSTS – party/party – general rule that costs follow the event – where all parties submitted that the general rule be departed from – plaintiff successful in tort claim against defendants – defendants unsuccessful in cross-claim against insurer – whether plaintiff should have commenced proceedings in inferior court – proceedings factually complex – whether Calderbank offers and offers of compromise were reasonably rejected – indemnity costs – no sufficient nexus between plaintiff’s claim and defendants’ cross-claim to attract special costs order – no order for set off – interest on judgment where first hearing vacated by conduct of the plaintiff

COSTS — Security for costs — Appellant to provide security for costs

NOTICE OF MOTION – Application to remit to Common Law Division – Notice of motion dismissed

APPEAL – Competency – Appeal brought purportedly as of right from refusal to vary orders – Appeal dismissed as incompetent

CRIME — Bail — Detention application — where “exceptional circumstances” established — whether bail conditions could ameliorate risk of commission of serious offence which endangers safety of community — where conditions could not ameliorate risk — where application granted and bail revoked CRIME — Bail — Terrorist offences — “Exceptional circumstances” — where respondent has been incarcerated for seven years — where COVID-19 pandemic has made conditions more onerous than normal — where “exceptional circumstances” established

CIVIL PROCEDURE – Defamation – Application to join parties – Request for particulars – injunction sought – interim payment of damages sought – directions issued.

CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — Application to strike out pleading asserting novel duty of care between solicitor of the defendant insured and the plaintiff insurer

EVIDENCE – hearsay – exceptions – evidence of a previous representation being a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind – evidence rejected

EQUITY — Trusts and trustees — Powers, duties, rights and liabilities — Indemnity, lien and reimbursement — Obligations of new trustee to former trustee — Nature and extent of trust creditor’s subrogation to former trustee’s rights against new trustee

LAND LAW — caveats — removal of caveat — removal by order of court — caveat lodged against title to real property subject of writ of levy of property preventing judgment creditors from executing on judgment — whether Court has power to order caveator to withdraw caveat that has already been lodged — whether Real Property Act 1900 (NSW) exhaustive of means whereby caveats may be ordered to be withdrawn — whether Court’s power only exercisable after determining whether caveator does not have estate or interest claimed LAND LAW — caveats — removal of caveat — who may seek removal of caveat — parties seeking removal of caveat have no estate or interest in land as mere judgment creditors — whether Court’s power to order caveator to withdraw caveat that has already been lodged only exercisable to protect interests of party with estate or interest in land CIVIL PROCEDURE — summary disposal — dismissal of proceedings — application for summary judgment based on allegation that instrument purporting to create security interest in real property a fabrication — application dismissed JUDGMENTS AND ORDERS — amending, varying and setting aside — application to set aside summary judgment made on the merits — whether summary judgment irregular — whether summary judgment ought to be set aside where judgment given in absence of party — application dismissed