Cases and authorities

NEGLIGENCE – Breach – Accident on a boat – Inconsistent versions provided by the plaintiff – Version offered at hearing rejected – Reasonable precautions TORTS – General principles – Damages – Assessing economic loss - Tax

APPEALS – application for leave – whether grant of leave should be revoked – whether reasonably clear injustice going beyond something that is merely arguable CIVIL PROCEDURE – pleadings and particulars – pleadings in defamation – adequacy of particulars of publication, identification and extrinsic facts – where plaintiffs alleged five posts in WeChat group were defamatory – plaintiffs failed to comply with condition of leave to replead – seventh version of pleadings over four years – whether pleadings provided sufficient particulars for defendants to know case they have to meet – whether primary judge erred in summarily dismissing proceedings

CORPORATIONS — Winding up — Application based on failure to comply with creditor’s statutory demand.

SUCCESSION — Family provision — Claim by de facto husband — Provision sought where estate left equally to de facto husband and deceased’s three siblings — Application of forfeiture rule to deprive substitutionary beneficiary of his share — Relevance of plaintiff’s aged pension entitlement

SUCCESSION – Family Provision – Claim by adult child – where deceased’s estate principally comprised of real property devised to other adult children and plaintiff left with a share of residue – where plaintiff received gift of land from parents during their lifetime, undertook many years of unpaid work for family business and had close relationship with deceased – where plaintiff is a disability pensioner and unable to work – where other adult children have competing claims based on financial position and contributions to deceased’s welfare – further provision ordered

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — Procedure — Stay pending appeal — Local Court proceedings not concluded — Separation of criminal proceedings undesirable — Stay refused

EVIDENCE - leave to cross-examine prosecution’s own witness – evidence unfavourable to the prosecution – prior inconsistent statement – whether Prosecutor should have leave to cross-examine on matter relevant only to credibility – motive to give evidence favourable to accused – on again off again relationship – loving messages after stabbing – “We love you to the ends of the world and back” – “[winky kissy smiley face emoji]” – application granted – limitations on grant of leave – text messages to third party -

CRIMINAL LAW - trial conducted during pandemic - whether individual juror should be discharged - where juror “close contact” with person positive for COVID - required to isolate for 7 days - absence from trial - requirement of evidence or proof – sub-sections of provision requiring different modes of proof – discretionary considerations - juror discharged - whether continuing trial with 14 jurors likely to cause substantial miscarriage - trial to continue with reduced number of jurors

EVIDENCE – application to revive memory – relevant considerations – witness not certain of memory at time of statement – uncertainty patent on terms of the statement – “doing things I shouldn’t have been doing” – drugs – witness shouting at the time of the events – unclear what other parties said – whether “revival” of memory may be misleading – application refused

CRIME — murder — partial defences — substantial impairment CRIMINAL PROCEDURE — trial — jury — discharge of individual juror — discharge of whole jury

CRIMINAL PROCEDURE — application to vacate trial due to COVID-19 – where accused on bail – where substantial delay already incurred – where trial would run significantly over predicted time – whether in interests of justice to vacate trial date – application granted

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.

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. CORPORATIONS – Managed investments – Judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – Whether to convene meetings of unitholders – Whether responsible entity would be justified in treating consequential constitution amendments as within power.

CRIMINAL LAW - procedure - application to amend indictment - re-trial - where child denied touching - addition of indecent assault count not previously charged - where application arose in response to objection to evidence - apprehended bias - whether trial Judge entered the arena - where judge hinted at “shoving” a new count on the indictment - suggestion of “incompetent bill finding” - repeated comments concerning indictment as framed - “weird” - “bizarre” - distinct roles of Prosecutor and Judge - choice of charges for the Director of Public Prosecutions - whether trial Judge “crossed the line” - relevant considerations CRIMINAL LAW - evidence - whether verdicts unreasonable or unable to be supported - independent review of evidence - advantages enjoyed by jury - acquittal entered on one count - re-trial ordered on remaining counts

CRIMINAL LAW - sentencing - totality - accumulation and concurrence - “notional” accumulation - two drug offences - where sentencing Judge referred to notional accumulation - where sentences wholly and actually accumulated - whether structure of sentence reflected Judge’s stated intention - whether reasons adequate to explain extent of accumulation - opacity of language - error established - applicant re-sentenced

JUDGMENTS AND ORDERS — stay of execution — writ of possession — history of non-compliance with orders — steps taken to vacate the premises — positive test to COVID-19 and requirement to isolate — practical impossibility to execute the writ — writ stayed — additional direct order to vacate premises made

CRIMINAL LAW – evidence – tendency evidence – murder by stabbing – where accused arrested with knife the night before alleged murder – accused arrested with small blade at the time of his arrest after the murder – alleged tendency to possess knives – where issue in trial expected to be self defence and whether accused brought knife to the scene – whether evidence possesses significant probative value – whether unfair prejudice exceeds probative value CRIMINAL LAW – evidence – text messages – whether evidence relevant to the accused’s state of mind – whether direction capable of curing any potential misuse of the evidence

COSTS – whether costs should follow the overall event or whether separate costs orders should be made in relation to specific issues – where unsuccessful defendants/cross-claimants contend that costs outcomes of individual issues are so complex that no costs order should be made at this stage, or at all – where plaintiffs contend that the one successful defendant should be ordered (together with the unsuccessful defendants) to pay the plaintiffs’ costs and the plaintiffs should not be ordered to pay the successful defendant’s costs - held that costs should follow the event of the plaintiffs’ successful claims and successful defence of the cross-claims, but the costs order in favour of the plaintiffs should be made against the unsuccessful defendants only – held further that the plaintiff should pay the costs of the successful defendant. COSTS – INDEMNITY BASIS - whether unsuccessful defendants should pay plaintiffs’ costs on ordinary or indemnity basis having regard to their conduct that gave rise to the proceedings, the manner in which they conducted the proceedings, or a Calderbank offer – where all parties’ conduct of the proceedings was unsatisfactory – where unsuccessful defendants’ unsatisfactory conduct of the proceedings did not increase costs incurred by plaintiffs – where Calderbank offer made to all defendants and not capable of acceptance by unsuccessful defendants only - held that costs payable on the ordinary basis. PRACTICE AND PROCEDURE – informal application for stay of execution of judgment and orders (including costs orders) pending appeal – application dismissed – no question of principle.

EVIDENCE – Opinion evidence – Exceptions – Expert opinion

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.

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.

CRIMINAL LAW - practice and procedure - empanelment of additional jurors - relevant considerations - difficulties in estimating length of trial - complications arising from health orders and pandemic - adequacy of facilities to accommodate jurors

COSTS – interlocutory costs – costs thrown away by reason of amendments to the plaintiff’s statement of claim – applications by defendants for immediate payment of sums on account and for a stay of the proceedings until payment is made – alleged stultification – Rozenblit v Vainer – defendants’ applications successful, but stay refused – leave to amend conditional upon payment of costs

CIVIL PROCEDURE – Interlocutory orders – Ex parte – application for summary judgment under Uniform Civil Procedure Rules 2005, r 13.1 – where plaintiff brings proceedings against the first and second defendants in March 2021 by Statement of Claim – where the first and second defendants have not filed a defence and have not taken an active part in the proceedings – whether summary judgment should be granted. EQUITY – Fiduciary duties – Breach – Rule in Barnes v Addy – knowing receipt of trust property – where the plaintiff entrusted certain publicly listed securities to the first and second defendants to be held on his behalf – whether the first and second defendants held the securities on a common intention trust for the plaintiff – where by the actions of the first defendant, the second defendant disposed of the shares without the plaintiff’s knowledge or consent – whether in breach of trust – what liability of the second defendant for breach of trust in the first defendant for knowing involvement in the first defendant’s breach of trust – what is the measure of equitable compensation payable by the first and second defendants to the plaintiff.

CONTRACTS – construction – interpretation – contract for the redevelopment of a commercial property – contract gave the plaintiff a right to a transfer of a share of the property – contract also entitled the plaintiff to distributions of the net income derived from the property proportionate to its share of the property – dispute as to the amount of the plaintiff’s share under the contract – admissibility of evidence said to form part of the “matrix of fact” CORPORATIONS – reinstatement – Corporations Act, s 601AH – plaintiff company deregistered at the time of entry into the contract – all parties unaware of the plaintiff’s deregistration until after the proceedings had commenced – plaintiff seeks validation order – dispute as to form of order – cross-claim by defendant for misleading and deceptive conduct – whether the validation order should be conditional upon the plaintiff abandoning its limitation defence to the cross-claim

CONTRACTS – construction – interpretation – contract for the acquisition of a 45% shareholding in the defendant – plaintiff made an advance payment of $6 million pursuant to the contract – contract required delivery of an audited set of accounts by a specified date – parties under joint obligation to work in good faith to procure the delivery of the audited accounts – accounts not provided in time – purported termination by the plaintiff – claim for repayment of the advanced payment – validity of the plaintiff’s notice of termination – whether the plaintiff complied with its obligation to act in good faith

CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae – Dispute over COVID-19 vaccination of child subject to family law proceedings — Extraordinary circumstances for exercise of jurisdiction not demonstrated when specialist COVID-19 list available in Federal Circuit and Family Court of Australia

VEXATIOUS PROCEEDINGS – application for leave to commence proceedings – amended summons - proceedings vexatious - no prima facie case for proceedings – application dismissed

CRIMINAL PROCEDURE — Suppression and non-publication orders – whether application for continuation of non-publication orders should be granted where party intends to appeal – importance of principle of open justice – capacity of any future trial judge to ensure independence of jury – public interest in open justice prevails

CRIME – charge of murder – pre-trial hearing listed to determine evidentiary issues – trial pending – plea of guilty entered on arraignment without notice to legal representatives – application to vacate plea of guilty – applicant with some level of cognitive impairment – principle of finality

COSTS – Lack of utility in notice of motion becomes apparent during course of argument – No issue of principle

CIVIL PROCEDURE – Probate and administration of estates – Court of Appeal upholds prior decision of trial judge to approve the substitution by the administrator of an estate of specific real property (the George Street property) for other real property (the Cleveland Street property), the latter of which had been specifically gifted to named beneficiaries but which had been sold to satisfy some of the estate’s substantial debts – of six remaining issues, one has been resolved and two are determined by this judgment – what costs order should be made in respect of the costs of the Cross-Claim – can and should Declaration (3) of the 2020 judgment be revisited – three other issues are not ready for argument and are deferred for later determination.

CIVIL PROCEDURE – Interim preservation – Freezing orders – Whether there is a good arguable case that damage caused by fire to property of plaintiff was due to actions of second defendant – Whether there is a danger assets of second defendant will be disposed of, dealt with or diminished in value in circumstances where second defendant liquidated first defendant and transferred assets to other entities to which he was a beneficiary

EQUITY – interlocutory injunctions – application for freezing order – the plaintiff, the beneficiary of a trust, brings proceedings for the alleged misapplication of trust funds by the third defendant trustee, allegedly orchestrated by the first and second defendants, who controlled the third defendant – the first and second defendants are alleged to have benefited from the alleged misapplication of funds – first and second defendants propose the sale of their residential property – whether the circumstances are such that there is a danger of the defence absconding or of their assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with so that there is a danger that the plaintiff, if successful, will not be able to have his judgment satisfied – whether an injunction may be granted restraining the first and second defendants from disposing of the proceeds of sale of the residential property on any other basis – whether the plaintiff can establish an equitable interest in the residential property as a result of the defendants application of the proceeds of sale of certain trust assets to pay off liabilities.

EQUITY – principles on equitable assignment at [64] – Statute of Frauds at [67] – fraud on statute at [74] – part performance at [76] – assignment of loan and mortgage security between related entities – formal documentation not executed.

LAND LAW – caveats – lapsing notice – application to extend caveats

CRIME — appeals — appeal against conviction — miscarriage of justice — where Crown relied on evidence of [redacted] witness who had twice earlier been found by the Court of Criminal Appeal to be a witness who lacked credibility CRIME — appeals — appeal against conviction — unreasonable verdict — unreliable witnesses — whether on all of the evidence it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt

CRIME – appeal against sentence – applicants pleaded guilty to one count each of aggravated break and enter dwelling and commit a serious indictable offence – whether sentencing judge made erroneous findings of fact – finding made contrary to unchallenged evidence – whether sentencing judge erred in finding that extra-curial punishment applied to self-inflicted injury – whether sentencing judge erred in finding the applicant lied to forensic psychologist – adverse inference drawn against the accused – resentence – no lesser sentence warranted in law – appeal dismissed

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 – Schemes of arrangement or compromise – Application under s 411(6) of the Corporations Act 2001 (Cth) for orders approving amended scheme of arrangement – Where formal requirements satisfied – Whether amended scheme of arrangement should be approved.

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 – 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.

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Whether to depart from ordinary position — Where orders made by consent — Where no determination on the merits

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. CORPORATIONS – Managed investments – Judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – Whether to convene meetings of unitholders – Whether responsible entity would be justified in treating consequential constitution amendments as within power.

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

CORPORATIONS – statutory demand – based on non-payment of judgment debt under Building and Construction Industry Security of Payment Act 1999 (NSW) – offsetting claim – development manager engages superintendent for a development – superintendent approves payment claims for work not undertaken with knowledge and approval of development manager – purpose was to extract payment to finance development – superintendent issues statutory demand for its unpaid fees – development manager claims superintendent breached Superintendent Agreement by approving the payments – quantum of offsetting claim not established.

CONTEMPT — Civil contempt — Breach of injunctions — Arrest

COSTS — Informal offers of compromise — Whether offers to settle were genuine offers of compromise — Whether plaintiffs had sufficient time to consider the offers

CIVIL PROCEDURE — Registrars — Review of Registrar’s decision to issue orders for production in connection with liquidator’s examinations — Application for extension of time for review — Where there is no prejudice in delay. CORPORATIONS — Winding up — Public examination of directors, officers and others — Application for leave to inspect liquidator’s affidavit — Where no persons to whom examination summonses have sought to set them aside or challenge their propriety — Where several recipients for orders for production sought access to the liquidator’s affidavit in application to set aside the orders for production.

DEFAMATION – settlement – offer of amends – plaintiff accepts offer – whether agreement procured by plaintiff’s fraud EQUITY – remedies – specific performance – settlement agreement – defamation proceedings – offer of amends – plaintiff accepts offer – apology – enforceability – unclean hands