Cases and authorities

CIVIL PROCEDURE — Notices to produce — Whether documents sought by the plaintiff are protected information under s 355-30 of the Taxation Administration Act 1953 (Cth) — Whether notice to produce requires disclosure to the Court

APPEALS — Leave to appeal — where earlier proceedings brought by applicant were discontinued by a tutor — where primary judge dismissed notice seeking a declaration that discontinuance was void — no arguable basis for challenging primary judge’s orders

JUDGMENTS AND ORDERS — Effect of — “Liberty to apply in respect of the working out of these orders” — Inherent or other jurisdiction to vary final orders

NON-PUBLICATION ORDERS

NEGLIGENCE — plaintiff claims damages for alleged negligence and misleading and deceptive conduct — whether the defendants were the plaintiff’s solicitors and owed him duties of care and fiduciary duties — plaintiff was not the defendants’ client at the relevant time — consideration of limited circumstances in which solicitor holds a duty to a third party — interests of plaintiff were potentially in conflict with defendants’ client’s — defendants did not owe plaintiff a fiduciary duty — defendants may have owed a duty at common law or as fiduciary to their client to encourage the plaintiff to obtain independent legal advice — no breach of any duty established — the factual matrix of the misleading and deceptive conduct claim not made out NEGLIGENCE — causation — scope of liability — consideration of what plaintiff would have done if defendants had advised him to obtain independent legal advice — not persuaded on the evidence that the plaintiff would have taken a different course or there would have been a different outcome if he did — plaintiff failed to discharge onus EVIDENCE — credibility of witnesses — contest of fact between witnesses — plaintiff had poor recollection, inconsistencies between oral evidence and evidence in earlier proceedings, and contemporaneous documents favour the defendants’ case — determination that the evidence supports the defendants’ case

NOTICE OF MOTION – Uniform Civil Procedure Rules (2005) r 36.17 – slip rule – costs order against litigant “in his capacity as administrator” of estate – adversarial litigation – costs order not limited to assets of estate – litigant personally liable – costs order amended

CRIMINAL LAW – appeal against sentence – aggravated dangerous driving occasioning death – whether sentence manifestly excessive – applicable principles – necessity of inferring error of principle – use of sentencing statistics – need to adjust applicant’s sentence following trial to compare with sentences following guilty plea – limitations of comparable cases – appeal dismissed

CORPORATIONS – application to set aside statutory demand – tenant in arrears of rent over a number of years – genuine dispute – tenant says entitlement to rent dependent upon landlord providing a compliant tax invoice – implied term said to have arisen from practice – contrary to express terms of lease – amount claimed in statutory demand said to be not enough – offsetting claim – tenant says it has claim against landlord in respect of misleading and deceptive – representations said to have been made by seller of business – no evidence beyond subsequent common director of seller of business and landlord – abuse of process – no attempt by defendant to avoid establishing entitlement to amount claimed – no genuine dispute, offsetting claim or abuse of process

COSTS – notice of motions – plaintiff successful on motions – regard to history – defendant rejected settlement of motions – no order made as to costs – orders made

CIVIL PROCEDURE – notice of motions – competing orders – expert evidence – defendant sought plaintiff’s expert report not to be admitted with respect to the separate question hearing – plaintiff sought to rely on expert report in the separate question hearing relating to limitation period – whether there were exceptional circumstances that warrant the grant of leave to rely on expert report – exceptional circumstances established - defendant’s motion dismissed – leave granted to plaintiff to rely on expert report – orders made

PRIVATE INTERNATIONAL LAW — Foreign judgments and orders — Enforcement in equity

CIVIL PROCEDURE – ex parte – show cause summons – alleged contravention of dispute orders – leave granted to issue show cause summons

INSURANCE – General liability insurance – exclusions – proper construction of exclusion clause –indemnity claim arising out of class action concerning the 2011 Brisbane floods – exclusion for claims arising out of the rendering or a failure to render professional advice or service for a fee – whether insured itself or insured’s employed engineer rendered professional service or advice – whether insured merely made employed engineer available – whether exclusion confined to rendering professional advice or service to the recipient or intended recipient of that advice or service – whether there is a material difference between an exclusion of a claim arising from a breach of professional duty or arising from the rendering of a professional advice or service

CIVIL PROCEDUE – late service of supplementary statement – part heard trial – plaintiff already partly cross-examined – unfairness – prejudice to plaintiff – unexplained delay

ADMINISTRATIVE LAW — particular administrative bodies — complaint-handling body — Judicial Commission of New South Wales ADMINISTRATIVE LAW — procedural fairness — whether on the proper construction of the legislation the administrative body was required to accord procedural fairness to a complainant — duty to accord procedural fairness to complainant but with limited content — whether the complainant was given reasonable opportunity to advance the basis of the complaint — whether complainant suffered practical injustice

PERSONAL PROPERTY — Ownership and possession — Rights of possession — Human tissue — Where plaintiff seeks possession of the reproductive tissue sample removed from her late husband’s body with consent of the Coroner given under the Human Tissue Act 1983 (NSW) ADMINISTRATIVE LAW — Proper operation of the legislative scheme — Assisted Reproductive Technology Act 2007 (NSW) — Rights of possession — Where plaintiff is the executive and beneficiary of the estate of the deceased and the next of kin who authorized removal of the sample under the Human Tissue Act — Where no other party disputes or objects to the plaintiff’s ownership or right to possession of the tissue — Proposed transport out of the State — Whether the plaintiff is entitled to an order for possession of the tissue — Plaintiff entitled to possession — Plaintiff entitled to transport the tissue out of the State ADMINISTRATIVE LAW — Proper construction of the Assisted Reproductive Technology Act 2007 (NSW)— The giving of required consent — Where there is no required form by which consent must be given — Whether the consent of the plaintiff is sufficient – Whether plaintiff is the gamete provider whose consent must be given for ART treatment — Plaintiff is not gamete provider and cannot give required consent for use of the gamete removed from her husband’s body CIVIL PROCEDURE — Hearings — Application by Attorney General to intervene — Leave granted

CRIME – murder trial – Accused gave evidence at earlier trial – jury unable to agree and discharged – Crown tenders at second trial evidence of Accused given at first trial – whether evidence should be admitted in Crown case at second trial – evidence contained “admissions” – whether evidence should be excluded under s.90 Evidence Act 1995 – held evidence admissible and ought not be excluded under s.90 – evidence admitted CRIME – murder trial – Crown tender of SMS messages – evidence admitted in redacted form

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – where development approval required developer to carry out work to train station pedestrian tunnel and comply with second defendant’s requirements – where first to third plaintiffs and defendants entered into written contract for works to train station pedestrian tunnel – where fourth plaintiff issued payment claim for services works in the train station pedestrian tunnel – whether services works undertaken under an “arrangement” between the fourth plaintiff and defendants separate to the written contract – no separate arrangement found as works within scope of written contract and arrangement inconsistent with dealings between parties

EQUITY – unconscionable bargains – undue influence - elderly person gives power of attorney to her adult daughter, the defendant – the defendant/daughter lives with her mother – using the power of attorney the daughter claims she assists her mother to sell her house, before relocating the mother into a nursing home – daughter applies the funds from the sale of the mother’s house property to purchase her own property, claiming that the funds were an inter vivos gift from the mother to her – after the mother’s death her will leaves her estate equally to the defendant and the plaintiff but little remains in the estate – the son challenges these transactions and claims a constructive or resulting trust on behalf of the estate over the defendant’s property acquired with the proceeds of sale of the mother’s house – whether the sale of the mother’s property and application of the sale proceeds by the daughter was improvident – whether the mother received independent legal advice – whether the mother was suffering from dementia – whether the mother was dependent upon the daughter – whether the mother was in a position of special disadvantage in relation to the daughter at the time of the transactions – whether the transactions resulted from the unconscionable conduct or actual undue influence of the daughter over the mother. SUCCESSION – Family Provision – competing claims by two adult children for provision from the estate of their deceased mother under Succession Act 2006, Chapter 3 – the mother’s will leaves her estate to her adult son and daughter – the deceased’s estate is minimal, as a result of the sale of the mother’s principal asset, her residence, six months before her death – not in issue that the proceeds of sale of the mother’s residence are notional estate – the son brings proceedings for further provision from the mother’s estate and notional estate – the mother gifted the son a property during her lifetime but he sold it to meet pressing financial obligations – whether the son requires further provision for his proper maintenance, education or advancement in life – the daughter brings a contingent claim for further provision for the mother’s estate, in the event that property purchased with the sale proceeds of the mother’s residence is held in trust for the estate – whether the daughter requires further provision from the estate for her proper maintenance, education or advancement in life.

JUDICIAL REVIEW – jurisdictional error – applicant pleaded guilty to three offences including using carriage service to menace, harass or cause offence – applicant sentenced on basis of agreed facts – Local Court imposed full-time custodial sentence – District Court allowed appeal imposing a lesser full-time custodial sentence – whether District Court fell into jurisdictional error when rejecting submission that sentence be served by intensive correction order – significance of community safety being paramount consideration – significance of requirement to consider whether intensive correction order more likely to address risk of reoffending – part of reasoning in Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318 disapproved – error in agreed facts concerning number of text messages giving rise to carriage service offence – agreed facts stated applicant had sent 24,459 text messages – in fact applicant had sent 11,204 messages – whether factual error gave rise to jurisdictional error – no jurisdictional error established and summons dismissed

PRACTICE AND PROCEDURE – suppression orders – application made to District Court in respect of publication of report of proceedings in ongoing Supreme Court proceedings – Supreme Court had previously declined same application – adjournment of appeal and interim suppression order sought - refused

CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — assistance provided by applicant to authorities CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — where applicant was diagnosed with Autism Spectrum Disorder — whether the applicant’s Autism Spectrum Disorder reduced his moral culpability or rendered custody more onerous

CRIME – Appeals – Appeal against sentence – Manifest inadequacy – manslaughter – Indigenous respondent – whether sentencing judge erred in taking into account bail period as quasi-custody and backdating sentence – whether bail conditions amounted to quasi-custody – consideration of respondent’s background and mental health – whether non-parole period was manifestly inadequate

CRIME — appeal against sentence — multiple counts of indecent assault — applicant pleaded guilty to seven counts of indecently assaulting child under ten — additional offences taken into account — representative counts — nature of indecent assault offences considered — inherent sexual character of offence discussed - assaults committed over an extended period — applicant the father of the victim — relationship of trust — gravity lies in harm to child - complaint of manifest excess — sentence within judge’s discretion — no useful range established by reference to previous cases — appeal dismissed

CIVIL PROCEDURE – professional negligence – separate question – opportunistic application apparently prompted by late service of expert evidence on damages – opportunistic and late application for referral of assessment of damages to referee - oral application for vacation of hearing date – applications refused – question of admissibility of expert evidence reserved for trial judge

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving creditors’ scheme of arrangement – Whether creditors’ 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 – Whether scheme is fair and reasonable so that an intelligent and honest person who was a unitholder, properly informed and acting alone, might approve it.

CONTRACT – sale of goods – breach of damages – no issue of principle

CONTRACTS — Termination — Breach of term — Where the plaintiff sought enforcement of a deed — Where the defendants argued that there were additional oral terms that operated in conjunction with the deed — Where the defendants argued that the plaintiff seriously breached an additional oral term and that the plaintiff had repudiated the deed — Where the defendants claimed that they terminated the deed in response to the plaintiff’s breach or in acceptance of the plaintiff’s repudiation — Where the defendants argued that they had effectively communicated termination of the deed — Where the Court found that the defendants had not effectively communicated termination of the deed — Where the Court held that deed had not been terminated EQUITY — Unconscionable conduct — Special disability or disadvantage — Where the defendants argued that a deed should be set aside in its entirety because it was procured by the plaintiff taking unconscientious advantage of special disadvantages suffered by the defendants — Where the Court found that the defendants did suffer from some special disadvantages — Where the Court found that the plaintiff was not in a powerful bargaining position when the deed was entered into — Where the Court held that the conduct of the plaintiff in entering into the deed was not sufficiently unconscientious to justify the Court setting the deed aside MORTGAGES AND SECURITIES — Mortgages — Whether a deed recorded a transaction that was in substance a mortgage — Where the plaintiff argued that the transaction was not a mortgage but rather a loan document with an added facility similar to an option — Where on its face the deed was an amalgam of a loan secured by an option granted to the plaintiff to call for a transfer of a one third interest in property, plus a collateral right to receive one third of the net price of the property on sale — Where the Court found that the transaction was in substance a mortgage — Where the Court held that the obligation to transfer the one third interest in property was a collateral advantage MORTGAGES AND SECURITIES — Mortgages — Mortgage contracts — Clogs on equity of redemption — Where the plaintiff and defendants executed a deed which would give the plaintiff a one third interest in property in consideration of the plaintiff lending the defendants money — Where the deed contained a term that allowed the plaintiff to compel the transfer of the one third interest by way of notice — Where the deed did not provide for the defendants being able to repay the plaintiff the loan without the sale of the property — Where the plaintiff brought proceedings to enforce the transfer provisions in the deed — Where the defendants resisted the claim on several grounds including on the basis that the transfer provisions were a clog on the equity of redemption — Where the Court found that the transfer provisions were a clog on the equity of redemption — Where the Court held that the transfer provisions were void

CONTRACTS — Breach of contract — Consequences of breach — Right to damages where there has been partial performance — Whether damages ought to be reduced for betterment CIVIL PROCEDURE — Cross-claim — Against plaintiff — Right of set-off

EQUITY – equitable interests in real property – priorities – where property purchased by trustee on trust for sole unitholder – competing claims of beneficiary under trust and equitable mortgagee – where beneficiary did not pay any monies towards purchase price of property or “fully paid” units in unit trust – where beneficiary’s solicitor advised trustee was untrustworthy – where trust deed conferred wide powers on trustee, including power to mortgage trust assets for any contractual obligation – where trust deed precluded unitholder from lodging caveat against any trust property and no caveat was lodged – where equitable mortgage granted over property to respondent in breach of trust – whether merits of competing equities unequal – whether beneficiary’s prior interest postponed to subsequent interest of equitable mortgagee EQUITY – equitable interests in real property – priorities – where unitholder issued “fully paid” units but no monies paid for units in trust or towards purchase of property – whether evidence that trustee borrowed funds for purchase of property – whether beneficiary has liability to trustee for units issued to it – whether beneficiary was a volunteer

CRIME – sentence appeal – murder – domestic violence –ex-partner fell from fifth floor balcony when fleeing fight – subsequent stabbing caused death – intention to kill – premeditation – applicant suffered Major Depressive Disorder with melancholic features at time of murder - guilty plea CRIME – sentence appeal – new evidence – expert opinion by forensic psychiatrist obtained after sentence – post-sentence opinion was said to clarify and supplement previous two reports by same expert – opinion contested judge’s finding that applicant’s severe depression merely inhibited her ability to restrain herself from acting on an already formed intention to kill rather than playing a part in initial formation of intention to kill – discretion to admit or reject new evidence on appeal – open to sentencing judge to reject expert opinion in face of clear CCTV footage to contrary – initial two reports sufficiently clear – no reason to admit new report – ground rejected CRIME – sentence appeal – new evidence – post-sentence expert opinion contesting judge’s finding that applicant’s difficult background did not reduce her moral culpability – applicant asserted a causal link between her background and offending – no causal link asserted by psychiatrist in initial two reports – reformulation of case – tenuous argument – ground rejected CRIME – sentence appeal – mistake about sentence in a comparable case – starting point was 30 years, not 30 years and 6 months – sentencing judge acknowledged individual sentencing outcomes are not binding – trivial error – no bearing on exercise of sentencing discretion – ground rejected CRIME – sentence appeal – reasonable consistency of sentence – manifest excess – higher starting point than case with comparable objective severity but less favourable subjective factors – no requirement for numerical equivalence – applicant’s arguments antithetical to instinctive synthesis – ground rejected – appeal dismissed

CRIME – appeals – appeal against sentence – applicant pleaded guilty to possessing 1974 kilograms of tobacco knowing goods were imported with intent to defraud the revenue – one ground of appeal – whether his Honour failed to have regard to the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 when imposing sentence of full-time imprisonment – where sentencing judge failed to engage with submission of applicant’s counsel that consideration should be given to ICO – ground of appeal made out – re-sentence – where sentence of imprisonment appropriate given applicant had significant role in organised criminal activity – whether sentence should be served by an ICO – where ICO not appropriate as applicant due to be released on recognizance in less than three months – no lesser sentence warranted

TORTS — Trespass — Where hedge on plaintiffs’ land overhung defendants’ land — Private nuisance — Abatement — Where defendants lopped plaintiffs’ hedge and deposited lopped material on plaintiffs’ land — Whether such deposits amounted to trespass — Whether defendants also interfered with hedge on plaintiffs’ property — Where plaintiffs seek injunction against further cutting EQUITY — Defences — Unclean hands — Nexus between claim and claimant’s disentitling conduct — Whether nexus established only where it can be said plaintiff would be taking advantage of own wrong if granted equitable relief

CIVIL PROCEDURE – transfer of proceedings to higher court – factually entwined proceedings

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

COSTS – where discontinuance of proceeding

CIVIL PROCEDURE – Separate determination of questions – where appropriate – whether an order should be made for the separate determination of a question of construction of the operative agreement

CIVIL PROCEDURE – commercial list – procedure – list statements – whether defendants should have leave to amend their List Response COSTS – whether defendants should pay the plaintiff’s costs thrown away by the vacation of the hearing date

COSTS – proceedings to sell co-owned property under section 66G of the Conveyancing Act 1919 (NSW) – proceedings settled save as to costs – settlement agreement contemplated a subdivision of co-owned property and sale of one of the subdivision lots – where no determination on the merits – where neither party acted unreasonably – where costs of section 66G application usually taken from the proceeds of sale of co-owned property – held that each party’s costs to be paid out of the sale proceeds of the proposed subdivision lot

COSTS – departure from the general rule – where plaintiff unsuccessful in obtaining relief at final hearing – whether costs of various interlocutory applications warrant a departure from the general rule – held that some departure warranted – order that defendants pay certain costs and otherwise that the plaintiff pay the costs of the proceedings COSTS – gross sum order – held the evidence does not establish likelihood that the plaintiff will be unable to pay defendants’ costs once assessed – held that evidence does not place Court in position to be confident it could resolve challenges about amount of costs on a fair and logical basis – gross sum costs order declined

ADMINISTRATIVE LAW – application for judicial review – Commissioner of Corrective Services’ directions subjecting inmate to urinalysis – broad drug testing discretion – claimed psychological impediment to provide urinalysis unfounded on the evidence – torture – prohibitions on torture as custodial punishment – legal unreasonableness

JUDGMENTS AND ORDERS — In favour of plaintiff INSURANCE – Insurance Claim – Reliability of records – Where the insured established part of its claim – Where the insurer refused to make any payment under the policy – Where interest must be calculated COSTS – Indemnity costs order – Calderbank Offer – Offer of compromise under Rules – Where reasonable grounds exist to refuse the Calderbank offer – Consequences of refusal of offer of compromise

JURISDICTION – supervisory jurisdiction – challenge to interlocutory establishment decision of Children’s Magistrate – care proceedings – application for summary dismissal of application for review – whether merits review in disguise – whether reasonable cause of action for judicial review pleaded – case for review clearly untenable

COSTS — Lump sum or gross costs orders — Whether lump sum costs order should be made COSTS — Party/Party — General rule that costs follow the event — Special costs order

BUILDING AND CONSTRUCTION – adjudication – payment claim seeks payment in respect of multiple construction contracts – case law review at [10]-[26] – section to be construed in the singular (at [27]-[33]) – s13(1) Building and Construction Industry Security of Payment Act 1999 (NSW) requires payment claim in respect of one contract – adjudication determination based on such a payment claim is void (at [34]-[42]) – obiter in Ausipile v Bothar Boring [2021] QCA 223 plainly wrong – no “arrangement” where there is a contract – clauses providing that work orders comprise a new agreement do not exclude, modify or restrict operation of the Act.

JUDGMENTS AND ORDERS – amending, varying, setting aside – application to set aside orders under UCPR rr 36.15, 36.16, 36.17 – no basis to set aside established – application dismissed

CIVIL PROCEDURE — Default judgment — Default in entering appearance — Default in filing defence CIVIL PROCEDURE — Service outside Australia — Proceedings in which permitted — Application for leave to proceed

JUDGMENTS AND ORDERS — Orders — Application for payment of funds out of court

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Application by both Plaintiffs and Defendant for costs — Both Plaintiffs and Defendant submit that they were successful in the outcome of the proceedings — Consideration of the relevant “event” pursuant to which costs should follow — Plaintiffs failed on all aspects of their pleaded case and the Defendant was successful on her alternative defence — The alternative defence produced a limited degree of success to the Plaintiffs, even though that case had not been advanced by them — The Defendant’s success is the “event” which costs should follow — Reduction in award of costs in the exercise of the Court’s discretion in recognition of the Plaintiffs’ partial success — Held: Plaintiffs to pay 70% of the Defendant’s costs