Cases and authorities

CIVIL PROCEDURE –mortgage default – application to set aside judgment – proposed defence does not raise an arguable defence – application to set aside judgment refused

PARTNERSHIPS AND JOINT VENTURES – Proper parties to partnership proceedings – plaintiff is a partner of a national law firm – law firm partnership constituted by deed – law firm has 182 partners practising throughout Australia at the time relevant to the issues raised on the pleadings – defendant is the managing partner of the law firm – in the context of the partnership proposing to list on the Australian Stock Exchange, the law firm partnership passes resolutions which are alleged to expel the plaintiff as a capital partner of the partnership – plaintiff brings proceedings by Statement of Claim to challenge the passing of both resolutions – plaintiff joins the defendant as the sole defendant in the proceedings – and by Motion seeks orders nominating the defendant as a representative of all the capital partners in the firm – the defendant resists relief on the Motion and contends that all capital partners should be joined individually as defendants and that he should not be required to be a representative for the other capital partners – whether all capital partners of the firm should be joined as defendants, or whether the defendant should be required to represent all capital partners.

CIVIL PROCEDURE – Court of Appeal – Application – Notice of Motion seeking various orders – Where legal representatives unable to advance any submissions in support of motion – Where Court has serious reservations as to whether party who signed motion in fact filed it – Inability of party to answer basic questions from the Bench or advance any submissions in support of motion – Correspondence from misspelled email address – Court being trifled with – Motion dismissed with indemnity costs CIVIL PROCEDURE – Parties – Joinder – Application to reinstate company as appellant after misconceived attempt to circumvent requirement of representation by joining director instead

CIVIL PROCEDURE — default judgment — setting aside — where default judgment irregularly entered — whether applicants demonstrated bona fide defence on merits — default judgment set aside JUDGMENTS AND ORDERS — enforcement — garnishee order — where default judgment set aside — order for return of garnished amount

CORPORATIONS — Winding up — Liquidators — Application for directions with respect to an asset sale agreement entered into by the company and associated transactions. CORPORATIONS — Winding up — Liquidators — Investigations — Direction made that liquidators are justified in undertaking investigations as to failure of company to acquire relevant property, and in potentially conducting consequential proceedings subject to any further direction by the Court.

APPEALS – procedure – application to extend time for filing Notice of Appeal – no realistic prospect of success on appeal – no reasonable explanation for delay – extension of time refused and appeal dismissed

APPEALS – application for leave – where mortgagee brought proceeding for removal of caveats lodged by guarantor/mortgagor against two adjoining properties – interlocutory order made for withdrawal of caveats – sale of properties completed – contention that sale of properties unauthorised – whether leave should be granted – whether injustice which is reasonably clear – leave refused

CIVIL PROCEDURE — Pleadings — Amendment – where the Plaintiff sought to amend its Statement of Claim, which application was opposed by the Defendant who asserted the proposed Amended Statement of Claim (“ASTOCL”) was embarrassing, inadequately particularised, and that its filing would be in breach of an agreement reached between the parties in respect of a joint expert – where the Defendant identified a discrepancy between the amount of the loss and damaged claimed and the total figures claimed in the earlier part of the pleading – where the Defendant claimed filing the ASTOCL would be in breach of an agreement in relation to the retainer of the joint expert, which report focused on the Plaintiff’s ten main vendors (“the Ten Vendors”) and did not include the any other vendors (“the Secondary Vendors”). The breach asserted was that it was agreed the expert would examine all transactions, not just the Ten Vendors, however the parties provided to the expert an Index of Documents relating to only the Ten Vendors – Held: the pleadings were not in a defective form, save for the discrepancy issue, and the Defendant could not have any difficulty in understanding what is alleged against her – leave granted to the Plaintiff to file an ASTOCL, however, noting the discrepancy issue, not in the form proposed. The Plaintiff to provide an explanation as to the discrepancy identified by the Defendant and, if need be, amend the ASTOCL to ensure there is no disconformity between the total of the amount claimed in later paragraphs and the amounts claimed in earlier paragraphs – Held: it is not appropriate to determine on this application whether there was a breach of the agreement by the Plaintiff or to preclude the Plaintiff from filing an ASTOCL because the expert report has not examined all of the secondary vendors.

CIVIL PROCEDURE – Default judgment – Setting aside – bona fide defence on the merits – no issue of principle

CORPORATIONS — Winding up — Liquidators — Orders sought for the release of liquidators — Whether court should vary certain requirements under the Supreme Court (Corporations) Rules 1999 (NSW) in respect of notice to creditors and contributories — Alterations in timing requirements for such notice — Other modifications in respect of the notice sent to creditors and contributories — Where no current addresses for many creditors and contributories of the companies.

CIVIL PROCEDURE — Discovery — Order for general discovery — Discovery sought against sixth and eighth defendants where those defendants may possess documents that may be relevant to plaintiff’s case against other defendants in the same proceedings

CONTRACTS — Construction — Proper construction of Deed — Dispute about the nature and scope of Deed executed by all parties — Defendants liable to account to plaintiff for their receipt of net proceeds of sale of land consequent upon execution of Deed

CRIME – confiscation of property – forfeiture provisions – extension of period – “undue delay” – diligently follow-up – application of s 93 of the Proceeds of Crime Act 2002 (Cth) – applicability to property of persons other than offender

COURTS AND JUDGES — Bias — Application for recusal – Apprehended bias – the Court delivers an interlocutory judgment in August 2021 – that judgment deals with two Motions relating to monies paid into Court – the applicants allege that the judgment demonstrates apprehended bias against them – an oral application for recusal is made – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge is required to decide – that application is denied for the reasons given in this judgment – the applicants further argue the proceedings should be stayed pending the filing of an appeal against the refusal of the recusal application – whether a stay should be granted – a stay is refused for the reasons given in this judgment.

CORPORATIONS – company operates profitable business in leased premises – shareholders in dispute – voluntary liquidator appointed – liquidator advertises business for sale – one shareholder has “very strong relationship” with landlord – landlord proposes to terminate lease and grant new lease to shareholder – shareholder makes offer for plant and equipment only – company likely insolvent due to unlodged BAS – liquidator appointed as administrator – moratorium on landlord – shareholders submit competing DOCAs – other shareholder submits better offer – approved by creditors – conditional on transfer of shares – shareholder will not consent – s444GA, Corporations Act – principles at [26]-[33] – only applies to administrators under a DOCA – s447A(1), Corporations Act – principles and application at [44]-[56] – modification of operation of s 444GA to apply to administrator – transfer ordered. COSTS – r. 2.13(2) Supreme Court (Corporations) Rules – whether interested party should pay costs – application strenuously opposed – substantial evidence irrelevant or abandoned – hearing prolonged – in interests of creditors – shareholder ordered to pay liquidator’s costs.

CORPORATIONS — Winding up — Where liquidator of trustee appointed as receiver of trust assets — Remuneration — Reasonableness of receiver’s remuneration.

EVIDENCE — Burden of proof — Civil proceedings — Where cross-claimant deprived of means of direct proof of expenses incurred by action of cross-defendant — Nature of presumption against cross-defendant LAND LAW — Co-ownership — Rights between co-owners — Construction of co-ownership agreement — No issue of principle

EVIDENCE – family provision – application by plaintiffs for inspection of file produced by Federal Circuit Court – previous orders of the Court granting access to plaintiffs to limited documents in file – whether changed circumstances justify granting access to further documents

CONTRACTS — Claim for damages alleged to have been suffered as a consequence of the defendant’s alleged breach of contract and unconscionable conduct — Plaintiff proposed to develop a site owned by the defendant from which the plaintiff proposed to conduct various business ventures — Agreement for lease between the plaintiff and defendant provided that the plan of subdivision was registered by the Sunset Date, a lease would be granted by the defendant to the plaintiff of one of the newly created lots CONTRACTS — Construction of clauses — Requirement that the defendant take “all reasonable action” to register the Plan and Instrument by Sunset Date — Breach of contract established as defendant did not commit funds to connect the proposed lots to sewerage — Breach was an effective cause of the non-registration of the Plan and Instrument by the Sunset Date — Consequences of breach — Right to damages — Plaintiff claims damages amounting to wasted expenditure and loss of chance to make a profit on the development — McRae v Commonwealth Disposals Commission and The Commonwealth v Amann Aviation Pty Limited distinguished — Construction and effect of clause 12.3 — The damages claimed by the plaintiff would not fall within either the first or the second limb of Hadley v Baxendale — Plaintiff entitled to nominal damages CONTRACTS — Alleged unconscionable conduct — Not necessary to decide if any of the allegations relate to conduct in “trade and commerce” — None of the particulars either individually or in combination lead to the inference that the defendant behaved in an unconscionable manner — The Plaintiff took a calculated risk which did not pay off — The Council neither asked for the hangar to be built nor did it have a say in its cost — Council subsequently acquired the hangar for one dollar in accordance with the lease — Unconscionable conduct claim is not made out

COSTS – plaintiff sought removal of defendant’s caveats recorded against property of which the plaintiff was registered proprietor of a 1/100 share – property was the subject of a contract for sale to third parties – defendant rejected plaintiff’s offer to place 1% of net sale proceeds in trust account pending agreement or Court order – defendant maintained that the plaintiff had a beneficial interest greater than the 1/100 share recorded in the register – defendant ultimately failed to press this point and parties settled proceedings without a determination on the merits – consent orders provided for plaintiff to pay defendant 1% of the net proceeds of sale – held it was almost inevitable that the caveats would be ordered to be removed to allow sale of property to complete – held that the settlement agreed to by the defendant can be regarded as a capitulation on its part – order that the defendant pay the plaintiff’s costs of the proceedings.

COSTS – costs follow the event – costs to be paid on an ordinary basis – no issue of principle

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued

ADMINISTRATIVE LAW – appeal pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – decision of Appeal Panel of Civil and Administrative Tribunal that use of “Biowood” attachments to external walls of multi-storey residential buildings constitutes undue risk of fire spread – whether incorrect formulation and application of proper test and the Building Code of Australia – whether finding of undue risk made in absence of evidence – appeal dismissed

JUDICIAL REVIEW – summonses seeking judicial review of decision of Supreme Court orders – whether judicial review lies to Court of Appeal – Penson v Titan National Pty Ltd [2015] NSWCA 404 applied – summonses dismissed

APPEALS — leave to appeal — no issue of principle, question of general public importance, or injustice — leave refused

CONTRACTS — Breach of contract — Damages — No issue of principle

EQUITY — Equitable remedies — Injunctions — Application to prevent, by injunction, the execution of a contract of sale of a property — Plaintiff claims an interest in the property on the terms of a purported agreement between his mother, the Defendant, and his late father — Plaintiff also claims an equitable interest in the property on account of his financial and non-financial contributions in respect of the property — Previous proceedings dealing with the subject matter of these proceedings — The parties settled the previous proceedings by a deed of settlement, by which they provided various releases to each other — Plaintiff contends that the releases do not cover the present claims — Failure by the Plaintiff to disclose to the Court the contents of a caveat previously lodged on the property but since withdrawn — Held: Injunctive relief refused having regard to the weakness of the Plaintiff’s case by reason of the deed of settlement and additionally the considerable delay in bringing the application for injunctive relief, coupled with doubt as to the need for retention of the property

CIVIL PROCEDURE – Summary disposal – Judgment for plaintiff – where real questions to be tried – no issue of principle

PRACTICE AND PROCEDURE – application to amend pleadings – form of pleadings – no question of principle

CORPORATIONS — Winding up — Statutory demand — Failure to comply with statutory demand — Where presumption of insolvency that arose from failure to comply with statutory demand not rebutted. CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt — Whether winding up application brought on presumption of insolvency constitutes an abuse of process where proceedings on foot in another court.

EQUITY – Trusts and trustees – Court’s supervision of – Appointment and removal of trustees – where nominated trustee of testamentary trust refused appointment – whether new trustee should be appointed under s 70 of the Trustee Act 1925 (NSW) or the Court’s inherent jurisdiction – new trustee appointed

EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of trade — Injunction sought restraining former employees from engaging in employment with competitors of the former employer — Undertakings proffered by all three Defendants, yet only those undertakings proffered by the First Defendant accepted by the Plaintiff — Former and new employers engage in the provision of assistance to persons with disabilities who are seeking employment — Weak prima facie case for the injunctions sought — Balance of convenience favours the Defendants — Held: interim injunction not granted

CRIME – murder – defence of mental health impairment and cognitive impairment – special verdict where defendant and prosecutor agree on impairment – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 31 – Major Depressive Disorder – psychotic symptoms – neurodegenerative disease – Posterior Cortical Atrophy – Lewy Body Dementia – unanimous medical opinion that defence applies – accused did not know the nature and quality of the act – accused did not know that the act was wrong – judge alone special verdict of act proven but not criminally responsible

NEGLIGENCE — Breach — destruction of railway sleepers by fire – fire caused by use of arc welder in paddock in summer – where defendant was a farmer and firefighter of 30 years’ experience – whether expert evidence required to establish precautions a reasonable person in defendant’s position would have taken – held, expert evidence not required – precautions a question of common sense NEGLIGENCE — Damages – where plaintiff claimed much larger number of sleepers were present on the property than it paid for – where value of sleepers dependent on grade – where plaintiff claimed 47% of sleepers were redundant broken/part sleepers – whether quality can be established by reference to sleepers stored at another facility NEGLIGENCE — Defences — Contributory negligence – where defendant told plaintiff to move sleepers to allow for construction of a firebreak – where plaintiff refused – held, plaintiff was contributorily negligent INSURANCE — Insurance Contracts Act 1984 (Cth) – dispute over relevant PDS – whether s 58 of the Act required insurer to prove service of the PDS – where PDS was available on request and defendants’ evidence was that they did not know whether a later or earlier PDS applied – construction of exclusion clause – whether property in defendants’ physical or legal control – where property stored on defendants’ property

SUCCESSION – application for family provision order – plaintiff a widow of 17 years – plaintiff substantially younger than deceased husband – nine children of first marriage – husband’s Australian estate divided into 10% shares between plaintiff and children – whether arrangement that plaintiff would not benefit from deceased estate – whether plaintiff maltreated deceased – whether plaintiff stole from deceased – whether children maltreated plaintiff – where evident acrimony between plaintiff and children – order for provision made LEGAL PRACTITIONERS – first defendant published series of Facebook posts vilifying plaintiff – first defendant admitted as legal practitioner – whether conduct capable of warranting professional sanction – opportunity given for first defendant to be heard

PUBLIC HEALTH ACT – COVID-19 – public health orders made under s 7(2) of the Public Health Act – orders designate certain areas of concern and restrict movement out of the home and out of the area –authorised workers able to leave area of concern but only if vaccinated – orders allow residents of area of concern to enter and remain on construction sites but only if vaccinated – orders allow persons to enter and remain upon premises that operate aged care facilities but only if vaccinated – orders preclude persons from working at school and early education facilities unless vaccinated – scope of power to make orders giving such broad directions – whether power limited by reference to other powers conferred by the Public Health Act as a whole – whether principle of legality engaged by impugned orders – effect on personal freedoms – orders affect freedom of movement and capacity to work – orders do not violate right to body integrity – rule restricting freedom of movement for unvaccinated persons does not vitiate consent to vaccination – requirement for persons who leave areas of concern, enter building sites or work at schools or aged care centre to produce vaccination requirement on request – requirement does not infringe privilege against self-incrimination – privilege protects against production of incriminating not exonerating material. ADMINISTRATIVE LAW – proof of basis upon which Minister for Health acted – Minister did not give evidence – part of documents relied on subject of public interest immunity claim as documents produced to sub-committee of cabinet - whether Jones v Dunkel inference or Blatch v Archer reasoning available against Minister and State – position of Ministers with competing responsibilities – no adverse inference available – Blatch v Archer reasoning not available ADMINISTRATIVE LAW – grounds of challenge – relevant considerations – how derived and how framed – procedural fairness – no obligation to afford procedural fairness in making public health orders affecting a vast number of persons – not proven that making of orders was not a genuine exercise of the Minister’s power – unreasonableness – adducing of evidence to undermine factual basis for making of orders – decision to make orders informed by policy considerations – whether differential treatment of unvaccinated persons consistent with objects of Public Health Act – all grounds of review rejected. CONSITUTIONAL LAW – whether orders and section 7 of the Public Health Act rendered invalid by s 51(xxiiiA) of the Constitution – orders do not create any form of civil conscription in the provision of medical and dental services – s 51(xxiiiA) does not limit legislative power of the States – no joint scheme with Commonwealth to effect civil conscription – neither orders or Public Health Act dependent for its operation on any joint scheme with Commonwealth – argument untenable – no inconsistency between orders, Public Health Act and Australian Immunisation Register Act 2015

TAXES AND DUTIES — payroll tax — liability — employment agents — interpretation of Payroll Tax Act 2007 (NSW), s 37(1) — meaning of “client” — whether workers provided in and for the client’s business — whether quadripartite arrangements between attendant care worker, recipient of care, funder of care and provider of care workers are employment agency contracts TAXES AND DUTIES — payroll tax — liability — employment agents — exemptions — interpretation of Payroll Tax Act 2007 (NSW), Sch 2 cl 8 — meaning of “the Crown” — meaning of staff “employed in connection with” public hospitals or local health districts — meaning of work “in connection with the conduct” of public hospitals or health districts — whether exclusively engaged in relevant work TAXES AND DUTIES — payroll tax — liability — employment agents — exemptions — interpretation of Payroll Tax Act 2007 (NSW), s 40(2) — whether client declaration requirement essential to exemption availability — failure to obtain client declarations TAXES AND DUTIES — payroll tax — wages — payments under relevant contracts — interpretation of Payroll Tax Act 2007 (NSW), s 32(2)(b)(iii) — meaning of “90 days” — whether a “day” in a financial year is constituted by 8 hours of work however dispersed throughout the year or a 24 hour period during which any amount of work is performed TAXES AND DUTIES — payroll tax — wages — payments to contractors — independent contractors or common law employees — indicia of common law employment TAXES AND DUTIES — administration — interest — remission — Taxation Administration Act 1996 (NSW), s 25 — remittal of premium interest — conflicting factors — prior audits and investigations concluded payroll tax not payable — absence of full and frank disclosure — partial success on appeal

TORTS – General principles - Assessing damages for sexual assault – Where contemporaneous records do not support the conclusions of medico-legal experts – Inherent difficulty in quantifying loss in cases involving sexual assault TORTS – Trespass to the person – Assault and battery – Sexual assault - Where defendant has been convicted of criminal offences against the plaintiff

ADMINISTRATIVE LAW – application for leave to appeal from refusal of leave to appeal from NCAT – leave refused

LAND LAW – easements – creation of easements – creation by order of the Court – plaintiff and defendants own adjoining rural lots – lots used for residential and rural purposes – plaintiff seeks right of carriageway over a track on defendants’ land to obtain access to public road – prior to hearing track was damaged by heavy rain and became impassable – easement ultimately sought by plaintiff would allow plaintiff to undertake works on track to repair damage – access to public road available using only plaintiff’s land – quality of access constrained due to a creek crossing – whether easement sought is reasonably necessary for the effective use or development of plaintiff’s land – whether use or development of plaintiff’s land with easement at least substantially preferable to use or development of the land without the easement – deficiencies in evidence as to cost of works required on plaintiff’s land and defendants’ land to facilitate access – plaintiff failed to show that easement was reasonably necessary for the effective use or development of her land – s 88K(1) of the Conveyancing Act 1919 (NSW) not satisfied

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 — external administration — liquidation — administration of trust assets — liquidators’ remuneration, costs and expenses — where previous orders that liquidators entitled to reasonable remuneration, costs and expenses, subject to approval by Registrar — where liquidators also claim estimated future remuneration, costs and expenses — where application referred to the Court — whether remuneration claimed reasonable and proportionate

CRIME – bail – release application – applicant charged with murder, alternatively manslaughter or affray – show cause – where Crown case is a strong one – where applicant not being charged for 12 months after evidence obtained irrelevant to strength of Crown case – where concern applicant will fail to appear as he sought to avoid police and destroy relevant evidence prior to being charged – applicant does not show cause

CRIME – bail – release application – applicant charged with murder, alternatively manslaughter or affray – show cause – where Crown case is a strong one – where case on affray overwhelming and sentence would likely exceed time spent on remand until trial – where delays due to COVID do not demonstrate that continued detention is not justified – applicant does not show cause

CONTRACT — construction — interpretation — debt collection agreement — meaning of ‘collect’ — where agent obtained judgment debt against debtor — where debtor deregistered company — no monies collected from debtor — whether agent entitled to fee — whether agreement authorised agent to pursue other alleged debtors not specified in agreement CONTRACT — breach — where debt collection agreement prohibited principal taking any steps in relation to specified debt — where principal withdrew instructions of solicitors retained on behalf of principal by agent — whether breach of debt collection agreement DAMAGES — damages in contract — causation — loss of commercial opportunity — chance of obtaining fee for collecting a debt — where debtor company deregistered and likely insolvent — whether causation established — whether chance of acquiring fee had some value other than negligible or speculative

HEALTH – professional registration and discipline – unsatisfactory professional conduct – professional misconduct – inappropriate prescription of drugs of addiction– inadequate clinical records – continuing involvement in unproven therapies HEALTH – professional registration and discipline – proportionality of disciplinary orders to misconduct – whether reprimand and conditions on registration sufficient to protect the public interest – whether orders were made in reliance on particulars not pleaded against the appellant PRACTICE AND PROCEDURE – appeal – stay – reversing order under appeal – order for de-registration effected – stay no longer available – interlocutory injunction to third party to reverse order

CRIMINAL LAW – appeal against conviction – unreasonable verdict – inconsistent verdicts – whether guilty verdict on count 2 irreconcilable with not guilty verdicts on counts 1, 4, 5 and 6 – applicant charged with three counts of indecent assault and two counts of sexual intercourse without consent – all events occurred on same evening and upon the same complainant – complainant made almost immediate complaints of counts 1, 4, 5 and 6 – complainant’s initial complaints did not refer to count 2 – basis for reconciling conviction on count 2 and not guilty verdicts on indecent assault counts – whether different verdicts on counts of sexual intercourse without consent reconcilable – complainant gave unequivocal testimonial evidence of both counts of sexual intercourse without consent – no apparent distinction between quality of complainant’s evidence on counts 2 and 4 – no other witnesses – no other evidence capable of reconciling not guilty verdict on count 4 with guilty verdict on count 2 – appeal allowed and conviction quashed

CIVIL PROCEDURE – Costs assessor’s decision – Application to set decision aside – Uniform Civil Procedure Rules – General power to set aside judgment or order – Further power to set aside judgment or order – Dismissed

CIVIL LAW – interlocutory orders – application for summary judgment – application to dismiss or sever cross-claim – whether defendant’s case untenable or destined to fail – loans between property developers – where debt unpaid – where allegation that lender unjustly enriched – where pleadings possibly deficient – where defendant asserts agreement was to repay debt at conclusion – whether relief sought in cross-claim relates to or connected with subject of the statement of claim – defence and cross-claim disclose triable issue – motion dismissed