Cases and authorities

CIVIL PROCEDURE — Pleadings — Fraud — Specific and particular allegations — Where the plaintiffs filed a statement of claim alleging fraud on the part of the defendant — Where the statement of claim was 150 pages long and comprised obscure allegations, was repetitive and generally did not comply with the applicable rules of pleading — Where the fraud alleged was not pleaded and particularised specifically — Where the defendant sought by notice of motion that the plaintiffs’ statement of claim be struck out pursuant to UCPR r 14.28 — Where the plaintiffs submitted in response a proposed amended statement of claim — Where the proposed pleading was infected with substantially the same defects as the filed statement of claim — Where the Court held that the whole of the statement of claim should be struck out — Where the Court further held that it would involve an abuse of process to permit the plaintiffs to continue to prosecute the current proceedings against the defendant — Where the Court dismissed the proceedings

MENTAL HEALTH – forensic patient – application for extension of status as forensic patient – whether unacceptable risk posed by defendant – consideration of statutory factors – Whether less restrictive measures available to effectively manage risk – no question of principle

CHILD WELFARE — Care proceedings — Care order — Appeal from care order of Children’s Court — Application to set side Final Care Orders — Whether Children’s Court had jurisdiction to make Final Care Orders — Best interests of the child — Whether child should be restored to the mother’s care — Whether factors leading to assumption had been addressed

INTERNATIONAL COMMERCIAL ARBITRATION – Application for interim measure under Article 17J of the UNCITRAL Model Law on International Commercial Arbitration – sparing approach to exercise of the power under Article 17J – where serious question to be tried concerning validity of notices issued by defendant terminating or purporting to terminate contract – where plaintiff likely to suffer harm for which damages would not be an adequate remedy in the short-term if interim injunction not granted – where evidence does not establish that defendant likely to suffer harm in short-term – where plaintiff commenced arbitration proceedings only four days after commencing proceeding in this Court – where plaintiff accepts that continuation of injunction may be revisited by arbitral tribunal and submits that conditions for any longer-term interim injunction, including any security for the plaintiff’s undertaking as to damages, are “quintessentially matters for the arbitrator” – injunction granted only for short period necessary for plaintiff to have the opportunity to apply expeditiously to arbitral tribunal for any longer term interim injunction

PROCEDURE – interlocutory appeal from decision striking out paragraphs of defence – decision based on whether defendant was a “public or other authority” for purpose of Part 5 of Civil Liability Act 2002 (NSW) – appropriateness of determining question on strike out application or by way of separate question – directions made for formulation and determination of separate question

CIVIL PROCEDURE – abuse of process – where the Court may exercise its inherent powers to prevent an abuse of its process – where the Court deemed it appropriate that an order in the nature of that made in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 be made CIVIL PROCEDURE – notice of motion – where applicant filed notice of motion challenging earlier orders by judges of the Court and in part repeating relief that had previously been sought and refused – where the notice of motion was dismissed as an abuse of process or as being either vexatious or oppressive, or as disclosing no arguable basis for the relief sought

CRIMINAL LAW – summing-up – balance – fairness – no allegation that trial Judge became advocate for prosecution – where trial Judge failed to refer to submissions made on behalf of accused person at trial – where no complaint made at trial – requirements of balance and fairness – extent of the need for comment on evidence and arguments – where trial short and issues clear and uncomplicated – summing-up to be considered as a whole

SENTENCING – fraud offences – whether effect of pandemic restrictions imposed after sentence can be considered – leave to appeal refused.

BAIL – release application – applicant currently serving sentence following conviction for offences – application for release pending determination of appeal against convictions – special and exceptional circumstances test – no special and exceptional circumstances demonstrated – release application dismissed

CRIME – appeals – unreasonable verdict – direct and circumstantial evidence – whether the whole of the evidence gave rise to reasonable explanations other than the applicant’s guilt CRIME – appeals – appeal against conviction – miscarriage of justice – expert opinion evidence – where expert opinion evidence was mere speculation – where evidence plainly was not an expert opinion – where opinion of the expert did not involve the application of any expert skill and judgment CRIME – appeals – objection to tender of evidence – where evidence constituted an admission for the purposes of s 87 of the Evidence Act 1995 (NSW) – whether tender of evidence was unfair – forensic decision CRIME – appeals – appeal against conviction – application of proviso – miscarriage of justice – proviso not applied

CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence – whether trial judge’s rulings on the admissibility of evidence eliminated or substantially weakened the prosecution’s case – Criminal Appeal Act 1912 (NSW), s 5F(3A) CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence – standard of review for the exclusion of evidence under ss 55 and 137 of the Evidence Act 1995 (NSW) – correctness standard

CORPORATIONS – third application to extend adjournment of second creditors meeting – s447A Corporations Act, s90-15 IPS – principles at [28]-[30] – companies have interest in foreign land – DOCA proposal by secured creditor unappealing – foreign government wishes to put forward DOCA – this DOCA may pay all creditors in full with surplus – delays due to government decision-making processes – two extensions already granted – extension granted for third and, likely final, time.

CIVIL PROCEDURE — Suppression and non-publication — Variation of orders — Necessary to protect administration of justice and consider needs of open justice — exemption from prohibition proposed by Crown too wide — narrower exemption authorised subject to agreement as to redacted version of sentencing judgment of corporate offender

CIVIL PROCEDURE – Time – Extension of time to serve documents – Leave granted

COSTS — Security for costs — Relevant factors — Where there are two groups of defendants — Where each group of defendants sought separate security for costs against the corporate plaintiffs — Where the plaintiffs contended that the applications for security for costs should be dismissed — Where the plaintiffs have filed an amended statement of claim but the defendants have not filed their defences — Where the Court considered various discretionary factors pursuant to UCPR r 42.21(1A) — Where the Court found that it should not determine the applications for security for costs until completion of the pleadings

CIVIL PROCEDURE – dismissal of proceedings – plaintiff appointed as trustee of a bankrupt’s estate and thus became co-owner of real property with defendant – plaintiff commenced proceedings to sell property pursuant to section 66G of the Conveyancing Act 1919 (NSW) – parties entered into Deed of Sale in relation to the property – property sold – no longer any utility to the proceedings – proceedings dismissed COSTS – departure from the usual order – usual position that costs of section 66G application are paid out of proceeds of sale – property sold pursuant to Deed of Sale – plaintiff seeks costs – whether defendant acted unreasonably in failing to respond to plaintiff’s attempts to negotiate – held that defendant had no obligation to negotiate prior to commencement of proceedings and any delay after commencement of proceedings not shown to be entirely the defendant’s fault – defendant seeks no order as to costs – whether Deed of Sale disposed of all issues including as to costs of proceedings – Deed indicated that parties reached no concluded agreement as to costs of proceedings – open to Court to make order as to costs – held that the circumstances do not justify a departure from the usual position that involves a sharing of costs between co-owners – defendant ordered to pay half of the plaintiff’s costs COSTS – gross sum order – whether appropriate to make such an order – plaintiff incurred actual costs of $42,511.72 and seeks gross sum order fixed at $32,717.02 – Deed of Sale provided that the parties would bear their own costs in relation to the Deed – some costs claimed by plaintiff appear to relate to preparation of the Deed – held that there is some doubt the Court could fix a fair sum between the parties – defendant should not be deprived of the benefit of a costs assessment – gross sum order not made

ADMINISTRATIVE LAW — Judicial review — Decision of Medical Assessor and delegate of the President of the Personal Injury Commission of NSW — Whether Medical assessor considered and addressed claimant’s submissions and provided sufficient reasons — Submission regarding contribution of accident to condition of claimant and ongoing symptoms not addressed — Medical Assessor made finding contrary to claimant’s submissions and associated evidence without referring or apparently taking into account what claimant put to him — Medical Assessor’s reasons are insufficient — Decisions of Medical Assessor and President’s delegate must be set aside

TERRORISM HIGH RISK OFFENDER – preliminary hearing – application for an interim detention order and the appointment of experts – whether test under s 41 satisfied – whether test under s 38(5) satisfied – whether orders would be futile due to other custody – where defendant is in custody in respect of NSW firearms offences and Commonwealth child pornography offences – where defendant stands to be sentenced for further NSW child pornography offences – actual release date unknown – “unacceptable risk” – where defendant has held neo-Nazi and white supremacist views since adolescence – where defendant capable of manufacturing firearms from widely available materials – construction of s 34(1)(a) – whether defendant required to be “eligible offender” at time of final orders – orders granted

EVIDENCE — Hearsay — Exceptions — Where maker of induced statement is a co-accused and not compellable — Whether maker “not available” — Whether co-accused’s induced statement can be tendered — Application of s 65 Evidence Act 1995 (NSW)

TORTS – Trespass to the person – False imprisonment – Wrongful arrest – Whether arrest wrongful where officer had additional purpose of interviewing arrestee and obtaining a “version” of events – Where officer nevertheless had requisite intention to charge – Secondary intention does not vitiate lawfulness of arrest APPEALS – Leave to appeal – From final order dismissing false imprisonment claim – Amount in issue below $100,000 threshold – Insufficient prospects of success – Leave refused

INSURANCE – where appellant’s house destroyed in a fire – where house used to operate a business – where house and business insured by respondent – where respondent granted conditional indemnity under deed of release – where respondent then denied liability on basis fire deliberately lit by insured – whether primary judge erred in finding appellant deliberately started fire INSURANCE – measure of indemnity – where lack of reasonable despatch in rectifying property – whether indemnity for property damage payable on reinstatement basis INSURANCE – damages – whether damages available for consequential loss arising from insurer’s breach of promise to indemnify – whether damages available for inconvenience and distress caused by breach

CONTRACTS — Whether accelerated payments and back-dated interest clauses of loan agreement amount to a penalty — Alleged default that the defendant ceased to be an Ordinary Member of the plaintiff — Provisions used to punish the defendant — Terms unenforceable as penalty CONSUMER LAW — Unconscionable conduct — s 21 of the Australian Consumer Law — Plaintiff using powers to remove defendant who challenged its administration of trust — Trustee’s persistent misrepresentation of the legal position to defendant unconscionable EQUITY — Trusts and trustees — Discretionary trust — Trustee’s powers to pay out capital and make distributions of trust property — Trust recorded income from interest and driver levies which it credited to the beneficiaries’ loan accounts — Allocation of trust property to the beneficiary’s loan account created a bare trust in favour of the beneficiary in the amount set out in loan account — Repayable on demand by the beneficiary — Beneficiary can bring a common law action for money had and received when a trustee admits a debt to the beneficiary in its financial statements COMMERCE – money claims – money had and received — Defendant claimed the return of monies standing to its credit in loan accounts recorded in the plaintiff’s financial statements — Plaintiff contended that monies remained part of the trust property – Defendant’s cross-claim established CORPORATIONS — Meeting of members — Validity of Special General Meeting — Not necessary to decide whether the Special General Meeting complied with requirements in the Constitution

LAND LAW — Conveyancing — Requirements of writing — Agreement to create or dispose of interest in land — Sibling co-owners of the land — Sister’s solicitor accepts brother’s offer to purchase sister’s interest set out in letter from brother to solicitor — Whether specific performance should be granted

LAND LAW – conveyancing – options – plaintiff lessee operated a café from premises owned by defendant lessor – lessee served a Notice of Exercise of Option to renew lease for further 5 year term – lessor responded with a Notice under section 133E of the Conveyancing Act 1919 (NSW) – the Notice stated the lessee was overdue on rent and electricity outgoings and proposed to treat those breaches of the lease as precluding the lessee from entitlement to the option – held that the plaintiff was not overdue on electricity outgoings – held that the plaintiff was overdue on rent but by less than half of the amount stated in the Notice – whether Notice specified the lessee’s breach of the relevant obligation – Notice failed to specify the lessee’s breach and thus was of no effect in respect of the breach – held that reliance upon a section 133E Notice in respect of the breach would in any event be contrary to cl 6(1) of the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) – held that the lessee validly exercised its option to renew the lease – order made for specific performance to compel the grant of new lease

PRACTICE AND PROCEDURE – Separate determination – Uniform Civil Procedure Rules 2005 (NSW), r 28.2 – Application to consider whether, amongst other things, property falls into the estate of the deceased before other issues, including whether family provision order should be made – Where there are significant disputes of fact – Where credibility is likely to be in issue – Whether making the order would give effect to the just, quick and cheap resolution of issues – No basis on which to alter the general rule that all matters be determined in the one hearing – notice of motion dismissed COSTS — Security for costs — Partial security already provided – Second and third Defendants seek an order that requires the Plaintiffs to increase the amount of the indemnity for costs by an appropriate amount – Order for further security at this stage be 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.

CONTEMPT OF COURT – alleged breach of court order – whether civil contempt – construction of order – conduct alleged did not constitute breach of order

CORPORATIONS – mortgagee in possession –directions sought by controller – s.424, Corporations Act – sale to close associate – principles at [5]-[10] – connections between vendor and purchaser – connections between lender and purchaser –independent selling agent retained – public sale process – purchaser not privy to confidential information of value or other offers – most compelling offer – appropriate to make directions.

CRIME – murder – defence of mental health impairment – where parties agree defence available – judge alone trial – special verdict – offence proven but accused not criminally responsible

MENTAL HEALTH – Forensic patient – Extension of status as forensic patient – Where defendant diagnosed with mild-moderate intellectual disability and paedophilic disorder – Where combination of Child Protection Register, Child Protection Prohibition Order and medication deemed inadequate to manage risk of defendant causing serious harm to others – Where oversight by the Mental Health Review Tribunal pursuant to an extension order more appropriate to proactively manage risk of defendant – Where appropriate length of extension order in dispute

APPEALS – nature of appeal – appeal by way of rehearing – appeal against conviction under s 11(1) of the Crimes (Appeal and Review) Act – where applicant appealed from the Local Court to the District Court alleging specific errors on the part of the Local Court – whether the District Court was required to undertake a complete review of the whole of the evidence and form its own view as to the applicant’s guilt regardless of the issues raised in the appeal – absence of any clearly articulated argument the resolution of which required a review of the whole of the evidence

SENTENCING – plea of guilty – standard non-parole period offence – offence against Crimes Act 1900 (NSW), s 154C(2) – vulnerable elderly victim – Form 1 offence – conditional liberty erroneously considered as aggravating objective severity – sentencing judge’s finding of objective severity less severe than that submitted by applicant at first instance – no error alleged in finding of objective severity as mid-range – need to resentence questionable – sentencing discretion re-exercised – no lesser sentence warranted in law – appeal dismissed

CRIME – Appeals – appeal against sentence – alleged incompetence of counsel – failure to obtain and provide the court with relevant information on the offender’s upbringing and personal circumstances – sentencing Judge proceeded on a lack of relevant information – amounted to a miscarriage of justice – appeal upheld – sentence quashed – new sentence imposed

CRIMINAL LAW – Offences providing assistance to terrorist organisation – doing acts in preparation for or planning a terrorist attack – charges against co-offenders formulated differently – Sentence – alleged disparity – alleged manifest excess – issue regarding treatment of offence on Schedule pursuant to s 16BA of Crimes Act 1914 (Cth) – whether error in statement regarding effect on sentence of admitted offences

EQUITY — Equitable remedies — Injunctions — Application to injunct the settlement of the sale of a property — Several prior caveats lodged, and claims made by, the Plaintiffs and related parties on and in respect of the property — The Court, on several prior occasions, ordered that all caveats lodged by the Plaintiffs (and another related party) be removed — The Court previously ordered that no further caveats were to be lodged on the property by several of the Plaintiffs and a related party — The evidence in support of the application did not meet the standard required for the grant of interlocutory relief — Other grounds for refusing interlocutory relief considered — Held: interlocutory relief refused

POSSESSION – misconceived proceedings – no right to occupy the premises at the time the proceedings were filed – proceedings dismissed

COSTS — Costs assessment — Application for assessment — Timing — Application for extension of time — power to decide whether to extend time lies with the Manager, Costs Assessment — Manager did not treat the plaintiff’s application as an application for an extension of time — Manager’s decision construed as a constructive refusal to exercise jurisdiction — power of single judge to review acts and decision of the Manager — plaintiff’s summons treated as an application for review of the Manager’s constructive refusal — leave granted to apply for a costs assessment CIVIL PROCEDURE — Court administration — Overriding purpose — Just, quick and cheap resolution of the real issues in the proceedings

REAL PROPERTY – possession of land – Family Law Proceedings 10 years ago – Family Law Act Deed – signed transfer not registered – orders sought declaring the second defendant is entitled to be registered proprietor – application not contested – orders made

CONTRACTS – Construction – What currency principal and interest payable under a mortgage must be paid in – Whether claimed costs can be ordered CONTRACTS — Mortgage – Whether mortgage valid – Whether mortgage unconscionable — Whether lender unconscionably exploited borrowers CORPORATIONS — Receivers and managers — Liability – Whether the accounting group is a legal entity capable of being sued or responsible for the actions of the receiver MORTGAGES AND SECURITIES – Mortgages – Duties, rights and remedies of mortgagee -- Power of sale – Whether mortgagee’s power of sale properly exercised where receiver appointed – Whether mortgagee’s duties breached – Damages MORTGAGES AND SECURITIES — Creditor’s rights — Default — Action to enforce – Appointment of a Receiver – Disputed ownership of assets - Whether there is a basis to order removal of the receiver - Damages EMPLOYMENT AND INDUSTRIAL LAW — Claim for wages – Whether employment relationship came into existence

PRACTICE AND PROCEDURE - Determination of separate question - Whether declaration should be made that person who has been missing for over 20 years, upon presumption of death, is no longer alive SUCCESSION – Probate and administration – Where missing person last seen in April 2001 – Extensive searches and enquiries conducted in an attempt to locate missing person, including by NSW Police, which attempts unsuccessful – Where missing person has not been located – No evidence that missing person is alive or dead – No contact with persons with whom the missing person would have been likely to communicate, including family members, being her daughter, her siblings, her parents, her husband, and her former husband, the father of the daughter - Whether presumption of death may be relied upon to make declaration that the missing person is not alive

ADMINISTRATIVE LAW — State Insurance Regulatory Authority – Motor Accidents Compensation Act 1999 (NSW) – Review of decisions of the Medical Assessor and Proper Officer — Ground of review other than procedural fairness — Adequacy of Reasons — No evidence — Decision set aside

PROCEDURE – s 73 of the Civil Procedure Act 2005 (NSW) - whether matter settled – terms of deed and surrounding circumstances – no settlement PROCEDURE – adjournment application – failed settlement – Court’s orders not complied with – witness required for cross examination in custody – both parties contributed to unsatisfactory position – costs thrown away order

EQUITY – Fiduciary duties – Whether by oral agreement the defendant shareholder and director of a company agreed to transfer to each of the plaintiffs an 8.33% shareholding in the company – Where plaintiffs allege that by virtue of their being (or being entitled to be) shareholders the defendant had a fiduciary duty to inform them of a proposal by a third party to purchase all of the shares in the company for a very substantial sum of money prior to the parties executing a Deed of Settlement and Mutual Release under which the plaintiffs sold whatever interest they had in the company to the defendant – HELD – Oral agreement alleged not established – Fiduciary duty not established

CORPORATIONS — Winding up — Presumption of insolvency arising from unsatisfied creditor’s statutory demand — Where application to set aside the creditor’s statutory demand previously dismissed — Where no evidence led by date of hearing to rebut the presumption of insolvency. CORPORATIONS — Winding up — Practice and procedure — Whether to stay winding up order — Where the defendant failed to demonstrate serious issues for determination upon appeal.

CORPORATIONS – winding up – application to adjourn winding up proceedings – s. 440A(2), Corporations Act – administrators appointed after winding up proceedings commenced – no DOCA proposed – administrators wish to find out more – company insolvent – company not trading – adjournment opposed by a substantial creditor – transactions and events warranting further investigation exist – plaintiff prepared to fund liquidator’s investigations – adjournment refused – company wound up in insolvency

LAND LAW — Caveats — Removal of caveat – Application to remove caveat over property under a contract of sale entered into on 11 December 2020, settlement having been delayed since February 2021 - several prior caveats lodged and claims made by the Defendants and related parties on and in respect of the property — the Court, on prior occasions, ordered that all caveats lodged by the Defendants (and other related parties, including the Defendants’ mother) be removed — Plaintiff contends there is no serious question to be tried and no injunction would be granted to the caveators to preclude the sale and that the balance of convenience favours the removal of the caveat – where the property is subject to two registered mortgages and the debt under the second mortgage will not come close to being satisfied by sale of the property, and where the Defendants claim an equitable interest – whether there is a lack of utility — Held: there is no utility in the caveat because there could be no balance over which the Defendants can make a claim, the caveat is not bona fide, and the balance of convenience strongly favours the progress of the sale.

CIVIL PROCEDURE – leave sought to rely on expert’s report – whether consent orders so formulated contemplated fresh evidence of newly qualified expert – UCPR r 31.28 – whether “exceptional circumstances” exist – whether prejudice would flow from grant of leave – late expansion of plaintiffs’ case – capability to meet new material

SUCCESSION — Administration of estates — Nature of devisee’s interest — Construction of Will providing gift of “all my real estate”

PRACTICE AND PROCEDURE – strike out application – application to strike out paragraph of the cross-claim containing allegations of fraud – whether allegations of fraud have been properly pleaded and particularised – requisite degree of specificity and particularity PRACTICE AND PROCEDURE – application for leave to amend paragraphs of the cross-claim containing allegations of fraud – whether proposed amendments properly plead and particularise fraud

EQUITY – injunctions – interim injunctions – where plaintiffs seek interim injunction restraining second and fifth defendants from negotiating for, making offers in relation to, entering into, performing or giving effect to any agreement to sell, transfer, dispose of or grant any interest in intellectual property in respect of a renewable energy generation project – where final relief claimed by plaintiffs is specific performance of agreement to license that intellectual property to second plaintiff – where first plaintiff has charge over assets of second plaintiff as security for moneys owed by fifth defendant and other relevant defendants – interim injunction granted but not so as to prevent negotiation PRACTICE AND PROCEDURE – disclosure orders sought ancillary to interim injunction – no issue of principle