Cases and authorities

CONTRACT – commercial lease of premises used to conduct supermarket business – provision in lease concerning the charge or car parking fee for use of basement car park used by supermarket customers beyond the first hour – charge to be a reasonable charge or fee and an amount previously agreed between parties, both acting reasonably – where parties unable to agree on an hourly fee for the second hour – whether a fee of $0 could be a reasonable charge or fee for the second hour – where parties also negotiating for payment of an annual fee by lessee in exchange for lessor charging no fee to customers for second hour of parking

JUDGMENTS AND ORDERS – plaintiff to be awarded damages – disagreement as to the arithmetical consequence of earlier reasons

COSTS - Where application made for leave to read affidavits out of time – where application not pressed in respect of some affidavits and parts of other affidavits.

SUCCESSION – administration proceedings – judicial advice – declaration that letter of disclaimer was a valid and effective surrender of the interest of one of the legatees – proposal for appropriation of property to three of the four residuary beneficiaries – executors had power to make appropriation without an order from the court – proposal to retain a fund to meet potential claims by a beneficiary – executors had power to make an interim distribution out of the residue of the estate – amount of distribution not a matter for the court – no judicial advice given COSTS – party/party – executors propounded deed of administration, including a release, which one beneficiary refused to sign – executors joined beneficiary as defendant in subsequent administration proceedings – executors did not succeed on any issue in dispute with beneficiary at hearing – request for release unreasonable – executors liable for beneficiary’s costs inter partes

CIVIL LAW – judicial review of decision of Coroner not to suppress details of Police Safe Driving Policy – jurisdictional error – urgent application for review – inquest listed for hearing – police pursuits – nature of coronial proceedings – therapeutic jurisprudence – open justice – public safety – whether error of law on the face of the record – whether Coroner applied wrong legal test – straw man argument – legal unreasonableness – whether coroner acted irrationally or illogically – implied powers – incidental powers –affidavits of Deputy Commissioners – whether expert evidence – possibly ambitious submission – Expert Code of Conduct not adopted – where parts of policy disclosed at press conference – where press conference on NSW Police Facebook page – whether Coroner disregarded gravity of consequences – inconceivable – whether reasons adequate – Coroner’s reasoning sound

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – approval of supplementary disclosure and adjournment of trust scheme meeting.

LAND LAW – fixtures – whether plant and equipment installed at a wind farm are fixtures – intention of parties – degree of annexation – where wind turbines very strongly affixed to land – purpose of annexation – whether wind turbines annexed for better enjoyment of land LAND LAW – fixtures – whether plant and equipment installed on leased land for the purposes of a wind farm are tenant’s fixtures TAXES AND DUTIES – land tax – liability – tax threshold – whether taxpayer a “landholder” for the purposes of Ch 4 of the Duties Act 1997 (NSW) – whether the value of the land holding is less than $2,000,000 TAXES AND DUTIES – land tax – liability – valuation – how interest in land is properly to be valued TAXES AND DUTIES – land tax – liability – whether entity owns goods which could be disregarded under s 163G of the Duties Act 1997 (NSW) – whether items characterised as “goods” are fixtures – items not “goods” – s 163G not applied

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Where relevant debt secured — Whether issuing statutory demand constitutes abuse of process.

LAND LAW — Conveyancing — Contract for sale — Rescission – in 2017 the Vendor and Purchaser entered into a contract for sale of a commercial property which was yet to be built (“the Contract”). Upon registration of the strata plan in February 2020 (“the February Strata Plan”) the Vendor issued a Completion Notice, an Occupation Certificate, and subsequently a Notice to Complete. The Contract included a car space for the commercial premises, however, the February Strata Plan did not include a car space allocated to the commercial lot of the Purchaser – the Purchaser sought to rescind the Contract in accordance with the Flight v Booth principle – the Vendor was not in the position to complete the Contract as at the date of the Notice to Complete as there was no car space on the registered plan allocated to the Purchaser’s lot – the Purchaser was entitled to draw the conclusion from the February Strata Plan, the Vendor’s Completion Notice and Notice to Complete that the Vendor was not proposing to convey a car space – the Purchaser was entitled to terminate the Contract and entitled to return of her deposit – the fact that the Vendor, almost three months after the Purchaser had commenced proceedings, registered a new strata plan and was by then in a position to complete did not assist the Vendor. CONTRACTS — Termination — Repudiation of contract — Readiness and willingness – by the February Strata Plan which did not include a car space and by issuing the Notice to Complete, the Vendor indicated an unwillingness to perform the Contract – the Court upheld the termination of the Contract on the basis of the Vendor’s repudiatory conduct. No affirmation of the Contract by the Purchaser with knowledge of the absence of a car space.

CORPORATIONS — statutory derivative action — application for leave to bring proceedings on behalf of company — potential expiry of limitation period — whether interim leave should be granted

CORPORATIONS – application by liquidators for orders pursuant to Insolvency Practice Schedule Liquidators (Corporations) s 90-15 – whether liquidators acting properly and justified in defending appeal ­­from judgment in favour of company in liquidation – whether liquidators acting properly and justified in not opposing a shareholder’s application for leave pursuant to Corporations Act 2001 (Cth), s 237 to commence a cross-appeal in the name of and on behalf of the company – whether liquidators acting properly and justified in engaging the same solicitors and counsel to defend the appeal who successfully prosecuted the proceedings on behalf of the Company at first instance – application by liquidators for approval pursuant to Corporations Act 2001 (Cth) of costs agreement with those solicitors

CONTRACTS – construction – interpretation – contract for sale of land – completion conditional upon building works requiring development approval – completion date to be extended if purchaser brought legal proceedings concerning development approval or if works delayed for reasons outside purchaser’s control or influence – whether extension applied to delays in obtaining development approval before commencement of proceedings – whether delay outside purchaser’s control or influence – whether vendor subsequently repudiated the contract – purchaser not entitled to extension – no repudiation by vendor

LEASES AND TENANCIES – Default and termination - commercial lease of retail premises – claim for interlocutory relief to allow a corporate tenant to recover plant and equipment from premises from which it has been excluded – tenant/plaintiff defaults in the payment of rent – landlord/defendant excludes the tenant from premises – tenant commences proceedings – settlement of proceedings ending the lease but allowing the tenant to take up occupation for what would have been the remaining term of the lease – tenant defaults upon one of the terms of the settlement and the landlord excludes the tenant again – tenant commences fresh proceedings seeking the opportunity to retrieve its stock, plant and equipment from the premises – what terms of the lease relevant to vacation of the premises still apply between the parties – what is required in order for the tenant who seeks Equity to do Equity – what directions are appropriate to prepare the matter for final hearing.

PRACTICE - stay of execution pending appeal - appropriateness of interlocutory relief - appeal concedely reasonably arguable - whether appellant had established significantly greater prospect of success - balance of convenience - application for stay pending appeal refused

CORPORATIONS – scheme of arrangement – Application for order convening meeting of members to consider scheme of arrangement.

PRACTICE AND PROCEDURE — Application for summary dismissal — Abuse of process — Res judicata — Where the plaintiff’s rights are merged with a prior consent judgment — Application granted

COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits

REPRESENTATIVE PROCEEDINGS – Civil Procedure Act 2005 (NSW) (the Act) pt 10 – motion for an order that the proceedings be declassed pursuant to s 161 of the Act – motion for a “Merck order” determining that certain questions are common for the purpose of the trial in accordance with s 175(1)(c) of the Act – plaintiff and group members are local councils in New South Wales which were parties with the defendant to a Deed establishing a scheme for the purposes of purchasing for the councils insurance for public liability (including personal injury, damage to property and product liability) and professional indemnity, and to provide for indemnity for them in respect of liability not covered by such insurance – the plaintiff claims that the defendant owed to it and the group members, and breached, duties at general law and in contract to recommend and arrange cover at the best premium rates that were reasonably available – the plaintiff claims that the defendant owed to it and to each group member, and breached, fiduciary duties to act in their best interests and not to prefer its own financial interests to theirs – the plaintiff sought a Merck order and the defendant declassing orders – whether there is at least one substantial common question of law or fact to which the claims of the plaintiff and the group members give rise HELD – that the declassing motion be dismissed – the proceedings are appropriate to continue as a class action – there are identifiable substantial common questions of law or fact – orders that certain questions contained in the Schedule are common to group members and are appropriate to go to trial

ASSOCIATIONS — Construction of association’s constitution – Whether group of individuals can constitute State Council for purposes of constitution – Implication of term(s) in constitution – Whether appointment of state delegate to Federal Council valid for purposes of constitution ASSOCIATIONS — Meeting of members — Annual general meeting — Conduct of meeting – Relevance of material provided to members, terms of constitution, and other relevant circumstances in determining what occurred at meeting

COSTS – party/party – indemnity costs – dispute concerning termination of lease – where the plaintiff discontinued proceedings – whether indemnity costs should be awarded – indemnity costs refused

CIVIL PROCEDURE – Application for summary dismissal pursuant to UCPR rr 12.7 and 13.4 – Where proceedings commenced in 2002 in respect of conduct by police officers in 1997 and 2000 – Where prior judgments of the Court of Appeal, Hidden J and Beech-Jones J permitted the plaintiff to plead a cause of action of abuse of process in respect of conduct in 2000 – Where plaintiff largely complied with Registrar’s direction as to filing a further amended statement of claim giving effect to the decision of Beech-Jones J in Clark v State of New South Wales [2018] NSWSC 83 – Where defendant did not submit that the statement of claim, in so far as it was within the scope of the leave granted by Beech-Jones J, failed to disclose a cause of action or was frivolous – Proceedings not vexatious or an abuse of process in the circumstances – Matter should be prepared for hearing as soon as possible – Notice of motion dismissed except for minor matter required to ensure the pleading complied with the previous decision by the Court of Appeal.

CRIMINAL LAW – serious sex offender – preliminary hearing – whether an interim supervision order or interim detention order should be made – conditions proposed to mitigate risk

CIVIL PROCEDURE – Summary disposal CIVIL PROCEDURE – Originating process – Amendment CIVIL PROCEDURE – Subpoenas – Whether legitimate forensic purpose or impermissible fishing expedition – claim for privilege

CRIMINAL LAW – sentence appeal – offence of intentionally making a document connected with the preparation for a terrorist act knowing of that connection contrary to s 101.5(1) of the Criminal Code 1995 (Cth) – failure to have regard to the utilitarian value of the plea of guilty in accordance with s 16A(2)(g) of the Crimes Act 1914 (Cth) – error disclosed and need to resentence – protection of the community, punishment, denunciation of the offending and general deterrence relevant to objective seriousness – objective gravity higher than mid-range – lack of insight into offending – appeal against sentence allowed – term of imprisonment reduced on resentence.

SENTENCING – penalties – intensive correction orders – whether sentencing judge erred in assessment pursuant to s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – no error shown SENTENCING – sentencing procedure – agreed facts – where sentencing judge misstated agreed facts – error established – resentence – no lesser sentence warranted

CRIME – appeal against sentence – applicants pleaded guilty to Commonwealth offence of attempting to possess a commercial quantity of a border controlled drug (methamphetamine) – whether Xiao v R error established – error demonstrated – no lesser sentence warranted on resentencing – appeals dismissed

Immigration – Refugees – Application for protection visa – Where plaintiff claimed protection on basis of feared persecution in Pakistan on account of homosexuality – Where delegate of defendant refused protection visa – Where delegate found evidence, including "open source social media", did not support view plaintiff was known homosexual in Pakistan – Where open source social media was "relevant information" within meaning of s 57(1) of Migration Act 1958 (Cth) – Where s 57(2) required defendant to give particulars of "relevant information" to plaintiff to ensure, as far as reasonably practicable, plaintiff understood why it was relevant, and invite plaintiff to comment – Whether defendant failed to comply with s 57(2) by failing to disclose open source social media or provide particulars to enable plaintiff to understand why information was relevant to protection visa application. Words and phrases – "active group of friends and family", "depends on the facts and circumstances of the case", "disclosure of the substance of the relevant information", "fabricated his claim to be a homosexual", "give particulars", "homosexuality", "open source social media", "opportunity to meaningfully respond", "relevant information", "sexual identity", "sufficient clarity or specificity". Migration Act 1958 (Cth), s 57.

HIGH RISK OFFENDERS – Extended supervision orders – Application – Variation

CIVIL PROCEDURE – Application for adjournment – No appearance by plaintiffs – Application granted

CIVIL PROCEDURE - default judgment - default in filing defence - where defence filed after time limited by the Uniform Civil Procedure Rules but before notice of motion for default judgment filed - defendant not in default CIVIL PROCEDURE - summary disposal - where plaintiff seeks to strike out defendant’s motion for summary dismissal of proceedings - where no basis in the Uniform Civil Procedure Rules or otherwise for plaintiff’s application CIVIL PROCEDURE - summary disposal - dismissal of proceedings - no reasonable cause of action disclosed - plaintiff seeking to stop RAAF flights over her property - numerous causes of action asserted - whether plaintiff has a legal right and is entitled to an interlocutory injunction - where no legal right to prevent aircraft flying over plaintiff’s property - where even if plaintiff had rights s 72 Civil Liability Act is a complete answer to trespass or nuisance actions - where no contract between plaintiff and RAAF - where facts not capable of demonstrating negligence - where no cause of action based on alleged breach of Biosecurity Act - where no arguable claim for breach of privacy - where harassment is no basis for a claim for damages - plaintiff demonstrates no right to prevent RAAF aircraft flying over land - no case for interlocutory injunction - proceedings dismissed pursuant to r 13.4 TORTS - trespass and nuisance - rights of landowner - maxim cuius est solum ejus est utque ad coelum - whether airspace owned to the heavens - whether aircraft flying over plaintiff’s land constituted a trespass or nuisance CONTRACTS - formation - consideration - intention to create legal relations - where plaintiff landowner unilaterally required payment for alleged trespass on land - alleged acquiescence by trespasser - where alleged trespasser had statutory right to use airspace above plaintiff’s land - where no consideration provided by plaintiff - whether contract came into existence

EQUITY — trusts and trustees — trust powers — powers of appointment — powers of removal — fraud on a power — intention — whether power exercised for a foreign or extraneous purpose

CRIMINAL LAW – Offences – Sentence – Appeal – Wounding with intent to cause grievous bodily harm – “Road rage” incident – Whether the injury to the victim was substantial – Where Crown had submitted to the sentencing judge that the injury was not “really serious” – Where that position had apparently been accepted by counsel for the offender – Whether the Crown’s statement amounted to a concession that the injury was not substantial – Where a proper reading of the reasons of the sentencing judge indicated a finding contrary to the position taken by the Crown – Error established – Applicant re-sentenced

DVO16 v Minister for Immigration and Border Protection BNB17 v Minister for Immigration and Border Protection Immigration – Refugees – Application for protection visa – Where appellants each applied for protection visas – Where each appellant interviewed by delegate of Minister – Where each appellant assisted by interpreter in interview – Where interviews affected by translation errors in questions asked and responses given – Where Immigration Assessment Authority ("Authority") conducted review under Pt 7AA of Migration Act 1958 (Cth) – Where in case of DVO16, Authority not aware of translation errors – Where in case of BNB17, Authority aware of three translation errors – Where in each case Authority did not exercise powers to get new information under Pt 7AA – Where in each case Authority affirmed delegate's decision to refuse visa – Whether Authority's exercise of powers unreasonable – Whether Authority failed to comply with statutory duty to "review" decision under Pt 7AA. Words and phrases – "automatic merits review", "claims to protection in fact made", "de novo assessment of the merits", "failing to consider substance of claim", "fast track reviewable decision", "Immigration Assessment Authority", "interpretation", "interpretation error", "interpreter", "jurisdictional error", "mistranslation", "new information", "overriding duty", "reasonableness condition", "translation", "translation error". Migration Act 1958 (Cth), ss 51A(1), 54, 55, 56, 65, Pt 7

EQUITY – estoppel – proprietary estoppel – promise to give continued use of swimming pool – to be satisfied by order requiring grant of easement – form of easement – whether order should be accompanied by injunction to secure use of pool pending registration of easement – equity regards as done that which ought to have been done – injunction granted EQUITY – equitable remedies – declaration – plaintiff alleges that notation on registered plan of subdivision is legally ineffective – plaintiff seeks declaration of right – issue not of sufficient immediate significance – declaration refused

CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Cross-claim to set aside Deed of Assignment CONTRACTS — Undue influence — Actual undue influence – Whether influence amounts to undue influence in the relevant sense – Overlapping application at equity and under Contracts Review Act 1980 (NSW) CONTRACTS — Unconscionable conduct — Special disadvantage — Whether Deed of Assignment procured by undue influence – Whether embarrassment amounted to special disadvantage EQUITY — Trusts and trustees — Court’s supervision of — Appointment and removal of trustees — Whether exercise of powers of appointment and removal of trustee was improper — Whether expedient to appoint new trustee in the circumstances — Whether unpaid beneficiary entitlements amount to an interest in the trust property EQUITY — Equitable remedies — Restitution — Scope of company director’s authority — Whether unauthorised transactions support equitable claim for restitution — Whether amounts paid to solicitors recoverable

ADMINISTRATIVE LAW – prisoner seeking damages for assault – assessment of permanent impairment under Civil Liability Act 2002 (NSW) to be performed under workers compensation regime – Approved Medical Specialist assesses WPI at 4% – Appeal Panel dismisses appeal – difficulty in applying PIRS examples to institutional environment – no error of law or jurisdiction – appeal dismissed

Crimes (High Risk Offenders) Act 2006 – preliminary hearing – application for interim supervision order – application for court-appointed psychiatrists and/or psychologists – Whether evidence would, if proved, justify the grant of an extended supervision order at final hearing – relevant test

PRACTICE AND PROCEDURE – application for disclosure – Practice Note SC Eq 11 – no issue of principle

PROCEEDS OF CRIME – forfeiture proceedings – civil penalties – defendants perpetrated fraudulent childcare benefit scheme – whether licences to operate childcare centres or receive childcare benefit procured by fraud – whether childcare benefit procured by false data – satisfied offences committed – forfeiture order made – assessing value of the benefit derived from commission of offence – entire childcare business conducted for purpose of fraudulently obtaining childcare benefit

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether consent of birth parents ought to be dispensed with — Change of name

CONTRACT – cost plus contract for building work – claim in debt following non-payment of final invoice – belated submission that condition precedent requiring provision of details of cost of building works accompany builder's invoice not satisfied – submission not made to trial judge – whether point available on appeal CONTRACT – building contract – claim for defective work – owner directed re-pouring of lowered slab – whether that work was a consequence of incorrectly built ceiling – whether owner entitled to damages CONTRACT – quantification of damages – building contract – delay in performance – whether owner entitled to damages for diminution in market value of residential house – whether owner entitled to general damages for limited use and loss of amenity while building works continued PLEADINGS – conditions precedent – implied allegation that all conditions precedent to plaintiffs’ claim satisfied – obligation on defendant to identify with specificity non-satisfaction of condition precedent to plaintiffs’ claim – Uniform Civil Procedure Rules 2005 (NSW) rr 14.11, 14.14 – history of rules – consequences of failure to comply with rules

CRIME – appeals – leave to apply to set aside judgments and orders – further vexatious application – no issue of principle

CRIME – appeals – appeal against sentence – murder – failure to take into account a relevant consideration – Bugmy v The Queen – deprived background and early introduction to substance abuse CRIME – appeals – appeal against sentence – manifest excess – murder – heroin injection – mercy killing – deliberate taking of a human life

Criminal law (Cth) – Conspiracy – Where s 11.5(1) of Criminal Code (Cth) established offence of conspiracy – Where appellant charged with conspiring to do acts in preparation for terrorist act contrary to ss 11.5(1) and 101.6(1) of Criminal Code – Whether s 11.5 applies to spouses who agree between themselves, and no other person, to commit offence against Commonwealth law – Whether interpretation of s 11.5 of Criminal Code affected by any common law rule that spouses alone cannot conspire – Whether references in s 11.5 of Criminal Code to "person" and "another person" include two spouses – Whether meaning of "conspires" and "conspiracy" in s 11.5 of Criminal Code incorporates any common law rule that spouses alone cannot conspire. Words and phrases – "another person", "common law rule", "conspiracy", "conspires", "doctrine of unity", "person", "single legal personality of spouses". Criminal Code (Cth), s 11.5. KIEFEL CJ. I agree with Gleeson J. GAGELER J. I agree with Gleeson J. KEANE J. I agree with Gleeson J. GORDON J. I agree with Gleeson J. EDELMAN J. I agree with Gleeson J. STEWARD J. I agree with Gleeson

PRACTICE AND PROCEDURE – subpoenas – application to set aside subpoena in part – no legitimate forensic purpose - application granted

CORPORATIONS — Winding up — Statutory demand — Application to set aside CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt

COSTS – security for costs – security hitherto given of $2.45 million – application for further security by director defendants – complex proceedings – set down for 60 days commencing 26 July 2021 – no dispute that further security should be given – dispute as to quantum – where further $17.4 million security sought – where ten director defendants represented by six separate law firms and counsel – where duplication of representation said to arise from potential conflicts of interest between director defendants – whether security should be provided for six sets of costs – where parties earlier entered agreement for security described in respect of three tranches of work – whether director defendants should have further security for those tranches of work – whether there has been change of circumstances warranting such further security – whether assumptions adopted by expert costs assessor unrealistic

NEGLIGENCE — Duty of care — Public authorities — Statutory construction — Whether the Murray Darling Basin Authority, its delegates or the Commonwealth is a “public or other authority” within the meaning of s 41 of the Civil Liability Act 2002 (NSW) CIVIL PROCEDURE — Interlocutory proceedings — Summary determination of the question of statutory construction — Give effect to the overriding purpose of Civil Procedure Act 2005 (NSW), s 56 — Need to read general statements in judgments by reference to the circumstances of the case CIVIL PROCEDURE — Originating process — Pleading discloses no reasonable defence — Meaning of “no reasonable defence” — Order to strike out part of a pleading under the Uniform Civil Procedure Rules 2005 (NSW), r 14.28 CONSTITUTIONAL LAW — Commonwealth and State relations — Alleged inconsistency of laws — General principles – Unnecessary to decide

LAND LAW – contracts for the sale of land – deposit payable in two instalments – second instalment payable “on the 4th month after the contract date” – contract dated 4 April 2019 – whether second instalment required to be paid by 4 August 2019, or by 31 August 2019 – held that payment was required by 4 August 2019 – vendors held to be entitled to terminate contract on 5 August 2019 – Conveyancing Act 1919 (NSW) s 181(1)(d) definition of “month” as “calendar month” – Interpretation Act 1987 (NSW) s 21 definition of “calendar month” EQUITY – equitable remedies – relief in respect of exercise of legal rights – exercise of right to terminate contract for sale of land – breach giving rise to right of termination brought about by purchaser’s mistake – mistake not caused or contributed to by conduct of vendors – serious breach in failing to pay part of deposit within time agreed to be essential – no substantial loss or prejudice to vendors if contract ordered to be performed – not unconscientious of vendors to rely upon their termination – equitable relief declined – forfeiture of deposit of 5% of the price not unjust or inequitable in the circumstances – no order made for return of deposit under s 55(2A) of Conveyancing Act 1919 (NSW)

SUCCESSION – Contested Probate – Testamentary capacity – Cognitive impairment resulting from vascular dementia not necessarily inconsistent with a finding of capacity SUCCESSION – Contested Probate – Knowledge and approval – Suspicious circumstances – Testator suffering from dementia assisted in will preparation by interested persons – Need for close scrutiny of all circumstances SUCCESSION – Contested Probate – Undue influence – Will of testator of doubtful testamentary capacity overborne by incessant demands of interested person – Intervention of solicitor did not break nexus between coercion and execution of impugned codicil