Cases and authorities

SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – Small estate – Adult son made family provision claim against deceased mother’s estate – The son had a history of violence towards family members, and had been estranged from his mother for more than 25 years before her death – The mother’s will left everything to her two adult daughters (the first and second defendants) and appointed them as trustees and executors – The main asset of the mother’s estate was a one fifth share in her father’s estate, the principal asset of which was a property in Belfield NSW; the mother’s one fifth share in her father’s estate did not vest in her estate until after her death (because, in addition to her one fifth share, she was granted a life interest in the Belfield property) – the son’s claim against the mother’s estate was partly based on an assertion that he contributed to the value of the Belfield property, both when his grandfather owned it and when his mother had a life interest in it, although the extent and value of his contribution was contested by the second defendant and was unable to be quantified – Held: the mother was under no obligation to provide for her son in light of their 25 year estrangement and his violent history; the son’s contribution to the Belfield property while his grandfather owned it was irrelevant and his contribution to the property during the term of his mother’s life interest did not, in all the circumstances, create an obligation on the mother to provide for him in her will. Therefore, no family provision order was made in favour of the son and he was ordered to pay the defendants’ costs.

LAND LAW — Conveyancing — Options — Statutory requirements — Summary judgment — Default judgment

PROCEEDS OF CRIME - restraining order made under s.19 Proceeds of Crime Act 2002 (Cth) - exclusion order sought concerning certain property - defendants did not proceed with exclusion application which was dismissed - whether exclusion application “withdrawn” within s.49(3)(b) - held that exclusion application was withdrawn - s.49 forfeiture order made - valuation of property undertaken in accordance with s.56 of Act

HIGH RISK OFFENDERS – preliminary hearing – application for interim supervision order – sexual offending – disputed conditions – relevant statutory considerations – mitigation of risk

CONTRACTS — Construction — Agreement between parties to a dispute purporting to settle proceedings — Whether parties entered binding agreement to settle proceedings — Meaning of “resolve this matter” — Objective intention of parties — Context of agreement — Whether terms of agreement sufficiently clear CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Inequality in bargaining power — Unfair tactics — Where plaintiff approached defendant through intermediaries rather than defendant’s solicitor — Where defendant had not received advice

SUCESSION – administration of estates – plaintiffs are executors of an estate – defendant is a beneficiary – dispute concerning the administration of the estate settled in October 2018 by terms of settlement incorporated into orders of the court – defendant alleges that the plaintiffs have not sold certain estate real property in conformity with those orders, nor that they have provided him with the opportunity to purchase other estate real property in accordance with those orders – attempts made to give effect to the October 2018 terms of settlement – whether the plaintiff executors have failed to perform their duty to administer the estate according to law.

LAND LAW — Caveats — Removal of caveat — Removal by order of court — where the plaintiffs have not demonstrated any real likelihood of establishing the interest in the property that they claim — where, in those circumstances, significant weight is to be given to the proposition that a registered proprietor is entitled have title free from any blot that interferes with rights to use the property in any legally permissible way — order for removal of caveat made

CIVIL PROCEDURE – disclosure – Practice Note SC Eq 11 – whether disclosure necessary for resolution of real issues in dispute

COSTS — Party/Party — Court’s discretion — gross sum costs orders — where this is not an appropriate case for the Court to make a gross sum costs order — where, primarily, the Court is not able to make an estimate of costs that ought to be paid in a logical, fair and reasonable way

ADMINISTRATIVE LAW – Bias rule – Actual or apprehended – Irrelevant and relevant considerations – the plaintiff holds an enclosure permit for part of a Crown road – second defendant also claims to hold an enclosure permit for that part of the Crown road – previous decisions of delegates of the Minister in 2008 and 2014 cancelling the plaintiff’s enclosure permit are declared void in Supreme Court litigation in 2016 – delegate of Minister makes further decisions under the Roads Act 1993 in 2017 (a) to enclose that part of the Crown road and sell it to the second defendant pursuant to the second defendant’s enclosure permit and (b) not to grant an easement to the plaintiff over other parts of the Crown road (the easement portion) – whether the delegate’s decisions took into account irrelevant considerations, namely the 2008 and 2014 decisions and other physical features of that part of the Crown road – whether the delegate’s decisions failed to take into account relevant considerations, including matters relevant to the grant of the easement portion and incompleteness of the second defendant’s application to close the public road – whether the delegate denied the plaintiff procedural fairness – whether the delegate showed bias against the plaintiff.

REPRESENTATIVE PROCEEDINGS – separate question – whether Supreme Court has power pursuant to s 173 of the Civil Procedure Act 2005 (NSW) to make an order requiring unfunded group members to pay an amount to that funder out of the proceeds of any settlement by way of return on expenditure, commission or other similar remuneration to the funder? – whether appropriate to answer the question prior to any settlement having been reached and without knowledge of terms of settlement or orders proposed to be made by the Court following settlement – whether the question determined by decision of High Court of Australia in BMW Australia Ltd v Brewster (2019) 94 ALJR 51; [2019] HCA 45 – different factual context of that decision – answer to separate question posed not obviously answered by majority judgments in that decision.

MAREVA INJUNCTION – $10 million paid for personal protective equipment to export to USA during COVID-19 pandemic – alleged fraudster departs for Mexico – $8.5 million on-paid to third party company – alleged fraudster is brother of third party’s sole director and shareholder – whether asset disclosure order gave plaintiff forensic advantage – whether order should excise family communications where main actors are brothers – asset disclosure order made as sought by plaintiff.

CRIMINAL LAW – murder – trial by jury - whether complete self-defence or excessive self-defence should be left to the jury – whether the jury should be asked to reflect upon the reasonableness of response when believing that one is defending oneself against a “demon” – complete self-defence not sought to be relied upon by defence counsel – neither counsel submits that complete self-defence should be left – Crown submits that excessive self-defence should also not be left – complete self-defence not left, but excessive self-defence left to the jury

COSTS – party/party – general rule that costs follow the event – application of rule and discretion – plaintiff’s propounded will and codicils admitted to probate but disputed clauses omitted – defendant substantially successful – interest COSTS – payment out of estate – partially successful defendant acting in interests of residuary beneficiaries – form of order – estate subrogated to defendant’s party/party costs order against plaintiff

SUCCESSION – COSTS – Costs of unsuccessful notice of motion to review Senior Deputy Registrar’s moderation of legal costs and disbursements paid to Administrators’ solicitors out of the deceased’s estate in circumstances where order for costs, calculated on indemnity basis, of proceedings made – Gross sum costs order sought and not opposed other than as to quantum of costs sought – Whether global reduction in costs should be made – Usual practice of court to apply discount to lump sum costs orders –Determination of how costs not recovered should be paid and whether other beneficiary, who did not participate in the hearings, and who will benefit by the orders made should contribute to costs to be borne by the party who defended the Administrators’ application and who sought the gross sum costs order – Principle of equity that he who derives the advantage ought to sustain the burden applicable – General principles of justice applied

SUCCESSION – Probate and administration – Practice and procedure – Probate of Will – Where person travelling on vessel which capsized – Where he entered the sea and then not seen again – Extensive searches conducted in an attempt to locate the person – Where no body found – No death certificate issued – Whether Court is able to order issue of death certificate – Registrar of Births, Deaths and Marriages joined as party – Submitting appearance entered – Whether Probate required to be granted on presumption of death or whether evidence established on balance of probabilities that death has occurred without need for words “on presumption of death” to be included on Probate – Court satisfied on balance of probabilities of the death

PRACTICE AND PROCEDURE – Application for injunction to restrain the sale of real properties – Where the plaintiff was declared bankrupt and the defendant became the trustee of her bankrupt estate – Where the Federal Court made orders empowering the defendant to sell the real properties – Where the plaintiff submitted that it was necessary for the court to make the orders sought so that she could carry out fraud investigations – Where the plaintiff’s assertions as to fraud were wholly unspecified – Where the plaintiff asserted that the defendant had been negligent , fraudulent and obstructed investigations – Where there was no evidence to substantiate those assertions – Where the making of the order would have frustrated or prevented the defendant carrying out the tasks that the orders of the Federal Court empowered him to do – Where the plaintiff sought to reagitate matters already determined in the Federal Court – Proceedings dismissed

CRIMINAL LAW – hearsay evidence - application to limit use of evidence - admissions by one accused to witness - contract to kill - acceptance of contract - intention to carry out contract - not admissible as an admission against co-accused - in one respect admissible as evidence of contemporaneous representation of speaker’s intention - admissible as circumstantial evidence of subsequent agreement and joint criminal enterprise - appropriate to make an order limiting use of evidence against co-accused

PRACTICE AND PROCEDURE – Application by the plaintiff for an interlocutory injunction restraining the second and third defendants from proceeding with an assessment conference for the purposes of assessing damages payable to the first defendant by the plaintiff – Where an application made by the plaintiff for the first defendant's participation in the Lifetime Care and Support Scheme was pending – Significant consequences to the plaintiff in the event that the first defendant was admitted to participate in the scheme - Arguable case that the third defendant’s determination to proceed with the assessment conference was unreasonable in the circumstances – Balance of convenience favouring the relief sought – Relief granted

CORPORATIONS — Directors and officers — Fiduciary duties — Conflict of duty and interest — Conflict of duty and duty — Diversion of corporate opportunity— Whether corporate opportunity within scope of company’s activities — Where other companies associated with directors took up profitable work — Where diversion occurred after shareholders intended to split up company — Split up not implemented at time of diversion — Directors’ duties where intention or understanding to split up company in future but no present implementation CORPORATIONS — Directors and officers — Fiduciary duties — Fully informed consent — Whether sufficient disclosure to constitute fully informed consent CORPORATIONS — Directors and officers — Liability for breach of directors’ duties — Knowing involvement — Where companies associated with directors were alter egos of the directors CORPORATIONS — Winding up — Grounds for winding up — Just and equitable ground — Relationship between shareholders and directors irretrievably broken down — One of two directors unwilling to attend board meetings or sign financial statements — Whether less extreme remedy available — Evidence that shareholder cannot afford to buy out the other shareholder’s shares — Oppression EQUITY — Equitable remedies — Account of profits — Whether allowance made for Defendants’ skill and effort — Discretionary nature of remedy — Where conduct involved lack of honesty

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

LAND LAW – Leases – Sublease – Whether, for the purpose of COVID-19 legislation, a sublessee is a “lessee” to the head lessor. EQUITY – Equitable remedies – Relief against forfeiture – Application for interlocutory relief.

COSTS – departing from general rule – Calderbank offers – two Calderbank offers made by the defendants – neither offer accepted – first offer held not to be a genuine offer of compromise – second offer held to be a genuine offer of compromise that it was unreasonable of plaintiff not to accept – indemnity costs ordered in favour of defendants from day after lapse of second offer

LAND LAW – strata title – building manager – duration of caretaker agreement – agreement made in 2001 provides for 10 year term with options for three additional 5 year terms – legislation introduced in 2003 regulates appointments of caretakers and duration of caretaker agreements – effect of legislation including transitional provisions upon variations to caretaker agreement made in 2010 and 2015 – variations provided for additional options for further terms – held that agreement as varied not an agreement the duration of which is protected by transitional provisions – held that agreement as varied has maximum duration of 10 years from date when agreement as varied authorised caretaker to act under it – Strata Schemes Management Act 1996, s 40B and Sch 4 Part 4, cl 12 – effect of transitional provisions of Strata Schemes Management Act 2015, ss 66-70 and Sch 3 cll 3, 15 LAND LAW – strata title – owners corporation – meetings of owners corporation – voting by proxy – voting by a proxy who is a caretaker – where vote would confer or assist in conferring a material benefit on the proxy – where proxies held by persons said to be acting on behalf of caretaker as its agent – the provision that invalidates certain votes by a proxy who is a caretaker held to apply only to votes by the caretaker itself as proxy – Strata Schemes Management Act 1996, Sch 2 Part 2 cl 11 LAND LAW – strata title – building manager – cl 9.3 of caretaker agreement gives owners corporation the right to terminate the agreement if caretaker guilty of gross misconduct or gross negligence in performing its responsibilities – numerous allegations of misconduct or negligence including overcharging, standing for election to executive committee, improper use of electricity and failures in respect of fire safety – held that caretaker was guilty of gross misconduct in taking supply of electricity paid for by owners corporation over 18 year period – held that caretaker was guilty of gross misconduct or gross negligence in failing to promptly report to executive committee about unresolved faults in fire alarm system – owners corporation entitled to terminate caretaker agreement under cl 9.3 – right to terminate exercised by executive committee of owners corporation – right to terminate validly exercised despite no advance approval of general meeting of owners corporation – action of executive committee later ratified by resolution passed at general meeting – caretaker had not in the meantime terminated the agreement for repudiation by owners corporation – upon termination under cl 9.3 parties bound to follow regime laid down by cl 10 of agreement – owners corporation in breach of cl 10 by taking possession of caretaker lot, but conduct held not to be repudiatory – caretaker entitled to damages and compensation pursuant to usual undertaking as to damages for deprivation of possession of caretaker lot – Strata Schemes Management Act 2015, s 68(3)

CIVIL PROCEDURE — Court administration — Assignment of business — Divisions and Lists — Power to transfer from Common Law Division to Commercial List in Equity Division — Effect of Practice Note SC Eq 3 — Nature of claim pursued by plaintiff — Whether proceedings properly commenced in Common Law Division — Whether sufficient case for transfer made out CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11 — Relevance of Practice Note in Common Law Division — Application for disclosure of documents prior to service of evidence — Overriding purpose — Just, quick and cheap resolution

CRIME - habeas corpus - Plaintiff convicted and sentenced in Local Court for 59 counts of fraud and related offences involving alleged loss of $657,000.00 - Local Court passes aggregate sentence of imprisonment of four years with three year non-parole period - Plaintiff appeals to District Court against conviction and sentence - Plaintiff granted bail for purpose of appeal - District Court Judge gives judgment after hearing of conviction appeal - conviction appeal upheld on two counts and dismissed on 57 counts involving $580,000.00 - hearing of sentence appeal adjourned for a month - Judge refuses bail of the Court’s own motion - detention application not made by prosecutor - claim for habeas corpus - whether power to refuse bail in circumstances - consideration of Bail Act 2013 - held power existed to refuse bail - jurisdictional error not established - consideration of discretionary basis to refuse habeas corpus if jurisdictional error had been demonstrated - availability of alternative remedy under Bail Act 2013 - close proximity of resumed hearing of District Court appeal - appropriate case to refuse relief on discretionary basis if foundation for habeas corpus had been established - claim for relief dismissed

CIVIL PROCEDURE — Jurisdiction — Proceedings commenced in Federal Court dismissed for want of jurisdiction — Where plaintiff seeks order that proceedings be treated as brought in Supreme Court — Whether a finally determined proceeding may be treated as a proceeding in Supreme Court — Federal Courts (State Jurisdiction) Act 1999 (NSW) s 11 LIMITATION OF ACTIONS — Operation of bar — Distinction between statutory bar and extinguishment of cause of action — Whether Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 34 is a limitation law for purposes of Federal Courts (State Jurisdiction) Act 1999 (NSW) — Whether plaintiff’s cause of action has extinguished STATUTORY INTERPRETATION — Inconsistency of laws — Federal Courts (State Jurisdiction) Act 1999 (NSW) s 11 — Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 34 — Whether inconsistency between laws — Legislative purpose — Adoption of international treaty — Remedial legislation

COSTS – representative proceedings – multiple defendants – joint and several costs order in favour of plaintiff – extent to which defendants must contribute to each other’s obligation to pay plaintiff’s costs.

GUARANTEE AND INDEMNITY – Contract of guarantee – where defendants jointly and severally guaranteed payment of amounts to plaintiff – where those amounts have not been paid by principal debtor or defendants – where plaintiff reached settlement agreement with first and second defendants and principal debtor – where orders by consent made for judgment against the first and second defendants for those amounts – where judgment sought against third defendant – whether terms of settlement agreement operated as a release of first and second defendants’ and principal debtor’s liabilities under the guarantee or as a covenant not to sue – whether third defendant remained liable under guarantee – whether guarantee contained a reservation of rights clause – whether guarantee should be interpreted as an indemnity

LAND LAW – easements – creation of easements by prescription – servient owners unknown – whether servient owners acquiesced in user – whether acquiescence a necessary element LAND LAW – easements – creation of easements by order of court – Conveyancing Act 1919 (NSW) s 88K – whether easements reasonably necessary – whether easements not inconsistent with the public interest – evaluative decision in which appellate courts should exercise restraint

CRIMINAL LAW – sentence appeal – supply not less than commercial quantity of methylamphetamine – parity with sentence of co-offender – whether applicant had a justifiable sense of grievance – relevance of co-offender’s rehabilitation efforts – relevance of additional Form 1 offences and standard non-parole period – subjective circumstances

EQUITY — Trusts and trustees — Judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) — Whether the Trustee is justified in disclaiming and/or surrendering and/or not exercising its powers to appoint income and/or capital to any beneficiary of the Trust Estate whilst the beneficiary is a "foreign person" as that term is defined for the purposes of the Land Tax Act 1956 (NSW) and the Duties Act 1997 (NSW) — Whether the power contained in clause 15 of the Trust Deed was relinquished upon the death of the last named survivor EQUITY — Trusts and trustees — Powers of trustees — Statutory jurisdiction of the court to confer powers on trustees pursuant to Trustee Act 1925 (NSW) s 81 — Where plaintiff sought an order that the Trustee surrenders and/or releases all trusts and/or powers such that any beneficiary of the Trust that is a “foreign person” as that term is defined in the Land Tax Act and the Duties Act is not a beneficiary whilst they are “foreign persons”

PRACTICE AND PROCEDURE - Adjournment - No point of principle

TAKING EVIDENCE FOR FOREIGN COURT – Application for orders for examination under Evidence on Commission Act 1995 (NSW) – Where application made in respect of civil proceedings abroad – Statutory scheme – s 32(2) – Meaning of “commission of an offence” – Nature of US proceedings – Whether criminal proceedings – Where criminal proceedings pending in Australia – Whether order for examination should be made with respect to the accused in those criminal proceedings STATUTORY INTERPRETATION – Principle of legality – Common law rights and freedoms – Principle in X7 (2013) 248 CLR 92 – Whether infringement of accusatorial judicial process acts as a bar to the Court’s exercise of discretion – Whether Evidence on Commission Act 1995 (NSW) expressly empowers or necessarily intends the compulsory examination of an accused prior to completion of criminal proceedings – no need for determination – Consideration of discretionary factors – Utility – Deferment

CONTRACTS — Construction — True meaning and effect of clause 7.8 of the parties’ Unitholders’ Agreement — Whether on the proper construction of clause 13 of the parties’ Unitholders’ Agreement the Trustee Company Accountant is required to take into account whether clause 7.8 has been complied with in determining the Fair Market Value for a Unit in the Trust

CIVIL LAW – proceedings for debt – application for summary judgment – application to file further amended defence – question of viability of defence – joinder of proceedings

EQUITY — General principles — Equitable estates and interests — Nature of equitable interests and ownership — Beneficial ownership — Property purchased in the name of defendant alone — Joint loans applied to purchase of property REAL PROPERTY – General principles – Ownership – Beneficial ownership

LIMITATION OF ACTIONS — Compensation to relatives claim — Extension of limitation period — Limitation Act 1969 (NSW) s 60H — Exercise of discretion to grant extension — Inadequate explanation for delay — Application refused

CRIMINAL LAW – murder – trial by jury – whether evidence of drug use in custody by the accused after killing should be left to the jury – conceded by experts that the accused is schizophrenic – defence counsel submits evidence of drug use may be used for a credibility purpose and is prejudicial – relevance of the evidence to the consideration of the accused’s state of mind at the time of the killing – evidence not excluded

PRACTICE AND PROCEDURE – Application for separate determination of liability and damages – 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 – Whether any order for costs in the plaintiff’s favour should be accompanied by an order that costs be payable forthwith on the basis that it would provide an indigent plaintiff with a ‘fund’ for the purposes of the litigation – Not a proper basis on which to alter the general rule – Order that defendant pay the plaintiff’s costs as agreed or assessed PRACTICE AND PROCEDURE – Proceedings commenced by the plaintiff almost 2 years ago – Limited steps taken since that time to prosecute the case with proper efficiency and diligence – Close case management required

PRIVILEGE – client legal privilege – waiver – principles at [13]-[17] – employees suffering dust diseases seek legal advice – solicitor makes notes of communications – solicitor later refers to communications in affidavit – notice to produce – redacted file notes produced – production of part of note does not waive privilege in whole document unless unfairness arises.

ADOPTION – contested adoption – Adoption Act 2000, ss 52, 67, 90 and 91 – application to dispense with the consent of the birth mother and birth father and for adoption orders to be made in respect of two children – birth mother and birth father do not consent to the making of adoption order – children have been with adoptive parents from a very young age – children are now 6 and 4 years old – whether an adoption order is in the best interests of the children – consideration of the alternatives to an adoption order.

APPEALS – leave to appeal – assertion that primary judge erroneously relied on affidavits verifying pleadings as evidence – trial conducted with a “level of informality” and involved self-represented parties – findings of fact open to judge – no question of principle warranting a grant of leave GUARANTEE AND INDEMNITY – rights of guarantor to contribution from co-guarantors – whether payments by guarantor to principal debtor made under guarantee or as a loan to principal debtor – Mahoney v McManus (1981) 180 CLR 370 – primary judge’s findings of fact capable of supporting his conclusion

APPEAL – sentence appeal – where applicant sentenced with co-offender – drug offences – where sentencing judge did not indicate standard non-parole periods – where aggregate sentence imposed – whether failure to indicate non-parole periods requires appellate intervention – whether sentencing judge gave consideration to objective seriousness of offending – whether sentencing judge gave consideration to subjective case

CIVIL PROCEDURE — Originating process — Amendment — Joinder of second defendant who is an undischarged bankrupt

EVIDENCE – admissibility of conversation recorded without consent – s 7 Surveillance Devices Act 2007 (NSW) – whether recording "reasonably necessary for the protection of the lawful interests" of the daughter – review of case law at [9]-[34] – summary of principles at [35] – warnings at [44]-[47]

CRIME — Federal offences — Offences of dishonesty — Separate question — Compulsory examination of accused — Where accused was compulsorily examined by taxation officers pursuant to statutory powers compelling answers whether incriminatory or not before charges laid — Where transcript of interview provided to investigative and prosecuting authorities — Where transcript was used to investigate accused, formulate charges and prepare prosecution case — Whether dissemination and subsequent use of transcript violates accusatorial principle and companion rule — Whether such disclosure and use was prohibited — Whether transcript admissible in trial of the accused — Effect of R v Leach [2019] 1 Qd R 459 STATUTORY INTERPRETATION — Legal presumptions — Presumption against alteration of fundamental common law rights — Right to criminal trial in accordance with accusatorial principle and companion rule — Whether statutory scheme expressly or by necessary implication authorised dissemination and use of transcript — Income Tax Assessment Act 1936 (Cth) — Taxation Administration Act 1953 (Cth) — Criminal Code Act 1995 (Cth) s 135.1(7)

CRIME – sentencing – murder – extended joint criminal enterprise – targeted home invasion to rob elderly man – brutal and sustained attack – offender young, immature, remorseful – early plea and assistance to authorities despite fear of co-offender – concurrency with revoked ICO

COSTS — General rule that costs follow the event — Proceedings discontinued or dismissed – each party bear their own costs - no point of principle

COSTS – Basis of quantification – Judgment for Plaintiff – Plaintiff ran number of unsuccessful claims – Whether costs awarded to Plaintiff reduced to reflect number of unsuccessful claims.