Cases and authorities

CONTRACTS – joint venture to develop Council’s land into car park and residential-commercial development CONTRACTS – parties – whether second plaintiff a successor to first plaintiff and able to sue under joint venture agreement CONTRACTS – where land contaminated with asbestos and other substances – whether council liable under indemnity – whether claim under indemnity out of time CONTRACTS – where council agreed to grant easement - where council granted easement and then rescinded motion granting easement – proper construction of easement provision – whether plaintiffs suffered loss CORPORATIONS – damages – reflective loss – whether shareholder can recover diminution of value of its shareholding that reflects loss of company CONSUMER LAW – misleading or deceptive conduct – whether first plaintiff’s failure to provide Council with geotechnical report prior to entry into joint venture agreement was misleading or deceptive – whether warranties and indemnities in joint venture agreement should be declared void

COSTS – general rule that costs follow the event – whether indemnity costs should be awarded – whether a Sanderson order should be made – where ordinary costs awarded

COSTS – Indemnity costs – Where proceedings should have been commenced in the New South Wales Civil and Administrative Tribunal – Where plaintiffs should have appreciated part of the claim was doomed to fail – Indemnity costs awarded to successful defendant

CONTRACT – Whether representations misleading and deceptive under Australian Consumer Law, s 18 – Where some of the representations were mere puffs – Where some representations were false – Whether Plaintiff entitled to damages under Australian Consumer Law, s 236 – Whether Defendant involved in making false representation under Australian Consumer Law, s 2 – Where Defendant did not know representations were false at the time they were made PRACTICE AND PROCEDURE – Admissions – Where Defendants/Cross-claimants repeated Plaintiff’s claims in their cross-claim against third party – Held not an admission EVIDENCE – Expert evidence – Where expert did not personally conduct inspection – Where expert report based on photographs taken by others

COSTS – security for costs – whether sufficient reason to believe plaintiffs’ will be unable to pay defendant’s costs – whether defendant’s conduct materially contributed to plaintiffs’ financial position – whether proceedings would be stultified if an order for security was made – whether proceedings involve a matter of public importance – security for costs ordered – security for costs payable in tranches CIVIL PROCEDURE – Hearings – Suppression and non-publication order – where plaintiffs sought suppression order over unaudited management accounts – whether suppression order necessary to prevent prejudice to the proper administration of justice – whether suppression order necessary in the public interest – suppression order granted

CIVIL PROCEDURE – Interlocutory orders for enquiries and provision of information – Sabre orders – Whether Registrar’s Order was a Sabre order – Whether Registrar’s Order was complied with – Further order for enquiries and provision of information not made COSTS – Indemnity costs – Costs of proceedings to date – No basis for indemnity costs or payment of costs to date

CRIMINAL LAW – admissibility of evidence – murder and arson – special hearing – whether an admission allegedly made by accused – discretion to exclude admission pursuant to s 90 of the Evidence Act 1995 (NSW) – reliability of admission made by a severely and chronically mentally ill accused – admission heard by a civilian witness – discretion to exclude admission declined

PRACTICE AND PROCEDURE – appeal and cross-appeal – failure to prosecute with due despatch – application to dismiss cross-appeal – non-compliance with directions for filing submissions – indulgences granted by extending dates – submissions filed by extended date – Uniform Civil Procedure Rules 2005 (NSW), r 12.7 PRACTICE AND PROCEDURE – appeal and cross-appeal – cross-appeal – procedural irregularity – notice of cross-appeal to commence proceedings against non-appellant – proceedings lacking in merit – whether frivolous, vexatious or an abuse of process – Uniform Civil Procedure Rules 2005 (NSW), r 13.4

TORTS — Negligence — Causation — appellant worker injured whilst working on respondent’s premises — where primary judge found respondent was not liable — finding that reasonable precautions postulated in particulars of negligence would not have avoided risk of harm to appellant worker — challenge to findings of fact at first instance — no error established CONTRACTS — Construction — cross-claim on labour-hire agreement between appellant and respondent corporation — whether primary judge erred in finding contract did not entitle appellant corporation to damages or indemnity — no error established EVIDENCE — Discretions — Exclusion of evidence — where plaintiff sought to tender new expert report at hearing — report rejected by primary judge — no error in exercise of discretion

TORTS — Negligence — appellant worker injured whilst working on respondent’s premises — evidence at first instance that risk of injury could have been avoided by provision of a ‘pick stick’ — primary judge found respondent company had discharged duty of care and was not negligent — whether primary judge erred in failing to address case put by the parties — whether primary judge erred in failing to find non-provision of pick stick was negligent — whether respondent company was negligent — whether any contributory negligence CONTRACTS — cross-claim on labour-hire agreement between appellant and respondent corporations — where primary judge ordered nominal damages — whether damages ought to have been awarded for costs expended in defending claim

CRIMINAL LAW – appeal against sentence – attempted importation of a commercial quantity of a border controlled drug – 25 kilograms of pure heroin – discount for utilitarian value of plea of guilty to Commonwealth offence not given – “Xiao error” established – excellent progress in custody since imposition of sentence many years ago – lesser sentence warranted – applicant re-sentenced

CRIMINAL LAW – sentence – manslaughter – extended joint criminal enterprise – principle in the first degree acting in excessive self-defence – use of handgun in a public place – spontaneous and unexpected involvement of offender – criminal record featuring serious gun violence in the past – sentence imposed

TRUSTS – trust instruments – rectification of instruments to correct obvious mistakes – where “vesting day” in trust deed is relevantly defined as thirty years after the date of settlement or the period of twenty years after the death of the last survivor of the descendants now living of his late Majesty King George VI whichever shall be the shorter – whether the word “shorter” used erroneously rather than the word “longer” – whether error in deed is obvious – declaration made rectifying the trust deed PRACTICE AND PROCEDURE – parties – joinder – trusts and trustees – Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 7.9 and 7.12 – where trustee seeks a declaration to rectify trust instrument to correct an obvious mistake – where no objects or beneficiaries of the discretionary trust joined as parties to the proceeding – where the declaration sought has the potential to adversely affect only one beneficiary’s rights – where that beneficiary supports the trustee’s claim – appropriate for the Court to proceed and determine the trustee’s claim for relief in the circumstances

HIGH RISK OFFENDER – application for preliminary orders – interim supervision order – orders for examination of defendant by expert – defendant convicted of serious sex offences – question as to whether the defendant poses an unacceptable risk to the community if not supervised

SENTENCING — Multiple offences – Offender convicted of 20 Counts – 3 Counts of murder – attack on public institution - Family Court bomber – Whether a life sentence is appropriate in the circumstances – no submissions concerning subjective circumstances – objective seriousness of offences targeting public officials – objective seriousness of offence targeting place of worship – flagitious crimes - life sentences imposed – maximum penalty appropriate

CROSS VESTING – group proceedings – where similar class action proceedings pending in Supreme Court of Victoria against same defendants/respondents – where concern about operation and continuing efficacy of tolling provision in s 182 of Civil Procedure Act 2005 (NSW) in the event that proceedings cross vested to Supreme Court of Victoria – where risk of prejudice to group members – where undertakings given to negative prejudice.

CONTRACTS – real estate agent agreement – non-exclusive agents – entitlement to commission – buyer introduced by first agent who then left for holidays when prospect of a sale appeared lost – buyer contacted second agent to look for other properties – sale then revived and completed – whether the first agent was the, or an, effective cause of the sale of the property – mere introduction of the buyer to the property is insufficient – appeal dismissed

CIVIL PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW), s 8(7) –applicant sought leave to appeal against primary judge’s order prohibiting him from instituting proceedings against respondent – proceedings commenced by companies controlled by applicant – requirements of Vexatious Proceedings Act – proceedings raised essentially issues that had been resolved in earlier proceedings – correspondence of applicant established proceedings commenced to harass or annoy or for another wrongful reason

APPEALS – right of appeal – scope of right – error of law – findings based on medical evidence – whether misunderstanding of claimant’s case – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353(1) WORKERS’ COMPENSATION – entitlement to compensation – causal relation between accident and injury – delayed complaint of neck pain –neurological condition said to have painless onset – absence of reports of neck pain to treating medical practitioners WORKERS’ COMPENSATION – entitlement to compensation – employment related injury, disability or disease – workplace accident – claim by worker for lump sum compensation for cervical spine disease

SUCCESSION – Statutory wills, Succession Act 2006 (NSW), ss 18 , 19, 22 – Incapacitated person has lost capacity to make Will – Application seeking leave to apply for, and then, an order authorising, a Will to be made on behalf of the person lacking testamentary capacity – Earlier Will made in 1967 in which whole estate divided between the Plaintiff and the incapacitated person’s mother – Mother predeceased the incapacitated person – Location of original Will not known – Whether a will in accordance with that proposed by the Plaintiff who is the long-time friend and partner, and would be the only beneficiary, named in the Will, but with a substitutionary clause leaving the whole of the estate to a cousin of the Plaintiff, in the event that the Plaintiff does not survive the deceased, or survive the deceased by 30 days, is, or is reasonably likely to be, a will that would have been made by the person who lacks testamentary capacity if he had that capacity – Court not satisfied that an authorised Will should include a substitutionary clause gifting the estate to the Plaintiff’s cousin, but orders, ex abundanti cautela, for a Will without the substitutionary clause, save for a clause appointing a substitute executor, as the proposed statutory Will to be made.

CRIMINAL LAW – murder – assault occasioning actual bodily harm – Defence of mental illness – judge alone trial – special verdict – not guilty by reason of mental illness

EMPLOYMENT AND INDUSTRIAL LAW — Industrial organisations — Registration — Cancellation of registration — At request of industrial organisation

EQUITY – LEGAL PRACTITIONERS – CORPORATIONS – Corporations Act 2001 (Cth) (the Act) s 553C – Solicitor’s “fruits of the action” lien over costs order made by the Court of Appeal in favour of their client against the losing party (the debtor) which solicitors argue covers their costs for acting in Court of Appeal and subsequent High Court proceedings – Where as a condition to the grant of special leave to appeal the debtor undertook not to disturb the Court of Appeal costs order – Where debtor claims that lien should not be recognised because without it it would have an equitable set-off for a claim it says it has against the client for liquidated damages or s 553C of the Act would have worked to effect one – Where debtor argues that the lien should not be recognised because the solicitors had other security which they did not realise – Where debtor argues that the High Court costs are not secured by the lien because those costs were not to defend a fund and were not immediately incidental to the costs incurred in the Court of Appeal proceedings – Where costs debtor argues that the solicitors have not established the reasonableness of their fees – HELD – Lien effective to cover Court of Appeal costs but not High Court costs – HELD – No equitable set-off would have been available – s 553C of the Act did not operate – Solicitors did not impair their lien – Their fees were reasonable – Lien operative with respect to Court of Appeal charges but not High Court

INSURANCE LAW – Insurance Contracts Act 1984 (Cth) – Life insurance policy where the insured gave false answers to questions about his use of drugs – Whether he failed to comply with his duty of disclosure or made misrepresentations – Whether such failure was or the misrepresentations were fraudulent – Whether the insurer would have entered into the policy in any event – Whether the insurer was entitled to avoid the policy – HELD – The insured fraudulently failed to comply with his duty of disclosure and fraudulently made misrepresentations – HELD – The insurer would not have entered into the policy and legitimately avoided it.

SENTENCING – Cumulative and Concurrent Sentences – where the Offender is already serving a lengthy sentence for a number of convictions – pleaded guilty to solicit to murder and murder involving two separate victims – assessment of the totality of the criminality involved over all the offending – assessment of the degree of concurrency these sentences should have with existing sentences

CONTRACTS - Where amount claimed not disputed – Cross claim - Whether alleged oral representation changed terms of agreement – Whether alleged representations misleading and deceptive under Australian Consumer Law, s 18 – Whether alleged conduct unconscionable under Australian Consumer Law, s 21 – Interpretation of deed of release and discharge – Whether deed effective to release claim under Australian Consumer Law, s 18 EVIDENCE – Expert evidence – Where expert report based on unproven assumptions – Remarks on the importance of a degree of formality in the Court processes

HIGH RISK OFFENDERS – continuing detention order – unacceptable risk of committing another serious offence – psychological evidence that appellant posed risk to community of further paedophilic sexual offences if not detained – evidence that treatment conducive to rehabilitation not able to be completed in custody – continuing detention order made for one year STATUTORY INTERPRETATION – effect of legislative amendments – criterion of unacceptable risk of committing another serious offence – whether risk can be mitigated by placing offender under supervision – construction of statutory regime inconsistent with personal liberty

SENTENCING — Appeal against sentence — Assessment of objective seriousness — Where sentencing judge’s findings accorded with submissions made by applicant at sentence hearing — Whether House v The King error — No error demonstrated SENTENCING — Appeal against sentence — Adequacy of reasons — No inadequacy of reasons

SENTENCING — Appeal against sentence — Where sentencing judge erroneously referred to incorrect offence at conclusion of remarks of sentence — Where the offence had otherwise been identified correctly — Whether applicants sentenced for a more serious offence than charged — Slip in expression during ex tempore reasons SENTENCING — Appeal against sentence — Plea to reckless wounding in company — Whether sentencing judge erroneously had regard to injuries that might have exposed applicants to a more serious offence SENTENCING — Appeal against sentence — Co-offenders — Parity — Substantially similar subjective circumstances — Where co-offenders received same indicative sentence for offence of reckless wounding in company — Where one co-offender had lesser role in commission of that offence — Whether similarity in sentence justifiable

Administrative law – Migration – Application for constitutional or other writ – Where plaintiff transferred to Australia from Manus Island for medical treatment – Where plaintiff unlawful non-citizen – Where plaintiff held in immigration detention – Where plaintiff alleges he requested removal from Australia – Where plaintiff seeks declarations, injunctions and writ of habeas corpus in original jurisdiction of the High Court in relation to his detention – Whether remitter to Federal Circuit Court available pursuant to s 44(1) of Judiciary Act 1903 (Cth) – Whether Federal Circuit Court has jurisdiction in relation to relief sought – Where jurisdiction conferred is the same as the original jurisdiction of the High Court "under paragraph 75(v) of the Constitution" – Whether application relates to a "migration decision" for the purposes of s 476(1) of Migration Act 1958 (Cth) – Whether remitter appropriate in these circumstances. Words and phrases – "ancillary or incidental remedies", "dispute of fact", "instituted or continued", "migration decision". Constitution, s 75(v). Federal Circuit Court of Australia Act 1999 (Cth), s 10(1). Judiciary Act 1903 (Cth), s 44(1). Migration Act 1958 (Cth), ss 14(1), 189, 196, 197AB, 197AC, 198, 474, 476, 476B, 494

CIVIL PROCEDURE – representation – unrepresented litigants – assistance of court – reactivation of referral to solicitor or barrister on the Pro Bono scheme panel – assistance in preparing amended statement of claim – proper approach of the Court

INTEREST - interest up to judgment – loss of opportunity – compensation awarded to cross-claimants on the basis of a market valuation of real property as at the date of hearing including capital gains up to that date – property income producing – whether pre-judgment interest should be awarded. COSTS - claim and cross-claim – mixed result on some claims in the proceedings – some claims took substantially more time than other claims – whether one party was substantially successful – what is an appropriate cost order in the circumstances. BANKRUPTCY - plaintiff/cross-defendant made bankrupt on his own petition – at the time of his bankruptcy only two issues remain for determination in the proceedings, interest and costs – at the time of his bankruptcy all submissions had been filed and all relevant legal work on the two issues of interest and costs was complete on both sides – whether judgment for interest and costs should be given.

CIVIL PROCEDURE – second application to set aside default judgment – no draft defence provided - non-appearance – repeated non-compliance with court orders – where hearing complete – where applicant aware of proceedings at time of hearing – unexplained delay

COSTS — Party/Party — Discontinuance — Where settlement reached between plaintiff and defendant in related matter— Where neither party acted unreasonably in bringing and defending the action

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order– serious sex offender – choke/strangle with intent to commit indictable offence – history of detaining women for sexual gratification – relevant statutory factors – risk assessment – applicability of standard conditions

ADMINISTRATIVE LAW – judicial review - summons to set aside decisions of Medical Assessor and the Proper Officer of Medical Assessment Service of Motor Accidents Authority – where plaintiff claims to have suffered permanent impairment from a car accident and the Assessor and Proper Officer made adverse findings – whether the Assessor failed to determine causation correctly – where Assessor’s focus was on significant injuries and the absence of evidence in contemporaneous records – where Assessor failed to disclose his path of reasoning – whether failure to respond to clearly articulated argument - whether setting aside the Certificate would be a futility in view of the findings on examination and categorisation of physical restrictions

CORPORATIONS — Voluntary administration — Deed of company arrangement – Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to DOCA – Whether shareholders unfairly prejudiced — Company plainly insolvent — No residual equity value — No evidence supporting Company having substantial claims against banks — Whether appropriate to stay winding up

LAND LAW — Caveats — Removal of caveat — Removal by order of Court — where the principal judgment requested the parties to determine whether a valuable undertaking as to damages could be proffered — where the parties were in dispute as to the course the Court should take — where the short minutes of order provided must be refined to reflect the circumstances — where equity will act to preserve value when that can be done — chance given, on condition, to sell property at the proposed higher amount

CIVIL PROCEDURE — Hearings — Adjournment — Application by plaintiff for adjournment in week prior to hearing — Where case had been listed since November 2019 — Adjournment refused

PRACTICE AND PROCEDURE – pleadings – amendment – statement of claim – where matter had proceeded to trial and on appeal – scope of retrial proceedings – requirements of pleadings – inadequate pleadings – application to amend refused

COSTS — Party/Party — Meaning and application of general rule that costs follow the event

COSTS – where plaintiff served with lapsing notice and obtained an order extending operation of a caveat – where plaintiff failed to lodge extension order with the NSW Land Titles office – where plaintiff sought leave to lodge a further caveat – where proceedings dismissed by consent – whether parties have acted reasonably – no order as to costs

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Whether UCPR 36.16(3A) or UCPR 36.16(1) applies — Whether reasons should be recalled and amended

PRACTICE AND PROCEDURE – search orders – application by fourth defendant and first respondent to discharge search orders made in respect of their premises – where search orders obtained by plaintiffs on an ex parte basis – where evidence relied upon by plaintiffs to obtain search orders included an affidavit in support sworn by second defendant – where second defendant subsequently swore a further affidavit in which he stated that he did not give first affidavit voluntarily – whether the plaintiffs improperly obtained and relied upon the second defendant’s first affidavit – second defendant’s first affidavit not improperly obtained – search order regime not discharged PRACTICE AND PROCEDURE – Harman obligation – where plaintiffs relied on affidavits served by defendants pursuant to an earlier undertaking given to the court in the same proceeding in an ex parte search order application – where the defendants’ affidavits were not read in evidence prior to the plaintiffs making the ex parte search order application – whether the plaintiffs breached the Harman obligation – no breach in circumstances where affidavits relied upon by plaintiffs in the same proceeding

ADMINISTRATIVE LAW – Judicial review – Rule 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) – Review of the decision of the registrar – Where the registrar determined that the plaintiff’s expert reports were not “in reply” despite not having the defendant’s primary reports – Review upheld PRACTICE AND PROCEDURE – Application for leave to file an amended statement of claim – Where the plaintiff sustained injury after undergoing a gastric sleeve procedure – Whether the proposed amendments plead a novel case

CRIMINAL LAW – evidence - spirited and multifaceted objection - listening device recording - conversation in Mandarin - inconsistent translations - mysteries, infelicities and uncertainties - impact on probative value - carried v bring or brought - loaded expression - Urban Dictionary - leap of faith - unfair prejudice - where accused required to establish other criminal offence to explain recording - whether evidence might be confusing or misleading - evidence inadmissible

CIVIL PROCEDURE – Costs – proceedings brought between solicitors and their former client – proceedings concluded and costs orders made – applications made for indemnity costs and for specified gross sum costs orders – on those applications, in February 2020, the Court made orders for the production of the originals of certain costs agreements said to have been made between the solicitors and the former client – solicitors seek to vacate the orders – whether the February 2020 orders should be vacated or whether the documents should be produced in conformity with the existing orders.

LIMITATION OF ACTIONS – debt – acknowledgement and part payments – whether document amounted to an acknowledgement ESTOPPEL – promissory estoppel – detrimental reliance – whether defendant can be estopped from relying on limitation defence

EQUITY – Breach of fiduciary duties – Where director of corporate trustee used money borrowed on security over the corporate trustee’s assets to acquire properties – Where director of corporate trustee caused trust funds to be distributed to himself EQUITY – Trustee de son tort – Whether doctrine applies – Where trustee a director of the corporate trustee – Where trust funds paid to entities controlled by trustee de son tort – Held doctrine applies where a person deals with trust assets without power to do so – Held whether trust funds paid to trustee de son tort’s alter ego is immaterial EQUITY – Alternative claim – Claim that director was knowing recipient of trust property – Claim that director induced or procured breach of trust by corporate trustee – Claim that director knowingly participated in a fraudulent design by corporate trustee – Corporate trustees only capable of acting through individuals – Held attributing primary liability to corporate entity is mischaracterisation of facts where only conduct giving rise to breach of trust is that of director EQUITY – Alternative claim – Decision to distribute trust funds not made honestly and in good faith – Held claim inconsistent with director liability on the facts of the case EQUITY – Defences – Estoppel – Difference between promissory estoppel and conventional estoppel – Not found on the facts EQUITY – Defences – Laches – Where defence applies to personal claim but not to proprietary claim EQUITY – Just allowance – Where profit not derived as consequence of fiduciary’s skill and effort – Where some of trust property lost EQUITY – Constructive trust – Application of proprietary remedy to breach of fiduciary duty – Application of proprietary remedy where finding of trustee de son tort made – Where proprietary remedy fails absent tracing – Held proprietary claim not precluded merely because recipient took trust assets under particular form of transaction – Held Court entitled to look at the substance of what occurs EQUITY – Tracing – Tracing rules – Held Court should take a common sense and reasonable approach – Held Court should be prepared to draw reasonable inferences concerning what become of trust assets CORPORATIONS LAW – Ratification – Where corporate trustee was sole shareholder – Where corporate trustee owes duties to beneficiaries – Whether sole shareholder can ratify director’s breach of duty where duty affects the discharge of the corporate trustee’s obligations toward beneficiaries CORPORATIONS LAW – Defences – Corporations Act 2001 (Cth), s 1318 – Not found on the facts LIMITATION OF ACTIONS – Leave to amend – Whether claim that directors’ declaration is void because in breach of Corporations Act 2001 (Cth) is founded on a “simple contract” under Limitation of Actions Act 1958 (Vic), s 5 – Whether Limitation of Actions Act 1958 (Vic), s 21 applies to constructive trustees – Question of what amounts to fraud under Limitation of Actions Act 1958 (Vic), ss 21(1)(a) and 27 – Whether Limitation of Actions Act 1958 (Vic), s 21(1)(b) applies to property received or held by fiduciary’s alter ego – Where facts relevant for limitation by analogy under Corporations Act 2001 (Cth), s 1317K arose during trial TRUST AND TRUSTEES – Defences – Trustee Act 1958 (Vic), s 67, 68 – not found on the facts

APPEAL – application for order staying the hearing of judicial review proceedings in the Land and Environment Court – no basis demonstrated for appellate intervention in respect of a matter of practice and procedure