Cases and authorities

COSTS – Discretion to award costs – Where two of four sets of proceedings proceeded to contested hearing – Where plaintiff was unsuccessful in that hearing – Whether costs should follow the event – No basis for altering the general rule that the defendants as the successful parties should have an order for costs in their favour – Each party to pay its own costs in other proceedings

SUCCESSION – Family provision – Claim by adult son from deceased’s estate – substantial provision made for plaintiff in the deceased’s will and during her lifetime – Plaintiff not left without adequate provision for his proper maintenance, education and advancement in life – Claim for family provision order dismissed

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, approve a proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

No point of principle

CRIMINAL PROCEDURE – application under s 45(4) and (5) of the Crime Commission Act 2012 (NSW) to release evidence given under compulsion before Crime Commission – release not required in the interests of justice

PRACTICE AND PROCEDURE - Specific performance – Whether Court should order specific performance of a settlement agreement where defendants agreed to pay sum of money – Consideration of the Court’s power to order specific performance of an obligation to make a monetary payment

SUCCESSION – Statutory wills, Succession Act 2006 (NSW), s 18, s 19, s 22 – Incapacitated person has never had capacity – Application seeking leave to apply for, and then, an order authorising, a will to be made on behalf of a person lacking testamentary capacity – Whether a will in accordance with that proposed by the Plaintiff who is the mother, and the principal beneficiary, named in the Will, with balance being divided between other family members is, or is reasonably likely to be, a will that would be made by the person who lacks testamentary capacity if she had that capacity – Whether it is appropriate for an order authorising such a will to be made – Financial manager of the person lacking testamentary capacity not a party to the proceedings but supports and approves of the terms of the proposed statutory Will as do all other family members

CIVIL PROCEDURE – claim for possession of real property – mortgage default by company – receivers appointed to the entirety of the company assets – writ of possession issued by court – whether service of the claim for possession on the receivers was sufficient – whether any separate reason to postpone writ

BUILDING AND CONSTRUCTION – Breach of statutory warranties in the Home Building Act 1989 (NSW), s 18B – Application s 48MA of the Home Building Act 1989 (NSW) to proceedings brought before the Supreme Court – Whether the Court will order specific performance of a building contract - Whether damages for loss of rent were in the parties’ reasonable contemplation at the time the contract was entered into – Distinction between difficulty of assessing damages and failure to take reasonable steps to prove damages suffered.

CIVIL PROCEDURE – amendment of pleadings – application for adjournment – vacation of hearing – plaintiffs seek to amend pleadings and join two new defendants – amendment and the joinder of the new defendants would result in vacation of a hearing date fixed since mid-2019 – whether the pleadings should be amended and the new defendants joined – if the pleadings are amended whether the hearing should be vacated and if so, on what terms.

CIVIL PROCEDURE – where application by plaintiff for trial by jury – whether s 85 of Supreme Court Act 1970 applies – where trial by jury refused

BUILDING AND CONSTRUCTION – claim for progress payment – reference date – whether claim with respect to an available reference date – inclusion of three days’ interest accruing after reference date – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8) BUILDING AND CONSTRUCTION – claim for progress payment – service of claim – supporting statement – requirements for valid supporting statement – consequence of failure to serve valid statement – whether payment claim invalid BUILDING AND CONSTRUCTION – claim for progress payment – variations – whether sums claimed under the contract or for quantum meruit – whether the claim invalid if amounts not owing under the contract – statutory scheme for adjudication of payment claim disputes – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14 and 15(4) STATUTORY INTERPRETATION – penalty provision – implied civil consequences – whether intention to invalidate step creating civil obligation – breach of requirement to serve compliant supporting statement – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8)

CIVIL LAW – freezing orders – serendipitous supply of hand sanitiser – allegation of deceit – where one partner diverts funds meant for purchase of product to their own use – acquiring product from source contrary to business plan – allegation of warning off from competing – Fat Charlie – shady sounding figure – details a little sketchy – difficulties in contacting defendant – good arguable case – freezing orders made

PRIVATE INTERNATIONAL LAW — foreign judgments and orders — registration of foreign judgment — registration of judgment sum — order seeking interest not pressed COSTS — party/party — exceptions to general rule that costs follow the event — plaintiff to pay defendant’s costs of and incidental to defence of the summons and costs of and incidental to the preparation of written submissions and the appearance of counsel today, as relief sought in summons not pressed

CIVIL PROCEDURE – service outside Australia – served in Papua New Guinea on Papua New Guinea corporation - whether service authorised by the UCPR – whether relevant contract made or entered into in Australia – whether contract to be partly performed in Australia – whether contract to be governed by Australian law – whether claims have insufficient prospects of success to warrant putting PNG defendant to time expense and trouble of defending claim in New South Wales

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — where the Court has an inherent power to decide whether to entertain an application by a party for the review and withdrawal or variation of findings and reasons contained in a judgment that has been published – where the plaintiff sought such a review – where this was refused per the principles in Elliott v R (2007) 234 CLR 38; [2007] HCA 51

CORPORATIONS – winding up – application for directions that liquidators and deed administrators are justified in determining employing entity – whether entity was an employer of record only - where entity had no assets to meet liabilities to employees – where another entity in corporate group paid employees on behalf of the group.

Security for costs – plaintiff is overseas executor of local deceased estate – deeming provision in s 97(1) of Probate and Administration Act 1898 – delay – impact on allowance for past costs – security ordered

CIVIL PROCEDURE - parties - misnomer or misdescription - application to amend - where owners corporation intended to sue builder for alleged defects but mistakenly named the incorrect entity in summons and list statement - whether builder prejudiced from loss of viable cross-claims - where builder on notice of mistake, defects and proceedings - no delay in making application to amend - prejudice to owners corporation if leave not granted - dictates of justice favour granting leave to amend

CRIME – SENTENCE – murder – prisoner murdered fellow inmate – intention in inflict grievous bodily harm – planning – assessment of objective seriousness – sentence imposed following finding of guilt by jury after trial – no remorse

CIVIL PROCEDURE — Discontinuance of proceedings — where the Court makes an order that the balance of the proceedings be discontinued as opposed to dismissed to allow for the continuing possibility of the claim being revived EQUITY — Trusts and trustees — Resulting trusts — Quistclose trusts – where the Quistclose principle is not applied because the purpose has been satisfied COSTS — Party/Party — Court’s discretion – where the circumstances dictate that it should be made clear that the defendants are liable to pay the plaintiffs’ costs on the ordinary basis – where the Court initially made an order in respect of proceedings that had not yet been completed

COSTS — Party/Party — Exceptions to general rule that costs follow the event – whether, in the circumstances, separable events can be identified – whether costs should be apportioned in a case where a number of parties have succeeded and failed on substantial issues – where discretion must be applied to obtain a ‘fair and just’ result – whether certain parties should be ordered to bear their own costs COSTS — Party/Party — Orders when proceedings involve multiple parties — Bullock and Sanderson orders – where the circumstances indicate that a Sanderson order should not be made COSTS — Security for costs – whether monies paid as security should be released CIVIL PROCEDURE — whether an inquiry and account as between mortgagor and mortgagee should be ordered on the present state of the evidence – where there is a question as to whether in part the mortgagee or receivers and managers appointed by the mortgagee are the proper accounting parties CIVIL PROCEDURE — Stay of proceedings — Inherent power – where an interim stay of proceedings is granted on a short-term basis notwithstanding risk that the successful plaintiff may not be able to recover judgment from unsuccessful defendants JUDGMENTS AND ORDERS — Entry — entry of judgment for damages because there is no longer a need for an inquiry as to damages JUDGMENTS AND ORDERS — Effect of – consideration of the extent to which an order should be made dismissing the balance of the claims for relief – where it would be premature to dismiss certain claims that underpin extant interlocutory orders

CIVIL – final hearing – application for extended supervision order – Terrorism (High Risk Offenders) Act 2017 (NSW) – mandatory considerations – whether the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision during the period of extended supervision order – discretionary considerations – conditions – orders

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Frivolous or vexatious proceedings – Statement of claim not abuse of process, frivolous or vexatious if properly amended

CRIME – costs – application for certificate under s 2 of Costs in Criminal Cases Act 1967 (NSW) – murder – joint criminal enterprise – accessory before the fact

PRACTICE AND PROCEDURE – application by plaintiff to amend Statement of Claim – late amendment – whether defendant prejudiced by amendment.

CONTRACTS — Construction — Interpretation –whether proper construction required that when a liability was incurred under the clause it was incurred collectively by all three promisees regardless of the promisees’ contribution to that liability – whether proper construction of the phrase ‘collectively and individually, as the case may be’ was akin to joint and several liability – where value of the liability was contingent on calculating the commissions earned by each promisee individually - where the promisees’ dealings resulted in an unequal contribution to the total size of the liability incurred CONTRACTS — Construction — Interpretation – whether promise by seller to indemnify the buyer against liabilities incurred by the company prior to completion was also a promise to the company – where liability potentially incurred prior to completion but not acquitted in final settlement calculations CONTRACTS — Construction — Interpretation – whether a contract to pay commission on Net Cash generated by introduced clients created a liability upon entry into the contract – where at the time of entry no clients had been introduced – where numerous contingencies must eventuate for a liability to crystallise CONTRACTS — Construction — Interpretation – whether email correspondence amounted to a Notice of Proposed Change of Control pursuant to the contract – where emails not expressed to be such a notice – where context in which the emails were sent militated against the conclusion that they were contractual notices CORPORATIONS — Directors and officers — Directors’ duties — Duty to act in good faith in the best interests of company – whether failure to cause company to issue a contractual notice to defer the incurrence of a liability was a breach of duty – whether company sustained loss for the purposes of a statutory action for damages

ADMINISTRATIVE LAW – bias rule – actual or apprehended – apprehended – where apprehended bias alleged on basis of interest incompatible with role – whether primary judge erroneously considered notion of degree of closure of mind ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – whether NCAT constructively failed to exercise jurisdiction

LIMITATION OF ACTIONS – discoverability – personal injury – knowledge of seriousness that warrants bringing a cause of action – when plaintiff “ought to know” fact that injury was sufficiently serious to justify the bringing of an action on the cause of action

CONTRACTS – Construction – Interpretation – Principles of construction of commercial contracts. CONTRACTS – Breach of contract – Consequences of breach – Right to termination – No specific performance. STATUTORY INTERPRETATION – Home Building Act 1989 (NSW) – Definition of “residential building work” – Preliminary works.

CRIMINAL LAW – Sentence – Appeal – Sexual intercourse with child under 10 – Where applicant was the father of the victim who was 9 months old – Whether sentencing judge erred in weighing applicant’s breach of trust – Necessity for parity principle – Whether applicant had a justifiable sense of grievance in light of sentence imposed on a co-offender – Where sentencing judge properly took into account similarities and differences in the cases of the applicant and the co-offender – No unjustified disparity in the sentences imposed – Sentence not manifestly excessive – Appeal dismissed WORDS AND PHRASES – “breach of trust” – “under the authority”

CIVIL PROCEDURE – application for adjournment by defendant – new material served by the plaintiff – plaintiff’s claim re-particularised – interests of justice and interests of the administration of justice – no question of principle

CIVIL PROCEDURE – settlement of proceedings – enforcement of settlement – whether binding agreement to settle the proceedings was formed – whether Court should exercise its discretion not to enforce a settlement – whether legal representative was acting under a mistake, or misapprehension as to her authority SUCCESSION – Probate and administration – Entitlement to grant of Probate – Contested proceedings – whether grant of Probate in solemn form be made – where parties reached agreement not to further contest an application to obtain a grant of Probate in solemn form - grant of Probate a public act not made as a matter of course – where balance of evidence supports the validity of the Will

PRACTICE AND PROCEDURE – freezing orders – where plaintiffs previously obtained ex parte freezing orders against the first and second defendants – where ex parte freezing orders discharged by consent – where plaintiffs subsequently bring fresh application for freezing orders against the first and second defendants – whether subsequent application is an abuse of process – where first and second defendants concede that there is a good arguable case on the pleadings – where there is no evidence that the defendants would deal with their assets in a manner that would frustrate the court’s processes – application dismissed

COSTS – Calderbank offer – plaintiff achieved better result – whether unreasonable of defendant not to accept the offer

APPEALS — Application for leave to appeal from Local Court to Supreme Court — magistrate refused permanent stay of criminal proceedings in the Local Court — assurance given to accused person that he would not be charged — police officer who gave assurance unaware of separate charges relating to the taking and distribution of visual images of the complainant APPEALS — magistrate applied correct principles — factual findings open — principles of promissory estoppel do not apply in this context — leave refused

LAND LAW – leases and tenancies – lease of seabed for mooring of houseboat – removal of houseboat on termination of lease – claim for costs for removal – judgment for plaintiff

CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings refused

CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings refused

CIVIL PROCEDURE – Summary disposal – Judgment for Plaintiffs CORPORATIONS – Winding up – Voidable transactions – Whether payments from company to Defendant were uncommercial transactions under s 588FB of Corporations Act – Whether payments made while company insolvent – Deemed insolvency by failure to keep adequate financial books and records – Order under s 588FF of Corporations Act

MORTGAGES AND SECURITIES – mortgagee in possession – dispute as to removal of personal items of mortgagor – meaning of the words “all of their personal property, motor vehicles and other equipment”

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Where sole consent to the adoption has been given by the child — Where parties no longer oppose adoption and agree to maternal adoption plan — Whether the Court should dispense with giving of notice to birth father — Where birth father has ceased contact with child and the Department — Change of name

PROPERTY (RELATIONSHIPS) ACT 1984 – de facto relationship – adjustment of property interests

COSTS — Indemnity costs — Calderbank offer — Application following review of duty assessments —whether unreasonable not to accept offer

Judgments earlier entered against defendants for varying amounts, with quantum of unpaid commissions to be determined – in the meantime, defendants divest themselves of assets and declare bankruptcy – judgment entered against corporate defendants for unpaid commissions – indemnity costs order made

PRIVILEGE – waiver – express and implied waiver – notes of settlement conference preceding execution of settlement deed – dispute as to settlement deed extending to claims based on estoppel, rectification and mistake – whether privilege maintainable in relation to notes – dispute only involving one of a number of defendants – two other defendants bankrupt – whether common interest privilege available

CRIME – SENTENCE AFTER TRIAL – conspiracy to import a commercial quantity of a border controlled drug – verdicts of guilty to two counts at trial – very high level offending – agreement to import substantial quantities of cocaine – sophisticated plan for importations by sea – offender Australian agent for international source of drugs – parity with other conspirators – role of general deterrence

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — claim to ownership of lands by virtue of adverse possession – Defendant Council contends that claim is bound to fail because lands are public roads that vested in it pursuant to s 232 of the Local Government Act 1919 (NSW) and remain so vested pursuant to s 145(3) of the Roads Act 1993 (NSW) – whether roads closed in 1963 pursuant to Public Roads Act 1902 (NSW) – where evidence of historical ownership of lands not sufficient to show that Plaintiff’s claim will almost certainly fail – proceedings not appropriate for summary dismissal CIVIL PROCEDURE – pleadings — striking out – plaintiff filed Statement of Claim claiming entitlement to lands by virtue of adverse possession – lands claimed not precisely identified or defined – lands in part owned by State of New South Wales – State not joined as a party to proceedings – Statement of Claim does not recite material facts to show how title by adverse possession came to be acquired by Plaintiff – Statement of Claim plainly inadequate for the purpose of identifying Plaintiff’s claims to ownership of lands by adverse possession – appropriate to order that Statement of Claim be struck out – leave granted to file amended Statement of Claim

COSTS — party/party — costs orders in interlocutory proceedings — plaintiffs filed Notice of Motion for extension of caveat — no final determination on central issue as Court made orders by consent — not a case where there has been an “event” decided in favour of one party and against another — not a case where one party was almost certain to succeed — no marked difference in the reasonableness of the actions taken by the parties — appropriate that each party bear its own costs of the motion

CIVIL PROCEDURE — Hearings — Suppression and non-publication — Orders