Cases and authorities

CIVIL PROCEDURE – Commencement of proceedings – leave to commence action – plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted

CIVIL PROCEDURE – Commencement of proceedings – leave to commence action – plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted

CIVIL PROCEDURE – Commencement of proceedings – leave to commence action – plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted

ESTOPPEL — Proprietary estoppel — Encouragement — Testamentary promise — Relief — Proportionality — Whether relief ought to be confined to successful plaintiff’s estimate of the size of the estate — Whether relief ought to take into account existing liabilities and expenses of the estate — Principles to be applied COSTS — Party/Party — Payable out of a fund — Deceased estate — Where defendant administrator was the sole beneficiary of the estate under the rules of intestacy — Where substantive proceedings, if successful, would result in the plaintiff becoming entitled to the overwhelming majority of the estate —Whether defendant administrator’s running of proceedings was in substance for her own benefit — Whether defendant administrator therefore disentitled to an indemnity costs order payable out of the estate — Principles to be applied

COURTS AND JUDGES – bias – application for disqualification for apprehended bias – where application founded on complaints of matters determined against the applicant in previous hearing – application refused JUDGMENTS AND ORDERS – application to set aside orders dismissing claim – where applicant seeks to relitigate proceedings already determined – application refused

LAND LAW — Caveats — Extension of operation of caveat — Constructive trust alleged by reason of failed joint endeavour — No issue of principle

CORPORATIONS – arrangements and reconstructions – schemes of arrangement – application under s 411 Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – whether requirements to order scheme meeting satisfied – orders convening scheme meeting and ancillary orders made

CRIME – Appeal and review – application to Supreme Court under Part 7 Crimes (Appeal and Review) Act 2001 – where applicant convicted of twenty-eight counts of domestic violence-related offending – whether there is a doubt or question for the purpose of Part 7 – no such doubt or question – application dismissed

CIVIL PROCEDURE – procedural requirements under UCPR – where applicants seek to be excused from requirements to plead matters – where applicants pursued by respondent for breaches of Corporations Act 2001 (Cth) – overlap in civil proceedings and criminal investigation – privilege against self-incrimination – where admissions already made – privilege not enlivened

CIVIL PROCEDURE – proceedings commenced by tutor on behalf of person under legal capacity – settlement application – best interests of person under legal incapacity – settlement approved – no issue of principle

CONTRACTS — sale of land and business — hotel property and business sold on an “as is, where is” basis — business sale agreement and contract for sale — purchases required to rely on own inquiries — purchasers refusing to complete — temporary unavailability of hotel rooms — whether plaintiffs entitled to return of deposits – exercise of discretion under s 55(2A) of the Conveyancing Act 1919 (NSW) – whether circumstances justify return of deposits paid CONSUMER LAW — alleged misleading or deceptive conduct in pre-contractual representations — alleged misrepresentation in emails and information memorandum — silence and non-disclosure — alleged misrepresentations concerning conditions of hotel including presence of mould and water ingress — whether statements made in trade or commerce PRACTICE AND PROCEDURE — application to reopen case — plaintiffs sought subpoena to call opposing witness after closing case — whether adverse inferences available from defendants’ election not to call receivers or other witnesses – tactical forensic decisions — lack of notice of proposed evidence — fairness to opposing party — risk of adjournment

CIVIL PROCEDURE — leave to discontinue proceedings — terms of discontinuance — where plaintiff had but did not take advantage of opportunity to have its claims heard on their merits — whether parties should be precluded from commencing fresh proceedings — where plaintiff failed to comply with the Court’s orders — misconduct in proceedings — what dictates of justice require

Equity — tracing — judicial sale of land — funds paid into court — distribution of proceeds — additional borrowings by defendant after notice of plaintiff’s interest — whether prior payment deductible — payment out of court

INTERLOCUTORY – Fourth defendant seeks variation to garnishee orders to fund High Court special leave application – Plaintiffs oppose application and seek to compel compliance with garnishee orders

APPEALS — practice and procedure — review of single Judge of Appeal — whether a material change of circumstances — where additional evidence before the Court — where cross-appeal has been filed — where discretion re-exercised PRACTICE AND PROCEDURE — costs — security for costs — appeal — whether special circumstances exist — where it was contended that the appeal was unreasonable in nature and with poor prospects — where appellant impecunious — where Court found that no special circumstances exist — where order for security is likely to stultify the appeal

CRIME – Appeals – appeal against sentence – whether sentencing judge erred by failing to take into account applicant’s onerous conditions of custody during COVID-19 – where sentencing judge expressly referred to impact of COVID-19 in relation to co-offender, being sentenced with the applicant, but not the applicant – error being found in such circumstances, applicant resentenced – on resentence, applicant not permitted to depart from approach below in relation to relevance of De La Rosa, but more favourable findings on prospects of rehabilitation and onerousness of custody made, taking into account additional evidence as to subsequent events in custody

SENTENCING – onerous conditions of custody said to arise from COVID-19 – requirement for evidence establishing basis for submission – whether procedural fairness denied where sentencing judge does not provide notice that submission will not be accepted SENTENCING – parity – whether consideration of parity can be inferred from sentencing judge’s reasons absent formulaic expression – whether justifiable sense of grievance SENTENCING – relevant factors on sentence – whether applicant’s childhood was sufficiently deprived to enliven the principles contemplated in Bugmy – where no submissions were made at sentence – whether a requirement to consider Bugmy factors absent submissions

CRIMINAL APPEAL – Commonwealth sentencing – transmitting child abuse material – where sentencing Judge applied a “statutory presumption” that a sentence of imprisonment be imposed – approach contrary to authority and to statute – material error conceded – whether less severe sentence warranted – whether s 17A threshold crossed – big house – consideration of alternative penalties – where applicant serving longer sentence for attempted drug importation – where applicant likely to be deported – where community correction order under State sentencing legislation picked up by Commonwealth statute – more appropriate penalty in the circumstances CRIMINAL LAW – sentencing – transmitting child abuse material – objective seriousness – relevant considerations – depiction of actual child – where one image transmitted to a single recipient – no evidence part of paedophile network – no suggestion transmission was for profit – young offender with no criminal record – findings of remorse – plea of guilty – deprived background – incarceration far away from family – sentence other than imprisonment appropriate

CIVIL PROCEDURE — Adjournment application to allow gathering of evidence on stultification and allow all plaintiffs to acquire representation — overriding purpose — application refused as already sufficient evidence and plaintiffs’ interests in alignment COSTS — Where directors of two companies purport to exercise their residual authority to bring claims against receivers — whether directors be required to indemnify the companies — whether directors required to give security in addition to the indemnity — principles to be applied — alternate claim for security for costs

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Whether plaintiff’s estate in relation to proceedings should be committed to NSW Trustee

CIVIL PROCEDURE – summary disposal – where plaintiff’s pleading is irregular and standing to sue is dubious – proceedings stayed to allow plaintiff to address shortcomings

CORPORATIONS – winding up – statutory demand – application to set aside creditor’s statutory demands under Corporations Act 2001 (Cth) – defect in statutory demands –– whether defect causes substantial injustice – whether some other reason why demands should be set aside – applications dismissed

COSTS – timing – where interlocutory costs order made – where subsequent application brought for those costs to be payable forthwith before different judge – whether interests of justice favour making of forthwith order

LAND LAW — possession of land — default under mortgage — claim against guarantor CIVIL PROCEDURE — failure by defendant to appear at final hearing and advance cross-claim — where defendant on notice of hearing and given option to adjourn but indicated unwillingness to adjourn or defend claim — hearing to proceed in absence of defendant

CONTRACT — Construction — parties entered into Put and Call Option Deed — Deed granted the Purchaser Call Options in respect of 20 lots of land to be created as part of a proposed subdivision — Call options not exercised — Disclosure Statement attached to the Deed with draft s 88B instrument containing questions marks “??” for the site classifications of the Lots — following registration of the s 88B instrument, eight of the Lots had a “P” (problem) site classification — Notice of Change issued by the Vendor — Rescission Notice issued by Purchaser — Notice of Exercise of Put Options issued by Vendor EQUITY — Equitable remedies — Rescission — Purchaser issued a Rescission Notice — whether the Purchaser validly rescinded the Deed pursuant to cl 5.3 of the Deed — whether the specification of the soil classifications as “P” is a Material Change or the Disclosure Statement was deemed inaccurate as a result of the Material Change — whether the Deed was validly rescinded pursuant to s 66ZM of the Conveyancing Act 1919 (NSW) — whether Division 10 of the Conveyancing Act applies to the Deed — whether the Vendor is estopped from denying the disclosure is a Material Change giving rise to a right to rescind EQUITY — Equitable remedies — Rectification of the Deed — whether an order for rectification of cl 7.3 of the Deed should be made — Specific performance of the contracts — Defence of unclean hands raised — whether the Vendor can enforce the indemnity from the Guarantor for any amounts recoverable from the Purchaser CONSUMER LAW — Alleged misleading and deceptive conduct — representations by CDS Plans — Plans as to the extent of civil works to be completed on the development site — CDS Plans commissioned by a previous owner of the land and came into existence before the Vendor purchased the development — CDS Plans sent by referral agent of the Vendor’s Selling Agent — whether the representations are attributable to the Vendor — whether the referral agent is a representative of the Vendor

PRACTICE — application for extension of time for filing of application for review of the orders of a Judge of Appeal — where Judge of Appeal dismissed the applicant’s challenge to dismissal of proceedings as a consequence of guillotine order made by Registrar that if a summons for leave to appeal was not filed by a particular date the proceedings would be dismissed — no error of principle demonstrated — circumstances in which guillotine order will be an appropriate tool of case management — extension of time refused

CORPORATIONS — members’ rights and remedies — oppression — shareholder and adviser’s exit from financial services business — shareholder corporate vehicles corporate authorised representatives of service entity AFS licensee — exiting shareholder copies client information in preparation to leave business — remaining shareholders cut exiting shareholder’s access to business’ systems — remaining shareholders encourage clients of exiting shareholder to remain with business — whether trial judge erred in finding oppression where alleged baiting — whether compensation warranted or buy-out order should be made — no basis to do so where quantifiable loss not demonstrated CONTRACT — remedies — damages — proof of loss or damage — breaches of corporate authorised representative agreement leading to alleged loss of clients — whether loss adequately demonstrated or quantified — facilitation principle — “fair wind” — whether appellant entitled to the benefit of the doubt and favourable inferences where some loss demonstrated — assistance in proof not warranted — case theory below profoundly misleading — expert report relied upon based on false assumptions — uncertainty in proof of loss resulting also from false basis initially advanced by claimant for damages — unreasonable and unfair for respondents to assume evidential burden APPEALS — procedure — notice of contention — unsatisfactory to do no more than rely on submissions below — calibration to findings of trial judge required

CIVIL PROCEDURE — Court of Appeal — application for leave to appeal — whether to grant leave to file amended response and rely on deed of re-assignment — whether more than merely arguable error in primary judge’s decision to set aside statutory demand

CIVIL PROCEDURE — Notice to Produce for inspection — requirement for “specific document clearly identified” — requirement for relevance

MORTGAGES AND SECURITIES — Mortgages — Equitable mortgages — Equitable mortgage of legal interest — No question of principle EQUITY — Equitable remedies — Order for judicial sale — Whether order for judicial sale should be made — No question of principle

PRACTICE AND PROCEDURE — directions hearing — repeated non-compliance with prior orders — extension of time to file amended statement of claim — guillotine order — final hearing fixed

CORPORATIONS – application for leave to file and serve statement of claim – application to proceed by way of pleadings – where plaintiff seeks to advance claims for oppression and equitable compensation – where first defendant alleges new claims constitute an abuse of process – where parties reached compromise prior to hearing of winding up proceedings – where winding up proceedings were brought on urgent basis – where consequences of alleged oppression were unknown at time of winding up proceedings – where both parties were put on notice of oppression allegations – new claims are not an abuse of process – where there were good reasons why claims not advanced in earlier application – matter to proceed by way of pleadings – leave granted to file statement of claim

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – where claim constitutes attempt to relitigate claim already determined – where no reasonable cause of action – no question of principle CIVIL PROCEDURE – default judgment – default in filing a defence – whether default judgment can be granted for liquidated amount on unliquidated claim – whether default judgment ought be granted after motion for summary dismissal – where default judgment is discretionary

CIVIL PROCEDURE – originating process – amendment – where plaintiff seeks to amend once amended statement of claim to plead rectification and add defendant CIVIL PROCEDURE – summary disposal – dismissal of proceedings – whether reasonable cause of action disclosed

LEASES AND TENANCIES — retail lease — termination, re-entry and forfeiture — whether lessor entitled to terminate lease — whether termination prohibited by COVID-19 pandemic regulation — COVID-19 Regulations and National Code of Conduct — scope of regulation-making power — whether lessor’s conduct repudiatory — whether breach gives right to private right of action in damages — breach notices — service of review notice — where alleged service by email and post — validity of notices and failure to dispute — assignment — guarantees and indemnities — effect on enforcement of rights — good faith obligations CONTRACT — lease construction — market rent review — where lessee was an “impacted lessee” — whether lessor and lessee acted in good faith — where lessee refused to provide financial information — whether refusal to provide financial information was justified — interpretation of commercial documents — interaction with statute — whether lessor in terminating lease and retaking possession constituted a repudiation — effect of erroneous but bona fide construction — whether conduct evinced unwillingness to perform — distinction between breach and repudiation — effect of statutory prohibition DAMAGES — whether lessee entitled to damages for repudiation — whether lessee entitled to damages for breach of statute — quantification of lessee’s loss — loss of opportunity and hypothetical profits — contingencies and vicissitudes — expert accounting evidence — discounted cash flow — reliance and expectation loss — whether lessee would have exercised option to extend lease — entitlement following repudiation — whether new, similar business is an appropriate proxy — mitigation — whether landlord failed to take reasonable steps to re-let premises — whether tenant denied access to perform make good obligations — causation — whether damages suffered by lessee were caused by actions of lessor – readiness and willingness to perform — wasted expenditure — whether expenditure rendered futile — goodwill and asset value EVIDENCE — expert evidence — concurrent evidence and joint reports — competing forensic accounting opinions — use of proxy financial data — reliability of comparable business performance — discounted cashflow methodology — weight and limit of expertise — fact-finding — admissibility of mediation communications — waiver of privilege — reliability of witnesses and contemporaneous records

APPEALS — from finding of fact — function of appellate court — whether appropriate for appellate court to interfere with findings of primary judge based on observations of witnesses in the course of the trial ESTOPPEL — proprietary estoppel — encouragement — nature of promise — where daughter claims parents promised to transfer family home and family business to her during their lifetimes — whether promise clear and unequivocal

APPEALS – further and fresh evidence – whether appellants should be granted leave to rely upon further and fresh evidence – distinction between further evidence and fresh evidence under s 75A of the Supreme Court Act 1970 (NSW) – whether special grounds shown to admit further evidence – whether fresh evidence should be admitted APPEALS – application to amend grounds of appeal – whether leave should be granted to appellants for proposed additional grounds of appeal – where no prejudice to respondents APPEALS – whether appellants permitted to raise new issues on appeal – where conduct of the hearing in the Court below proceeded by way of detailed agreed statement of issues – whether possibility that new issues could have been met by evidence at the hearing below APPEALS – from findings of fact – credibility of witnesses – whether primary judge erred in making adverse credibility findings against appellants – where extensive submissions as to credit findings made by counsel – whether primary judge denied appellants procedural fairness contrary to the rule in Browne v Dunn CONTRACTS – construction – share sale agreement – whether primary judge erred in construction of cl 3.3 of the agreement – whether primary judge erred in concluding appellants waived rights – whether ordinary and natural meaning of the words – agreement read as a whole according to terms CONTRACTS – knowledge – whether primary judge erred in finding solicitor’s knowledge imputed to appellants – where solicitor’s knowledge obtained in the course of carrying out the share sale RESCISSION – whether primary judge erred in failing to order partial rescission of appellants’ obligation to pay vendor finance – restitutio in integrum – whether partial rescission available in equity or under s 243 of the Australian Consumer Law – whether primary judge erred taking into account considerations of delay and receivership to conclude partial rescission not available – no causal connection

EQUITY – Equitable charges and liens – Creation – where clause of building contract provides for charge in respect of “all moneys that are or may become payable under this contract” – where clause 30 provides for payment of “debt collection costs” – where debt collection costs were incurred after the termination of the contract – whether clause 30 survived termination CONTRACTS – Construction – whether contractual promise to pay “debt collection costs” survives termination EQUITY – Equitable charges and liens – Enforceability – prayer for relief referring to the Court’s “inherent jurisdiction” – appropriate relief for an equitable charge – whether Court should exercise its equitable jurisdiction to appoint a receiver or receivers EQUITY – Equitable remedies – Receivers – Availability – whether appropriate to appoint a receiver or receivers – appropriate form of orders LAND LAW – Caveats – Caveatable interest – application for removal of caveat pursuant to s 74MA Real Property Act – whether defendant’s charge arising from a deed creates an immediate proprietary interest – where charge only crystallises upon expiry of deed in 2028 – utility of orders under s 74MA LAND LAW – Caveats – Caveatable interest – whether deed created immediately enforceable charge over all of promisors real and personal assets – construction of deed – whether deed gave promisee a caveatable interest

APPEAL – interlocutory appeal from Local Court to Supreme Court – order for provision of security for costs – plaintiff proffered deed poll by party with commercial interest in claim, expressed in favour of defendant – Local Court ordered security on basis that defendant could not enforce deed poll – conceded error – whether leave should be granted – whether error material – re-exercise of discretion – appeal allowed and security ordered in terms proffered by plaintiff

SECURITY FOR COSTS – application for dismissal of proceedings pursuant to r 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW) following plaintiff’s non-compliance with order for security for costs – no question of principle.

CONTRACT – franchise agreement – alleged breach and wrongful termination – operation of franchise system involving referral of client leads and payment of lead fees – whether defendant restricted referrals or overcharged fees – whether any limitation of referrals constituted breach – whether termination for non-payment in accordance with agreement – wrongful termination not established – claims dismissed CONSUMER LAW – misleading or deceptive conduct and unconscionable conduct – alleged pre-contractual representations as to advertising, referrals and lead fees – construction of email and brochure – whether representations conveyed – whether plaintiffs misled – whether reliance and causation established – no misleading or deceptive conduct established – unconscionability not established – claims dismissed

CIVIL PROCEDURE — default judgment — application for default judgment — whether service of statement of claim by post validly effected — whether plaintiffs’ claim is for debt or liquidated sum — application for default judgment dismissed

JURISDICTION – cross-vesting – whether the Supreme Court has jurisdiction to make orders under the Family Law Act 1975 (Cth) – whether the Supreme Court has jurisdiction to make de facto maintenance and distribution orders under the Property (Relationships) Act 1984 (NSW) – no jurisdiction – where parties seek transfer of proceedings to Division 2 of the Federal Circuit and Family Court – transfer effected with caveat CIVIL PROCEDURE – freezing orders – where applicant impecunious – order made

CRIME — murder — where prosecutor and defence agree that defence of mental health or cognitive impairment available – where accused diagnosed with schizophrenia – Court satisfied that defence established – special verdict of act proven but not criminally responsible

TAXES AND DUTIES — Landholder duty —Landholders — Private landholders — Where taxpayer acquired interests in a landholder in two transactions in February and July for 75.8% and 19.46% of the landholder respectively — Where the February acquisition was not a ‘relevant acquisition’ when it occurred because it was an acquisition of less than 90% of a public landholder under ss 149 and 150(2)(b) of the Duties Act 1997 (NSW) — Where the July acquisition was a ‘relevant acquisition’ because it was an acquisition of a further interest in a private landholder by a person holding an existing significant interest within the meaning of s 149(1)(c) of the Duties Act — Where the February acquisition had the effect of transforming the landholder from a public landholder to a private landholder — Whether the February acquisition was required under s 152(2) to be disclosed in ISPT’s ‘acquisition statement’ for the July acquisition — Whether s 155(3) of the Duties Act has the effect of requiring aggregation of the February and July acquisitions in calculating the landholder duty payable on the July acquisition TAXES AND DUTIES — Landholder duty — Exemption under s 163H of the Duties Act — Where Chief Commissioner declined to grant exemption for the February acquisition under s 163H — Whether the application of Ch 4 of the Duties Act to the February acquisition was not just and reasonable WORDS AND PHRASES — “other acquisitions in the statement period” — Duties Act 1997 (NSW), ss 155(1), 155(3) WORDS AND PHRASES — “particulars” — Duties Act 1997 (NSW), s 152(2)(d)

COSTS – Party/Party – exceptions to general rule that costs follow the event – where plaintiff ultimately successful on a single ground of review raised as a result of an amendment – whether appropriate to reduce amount of costs recoverable by plaintiff

CONTRACT — two-year $29 million loan for development site and construction of 50 apartments and commercial space — loan secured by mortgage and guarantees — interest rate of 6.10% p.a. reduced to 5.85% p.a. if developer achieves pre-sales target — interest increased by 10% p.a. if default in repayment of facility or interest increased by 5% p.a. for other defaults — loan not repaid when due – three years passes — loan and interest now stands at some $57 million — whether additional 10% p.a. default interest unenforceable as a penalty — principles at [3]-[14] — case law review at [65]-[70] — borrower was experienced property developer — evidence that default interest was to protect lender’s legitimate interest in ensuring internal rate of return of 20% promised to lender’s investors — default interest provision not out of all proportion to the lender’s interest sought to be protected. PLEADINGS — Commercial List — “Issues likely to arise” in Part B not pleaded in contentions in Part C — pleader fails to respond to request for clarification — deficient pleading — principles at [49]-[53] — party is bound by contentions in Part C — risk of injustice to proceed otherwise.

ANIMALS — companion animals — dogs — where respondent and her dog were attacked by appellant’s dog — where respondent sued under s 25 Companion Animals Act 1998 (NSW) — where circumstances of attack not in dispute — where primary judge gave judgment for respondent — where primary judge found respondent suffered both physical and psychiatric injury — whether primary judge erred in preferring opinion of one psychiatric expert over another — whether primary judge erred in approach to causation — whether evidence before primary judge did not support his Honour’s finding that respondent had suffered impairment of earning capacity — whether primary judge erred in assessment of damages — appeal dismissed

SUCCESSION — Family provision — Approval of release — Whether release is “fair and reasonable” under s 95(4)(c) of the Succession Act 2006 (NSW) — Evidence of value of assets and liabilities of deceased estate and relevant parties CIVIL PROCEDURE — Parties — Persons under legal incapacity — Application to adduce further evidence on appeal to support legal incapacity — Application refused CONTRACTS — Formation — Deeds — Whether deed was delivered in escrow — Whether primary judge erred in finding that deed was delivered in escrow when issue not raised in terms by the parties — Whether deed was incomplete — Intention to be bound by deed on condition that deed becomes effective only upon execution by other party — Mutual assent to be bound by terms of the deed

DEFAMATION – practice and procedure – interrogatories – connection between interrogatories and pleadings – need for temporal and physical bounds to interrogatories