Cases and authorities

LAND LAW – Public roads – dedication and acceptance prior to 1920 – acts of acceptance by the general public – alternative claim for access as a personal equity – whether the deposited plan showed an intention to dedicate land as a public road – whether acceptance by the general public is to be inferred – circumstances in which the court will make a declaration

COSTS — Party/Party — Court’s discretion – defendants fail to attend an appointed court annexed mediation without reasonable excuse – other party and her legal representatives inconvenienced by the defendants’ failure to attend and the Court’s limited resource of available mediation time is wasted – proceedings listed of the Court’s own motion for the defendants to show cause why they should not pay the plaintiff’s costs thrown away as a result of the wasted mediation time – discussion of litigants’ duty under Civil Procedure Act 2005, s 56(3) to participate in the processes of the court.

HIGH RISK OFFENDER – Interim Supervision Order – conditions – least intrusive conditions consistent with risk – what conditions are likely to be effective – interrelationship of conditions – convictions for threatening, violent and sexualised behaviour whilst on existing ESO – protection of the community paramount

EQUITY — Trusts and trustees — Express trusts — Constructive trusts — Common intention — Deceased, mother of the parties, solely owned residential property in Parramatta — Property transferred to defendant, her son, in 2006 — Limited contemporaneous evidence of facts and circumstances surrounding transfer — Defendant’s uncle occupied property for five years after transfer of property and paid rent to deceased — Deceased remained involved in management of property for approximately five years following transfer of property to defendant — Some evidence property was considered family asset — Defendant leased property out to third parties from 2012 — Plaintiff alleges defendant, deceased and deceased’s husband, father of the parties, had agreement or common intention that property would be transferred to defendant to hold on trust for deceased — No detrimental reliance pleaded — Whether defendant, deceased and deceased’s husband had common intention or reached agreement alleged by plaintiff — Consideration of whether trust founded on a common intention an express trust not in writing or a constructive trust — Consideration of the principle in Rochefoucauld v Boustead [1897] 1 Ch 196 where plaintiff alleges defendant’s reliance on s 23C of the Conveyancing Act 1919 (NSW) constitutes use of the Statute of Frauds as an instrument of equitable fraud SUCCESSION — Family provision — Claim by adult daughter of the deceased — Deceased left estate to plaintiff and defendant in equal shares — No updating affidavit evidence from plaintiff — Whether adequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — No issue of principle

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

CHILD WELFARE – adoption – whether adoption order is clearly preferable in best interests of the child – whether consent dispensation orders should be made against birth parents – whether declaration of parentage should be made – whether birth father should be included on the register of births, deaths and marriages – whether adoption plans should be registered – whether proposed name changes should be approved – adoption orders made

CONTRACTS – Unconscionable conduct – Statutory unconscionability – s 12CB of the Australian Securities and Investment Act 2001 (Cth) (ASIC Act) – Meaning of “financial service”, “financial product” and “credit facility” – attribution of knowledge under s 12GH(1) of the ASIC Act – whether conduct “unconscionable” within s12CB – in all the circumstances no unconscionability CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW), s 7 – Whether loan and mortgage contracts were unjust in the circumstances at the time made – contracts not unjust MORTGAGES AND SECURITIES – Real property mortgage to secure repayment of loan – Claim by mortgagee for possession of land following default by mortgagors – Whether mortgage liable to be set aside based on unconscionable conduct on the part of the mortgagee/lender or the mortgage contract being unjust within the Contracts Review Act 1980 (NSW) – Where no unconscionable conduct and mortgage not unjust – Judgment for possession – Leave to issue writ of possession EQUITY – Fiduciary duties – Fiduciary relationships – Solicitor and client – Conflict of duties – Where solicitor for acted for both borrower and lender without obtaining fully informed consent – Where breach of fiduciary duty admitted – Equitable compensation –whether principle in Brickenden v London Loan & Savings Co [1934] 3 DLR 465; [1934] UKPC 25 applicable – Causation of loss not established – Equitable compensation not ordered EQUITY – Fiduciary duties – Professional standards – Professional Standards Act 1994 (NSW) – application of Law Society of New South Wales Professional Standards Scheme – Whether “breach of trust” in s 5(1)(c) of the Professional Standards Act includes any breach of fiduciary duty – “Breach of trust” limited to where there is a formal trust relationship – “Damages” in s 5(1) of the Professional Standards Act includes equitable compensation

PROCEDURE – Suppression order – Variation of interim suppression orders made under s 10 Court Suppression and Non-publication Orders Act 2010 (NSW) – Scope and power to vary interim suppression orders – Where underlying issues of remediation are the same as in arbitration – Where evidence from same expert relied upon in arbitration and proceedings – Where public interest in confidentiality of commercial arbitration outweighed by public interest in open justice for some documents

COSTS – costs assessment – whether decision to extend time for filing of costs assessments should be set aside – where delay of nine months in filing applications for costs assessment – whether plaintiff has suffered prejudice as a result of the delay – whether plaintiff was denied natural justice

HIGH RISK OFFENDER — final hearing — serious sex offender — application for extended supervision order — where imposition of order not contested by defendant and conditions ultimately not contested — extended supervision order imposed

CRIME — appeal against sentence — application for leave to appeal — application for leave to file a notice of appeal out of time — where multiple sentences imposed by two judges — whether sentencing judge erred by characterising charges as “representative” charges — where sentencing judge did not so err — whether sentence manifestly excessive — where sentence imposed was not unreasonable or plainly unjust

SENTENCING – appeal against sentence – manslaughter – whether sentencing judge erred in application of Bugmy principles – whether sentencing judge erred in use of applicant’s prior offending – whether sentencing judge erred in considering the applicant’s post-offending conduct when assessing moral culpability – error established but no lesser sentence warranted on re-sentence – appeal dismissed

CRIME – Appeals – appeal against sentence – fraud – representative counts – where challenge to factual finding of sentencing judge – finding that applicant voluntarily desisted offending and ceased offending when employment terminated – fact relied upon in aggravation of objective seriousness of offending – whether “reasonably open” to make finding beyond reasonable doubt – material error – appeal allowed – applicant re-sentenced CRIME – Appeals – appeal against sentence – approach of Court of Criminal Appeal when issue raised for first time on appeal – generally bound by conduct of counsel in below proceedings – exception where issue operates unequivocally in applicant’s favour CRIME – Appeals – appeal against sentence – manifest excess – not necessary to determine

CRIME – appeals – appeal against sentence – importation of commercial quantity of border- controlled drug – reduced sentence for co-operation with law enforcement authorities – s 16A(2)(h) Crimes Act 1914 (Cth) – no error in not applying a discrete and identifiable discount – no error in failing to apply instinctive synthesis – leave refused

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where account of the offending is said to have a somewhat incredible quality and be implausible — where evidence is said to be inconsistent and/or uncorroborated — where jury found applicant not guilty of sexual intercourse but guilty of sexual touching — where complainant is under the age of 10 — where inconsistencies are peripheral and can be explained — where jury were well placed to assess the truthfulness and reliability of the evidence —ground dismissed CRIME — Appeals — Appeal against conviction — Miscarriage of justice — tendency evidence — where directions to the jury on tendency evidence were not in accordance with preferred approach in Director of Public Prosecutions v Roder — where three charged acts relied on as proof tendency — where requisite standard of proof not mentioned in the tendency direction — The King v AR [2026] HCA 10 applied — where there is real a risk of the jury being deflected from its fundamental task — leave granted — ground upheld — retrial ordered CRIME — Appeals — Appeal against conviction — Taking into account irrelevant consideration —whether trial judge erred in considering the jury’s verdict in making findings of guilt regarding related offences on s 166 certificate — whether reasons were sufficient — ground 3 need not be delt with given upholding of ground 2

CRIME – Appeal against sentence – Commonwealth offence – aid, abet, counsel or procure the commission of an attempt to possess a commercial quantity of an unlawfully imported border-controlled drug – where applicant contends sentencing judge failed to consider alternatives to full-time imprisonment – ground conceded to by respondent – steps to be undertaken in sentencing federal offenders – error established - resentence

CIVIL PROCEDURE — parties — removal and joinder of parties — dispute concerning termination of residential tenancy agreement and eviction — whether party was improperly or unnecessarily joined — where named defendant was not the landlord at the relevant time — defendant removed as party and proper party joined

CORPORATIONS — Voluntary administration — Deed of company arrangement — Application for leave to transfer shares pursuant to DOCA under s 444GA of the Corporations Act 2001 (Cth) and ancillary relief under s 447A of that Act for transfer of share options — Whether residual equity in company — Whether shareholders unfairly prejudiced — No question of principle

EQUITY — Trusts and trustees — Judicial advice — Plaintiff is executor of estate — Plaintiff seeks advice as to administration of estate EQUITY — Trusts and trustees — Constructive trusts — Common intention — Deceased’s son and de facto daughter in law purchased house for the deceased —Deceased executed enduring power of attorney appointing son and daughter in law as principals — Deceased executed new will shortly after purchase leaving estate to son and daughter in law— Deceased later denied beneficial ownership – Deceased executed new wills giving estate to different beneficiaries — Whether deceased, son and daughter in law had a common intention for property to return to son and daughter in law — Whether son and daughter in law suffered detriment through payment of purchase price of property — Whether payment of purchase price was in reliance on common intention – Whether unconscientious for estate to deny beneficial interest

APPEALS – application for leave to appeal from NSW Civil and Administrative Tribunal – where appeal limited to a question of law – discussion of necessity for proposed grounds of appeal to describe with specificity the question of law and error on which leave to appeal is sought BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranty – where Tribunal made money order for breach of statutory warranty – whether Appeal Panel’s judgment dismissing appeal was affected by error

CORPORATIONS – schemes of arrangement – application for orders approving schemes of arrangement – where statutory majorities in relation to each scheme were achieved – where the Court is satisfied there has been compliance with orders made for convening scheme meetings – where schemes are fair and reasonable – where Court is satisfied judicial advice is appropriate in relation to the trust scheme – orders made approving schemes of arrangement

BUILDING AND CONSTRUCTION — Contract — Implied terms — Statutory warranties — Design & Building Practitioners Act 2020 (NSW)

ADMINISTRATIVE LAW — jurisdictional error — judicial review of NSW Civil and Administrative Tribunal decision — whether plaintiff has standing to commence proceedings — standing established — whether extension of time should be granted —extension granted — whether jurisdictional error established — s 63 of the Administrative Decisions Review Act 1997 (NSW) — review of the Independent Liquor & Gaming Authority’s decision to refuse a packaged liquor licence under s 45 of the Liquor Act 2007 (NSW) — proper construction of s 31 of the Liquor Act — whether the premises constitute a take-away food shop under s 31(3) — jurisdictional error not established EVIDENCE — admissibility of evidence of changes after grant of challenged licence — evidence not relevant or admissible

CIVIL PROCEDURE – notices to produce – where plaintiff seeks costs thrown away by issue of the notice – where plaintiff foreshadowed application to set aside notice with costs unless notice withdrawn – where notice ultimately withdrawn – whether notice had legitimate forensic purpose

MORTGAGES – application for restraining order/injunction to stop mortgagee in possession selling property – substantial sum owed under mortgage – writ of possession executed in August 2025 – no repayments at all made to the mortgage for over 12 months – application refused – Summons dismissed

CORPORATIONS – voluntary administration – validity of appointment of administrators –appointment made at meeting of directors – whether appointment invalid by reason of non‑compliance with notice requirements – declaratory relief under s 447C refused – where company insolvent or likely to become insolvent – discretion to validate defective appointment – curative relief under s 447A granted

CHILD WELFARE — Adoption — where proposed adoptive parent is a single parent and the child’s current foster parent — whether adoption order is in the child’s best interests — whether birth parents’ consent should be dispensed with — whether change of name should be approved — whether adoption plans are in the best interests of the child and proper in the circumstances — HELD — adoption order is clearly preferable and in the child’s best interests — consent dispense order is in the best interests of the child — change of name approved — adoption plans are in the best interests of the child and proper in the circumstances — maternal adoption plan registered

COSTS – Party/Party – Orders made – no issue of principle. CONTRACTS – Remedies – Declarations – whether utility in granting declaratory relief.

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – Adjudication – whether adjudication was affected by jurisdictional error – whether the adjudicator failed to consider the payment claim and submissions duly made in support of the claim – whether the claimant was required to, and did, assert an entitlement under the relevant construction contract – whether the adjudicator fell into jurisdictional error in concluding that the payment claim was validly made under the Act

EQUITY — family home purchased in daughter’s sole name — purchase funds derived from borrowings and disputed family contributions — whether daughter held the property on express trust, common intention constructive trust or purchase money resulting trust — alleged oral family agreement made more than 30 years earlier — whether intention to create trust established — absence of contemporaneous records — whether pooled family funds financed the acquisition of the property — de facto relationships — whether divorced couple living together were in a de facto relationship

CIVIL PROCEDURE – capacity of a beneficiary under the deceased’s will to bring the claim in their own name to protect their interest in a deceased estate – where the executor of the estate is also a defendant – HELD – beneficiaries have standing to bring the proceedings against the executor in her personal capacity EQUITY – trusts and trustees – presumption of resulting trusts – where the defendant and the deceased were in a de facto relationship – operation of the presumption of advancement – HELD – presumption of resulting trust not rebutted by any presumption of advancement EQUITY – trusts and trustees – constructive trust – common intention constructive trust – where the deceased contributed to the development of the defendants’ property – where the deceased’s contributions made to his detriment on the basis of the common intention – HELD – there was common intention that the deceased would hold an interest in the defendants’ property and it is unconscionable to deny it EQUITY – trusts and trustees – constructive trust – joint endeavour constructive trust – where the deceased and the defendant were engaged in a joint endeavour for the development of the defendants’ property – HELD – unconscionable for the defendants to retain the benefit of the deceased’s contributions to the joint endeavour EQUITY – remedies – crafting relief in order to do equity – HELD – defendants hold the deceased’s interest in the property on trust for the deceased’s estate – defendant allowed to reside at the property for the remainder of her life or until the property is sold EQUITY – unconscionable conduct – special disability or disadvantage – whether unconscientious advantage taken – where the deceased had limited ability to manage his own finances and was reliant on the first defendant – HELD – unconscionable conduct in transferring $1 million from the deceased’s bank account in order to improve the defendants’ property for no benefit to the deceased

EQUITY — unconscionable conduct — guarantees and mortgages — where elderly parents guaranteed son’s business debts — alleged representation that liability under guarantee was limited — whether representation made despite inconsistency with contemporaneous evidence — Garcia principle — whether applicable beyond husband and wife — volunteers — whether guarantors volunteers — whether guarantors received ‘real benefit’ — discretionary trust beneficiaries — whether guarantee enforceable in full or limited amount — moulding of equitable relief

APPEALS — Leave to appeal — appeal brought out of time — extension of time granted — application for leave to appeal from a decision that the Council did not owe and did not breach the duty of care alleged — issues of principle — leave to appeal granted NEGLIGENCE — Personal injury — pedestrian tripped against a “raised lip” on concrete footpath in early morning light — internal Council policy for the assessment and maintenance of footpaths — whether Council owed a duty of care to respond to the 23mm height differential — whether the “raised lip” was an obvious risk — contributory negligence — onus of proof for contributory negligence and obviousness of risk NEGLIGENCE — Damages — personal injury damages — alleged errors in assessment of quantum — discount for vicissitudes — no error shown in evaluation of respective heads of damage — minor arithmetical error

APPEALS — expert evidence — Class 4 proceedings in the Land and Environment Court — challenge to approval of development of sports complex at Fred Caterson Reserve — asserted failure to consider environmental impact of light spill on vulnerable owl species including Powerful Owls — where primary judge refused leave for the appellant to rely on evidence from an owl biologist — whether evidence relevant to issues to be determined by the Court

PRACTICE AND PROCEDURE — leave to appeal — interlocutory decision — leave sought to appeal against dismissal of applicant’s amended statement of claim in District Court proceedings with leave to re-plead certain claims — leave sought to cross-appeal against grant of leave to re-plead claim against the Director of Public Prosecutions — no question of principle — no demonstrated injustice

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

CIVIL PROCEDURE – stay of proceedings – where six-month stay requested by plaintiff’s solicitors – where plaintiff has not communicated with solicitors for nearly six months – whether stay consistent with case management principles and overriding purpose CIVIL PROCEDURE – summary disposal – dismissal of proceedings – want of due despatch – where plaintiff has brought claim for institutional sexual abuse – where plaintiff has failed to prosecute claim – no question of principle

CHILDREN - care and protection – allocation of parental responsibility – permanency planning – Children and Young Persons (Care and Protection) Act 1998 (“Care Act”) – appeal from a decision of a Presidential Children’s Court – four children of a separated couple are assumed into care in June 2022 – care orders made in August 2022 that the children were in need of care and protection under Care Act s 71(1)(a),(b) and (c) on the grounds that both parents were involved in physical abuse or ill-treatment of the children, threatened serious psychological harm to them and were not meeting their psychological needs – orders made by a Presidential Children’s Court in October 2023 allocating parental responsibility between the mother and the Minister for the two older children and in May 2024 orders were made allocating parental responsibility for the two younger children to the mother to the exclusion of the father – father appeals against all findings and conclusions of the Children’s Court – by the time of the appeal hearing the eldest child is 18 and outside the jurisdiction of the Children’s Court under the Care Act – whether the three children are in need of care and protection within Care Act s 72 – whether there is a realistic possibility of the three children being restored to the father within a reasonable period within Care Act s 83 – what orders should be made or continued under Care Act s 79 in relation to the parental responsibility of the children – whether prohibition orders made under Care Act s 90 in relation to the father should be varied.

CONTEMPT — Civil contempt — Breach of orders — Clarity of terms — Proper construction of consent order – Meaning of the words “pending the hearing of this matter” — Ambiguity — Whether consent order was ambiguous

JUDGMENT AND ORDERS – orders sought under r 36.16 of the Uniform Civil Procedure Rules – notice of motion filed within 14 days (r 36.16(3A)) but no affidavit in support filed – two and a half months delay serving the notice of motion – failure to identify any basis for order(s) sought to be varied or set aside – solicitor/plaintiff absented self from hearing after adjournment refused – other participants present and ready to argue the motion – Court proceeded to hear the motion in the absence of the plaintiff

PRACTICE AND PROCEDURE – application to vacate hearing of notice of motion filed 1 December 2025 – application has potential to cause delay in proceedings – evidence inadequate to explain why the matter was not prepared in accordance with the directions made – application refused

COSTS – costs of directions hearings seeking extensions of time for evidence – whether plaintiff should be ordered to pay those costs in a fixed sum within 14 days – fixed sum less than the amount recoverable on assessment – consequence of plaintiff’s delay, coupled with her non-payment of mortgage repayments that bank had commenced possession proceedings – order made

CORPORATIONS – where company has been deregistered – application for reinstatement – where reinstatement is sought for the limited purpose of pursuing workers compensation proceedings in the Dust Diseases Tribunal – where application is brought under Companies Act 1961 (NSW) (repealed) – whether plaintiff has accrued rights to seek relief under s 307 or s 308 – meaning of a person “interested” – whether material distinction between a person aggrieved and a person who feels aggrieved – no right to seek relief under s 307 – accrued rights to seek relief under s 308 – extension of time granted under s 366(4) of the Companies Act – company wound up under s 461(1)(k) of the Corporations Act 2001 (Cth) – ancillary orders made

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Whether Court should otherwise order — No issue of principle

INCOME TAX – Summary judgment – Shortfall interest charge – Administrative penalties

APPEALS — leave to appeal — whether leave required — leave not sought — appeal from Local Court — s 40 of the Local Court Act 2007 (NSW) — whether s 54 of the Civil Liability Act 2002 (NSW) applies — whether alleged offence under Workers Compensation Act 1987 (NSW) committed — issue not raised at first instance — whether issue involves a question of mixed law and fact — whether issue depends on factual findings which cannot be made on appeal — leave required not sought and would not be granted APPEALS — whether Part 1A of the Civil Liability Act 2002 (NSW) ought to have been applied — whether new legal issue can justly be raised on appeal — appeal dismissed

SEPARATE QUESTIONS — parent company guarantees builder’s performance of construction contract — builder completes construction in stages from 2014 to 2015 — builder and developer sued in eight sets of proceedings for $180 million damages in respect of building defects — these proceedings commenced to enforce guarantee in the event that the builder is found to be liable for building defects in those eight proceedings — parent seeks separate question akin to demurrer to determine whether guarantee is enforceable given limitation arguments — difference between demurrer and separate questions — principles at [4]-[12] — separate question likely to be hotly contested and judgment appealed — these proceedings may not need to be determined at all depending on outcome of eight building defects proceedings — questions of mixed fact and law — lay evidence and discovery likely — limitation defences should only be decided in advance of trial in the clearest of cases, of which this was not one — case management considerations, where separate question would divert time and resources from eight building defect proceedings — application dismissed.

PROCEDURE – application for pro bono referral – impecunious but articulate applicant – relatively straightforward appeal – trial including cross-examination conducted by litigant in person – the fact that applicant would be advantaged by pro bono assistance insufficient – application refused

COMMERCE — Competition and Consumer Act 2010 (Cth), Pt IIIA — Declared service —Construction of access determination — Nature and extent of extrinsic material to be taken into account — Whether appellant able to take advantage of determined wharfage charge without being liable to pay determined navigation service charge

APPEAL — leave to appeal – alleged procedural unfairness resulting from difficulties in transmission created when applicants’ legal representative appeared by AVL at hearing of respondent’s motion for leave to amend statement of claim — subsequent application for recusal on basis of apprehended and actual bias refused — no issue of principle, question of public importance or reasonably clear injustice going beyond the merely arguable — leave refused