Cases and authorities

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – Adjudication – Application for interlocutory injunction – where usual practice is to condition the grant of interlocutory relief on payment of the adjudicated amount into Court – where Plaintiff asserts that it is not reasonably able to pay the adjudicated amount into Court and proposes alternative form of security – where Plaintiff asserts that it has paid the Defendant an amount greater than the Adjudicator determined, such that the Defendant has already been paid for the works – whether Court should depart from usual practice – whether proceeding should be stayed pending payment into Court

HIGH RISK OFFENDER – preliminary hearing – serious sexual offences – existing extended supervision order due to expire – application for interim supervision order – where defendant did not appear – whether the Court can determine the matter in the defendant’s absence – where defendant had due notice of the proceedings – where the defendant expressed an intention not to participate – significant and complex mental health conditions – lack of insight into the relationship between defendant’s mental health and risk of reoffending – defendant has not engaged with treatment or interventions during period of existing supervision order – well above average risk of reoffending – orders made

ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional fact – whether existence of a registered interest in land in a jurisdictional fact – whether a registered planning agreement is a legal interest in land

TORT – Nuisance – land sloping down from Defendant’s land to Plaintiff’s land – retaining wall on the Plaintiff’s land – whether Defendant has interfered with the Plaintiff’s use of its land – whether there has been a nuisance – circumstances in which the Court will grant a quia timet injunction

NEGLIGENCE – historical sexual abuse – where plaintiff alleges abuse by teachers at a school – non-delegable duty – approach to fact finding

CIVIL PROCEDURE – motion to dismiss proceedings commenced in defiance of regime established by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether dismissal is mandatory or discretionary – relevant factors in exercise of discretion to dismiss

CRIME – sentence – murder – sentencing following verdict of guilty – fact finding where jury has rejected self-defence, excessive self-defence and extreme provocation – offender’s history of mental and physical illness – childhood deprivation – finding of special circumstances

COSTS – application for costs in absence of determination of claim on the merits – where both parties seek legal costs associated with an application for preliminary discovery

CRIMINAL PROCEDURE – suppression and non-publication orders – grounds – orders made

CIVIL PROCEDURE – Jurisdiction – Transfers to and from other courts – District and Local Courts – application to transfer proceedings from District to Supreme Court – whether the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit – whether public interest requires transfer to Supreme Court – application refused.

COSTS – Application for indemnity costs – Application for gross sum costs – whether gross sum costs order is suitable – where plaintiff identifies asserted grounds for appeal – where plaintiff argues defendant enjoyed only mixed success. JUDGMENTS AND ORDERS – Amending, varying and setting aside – application to stay or extend time for compliance with orders – whether the interests of justice require a stay of orders the subject of an appeal – application refused.

CORPORATIONS – winding up – failure to comply with creditor’s statutory demand – presumption of insolvency – application to adjourn under Corporations Act 2001 (Cth) s 440A(2) – whether adjournment in creditors’ interest

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Consent orders — Where interlocutory in nature — Whether based on contract between the parties — Whether exceptional circumstances or material in circumstances present sufficient to nonetheless permit variation

COSTS — party/party — general rule that costs follow the event — where application to set aside statutory demand did not proceed – where no determination of proceedings on the merits

DEFAMATION – practice and procedure – whether document a concerns notice – commencement of proceedings before applicable period to make amends has lapsed – whether leave should be granted

EQUITY — Trusts and trustees — judicial advice — Trustee Act 1925 (NSW), s 63 — no issue of principle

EQUITY – Equitable remedies – injunctions – where the plaintiffs seek leave to proceed pursuant to UCPR r 11.8AA – where plaintiffs seek injunctions by way of default judgment against persons whose identities are unknown, but who are defined in the statement of claim by reference to specified past conduct and/or communications with sufficient clarity that the injunctions do not operate against the world at large

COSTS — indemnity costs — Calderbank offers — whether refusal of offers unreasonable — first offer involving purchase of land — second offer “walk away” offer — third offer incapable of acceptance absent concurrence of co-defendant — unsustainable allegation lacking evidence — indemnity costs ordered

COSTS – Security for costs – where plaintiff resident in and has assets in the United Kingdom – where plaintiff has no assets in Australia – where reciprocal arrangement between Australia and the United Kingdom for the enforcement of foreign judgments – where risk that it will be a long, complex and costly process for the defendants to register and enforce in the United Kingdom any costs judgment against the plaintiff in these proceedings, having regard to plaintiff’s conduct in relation to such matters in earlier proceedings between the same parties – where an order for security for costs would not stultify the proceedings – plaintiff to ordered to pay security for the defendants’ costs

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — no reasonable cause of action disclosed — where proper defendant not a party to proceedings — where relief sought has been superseded by subsequent events

TORTS – Trespass – damages – electricity poles and power lines on plaintiffs’ land – statutory authority – Electricity Supply Act 1995 (NSW) – network operator – statutory bar to action COSTS – offer of compromise – indemnity costs – compliance with UCPR

COSTS — Indemnity costs — Whether genuine offers of compromise made — Whether reasonable not to accept offers

CIVIL PROCEDURE – application for appointment of tutor – whether appellant under legal incapacity – where insufficient evidence – no appointment of tutor made

EQUITY — defences — laches — whether claim to rectification of share register barred by laches — disadvantage or prejudice suffered — no link between prejudice and delay EVIDENCE — rejection of affidavit evidence — whether evidence purporting to be in support of laches defence outside pleadings following abandonment of estoppel argument – no error of principle PROCEDURE – no error of principle, matter of public importance or reasonably clear injustice going beyond something that is merely arguable – refusal of leave to appeal

LOANS — account — appeal — quantum of amount owing by son to mother for unpaid loans — erroneous apprehension about the significance of a figure contained in a schedule of payments — requirement to review evidence of the loans and make findings of fact pursuant to power in s 75A of the Supreme Court Act 1970 (NSW) LIMITATION OF ACTIONS — debt — requirement that defence under the Limitation Act 1969 (NSW) be pleaded

DEFAMATION – practice and procedure – pleadings – whether pleaded imputations are substantially the same as those particularised in concerns notice

AGENCY — Duties of agent to principal — Fiduciary duties — Breach of — Where plaintiff company operates a vineyard — Where sole director (Director) of plaintiff is associated with a winery business — Where second defendant is a debt broker — Where Director caused plaintiff to take out a loan with the assistance of second defendant — Where first advance of loan monies was disbursed partly to Director and surplus funds were disbursed to first defendant — Where second defendant says that surplus funds were disbursed to first defendant in order to fund an investment in cryptocurrency — Where Director says that he was totally unaware that surplus funds were being disbursed to first defendant — Whether second defendant was an agent for plaintiff in the loan transaction — Whether second defendant owed fiduciary duties to the plaintiff — Whether second defendant breached fiduciary duties as agent by failing to inform Director about surplus funds being paid to first defendant RESTITUTION — Mistake — Restitution of money paid — Whether plaintiff has a claim in money had and received to the use of the plaintiff in respect of the payment of surplus funds to the first defendant —Whether payment of surplus funds was made by mistake as to who the funds were being paid to

CRIME – Sentence – murder – shooting the deceased multiple times – disputed fact – whether the offender participated in the burning of the body – whether this participation in the burning of the body informed the objective seriousness of the murder – absence of remorse – deprived and disadvantaged background reducing moral culpability – countervailing factors that require increased weight to the protection of the community – brutal killing requiring a lengthy period of imprisonment

CRIMINAL APPEAL – ground that guilty verdict unreasonable – application of authorities – where jury acquitted on two counts relating to different complainant – no inconsistency – independent examination of evidence adduced at trial – consideration of attack on credibility of complainant – myths and preconceptions – consideration of jury’s advantage – emotionally charged trial court – where complainant calls defence counsel a [expletive deleted] – impact on credibility – evaluation better made by jury familiar with atmosphere of courtroom and tone of cross-examination – eight matters of concern raised by appellant – whether matters amount to inadequacies raising reasonable doubt of appellant’s guilt CRIMINAL PROCEDURE – where complainant identifies as male – respectful use of preferred pronouns – counsel’s use of term “young lady” – unfortunate cross-examination and address – complainant’s crude response to counsel appeared to be understandable

DETENTION APPLICATION – Bail Act 2013 s 22B – limitation regarding bail during period following conviction and before sentencing – where offender found guilty of manslaughter following a jury trial – realistic inevitably of a full-time custodial sentence beyond time already served – short period in custody following arrest – where offender relies on stringent bail conditions as a form of quasi custody – where presiding judge was the trial judge and will be the sentencing judge – preference not to express view on inevitability of full-time custodial sentence – whether special and exceptional circumstances exist

CORPORATIONS – application for an interim stay – where judgment delivered and pending appeal in related proceedings – where plaintiff in this proceeding is seeking to benefit from issue estoppels arising from related judgment – whether ends of justice require a stay – where costs orders can ameliorate potential wastage of time and expense in this proceeding – where prospect of this proceeding being determined before appeal is remote – no real risk of inconsistent findings – where there is no need to assess the merits of the appeal – where appeal not pursued promptly – ends of justice do not require a stay – application dismissed with costs

CIVIL PROCEDURE – Defendant’s motion for summary dismissal – Civil Procedure Act 2005, s 61(3) – repeated default by Plaintiff of Court Orders - Uniform Civil Procedure Rules 2005, r 12.7 – Plaintiff’s failure to prosecute proceedings with due dispatch – whether proceedings should be dismissed with costs.

APPEALS — procedure — stay pending appeal — procedural fairness — where NCAT made orders for possession and termination of plaintiff’s tenancy — where plaintiff did not receive documents prior to NCAT hearing — where balance of convenience favours plaintiff

COMMERCIAL ARBITRATION – Recognition and enforcement of awards – Grounds for refusal – whether the defendant agreed to arbitrate – whether award deals with dispute beyond the scope of agreement to arbitrate – whether procedural irregularity or unfairness discerned – whether enforcement contrary to public policy – no reason to resist enforcement. COMMERCIAL ARBITRATION – Recognition and enforcement of awards – Grounds for refusal – whether defendant unable to present case – whether defendant denied procedural fairness in arbitral proceedings – where defendant was notified of arbitral proceedings and actively participated – where defendant did not request oral hearing under arbitral rules – where defendant was notified of replacement of tribunal Chair but did not advance an objection – no real practical injustice. COMMERCIAL ARBITRATION – Recognition and enforcement of awards – Grounds for refusal – whether award is contrary to public policy – whether alleged misleading conduct undermines the arbitral award – doctrine of separability – alleged illegality did not infect or impeach the arbitration agreement itself. COMMERCIAL ARBITRATION – Recognition and enforcement of awards – Grounds for refusal – whether award contains decisions on matters beyond the scope of the submission to arbitration – whether dispute involved rights arising under separate but related agreement – whether separate agreement includes an agreement to arbitrate – where award based on contractual promise arising out of primary contract containing the arbitration agreement – submissions relating to separate but closely related agreement remain within scope of submission to arbitration. CIVIL PROCEDURE – Leave to adduce further evidence and submissions – leave sought to rely on further evidence to be tendered after final hearing – new arguments sought to be raised by written submissions after final hearing – where written submissions raised six new arguments not advanced at oral hearing – whether new arguments meritorious – where additional leave sought to file or serve further evidence – interests of justice do not warrant grant of leave to rely on further evidence and submissions.

LAND LAW – co-ownership – statutory trust for sale – application under s 66G of the Conveyancing Act 1919 (NSW) – whether basis to refuse to make order – quasi-proprietary rights – undercutting a statutory remedy – orders made for appointment of trustees

COSTS – gross sum costs order – where there is a risk that the cost assessment process could lead to satellite litigation and increased time and costs

CIVIL PROCEDURE – requirement of leave – monetary threshold not shown to be satisfied – reasonable and fair although to advise appellant of requirement to seek leave

APPEAL — Application for leave to appeal — Appeal from Supreme Court — No question of general principle — No question of public importance — Where amount in issue less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)

EQUITY — trusts and trustees — breaches of trust — discretionary family trust — where primary judge found the trustee breached its duties by making unauthorised distributions to non-beneficiaries — where primary judge relieved the trustee from liability pursuant to s 85 of the Trustee Act 1925 (NSW) on the basis that it had acted honestly and reasonably — whether the primary judge erred in his discretion in refusing to order an account or for restoration of the unauthorised distributions LIMITATION OF ACTIONS — breach of trust — account — where limitation period has expired — effect of s 48 of the Limitation Act 1969 (NSW) on a claim for an account or order for restoration based on alleged breach of trust — where s 68A of the Limitation Act provides for an extinction of title where limitation period applies RELIEF — where breach of trust established — whether order for restoration of the trust property ought be made or whether declaratory relief sufficient TRIAL — party bound by conduct of proceedings — ought not be permitted to challenge in separate proceedings for an account matters which have already been litigated in contested proceedings where all material evidence before the primary judge RELIEF — when an account will be ordered — no utility in ordering an account where the amounts distributed in breach of trust have already been quantified following contested proceedings

COSTS – Gross sum costs orders

AGENCY — enduring power of attorney — effectiveness of — whether certificate under s 19(1)(c) of Powers of Attorney Act 2003 (NSW) must be given contemporaneously with execution of enduring power of attorney by principal — whether instrument can be construed or rectified to include omitted statement required by s 19(1)(c)(iv)

EQUITY ­­­­­­­­­­— Trusts and trustees — Trustee Act 1925 (NSW) s 86A — where a trust deed (the Deed) is executed but undated — where the trust is named on the front cover of the Deed but not in the Deed itself — where the Deed makes provision for the appointment of an Appointor but does not appoint one — HELD — declarations made that the Deed was executed on a certain date and that it was intended that the trust created was to, and does, have the name specified on the front cover of the Deed — approval given to an arrangement whereby one of the primary beneficiaries under the Deed is appointed as Appointor — notice to be given to the secondary beneficiary with leave to apply

COSTS – Party/Party – Application for indemnity costs on basis of Calderbank offers – whether offers involved a genuine element of compromise – whether rejection of offer was unreasonable

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, agree to proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied CORPORATIONS – judicial advice sought under s 63 of the Trustee Act 1925 (NSW) and corresponding provisions by responsible entity – whether to convene meetings of unitholders – whether responsible entity would be justified in treating consequential constitution amendments as within power.

CONTRACT — Formation — Intention to contract — Where Council invited legal practice to tender to be appointed to panel — Whether after accepting tender proposals Council entered into separate costs agreements — Whether any “uplift” or “deferred” fee agreement reached orally or by conduct by Council employees FIDUCIARY DUTIES — Breach of fiduciary duties — Where legal practice received money on trust for Council – Whether legal practice entitled to distribute money where no authorisation from Council — Whether Council entitled to have trust fund reconstituted – Whether Council entitled to equitable compensation from those who knowingly received trust money RESTITUTION — Whether Council paid higher rates than contract rates by mistake — Whether Council paid for work not done by mistake - Whether Council entitled to restitution for payments CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters — Whether reasonable grounds for making representations — Whether Council suffered loss or damage “because of” representations — Quantum

EQUITY – Equitable remedies – injunctions – where the plaintiffs seek leave to proceed pursuant to UCPR r 11.8AA – where plaintiffs seek injunctions by way of default judgment against persons whose identities are unknown, but who are defined in the statement of claim by reference to specified past conduct and/or communications with sufficient clarity that the injunctions do not operate against the world at large

PRACTICE AND PROCEDURE — costs — security for costs — appeal — relevant factors — need for special circumstances — impecuniosity — where appellant has strong ties to the United Kingdom and the expectation of inheritance — whether appellant has established that an order for security will stultify proceedings — relevance of disparity between limited role played by appellant in the Court below and ambit of the appeal

CRIME – appeals – appeal against sentence – four counts of drug supply offences – one count of acquiring firearms contrary to a firearms prohibition order – whether sentencing judge erred in assessment of objective seriousness of sequence 12 – whether scalar classification of objective seriousness is necessary – whether it was reasonably open to the sentencing judge to place the offence at the “mid-range” of objective seriousness – appeal dismissed

CRIME — appeals — appeal against conviction — jury returned guilty verdict of aggravated indecent assault contrary to Crimes Act 1900 (NSW), s 61M(2) — not guilty verdicts returned on two counts alleging earlier alleged assaults of same complainant — whether verdict unreasonable by reason of inconsistency — verdicts reconcilable having regard to qualities of evidence and timing and circumstances of alleged offences — reliability distinct from credibility — open to jury to consider complainant’s recollection of more recent offending more reliable — added weight placed on passage of time where earlier alleged offending occurred when complainant was a young child — whether a miscarriage of justice arose — no error in directions of trial judge — no material irregularity from defence counsel’s forensic decisions to consent to admission of evidence of complainant’s sister in statement form and to not address in closing — no miscarriage of justice

APPEALS — Nature of appeal — necessity to show error for both appeals stricto sensu and by way of rehearing — correctness and House v The King standards of review — need to identify error does not determine standard of review — whether House v The King standard can apply differentially in different contexts CRIME — Appeals — Appeal against sentence —standard of review for findings of fact in sentence appeals — discretionary judgments involved in fact-finding during sentencing — distinctive aspects of fact finding in sentencing — House v The King requires asking whether a finding of fact reasonably open in sentencing appeals under ss 5 and 6 of the Criminal Appeal Act 1912 (NSW) — variable significance of “reasonably open” test based on evaluative character of finding and advantages held by trial judge CRIME — Appeals — Appeal against sentence — whether finding that applicant intended to kill deceased reasonably open — whether sentencing judge gave adequate reasons for finding — resentence of applicant SENTENCING — Relevant factors on sentence — objective seriousness — excessive self-defence — whether anterior conduct relevant to objective seriousness