Cases and authorities

COSTS – offer of compromise -unreasonable non-acceptance – solicitor not able to advise – result due to matters known to plaintiff COSTS – severable issues – plaintiff won but not on all issues – reduction in plaintiff’s costs

COSTS — plaintiffs seek $4M in damages but awarded only $285,000 — parties’ total legal costs exceed amount in issue — whether plaintiffs or defendant entitled to costs — who won — defendant successfully defended substantial claim — plaintiffs to pay defendant’s costs — plaintiffs to pay defendant’s costs of cross-claim against the party more likely to have been responsible. COSTS — Uniform Civil Procedure Rules 2005 (NSW), r 42.34 — plaintiffs awarded less than threshold amount — principles at [34]-[38], [40] —commencement and continuation of proceedings in Supreme Court “warranted” — rule did not apply to cross-claim. CALDERBANK OFFER — whether non-acceptance unreasonable — principles at [52]-[55] — refusal not unreasonable where offer could be considered too low in the circumstances. BULLOCK OR SANDERSON ORDERS — plaintiffs sued their builder but not their architect — reasonable for builder to sue architect on cross-claim — not necessary to determine cross-claim given builder’s successful defence — solvency issues raised — principles at [66], [68]-[70] — Sanderson order appropriate to “spread the hardship”.

CONTRACTS — Construction — Interpretation – breach – plaintiff operates a funds transmission business to and from overseas destinations – in January 2021 the first defendant operated a travel agency in the suburb of Lakemba under the direction of its principal, the second defendant – the plaintiff engaged in transit operators to collect cash from the first defendant’s travel agency – cash was not collected in December 2020 and accumulated on-site – arrangements made for cash to be collected from the first defendant one morning in January 2021 – but the cash was collected by an unknown bad actor – whether under the contractual arrangements between the plaintiff and the first defendant is liable to compensate the plaintiff for the loss of the stolen cash – whether the second defendant is liable to guarantee the first defendant’s contractual obligations to the plaintiff. EQUITY — Trusts and trustees — Bare trusts – whether, before its collection, the first defendant held the cash awaiting collection on bare trust for the plaintiff – whether the delivery of the cash to the unknown actor was a breach of trust – whether the first defendant should be excused for any honest and reasonable breach of trust. GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability – whether on the true construction of the contract of guarantee between the second defendant and the plaintiff that the second defendant has a secondary liability to the plaintiff for any unsatisfied liabilities of the first defendant to the plaintiff.

COSTS — gross sum costs order — where sufficient information before the Court to enable the assessment of a gross sum costs order — no issue of principle — gross sum costs order made

CRIME – murder – jury trial – whether accused is entitled to rely on partial defence of extreme provocation - accused's evidentiary onus - where dispute as to the conduct the act causing death was in response – matter for jury

CRIME – murder – jury trial EVIDENCE – character evidence – Evidence Act s 110 – admissibility – would the evidence, if otherwise admissible, be available as evidence in rebuttal – evidence proposed to be led is that the accused has no convictions – Local Court acquittal - incontrovertibility – probative value of evidence – danger of unfair prejudice – reasons for advanced ruling

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

PROFESSIONAL RELATIONSHIPS — Defendant in August 2022 commenced work at the practice of the first plaintiff, a legal firm of which the second plaintiff is the principal and eventually was employed in or about December 2024 which employment was terminated in January 2025 — The parties are at odds regarding the reasons for termination of employment — Each commenced separate proceedings, the plaintiffs in this Court seeking various equitable relief in part based on alleged obligations of confidentiality and the defendant (as applicant) in the Federal Circuit and Family Court of Australia (Division 2) (Division 2 Court) seeking relief under the Fair Work Act 2009 (Cth) — Both proceedings have been on foot for approximately a year without the other party filing respectively a defence/response — Defendant brings motion regarding pleading issue — Held ‘real issue’ case management required a more pressing priority (than pleadings) be addressed, namely the fragmentation of proceedings CASE MANAGEMENT — Active case management — Focus of parties on pleading issues yet failure of the parties to address a more fundamental issue of fragmented litigation — The Court is not a silent or idle participant in the effective case management — Progression of proceedings is actively overseen by the Court and not merely or predominantly left to forensic decisions of the parties — Power of Court to intervene where parties fail to engage with one another regarding the conduct of litigation and direct steps to facilitate parties to confront and address real issues previously ignored by them — Held parties directed to co-operate to address the question of fragmented litigation in different courts and orders made for parties to report to the Court regarding this LEGAL PRACTITIONERS — Obligations of practitioners facilitating the overriding civil litigation purpose JURISDICTION — Jurisdiction of Supreme Court — Court has no jurisdiction to determine any claims of alleged breaches of s 340(1) of the Fair Work Act, including claims for compensation JURISDICTION — Jurisdiction of Division 2 Court CROSS-VESTING — There are no statutory provisions permitting conferral of jurisdiction on the Supreme Court of the Division 2 Court’s jurisdiction, nor for transfer of proceedings from this Court to the Division 2 Court directly WORDS & PHRASES — Proper understanding of the inapt term ‘accrued jurisdiction’ WORDS & PHRASES — ‘associated jurisdiction’, ‘matter’

EVIDENCE — privilege — whether defendants have established their claim of legal professional privilege over thousands of documents — where reviewing all the documents would be an extremely expensive and impractical task — claim rejected subject to undertaking by plaintiff

CIVIL PROCEDURE – application by Plaintiff to reopen a trial in which the primary judge found (on the Defendant’s cross-claim) that the Plaintiff holds certain real property on constructive trust for the Defendant and where the Plaintiff appealed the outcome and the appeal was dismissed – where grounds for application are: (a) the primary judge found a constructive trust whereas the case had been brought and fought by the Plaintiff on an estoppel basis; (b) the trial judge proceeded on an assurance that the Defendant would operate the properties as a farm, which assurance was false; (c) the trial judge declined to take into account circumstances concerning the Defendant’s financial resources which made it unlikely that the Plaintiff would have made the promises which founded the primary judge’s finding of constructive trust; (d) the primary judgment is infected with the Defendant’s fraud because he gave evidence about his financial circumstances which was not true, failed to reveal relevant financial information and false evidence was given by other witnesses – where Plaintiff has lodged a caveat on the properties inhibiting the Defendant from dealing with them – HELD – none of these grounds are made out and in any event there is no basis for concluding that there is any prospect that the ultimate outcome of the hearing would be any different – application dismissed – orders that the caveat be discharged and the Plaintiff not lodge any further caveats on the properties without leave of the Court

COSTS – party/party – general rule that costs follow the event – application of the rule where no determination on the merits – no order as to costs of hearing

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, to agree to proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied

CIVIL PROCEDURE — application for stay — appeal proceedings in NCAT to be heard in April —condition imposed upon stay

PROTECTIVE JURISDICTION — Litigant in person — Person incapable of managing affairs — Where second defendant has made repeated assurances as to intention to obtain legal representation — Where second defendant has repeatedly failed to attend Court-ordered independent medical assessment of capacity — Whether NSW Trustee and Guardian should be appointed as protected estate manager and tutor

SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for removal — Plaintiff purportedly signed power of attorney appointing defendant her attorney for the purposes of seeking letters of administration in relation to a deceased estate and administering the estate thereafter — Letter sent by plaintiff’s solicitors to defendant’s solicitors indicating plaintiff was revoking defendant’s appointment as attorney — Whether basis for grant of letters of administration has fallen away — Few or no steps taken in the administration of the estate — Where defendant has indicated an unwillingness to remain as administrator — Whether it is in the interests of the due administration of the deceased’s estate for the defendant to be removed as administrator

CORPORATIONS – Australian Securities and Investments Commission – where Defendant engaged in short selling – where Defendant’s reports to market operator regarding short sales included inaccurate data – where orders submitted to market operator omitted certain required regulatory data – where errors and omissions were due to inadequacies in Defendant’s systems, processes and controls – where issues were remediated following identification – where Defendant admitted contraventions of ss 798H(1)(b), 912A(1)(h) and 1041H(1) of the Corporations Act – where parties prepared a statement of agreed facts and jointly proposed declarations of contravention, a pecuniary penalty and a compliance program – whether declaratory relief should be granted – whether proposed pecuniary penalty is an appropriate penalty – whether compliance program should be ordered

CIVIL PROCEDURE — leave sought to amend originating process — where draft amended summons significantly expands scope of proceedings — self-represented litigant — whether granting leave would be consistent with the just, quick, and cheap resolution of the real issues

HIGH RISK OFFENDERS – extended supervision orders – preliminary hearing – whether offender is high risk offender – whether there is high degree of probability that offender poses an unacceptable risk of committing a serious offence if not kept under supervision – extended supervision order not imposed

HIGH RISK OFFENDERS – extended supervision order – application – high risk sexual offender –whether there is high degree of probability offender poses an unacceptable risk of committing a serious offence if not kept under supervision – making of order – extended supervision order imposed for two years with agreed conditions

ADMINISTRATIVE LAW — judicial review — procedural fairness — plaintiff convicted in the Local Court of common assault — where the prosecution brief of evidence was not served on the plaintiff prior to hearing — where both parties agreed that failure to serve the brief of evidence deprived the plaintiff of a meaningful opportunity to prepare and respond to prosecution case — jurisdictional error established and decision quashed

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

REAL PROPERTY — co-ownership — application for judicial sale by receivers of property of co-owner — whether non-opposition by other co-owner satisfies jurisdictional requirement in s 66G — whether co-owner should be joined as plaintiff — where no risk of conflict arises in receivers being appointed trustees — Conveyancing Act 1919 (NSW), s 66G

APPEAL — Application for leave to appeal — Appeal from decision not to dismiss claim summarily — Whether claim so obviously untenable that it cannot succeed — No reasonably clear injustice that is more than arguable

ENVIRONMENT AND PLANNING — subdivision — land swap deed negotiated by owners of neighbouring properties in Box Hill — negotiations instigated by owners of appellant to expand scope of proposed subdivision — appellant incurs range of expenses to satisfy conditions of development consent — no enforceable agreement about sharing burden of these costs — claim for restitution for unjust enrichment RESTITUTION — nature of restitutionary liability — quantum meruit — unjust enrichment — unjust or vitiating factors — express or implied request — failure to establish on the evidence RESTITUTION — unjust or vitiating factors — “free acceptance” — uncertainty in Australian law — provider of services also principal beneficiary — potential overlap with factors demonstrating implied request — failure to establish why a reasonable person in the circumstances would have known the service provider expected to be paid — unnecessary to resolve legal controversy

Administrative law – Judicial review – Jurisdictional error – Where application for approval of nomination of individual for Subclass 482 (Skills in Demand) visa refused – Where refusal was based, amongst other things, on consideration of documents and information provided by plaintiff – Where delegate not satisfied that position associated with nominated occupation is genuine – Where application for constitutional or other writ is brought because no other tribunal or court has jurisdiction, respectively, to review or judicially review decision – Whether delegate of Minister constructively failed to exercise jurisdiction by refusing nomination application – Whether delegate's decision was legally unreasonable. Words and phrases – "abuse of process", "business sponsor", "constitutional writs", "constructive failure to exercise jurisdiction", "delay", "jurisdictional error", "legally unreasonable", "nomination", "organisational chart", "original jurisdiction", "Skills in Demand", "unavailability of the usual court process". Administrative Review Tribunal Act 2024 (Cth), ss 18(1), 295(1). Administrative Review Tribunal Rules 2024 (Cth), r 6(3). High Court Rules 2004 (Cth), r 25.02. Migration Act 1958 (Cth), ss 140E, 140GB, 338(1), 338(9), 476, 476B. Migration Regulations 1994 (Cth), regs 2.58(1)(a), 2.59, 4.02(4)(d), Div 2.17.

Hunt Leather Pty Ltd v Transport for NSW [No 2] Hunt Leather Pty Ltd v Transport for NSW [No 2] Practice and procedure – Judgments and orders – Application to recall and amend orders – Where party did not seek orders for remittal of costs issue in notice of appeal – Where party maintained remittal sought in written submissions – Where justification for remittal overlooked – Where error or omission obvious – Whether discretionary power to correct error or omission should be exercised. Words and phrases – "accidental slip or omission", "applications to recall and amend orders", "discretionary power to correct an error or omission", "error or omission is plain or obvious", "incidental and necessary to the exercise of jurisdiction", "interests of justice", "no relevant disadvantage", "recall and amend orders", "source of power". High Court Rules 2004 (Cth), r 3.01.2.

Criminal law – Sentencing – Aggregate sentence of imprisonment – Where offence attracted mandatory minimum sentence of imprisonment under s 16AAA of Crimes Act 1914 (Cth) – Whether New South Wales courts can impose aggregate sentence with respect to multiple Commonwealth offences – Whether New South Wales courts can impose aggregate sentence where Commonwealth offence attracts mandatory minimum sentence of imprisonment – Whether s 53A of Crimes (Sentencing Procedure) Act 1999 (NSW) capable of being picked up and applied by s 68(1) of Judiciary Act 1903 (Cth) to sentencing for Commonwealth offences – Whether s 53A(2)(b) of Crimes (Sentencing Procedure) Act 1999 (NSW) incompatible with Div 2 of Pt IB of Crimes Act 1914 (Cth). Words and phrases – "aggregate sentence", "deterrence", "different legal operation", "discount", "essential meaning", "federal jurisdiction", "federal offences", "general sentencing principles", "incompatibility", "inconsistency", "indication", "indicative sentence", "instinctive synthesis", "jurisdiction", "like jurisdiction", "mandatory minimum sentence", "mandatory minimum term of imprisonment", "minimum term", "multiple offences", "non-parole period", "operative sentence", "picked up", "sentence of imprisonment", "sentencing principles", "substantively different legal operation", "totality", "translation", "transparency", "yardstick". Crimes Act 1914 (Cth), ss 16A, 16AAA, 16AAB, 16AAC, 19(2), 19AB(1). Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A. Judiciary Act 1903 (Cth), s 68.

Trade marks – Rectification of Register of Trade Marks under Trade Marks Act 1995 (Cth) – Where appellant registered owner of trade mark "Katie Perry" in class 25 (clothes) from 29 September 2008 ("priority date") – Where second respondent known as Katy Perry is famous pop star – Where respondents sought rectification of Register by cancelling "Katie Perry" trade mark – Whether use of "Katie Perry" trade mark at priority date likely to deceive or cause confusion due to reputation of pop star's trade mark – Whether use of "Katie Perry" trade mark at time of application for rectification likely to deceive or cause confusion because of circumstances at that time – Whether discretion not to rectify Register under Act enlivened. Words and phrases – "acquired a reputation", "act or fault", "actual use", "assiduous infringer", "blameworthy conduct", "cancelling the registration of a trade mark", "deceptively similar", "fashion designer", "lack of evidence", "likely to deceive or cause confusion", "material error", "merchandise", "normal and fair use", "notional use", "pop star", "priority date", "real and tangible danger", "rectification", "reputation", "trade mark", "undue weight", "wrongful conduct". Trade Marks Act 1995 (Cth), ss 60, 88(1), 88(2)(a), 88(2)(c), 89.

COSTS — proceedings resolved without final hearing on the merits — defendant agreeing to final relief sought in summons — whether agreement constitutes capitulation — where directors initially unaware of agreement of lease entered into by receiver — whether indemnity costs appropriate — whether conduct amounts to relevant delinquency — no order as to costs

COSTS – party/party – general rule that costs follow the event – application of the rule where no determination on the merits – no order as to costs of hearing

COSTS — Costs assessment — Application for assessment — Where an amended application was filed — Whether the amended application ought to be set aside for procedural irregularities — Whether filing the amendment withdrew the original application

CIVIL PROCEDURE — representation — plaintiff appearing in person while solicitor remains on the record — whether appropriate — plaintiff ordered to file notice of removal of solicitor VEXATIOUS PROCEEDINGS — application for declaration of vexatious litigant under Vexatious Proceedings Act 2008 (NSW) — plaintiff already subject to interlocutory order requiring leave before filing further motions — application dismissed as otiose — no order as to costs

CIVIL PROCEDURE — Court referral to referee — Factual findings of a referee — Reliance on expert evidence reports — Whether there was a denial of procedural fairness — No procedural unfairness established — Whether referee provided adequate reasons for relying upon expert evidence report — Referee’s reasons were sufficient — Conclusion reached was not one that no reasonable referee could reach COSTS — Interest — Award of interest under s 57 Insurance Contracts Act 1984 (Cth) CIVIL PROCEDURE — s 56 Civil Procedure Act 2005 (NSW) — Provision of excessive Court book comprised of largely irrelevant material — Provision of unrequested supplementary submissions

ADMINISTRATIVE LAW — Whether reviewable error of law — Jurisdictional error — Materiality — Statutory power of horse racing regulator to appoint administrator to race club — Thoroughbred Racing Act 1996 (NSW), Ss 11,13(1)(b),14(1) and (2)(g)

BUILDING AND CONSTRUCTION — adjudication — jurisdictional error — head contractor reduces scope of works — dispute regarding valuation of reduced scope of works — where adjudicator stated that head contractor did not provide drawings or photographs in support of valuation — where head contractor provided 600 pages of material in ZIP files — principles at [28]-[34] — relevance of documents not immediately apparent nor explained in submissions — adjudicator not required to carefully read each page without meaningful assistance as to conclusions to be drawn — argument not clearly articulated — no jurisdictional error.

EQUITY — Breach of confidence — Breach of fiduciary duty — Where defendant used confidential information and other assets of employer to provide himself a head start in new business — No question of principle INTELLECTUAL PROPERTY — Copyright — Ownership — Where author was an employee — Whether work made ‘in pursuance of the terms of… his employment’ under Copyright Act 1968 (Cth), s 35(6) EQUITY — Equitable remedies — Assessment of equitable compensation where evidence of loss is limited — Principles to be applied

CORPORATIONS — voluntary administration –extension of convening period and ancillary orders

FAMILY LAW AND CHILD WELFARE — adoption — contested adoption — child aged 12 years consenting to adoption — birth mother opposing adoption — whether adoption order should be made — best interests of child — child expressing clear wish to be adopted by long-term foster carers — stability and permanency of placement — whether adoption “clearly preferable” to other alternatives — possibility of restoration to birth parent — where restoration only speculative — Adoption Act 2000 (NSW) s 90(3)

CIVIL PROCEDURE – leave to amend - where family law proceedings cross-vested to this Court from the Federal Circuit and Family Court – plaintiff’s application to amend Initiating Application to seek orders under s 79 of the Family Law Act 1975 (Cth) – plaintiff’s application for interim property order under ss 79 and 80(1)(h) of the Family Law Act 1975 (Cth) - where husband and wife transferred real property to adult daughter pursuant to Financial Agreement set aside by the Federal Circuit and Family Court – where daughter ordered by Federal Circuit and Family Court to pay the net proceeds of sale of the real property into solicitor’s trust account – whether proposed amendment is inconsistent with relief currently sought in Initiating Application – whether proceeds of sale held in solicitor’s trust account are property of the parties of the marriage or either of them within the meaning of s 79 of the Family Law Act 1975 (Cth) CIVIL PROCEDURE – Harman undertaking – where plaintiff commenced separate proceedings in this Court – where plaintiff seeks to rely in those proceedings on documents produced in compliance with disclosure orders and pursuant to subpoena in these family law proceedings – where plaintiff disclosed that the documents in respect of which leave is sought have already been employed in those separate proceedings without leave being sought - whether special circumstances exist justifying use in the separate proceedings

COMMERCIAL ARBITRATION — consideration of the nature and essence of arbitration — recognition and enforcement of award — grounds for refusal —procedural fairness — contrary to public policy —reasonable opportunity to present case — use of arbitrator’s own knowledge — where arbitrator was a structural engineer — where arbitrator requested further evidence and submissions on rectification issue not raised by parties — where Defendant complained that arbitrator allowed Plaintiff to repair its case — both parties notified and invited to respond — equality of treatment of the parties — Commercial Arbitration Act 2010 (NSW) section 18 — Model Law article 18 — both parties treated fairly and equally — no procedural irregularity or unfairness — enforcement not contrary to public policy — no reason to resist enforcement.

TAXATION – PAYG withholding amounts – director penalty

ADMINISTRATIVE LAW — Hearing rule ADMINISTRATIVE LAW — Reviewability — Where internal appeal has been heard of primary NCAT decision under review ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Unreasonableness CONSUMER LAW — Misleading or deceptive conduct — Liability of company director who made representation — Defence of ‘mere puffery’

APPEALS – leave to appeal – where application for leave to rely on expert report refused in the Land and Environment Court – whether leave to appeal should be granted to reconsider that decision

CONTRACT — loan agreement — whether payments made by lender to a third party fell within loan agreement — insufficient evidence to establish advances to borrower under loan agreement COMMERCE — money counts — onus of proof — plaintiff bears onus of proving elements of cause of action — rejection of defendants’ case does not assist in proof of plaintiff’s case APPEAL — nature of appeal — functions of appeal court — importance of identifying determinative question

CIVIL PROCEDURE — Pleadings — Form and content of pleading — purposes served by pleadings — principles relating to pleading claims in negligence — pleading ordinary duty of care — pleading breach of duty — pleading vicarious liability CIVIL PROCEDURE — Pleadings — Form and content of pleading — Defects — necessity for ordinary duties of care to identify acts or omissions available to defendant which reasonable person would have taken to avoid identified risk of harm — whether respondent failed to plead facts establishing applicant’s provision of opportunity and occasion for wrongful act NEGLIGENCE — effect of High Court’s decision in AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 — matters plaintiff required to plead following AA — whether respondent’s pleadings sufficient

CORPORATIONS – application for rectification of register maintained by ASIC – where no substantial injustice caused or is likely to be caused by such rectification – where plaintiffs seek relief from any civil liability in respect of the lodgement of ASIC forms – rectification ordered – relief from civil liability granted

DEFAMATION – remedies – interlocutory injunctions – where self-represented defendant consents but has not had the benefit of legal advice – where appropriate case for referral for pro bono assistance MEDIA AND COMMUNICATIONS – publications – Court Suppression and Non-publication Orders Act 2010 (NSW) – where plaintiff has not pursued damages – where naming of the parties may aggravate damage to the plaintiff’s reputation

COSTS – Uniform Civil Procedure Rules 2005 (NSW) r 42.34 – where plaintiffs each achieve a judgment against the defendants for less than $500,000 but the combined total exceeds this amount – where plaintiffs abandon a claim of fraudulent concealment at the commencement of the trial – HELD – defendants should pay the plaintiffs 90% of their costs

ADMINISTRATIVE LAW – judicial review of NCAT decision – disability and transgender discrimination in education – vilification – victimisation – no errors of law established – summons dismissed.

ADMINISTRATIVE LAW – judicial review – decision of review panel – motor vehicle accident – where plaintiff injured from fall on Sydney Light Rail – whether lack of contemporaneous evidence treated as decisive or determinative of causation – whether lawful reasons not given – whether jurisdictional error