Cases and authorities

CIVIL PROCEDURE – application to vacate hearing date – heavy burden to vacate shortly before the hearing – where appellants seek to adduce fresh evidence – application dismissed

CIVIL PROCEDURE – application for pro bono referral – where proceedings at an early stage – whether referral in the interests of the administration of justice – referral confined to the provision of advice

CRIME – Appeals – appeal against sentence – appellant company convicted of offences of carrying out development contrary to consent after guilty pleas and sentenced to fines in Land and Environment Court – whether sentencing judge erred by rejecting disposition under s 10 of Crimes (Sentencing Procedure) Act 1999 (NSW) as a sentencing option before considering appropriate sentence – whether sentencing judge engaged in impermissible two-stage process of sentencing or failed to take into account relevant considerations in determining not to record conviction – whether sentencing judge applied a wrong principle in considering extenuating circumstances in which offences were committed as required by s 10(3)(c) – no wrong principle identified – ground not properly framed to challenge a factual finding – factual finding as to extenuating circumstances nonetheless reasonably open – whether sentencing judge took into account irrelevant consideration being that s 10(1)(b) dispositions are more appropriate for individuals – sentencing judge did not restrict availability of s 10(1)(b) to individuals – inapplicability of certain conditions imposable under s 10(1)(b) orders to companies not irrelevant

CORPORATIONS — winding up — practice and procedure — application to adjourn winding up application under Corporations Act 2001 (Cth) s 440A(2) — whether further adjournment in creditors’ interest CORPORATIONS — winding up — failure to comply with creditor’s statutory demand — presumption of insolvency — where no solvency evidence led by company CORPORATIONS – winding up – application for approval of entry into funding agreement – whether approval of entry into funding agreement is in best interests of creditors

CIVIL PROCEDURE – removal of a party where all defendants agree inclusion of a party was a mistake

CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether consent of mother should be dispensed with – whether consent of father should be dispensed with – whether change of name should be approved

EQUITY – JUDICIAL ADVICE – DECLARATION – Trustee Act 1925 (NSW) section 63 – no issue of principle

CRIMINAL PROCEDURE — Subpoena — Objection to production of material — Public interest immunity; Client legal privilege; Legitimate forensic purpose; Oppression — Inspection by the Court EVIDENCE — Privileges — Public interest immunity — Matters of state — Objection to production of material — Inspection by the Court EVIDENCE — Privileges — Client legal privilege — Objection to production of material — Inspection by the Court

CIVIL PROCEDURE – pleadings – injurious falsehood – pleading and particularisation requirements of the tort of injurious falsehood – where proposed further amended pleading inadequate

PRACTICE AND PROCEDURE — jurisdiction — service out of the jurisdiction — appearance — application to withdraw appearance — whether unconditional appearance constitutes submission — leave refused CONFLICT OF LAWS — anti-suit injunction — negative declaration proceedings in Singapore — whether foreign proceedings vexatious or oppressive — protection of local processes — forum considerations — injunction granted on interim basis EQUITY — trusts — common intention constructive trust — family-owned corporate group — claim that founder’s “descendants” held beneficial interests in company assets, derived by tracing from their beneficial interests under a constructive trust over shares of those companies arising from the founder’s actions — need for detrimental reliance to found constructive trust — need for specificity of alleged interests of “descendants” — tracing from shares in companies into assets of those companies impermissible — claim summarily dismissed EQUITY — estoppel — proprietary or equitable estoppel — claim to share of settlement proceeds — need for promise and need for detrimental reliance on promise — claim struck out

CONTRACTS – CONSTRUCTION – where written Deed of Settlement (the Deed) provides for the Plaintiffs to pay a sum of money to the Defendant in settlement of winding up proceedings – where there is a risk of a clawback of the payment pursuant to provisions of the Corporations Act 2001 (Cth) because of the Plaintiffs’ precarious financial position at the time of the payment – where the Deed provides for the Plaintiffs to indemnify the Defendant against a clawback, and to give the Defendant security for the indemnity in the form of a first mortgage over real property owned by the first Plaintiff – where the Deed contains a provision that the Plaintiffs may seek the Defendant’s consent to substitute for the mortgage alternative security provided the unencumbered market value of the substitute security is equal to or greater than the Settlement Sum with such consent not to be unreasonably withheld – where Plaintiffs proffer alternate security with an unencumbered market value equal to or greater than the Settlement Sum but of significantly lesser value than the security presently held – whether on the proper construction of the Deed once the security proffered is of value equal to or greater than the security presently held the Defendant may not rely on the differential as a ground warranting refusal of consent – whether consent unreasonably withheld – HELD – on the proper construction of the Deed the Defendant may rely on the value differential of the security as a ground for refusing consent – Defendant’s refusal of consent not unreasonable

SUCCESSION – Family Provision – Application by disabled adult son – Small estate – Competing claim of deceased’s de facto – Family provision order – Consequential protective orders for son – Containment of costs

TORTS — Trespass to the person — False imprisonment — s 19 of the Children (Detention Centres) Act 1987 (NSW) — whether decisions to separate or segregate the plaintiff while on remand were lawful — whether the exercise of discretion to segregate plaintiff was punitive — whether segregation resulted in wrongful imprisonment — whether the plaintiff had a right to residual liberty while held on remand of which he had been wrongly deprived — how Children (Detention Centres) Act and Work Health and Safety Act 2011 (NSW) work harmoniously — assault — whether use of handcuffs during segregation resulted in assault — neither wrongful imprisonment nor assault established EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — s 18 and 19 of the Work Health and Safety Act 2011 (NSW) — when segregation used to help ensure health and safety — nature of obligation to ensure health and safety so far as reasonably practical — duration of segregation being required to be as short as practical under s 19 Children (Detention Centres) Act STATUTORY INTERPRETATION — segregation of detainees — whether breach of conditions imposed by s 19 of the Children (Detention Centres) Act 1987 (NSW) resulted in invalidity of decisions to segregate entitling detainee to damages for wrongful imprisonment and exemplary damages — invalidity not established

CIVIL PROCEDURE — Parties — Vexatious litigants — Declaration of — Orders under the Vexatious Proceedings Act 2008 (NSW) CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings — UCPR r 13.4(1)(c)

TAXES AND DUTIES — Payroll tax — Liability — Employment agent — Where plaintiff conducts a commercial cleaning business — Where plaintiff entered into contracts with shopping centre clients for provision of cleaning services — Where cleaning services were performed by subcontractors and employees of the plaintiff — Where plaintiff procured day-to-day cleaning services and ‘specialised’ ad hoc services for clients — Whether assessments were excessive — Whether s 39 of the Payroll Tax Act 2007 (NSW) requires identity of the ‘person who performs work’ to be ascertained — Whether cleaning contracts were ‘employment agency contracts’ for the purposes of s 37 of the Payroll Tax Act — Whether subcontracted cleaners provided ‘specialised’ services ‘in and for’ the conduct of the clients’ businesses TAXES AND DUTIES — Administration — Rulings — Where plaintiff did not follow procedure in Revenue Ruling PTA 027 (‘Ruling’) for seeking to be excused from liability to payroll tax — Whether any non-compliance by defendant with the Ruling affects the issue of remittal of interest and penalty tax TAXES AND DUTIES — Payroll tax — Assessment — Interest — Whether market rate component of interest should be remitted TAXES AND DUTIES — Payroll tax — Assessment — Penalty tax — Whether penalty tax should be remitted

BUILDING AND CONSTRUCTION — Construction Contracts (Security of Payments) Act 2004 (NT) — principal calls on bank guarantees provided by contractor as security for performance of construction contract — adjudicator determines contractor entitled to proceeds of bank guarantees. JURISDICTIONAL ERROR — discussion of statutory framework at [47]-[66] — what is “an accrued right for the contract” at [55]-[58] — jurisdiction depends on a ‘payment dispute’ – case law review at [67]-[73] — payment dispute under ss 8(a) and 8(c) — no jurisdictional error. APPREHENDED BIAS — adjudicator determined prior payment dispute between same parties — principal challenges prior adjudication determination in Supreme Court of Northern Territory — submissions in those proceedings critical of adjudicator — principal asks adjudicator to recuse himself but continues to participate in the second adjudication process — whether waiver of right to seek recusal, principles at [32]-[34] — whether apprehended bias, principles at [36]-[40] — a party’s criticisms of the adjudicator says nothing about the adjudicator’s ability to bring an unprejudiced mind to their task. PROCEDURAL FAIRNESS — whether adjudicator determined application on a basis not contended by parties — principles at [102]-[103] — adjudicator was squarely engaging with a submission made by principal — challenge lacked merit. STAY — stay of execution of judgment sought until arbitration award — enforcement of adjudication determination under s 45 of the Construction Contracts (Security of Payments) Act 2004 (NT) — principles at [107]-[111] — less weight attached to statutory context where judgment concerned deposit rather than progress payments during course of construction project — limited information on strength of principal’s claims — little information about contractor’s ability to pay — arbitral award enforceable in United States — stay refused.

CRIMINAL LAW – sentence appeal – totality principle – accumulation of sentences – special circumstances – overview of principles – no difference in principle between sentence imposed in single sitting and sentence accumulated on existing sentence – accumulation on sentence for armed robbery – where sentencing delayed in relation to temporally proximate and less serious offending – whether the sentencing Judge adverted to impact on proportion of non-parole period to total accumulated sentence – examination of record in sentencing court – application of principles

CRIME – Appeals – appeal against sentence – where challenge to factual finding by sentencing judge – application of decision in Hancock – whether finding of sentencing judge “reasonably open” – no lesser sentence warranted in law – appeal dismissed.

REAL PROPERTY – possession of land – application to stay execution of writ for possession – impending sale of the property

CIVIL PROCEDURE – commencement of proceedings – leave to commence pursuant to Felons (Civil Proceedings) Act 1981 (NSW) – leave refused

CIVIL PROCEDURE – plaintiff’s solicitors seeking orders to contact persons who may provide evidence relevant to plaintiff’s claim – whether persons could give relevant evidence – leave granted to contact such persons – such persons must be informed that leave granted by the Court does not oblige them to speak to or communicate with plaintiff’s solicitors

CRIME – sentencing – murder – guilty plea – death by sharp force injuries to face and neck caused by broken bottle – no intention to kill – spontaneous intention to cause grievous bodily harm during remonstration over money – just below the mid-range of objective seriousness – young, vulnerable victim home alone during attack when offender entered uninvited – use of broken bottle as weapon limited aggravating factor – extensive criminal history including whilst on conditional liberty – limited remorse – self-induced intoxication not mitigating feature, rather factor reducing moral culpability – underlying early neglect – mental health issues – impact of murder on family and community CRIME – sentencing – common assault – guilty plea – offender hit victim on head – no evidence of lasting injury – low-range of objective seriousness – offender showed knife to victim – extensive criminal history including whilst on conditional liberty – limited remorse – self-induced intoxication not mitigating feature, rather factor reducing moral culpability – underlying early neglect – mental health issues

JUDGMENTS AND ORDERS – slip rule – inherent power to set aside or vary judgments and orders - where the Court made orders under s 73 of the Civil Procedure Act 2005 (NSW) on 29 November 2024 dismissing these proceedings with costs by way of enforcement of a settlement deed between the parties, but stayed the dismissal order until 7 February 2025 to afford the plaintiff an opportunity to file a notice of motion to set aside the settlement deed – where that notice of motion filed and the Court made directions on 7 February 2025 to facilitate the hearing of the motion but omitted to make an order extending the stay of the dismissal order – where plaintiff now seeks hearing of the motion to set aside the settlement deed and other claims made in various notices of motion and points of claim filed by the plaintiff since 7 February 2025 – where the plaintiff has failed to articulate those claims in a manner that complies with the requirements for pleadings and puts the other parties on notice of the case they must meet - whether Court should exercise its inherent power or power under the slip rule to vary the orders made on 7 February 2025 by making an additional order extending the stay of the dismissal order

REAL PROPERTY — caveats — leave to lodge further caveat under s 74O — contracts entered into for purchase of cryptocurrency tokens — multiple causes of action — where interest in property is protected by alternative property with caveat — whether serious question to be tried — balance of convenience — comparison of potential harm to caveator if order not made and to caveatee if order made

CIVIL PROCEDURE — Notices to produce —whether requests for documents sufficiently specific — whether requests relevant to a fact in issue —whether requests amount to a “fishing expedition” — whether leave be granted for discovery — whether draft reasons of a statutory board prepared by a legal adviser attract legal professional privilege — where requests seek documents subject to claims of legal professional privilege — whether leave be granted for interrogatories — whether leave be granted to amend summons — where no form of proposed amended summons before the Court

CONSTITUTIONAL LAW – parliamentary privilege – Bill of Rights, Article 9 – recusal application for apprehended bias based on judge making submission to Parliamentary Committee – submission published by Committee – whether tender of submission for purposes of recusal application contrary to Article 9 – common ground between all parties save Commonwealth Attorney intervening pursuant to Judiciary Act 1903 (Cth) s 78A that Article 9 did not validly prevent the tender – whether presence of Commonwealth Attorney meant there continued to be a matter – whether dispute between parties as to whether Article 9 did not apply as a matter of construction or of legislative power meant there continued to be a matter – whether declaratory relief should be refused as a matter of discretion – whether alternatives available other than recusal – whether Constitution s 49 preserved applicability of Article 9 for freedom of speech in a State Parliament – whether if Article 9 would otherwise prevent a court from being constituted by a judge free from the apprehension of bias, Article 9 was cut down by reason of the principle in Kable v Director of Public Prosecutions (NSW) – limited declaratory relief issued

JUDGMENTS AND ORDERS – variation of earlier orders – where relief sought would not address the concerns of the provisional liquidators – where earlier orders were made based on particular representations by the provisional liquidators – where there exist preferable ways of addressing the relevant issues – relief sought not granted COSTS – costs of unsuccessful interlocutory application – where provisional liquidators acting in complex provisional liquidation and seeking to resolve issues

CIVIL PROCEDURE – application to set aside default judgment – hearing of application adjourned

CRIMINAL LAW – bail – release application – 14-year-old offender – confronting and difficult application – ten sets of offences – resort to violence – inability to control and regulate emotions – more positive recent progress – where sentencing proceedings in Children’s Court imminent – where defended hearings delayed CRIMINAL LAW – bail – whether grant of bail fetters the subsequent exercise of sentencing discretion – different considerations applicable – whether refusal of bail has similar capacity to “fetter” as the grant of bail

PRACTICE AND PROCEDURE — judgments and orders — application for stay of enforcement of orders — whether appeal will be rendered futile absent a stay — whether winding up order will follow from failure to grant a stay — whether balance of convenience favours grant of a stay

CIVIL PROCEDURE – Pleadings – amendment – Plaintiff sought leave to amend claim to raise further alleged defects in building works – whether the delay in raising those matters has been explained – whether the grant of leave would cause prejudice to Defendants – whether the proposed amendments would lead to loss of the hearing date – whether First and Second Defendants have lost, by expiry of long-stop period, a viable and realistic cross-claim in respect of the alleged defects – no substantial prejudice established – leave granted

LAND LAW — possession of land — mortgage default CONTRACTS — cross-claim — whether lenders breached loan agreement by prematurely appointing receiver — whether interest provisions in loan agreement void for uncertainty — whether on proper construction interest to be paid in advance or in arrears EVIDENCE — whether judicial notice can be taken of fact that appointing a receiver would make it difficult for a solicitor to refinance

HIGH RISK OFFENDER – final hearing – application for continuing detention order (“CDO”) – where the defendant does not oppose the making of a CDO – whether the appropriate period for a CDO is 1 year or 2 years – where the defendant committed offences whilst subject to an interim supervision order – evidence from forensic psychiatrist and neuropsychologist – consideration of Clozapine – mental health diagnoses and use of prohibited drugs – whether 1 year is sufficient to prepare the offender for transition back into the community

BUILDING AND CONSTRUCTION — contract — damages — defects — whether geothermal heating and cooling systems, design and construction of internal access roads and general building works defective — whether breach of statutory warranties under s 18B of Home Building Act 1989 (NSW) — whether breach of statutory duty of care under s 37 of Design and Building Practitioners Act 2020 (NSW) established — whether plaintiff entitled to damages for rectification costs and/or loss of opportunity BUILDING AND CONSTRUCTION — contract — payment — whether money paid in accordance with adjudication determination properly payable — whether builder entitled to recover amounts paid to sub-contractors under various invoices and balance of fixed builder's margin EVIDENCE — expert evidence — admissibility — whether any weight should be given to the evidence where the independence of the expert is in question

ADMINISTRATIVE LAW — judicial review of appeal panel decision — whole person impairment assessment and permanent impairment assessment under table of disabilities — whether appeal panel failed to address a clearly articulated submission — whether appeal panel failed to provide adequate reasons — no reviewable error

TORT — negligence — trespass — where appellants in two separate appeals and their family members conducted excavation works on the development site causing the driveway of the first respondent’s property to collapse — where primary judge finds appellants liable in trespass for encroachment over the first respondent’s boundary and negligence constituting a breach of the duty of care pursuant to s 177(2) of the Conveyancing Act 1919 (NSW) — whether respondents established that the appellants encroached on the first respondent’s property and contributed to the collapse TORT — appeal — cross-appeal — trespass — apportionment of liability — whether Civil Liability Act 2002 (NSW) applies to alleged trespass TORT — appeal — negligence — principles of causation — tortious act need only have caused or contributed to harm — not necessary that it be the sole cause TORT — remedies — damages — whether compensation ought be measured by cost of rectification or diminution of value of affected land — relevance of proportionality and intentions of landowners — whether the affected land is the plaintiff’s residence CIVIL PROCEDURE — pleading — proportionate liability defence pursuant to Pt 4 of the Civil Liability Act 2002 (NSW) — importance of identifying concurrent wrongdoer and basis of claim — no error in primary judge holding appellants to pleaded defence APPEALS — from findings of fact — credibility of witnesses — oral evidence can be accepted without corroboration — no need for comprehensive photographic evidence — difficulties of judging distances and depth from photographic evidence

CIVIL PROCEDURE – application to transfer proceedings from the District Court to the Supreme Court – orders sought beyond jurisdiction of District Court – powers of the Supreme Court under the Encroachment of Buildings Act 1922 (NSW) – application approved

CORPORATIONS – winding up – whether orders should be entered – where offer made by defendant to pay plaintiff’s debt and costs after judgment delivered – where money paid into trust – where defendant seeks orders to be made for dismissal of plaintiff’s application in lieu of orders announced and made in open court – no exceptional circumstances justify altering orders – orders to be entered

CIVIL PROCEDURE – application by occupier to be joined as a party to proceedings – writ of possession

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts – Plaintiff was the joint purchaser of three real properties – the other joint purchaser was his 50/50 joint venturer – a deposit was paid which the Plaintiff said he paid – the purchases did not complete and were rescinded – one property was purchased by his joint venture partner and then on sold to two of the Defendants it being accepted by the Plaintiff that one of them was a bona fide purchaser for value without notice and therefore free of any liability (the Fourth Defendant) – the second was bought by another of the Defendants and the third by yet another – Plaintiff claims an equitable interest in half of the first and in the whole of the second and third based on his alleged contribution to the deposit – Plaintiff fails to establish that any of the Defendants were on notice of any equitable interest of the Plaintiff and in any event paid full value for their interest (including the benefit of any deposits paid on the original contracts) – HELD: if the Plaintiff has any claim it is against his erstwhile joint venture party who dealt with his interest – Plaintiff has not established any equity in any of the properties which prevails against any of the Defendants – Plaintiff’s claim dismissed

CIVIL PROCEDURE – hearings – adjournment – where service of statement of claim in issue – where service processor unavailable to give evidence due to medical exigency – where parties agree hearing of motion cannot proceed without witness

CIVIL PROCEDURE – alternative dispute resolution – referral to referee – where proceedings concern status of Chinese judgment – proposed reference to Chinese law expert – whether reference consistent with the overriding purpose

CRIME — murder — defence of mental health impairment — Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 28 — Judge alone trial — physical acts not in dispute — whether the accused’s “mental health impairment” was caused solely by one of the matters in s 4(3) — whether the act was wrong — expert evidence — special verdict

CIVIL PROCEDURE – writ of habeas corpus –plaintiff member of public – no consent of person in custody – notice of motion dismissed

CONTRACTS – breach of contract – claim for unpaid consideration of share sale agreement – claim for unpaid loan monies CIVIL PROCEDURE – where defendants failed to appear at hearing – where one defendant did not plead to claim – judgment given on liquidated sum without trial

CIVIL PROCEDURE – where person has not attended court to be examined – where orders made previously directing them to do so – where arrest warrant sought – whether the person should be granted final chance before arrest warrant issued

COSTS — Party/Party — Orders when proceedings involve multiple parties — Where one plaintiff was entirely unsuccessful and one plaintiff partly successful — Whether to apportion costs between plaintiffs COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Where unsuccessful plaintiff’s claim involved a family provision claim — Whether costs in the unsuccessful plaintiff’s family provision claim should be excepted from general rule that costs follow the event — Where partly successful plaintiff was unsuccessful on almost all aspects of the case she advanced at hearing — Whether partly successful plaintiff should receive any of her costs

CORPORATIONS – winding up – application to wind up in insolvency – where company contends it is solvent – where presumption of insolvency is enlivened – where company depends on ongoing related party support – where company books and records do not fully account for transactions – presumption of insolvency not rebutted – company to be wound up – liquidators appointed – costs to be paid out of company assets

COSTS — security for costs — special circumstances and residual discretion — impecuniosity — whether appeal has real prospects for success — unsatisfactory explanation as to delay where notice of motion filed three weeks before hearing

CIVIL PROCEDURE — application for pro bono referral under UCPR r 7.36 — where party has a history of non-appearance at hearings — application refused CIVIL PROCEDURE — non-publication order — application refused