Cases and authorities

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

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

HIGH RISK OFFENDERS — interim supervision orders — application for interim supervision order — whether an express requirement of reasonableness is appropriate in supervision order conditions.

CRIME – bail – release application – unacceptable risk test – juvenile applicant proposed to be released to residential rehabilitation program – sentencing listed in 19 days’ time – sentence likely to be a control order – whether grant of bail to rehabilitation program would fetter discretion of sentencing magistrate

COSTS — Security for costs — no question of principle

CRIME – Appeal and review – Appeal from Local Court to Supreme Court – by plaintiff on a ground involving a question of law alone – Magistrate’s decision to reject plaintiff’s guilty pleas – where agreed facts suggested commission of more serious offence to the one charged – possible issues sentencing in accordance with The Queen v De Simoni (1981) 147 CLR 383 – whether Local Court had jurisdiction to sentence plaintiff in such circumstances – factual material disclosing De Simoni issues did not give rise to absence of jurisdiction to determine charges to which the plaintiff endeavoured to plead guilty – matter remitted to Local Court – observations about parties’ formulation of facts for sentence

CIVIL PROCEDURE – Court administration – power of Registrars in relation to discovery of documents subject to the Harman undertaking

CIVIL PROCEDURE – parties – addition of Defendant’s insurer – no issue of principle

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – where failure to undertake work with due care and skill – damages CIVIL PROCEDURE – hearings – where defendants failed to comply with practice note directions – where defendants failed to appear at trial – whether trial to proceed in absence of defendants

CRIME — Appeals — Appeal against conviction —appeal by rehearing — appellant was found guilty of property offences after a trial before judge alone EVIDENCE — Identification evidence — Visual identification from CCTV footage — whether the criminal standard of proof was satisfied

REAL PROPERTY — right of access — alleged obstruction of plaintiff’s access to land — construction of footpath adjacent to land — undeveloped land — where future development would require development consent — where land is situated on steep hill with cliff edge — where access by foot remains possible — proper construction as to s 6 of the Roads Act 1993 (NSW) — where statutory and common law rights subject to restrictions imposed by Roads Act 1993 (NSW) or other law TORTS — private nuisance — alleged nuisance by loss of access to public road — whether substantial and unreasonable interference with plaintiff’s enjoyment of land — alleged historic vehicular access — where land has been left vacant and used for occasional picnic or barbeque REMEDIES — where plaintiff sought declaration and mandamus — where plaintiff also sought restorative mandatory injunction

EVIDENCE — Standard of proof — Civil cases — whether primary judge failed properly to apply standard of proof and reached erroneous conclusion — where primary judge did not so err APPEALS — From finding of fact — Credibility and reliability of witnesses — whether primary judge erred in treatment of evidence of appellant and two witnesses — where the weight to be given to the evidence of each witness was a matter for his Honour — where primary judge’s findings were based on his Honour’s assessment of the evidence as a whole — where primary judge did not so err APPEALS — From finding of fact — Credibility of witnesses — whether primary judge erred in finding respondent had not deliberately sought to create a false impression and gave inadequate reasons for so finding — where primary judge did not so err

CRIME – bail – release application – applicant charged with aggravated kidnapping – applicant charged with robbery with a dangerous weapon – applicant charged with drug offences – bail refused by judge of Supreme Court – release application to Court of Criminal Appeal – cause shown – whether any unacceptable risk – bail granted on conditions

CRIME — Appeals — Appeal against conviction — whether applicant prosecuted maliciously — whether applicant’s extradition from New Zealand unlawful — whether jury verdicts unreasonable — whether jury’s ability to access digital evidence impeded — whether intervention by trial judge excessive and undue — whether summing up unbalanced and unfair — whether undue pressure placed on jury by trial judge — whether consciousness of guilt reasoning inappropriately relied on by Crown — whether trial commenced at unjust time owing to applicant’s medical conditions — whether alleged errors and procedural unfairness cumulatively caused trial to miscarry

CIVIL PROCEDURE – Pleadings – Summary dismissal – Striking out – No reasonable cause of action or defence – where Defence Force trainee allegedly subject to false imprisonment, assaults and other mistreatment – where first plaintiff recipient of compensation payment under Military Rehabilitation and Compensation Act (2004) – where Act extinguishes cause of action for compensation in respect of ‘service injury’ – whether first plaintiff can bring a tenable claim – finding that the first plaintiff’s case is at least reasonably arguable – summary dismissal and strike out application dismissed. STATUTORY INTERPRETATION – Military Rehabilitation and Compensation Act (2004) – where Act purports to extinguish any cause of action against Commonwealth in respect of a service injury – whether statutory extinguishment extends to intentional torts. STATUTORY INTERPRETATION – Military Rehabilitation and Compensation Act (2004) – Definitions – Interpretation of definition by reference to term defined – meaning of ‘injury’ and ‘service injury’ – extent to which claims for damages for intentional torts fall are covered by s 388 and the definition of ‘service injury’ – operation of ss 388 and 389 in relation to deterioration of injuries, or fresh injuries, arising out of incident previously the subject of compensation. CONSTITUTIONAL LAW – Commonwealth Constitution – Legislative power – Acquisition of property – contention that statutory extinguishment constitutes acquisition of property on unjust terms contrary to Constitution of Australia – whether question arising under the Constitution should be decided. CIVIL PROCEDURE – Pleadings – Leave to amend – where plaintiffs seek leave to file Amended Statement of Claim – whether material facts are adequately pleaded in second plaintiff’s claim – where material facts are improperly set out in particulars – finding that the grant of leave to replead should be subject to the plaintiffs addressing those concerns.

CIVIL PROCEDURE — Stay of proceedings — Pending proceedings in NCAT – where Applicant seeks stay of proceedings pending judicial review of Appeal Panel decision – whether application for judicial review is fairly arguable – stay refused

NEGLIGENCE – Compensation to relatives – approval of settlement due to interest of a minor – appropriate case for compromise

ADMINISTRATIVE LAW — Costs ADMINISTRATIVE LAW — Judicial Review — Jurisdictional error — Determination of the Manager, Costs Assessment to extend time for filing an application for review — Decision of the Manager, Costs Assessment to appoint a costs assessor — Jurisdictional error established COSTS — Costs assessment for a “commercial client” — Application of Legal Profession Uniform Law 2014 (NSW) s 170(1)(a) to a “commercial client” — First Defendant a public company — Second Defendant a wholly owned subsidiary of a public company — Defendants are “commercial clients” — Dispute between commercial client and law firm is beyond the jurisdiction of the costs assessment regime under Legal Profession Uniform Law 2014 (NSW) and associated regulations

LEASES AND TENANCIES – proper construction of make good obligations under a commercial lease – whether extrinsic material can be used in construing a lease – whether lessor engaged in unconscionable conduct in asserting obligation to make good.

CONTRACT – construction and interpretation of deed of release – where primary judge ruled that release clause did not operate as a bar to proceedings – whether release clause is confined to such claims as might have existed as at the date of the deed APPEALS – appeal from a decision of the Local Court – where issue is the proper construction of a contract – whether leave is required – whether appeal raises a question of law or mixed question of law and fact

MENTAL HEALTH – Forensic patient – Extension of status as forensic patient – whether defendant poses an unacceptable risk of serious harm – where defendant has demonstrated significant progress in community – where risk still present – where duration of extension order in dispute – orders made extending status as a forensic patient for 12 months

CIVIL PROCEDURE — leave to rely on late evidence — ‘guillotine’ orders — suggested lack of candour by client’s solicitor – serious accusation not to be made lightly – principles at [5] to [19] — proceedings are 6 years old — builder sues client for unpaid bills — client cross-claims against builder and certifiers — three ‘guillotine’ orders made against client — four ‘guillotine’ orders made against builder and certifier — whether evidence in chief or reply — whether in interests of justice to allow application —no trial date had been set — where ample time to meet late-served evidence — where explanation for delay adequate — leave granted.

MORTGAGES — deceased mortgagee — where mortgage remains registered on title of property — mortgage vested to administrator of the estate of deceased — discharge of mortgage — Trustee Act 1925 (NSW), s 75

CHILD WELFARE — Adoption — application by adult adopted child to discharge adoption order made when a newborn child — where allegations of sexual, physical and emotional abuse of applicant by adoptive parents — where applicant reported allegations of sexual abuse more than 30 years after the alleged acts — where irretrievable and complete breakdown of relationship between adoptive parents and applicant — whether an exceptional reason shown — whether discharge of adoption order in applicant’s best interests — whether applicant’s names should be changed — HELD — discharge of adoption order in applicant’s best interests CHILD WELFARE — Adoption — registration of details of overseas birth following discharge of adoption order — HELD — order to register details of overseas birth in New South Wales

HIGH RISK OFFENDER — final hearing — serious sex offender — application for Extended Supervision Order — whether there is a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order — application dismissed

SUCCESSION — Executors and administrators — Rights, powers and duties – Carrying on actions – deceased makes a will in 2022 before his death in 2023, in which he leaves his entire estate to a neighbour (the first defendant) and revokes 2005 will giving his whole estate to his three daughters (the plaintiff) – in 2022 the deceased had sold his residential real estate to the wife of the same neighbour (the second defendant) for what the plaintiffs allege was an undervalue – after the sale of the residential real estate and before the deceased’s death the proceeds of sale are dissipated on expenditure which the parties allege was not obviously for the benefit of the deceased – first plaintiff seeks appointment as an administrator of the deceased’s estate to set aside the sale of the testator’s residential real estate and to recover the expenditure of the proceeds of sale – whether the first plaintiff should be appointed as administrator ad litem or whether appointment of the first plaintiff to represent the estate under Uniform Civil Procedure Rules rule 7.10 would be sufficient – discussion of the purpose of the proposed appointment. CIVIL PROCEDURE – Probate and Administration of estates – Supervision of administration – contest between the plaintiffs, the daughters of the deceased, who propound the 2005 will for probate and the first defendant who propounds the 2023 will – issues as to the deceased’s testamentary capacity at the time of his execution of the 2023 will – plaintiffs bring a claim in the alternative for provision out of the deceased’s estate pursuant to Succession Act 2005 Part 3 and for designation as notional estate of the residential real estate sold allegedly at an undervalue before he died – what is the optimal way for the supervision of the administration of the estate to be supervised efficiently consistently with the just and efficient hearing of the proceedings – whether the conduct of actions for the recovery of assets on behalf of the estate should be heard at the same time as the contested probate issues.

CIVIL PROCEDURE — r 23.8 Uniform Civil Procedure Rules (NSW) — s 169 Evidence Act 1995 (NSW) — principles at [29]-[37] — application by cross-defendant to undertake invasive testing on plaintiff’s tennis courts — whether application should be refused given prospect that trial may be imperilled — application granted. COSTS — strong opposition to application — cross-defendant awarded costs of motion.

CIVIL PROCEDURE – Cross-vesting – Transfer to other Supreme Court – whether in interest of justice to transfer proceedings to Supreme Court of the Australian Capital Territory – where all parties consent to transfer. COSTS – Costs orders in interlocutory proceedings.

CIVIL PROCEDURE — subpoenas — objection to production of documents or things — confidential police information — public interest immunity — immunity of material to be assessed as a contents claim not a class claim

CRIME — murder — criminal proceedings — defence of mental health impairment — accused unfit to be tried — whether s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is available for matters where the accused is unfit — matter to proceed to special hearing

CIVIL PROCEDURE – Default judgment – Default in filing Commercial List Response – Application of pt 16 of Uniform Civil Procedure Rules 2005 (NSW) by analogy to proceedings commenced by Summons and Commercial List Statement – Whether claim is for a “debt or liquidated claim” – Default judgment awarded – No issue of principle

CRIME — murder — defence of mental health impairment — accused unfit to be tried — special hearing — physical acts not in dispute — special verdict entered

CRIMINAL LAW – sentencing – murder – relevant considerations – no intention to kill – vulnerable victim because of advanced age – extensive criminal history – complex psychiatric, neurological and cognitive difficulties – difficulty in isolating from long term drug problem – where primary cause of offending self-induced intoxication from drugs and alcohol – drug and alcohol consumption not a mitigating factor – whether moral culpability reduced – family and childhood dysfunction insufficient to establish reduction in culpability – complex mental health issues justify modest reduction in same – impact of homicide on family and community – application of sentencing principles – sanctity of human life

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.

CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement and ancillary orders

CIVIL PROCEDURE – Court administration – Case management – Practice Notes – whether parties should be permitted to rely upon additional expert reports after time fixed for service – complex breach and causation issues in medical negligence proceedings

BUILDING AND CONSTRUCTION – leave to appeal – decision of Appeal Panel of New South Wales Civil and Administrative Tribunal – residential building works – where not disputed plaintiff at fault for breach of contract and defendants entitled to terminate – where building works completed by new builder – where plaintiff’s quantum meruit claims agreed in part – admissions – whether clear and unambiguous admissions – whether Appeal Panel erred in rejecting balance of quantum meruit claims – questions of fact BUILDING AND CONSTRUCTION – assessment of damages – breach of contract – approach to calculation of damages in an action by homeowner against builder – application of Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 and Wabbits Pty Limited v Godfrey [2009] NSWSC 1299 – where actual cost is known of the work to make the building work conform to the contract – whether Appeal Panel erred in failing to adjust “prime cost” and “provisional sums” items – questions of fact APPEALS – costs orders – where Appeal Panel provided opportunity to make application to vary costs order – no application made – whether House v The King error – where point not raised below

Tort – Negligence – Duty of care – Non-delegable duty of care – Historic child sexual abuse – Where priest sexually abused appellant – Where appellant was child – Whether respondent liable to appellant for harm suffered – Whether respondent owed appellant duty of care – Whether respondent owed appellant non-delegable duty of care – Whether non-delegable duty of care owed in respect of harm caused by intentional conduct – Whether New South Wales v Lepore (2003) 212 CLR 511 should be re-opened and overruled – Whether sexual abuse by priest breached non-delegable duty causing harm – Whether limitations on damages by Civil Liability Act 2002 (NSW) applied. Words and phrases – "assumed duties", "assumpsit duties", "assumption of responsibility", "attribution", "breach", "care, supervision or control", "causation", "common element", "common law duty of care", "control", "damages", "delegate", "duty-holder", "duty of care", "duty to ensure that reasonable care is taken", "factual findings", "imposed duties", "intentional conduct", "intentional criminal act", "liability", "negligence", "non-delegable duty of care", "personal injury", "presbytery", "priest", "re-opened and overruled", "re-opened and overturned", "reasonable care", "reasonably foreseeable", "sexual abuse", "sexual assault", "special dependence or vulnerability", "special relations", "sufficient relationship of proximity", "undertaking", "vulnerability". Civil Liability Act 2002 (NSW), ss 3B, 3C, 5Q, 6F, Pts 1A, 1B, 2.

COSTS — application for costs on an indemnity basis — whether indemnity costs should be ordered COSTS — whether indemnity costs should be awarded against Plaintiff on basis of Calderbank principles — whether unreasonable not to accept settlement offer COSTS – whether costs should be determined on an issue by issue basis

CIVIL PROCEDURE – interim preservation – freezing orders – ex parte application by party against estranged wife – property sold and money withdrawn without plaintiff’s knowledge – money transferred through several accounts – no communication from defendant

ADMINISTRATIVE LAW – judicial review of decision to make regulation and order under Major Events Act 2009 (NSW) – proper construction of “event” – whether making of regulation and order supported by the Act – whether regulation and order were unreasonable, uncertain or disproportionate – whether regulation and order made for an improper purpose – grounds of review rejected

CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts – District Court – motor accident claim – Defendant seeking transfer to the District Court pursuant to s 146 of the Civil Procedure Act 2005 (NSW) – approach to preliminary assessment of quantum of claim – availability of non-economic loss damages – extent of diminution of earning capacity

CONTEMPT — sentence — refusal to give evidence — refusal to attend court to give evidence — refusal to take oath or affirmation when called to give evidence — penalty — imprisonment — order for commitment to correctional centre for 10 months — No order as to costs. CIVIL LAW — punishment for contempt —assessment of seriousness — reasonably serious examples of contempt — early plea of guilty — not entitled to leniency on the basis of criminal history — no evidence of remorse nor explanation — nothing before the Court capable of reducing moral culpability for offending — no reliance on mental health issues — significance of deterrence and denunciation in contempt proceedings — principles stated in other cases — consideration of comparable cases — totality principle applied

SECURITY FOR COSTS — early stage of proceedings — where plaintiff concedes that security should be ordered — dispute over quantum — no issue of principle

CORPORATIONS – members’ rights and remedies – oppression – where company incorporated for purpose of pursuing joint venture to purchase and develop a residential property – where company was trustee of unit trust – where shares and units held 50/50 by joint venture participants – where breakdown in trust and confidence between participants in joint venture – where each of participants alleged oppressive conduct against the other – where each has made buy-out offers to the other – whether claims of oppression established – whether relief should be ordered on the basis of either of the buy-out offers – whether company should be wound up on the just and equitable ground EQUITY – fiduciary obligations – where one of the parties to the joint venture borrowed funds to refinance the property – where funds were on-lent to the joint venture company at a margin – where other party agreed to the on-lending arrangement – whether consent was fully informed consent – whether misrepresentations were made prior to the giving of consent

APPEAL — application for leave to appeal — no issue of principle or question of public importance identified — where amount in issue substantially less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)

GUARANTEE AND INDEMNITY — school for international students — non-payment of rent — company responsible for school liquidated — enforcement of guarantee against appellant by lessor — appellant claimed not to be subject to personal guarantee — defence struck out — summary judgment for lessor APPEALS — leave to appeal — principles governing — enforceability of express term of lease — application of well settled principles of contractual construction — no issue of principle or question of public importance — no reasonable defence raised by reliance on subjective understanding of agreement based on heads of agreement — significance of signature on lease — significance of entire agreement clause — insufficient doubt warranting reconsideration on appeal — no reasonably clear injustice

EVIDENCE — Affidavit evidence — Service of statutory notifications, notices, orders and directions — Where plaintiff gave defendant written notice that deponents of affidavits relied upon by defendant are required for cross-examination 7 clear working days and 11 clear calendar days before commencement of hearing — Where defendant was unable to make one deponent of an affidavit, a solicitor, available for cross-examination — Whether notice of requirement for cross-examination was given a reasonable time before the hearing — Whether affidavit evidence of the unavailable solicitor should be admitted into evidence — No question of principle

CORPORATIONS — winding up — practice and procedure — application to adjourn winding up under ss 56–58 of the Civil Procedure Act 2005 (NSW) and s 459R of the Corporations Act 2001 (Cth) — shorter adjournment and longer adjournment sought for several purposes — whether adjournment in creditors’ interest. CORPORATIONS — winding up — practice and procedure — further application by voluntary administrators to adjourn winding up application under Corporations Act 2001 (Cth) s 440A(2) — where voluntary administrators appointed shortly before winding up proceedings were to be heard —short adjournment sought — whether short adjournment in creditors’ interest.

NEGLIGENCE – settlement of nervous shock claims and claims under the Compensation to Relatives Act 1897 (NSW) – potential dependant not identified in, or notified of, the dependency claim – whether settlement is beneficial to each plaintiff and in their interests – the effect of costs shortfalls on whether a settlement is beneficial – whether settlement monies should be managed by a private entity – monies ordered to be paid into Court