Cases and authorities

CIVIL PROCEDURE — Pleadings — Amendment — Abuse of process — Separate question decided adversely to plaintiffs — Surviving plaintiff seeks to amend to plead case completely inconsistent with unsuccessful case advanced on separate question

COSTS – Security for costs – dispute as to form of security – whether after-the-event insurance policy with anti-avoidance endorsement in favour of defendant adequate to achieve the objective of security for costs – whether policy may be readily, legitimately and contractually avoided CONTRACTS – Parties – Privity – whether third party able to enforce contract of insurance to which it is not party – no question of principle

CRIME – murder – murder of family – where offender murdered mother and child at his martial arts studio by strangulation – where father was fatally stabbed at home – where offending is captured on CCTV – where offender did not appear to give any thought to avoiding detection – where murders were planned and premeditated – where motivation for murders was to acquire a BMW vehicle and family money SENTENCING – objective seriousness – where the objective seriousness of each offence needs to be considered individually – where objective seriousness of murders for all three of the victims is at the upper end SENTENCING – relevant factors on sentence – subjective circumstances – where it is submitted the offender’s difficult background affected his moral development – whether subjective circumstances should diminish the offender’s moral culpability SENTENCING – plea of guilty – where offender pleaded guilty at the first opportunity in the Local Court – where offender is entitled to be considered for a discount of 25 percent – whether the offender should receive a discount for his plea of guilty SENTENCING – life sentences – whether the murders attract sentences of life imprisonment or lengthy sentences of imprisonment – consideration of the four indicia in s 61(1) Crimes (Sentencing Procedure) Act 1999 – where there were multiple murders as part of a single episode of criminality – whether the offender’s culpability is so extreme that community interest can only be met through a life sentence

BUILDING AND CONSTRUCTION – adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) – where notice of adjudicator’s acceptance of adjudication application not served on respondents (plaintiffs) – where adjudication determination subsequently made in favour of claimant (first defendant) and District Court judgment entered in pursuant to s 25 of the SOP Act – whether failure to serve notice of acceptance of adjudication application constitutes jurisdictional error – interpretation of s 19 of the SOP Act – HELD: adjudication determination declared void and District Court judgment set aside

BUILDING AND CONSTRUCTION — where homeowner and builder agreed Work Order — where homeowner brought successful renewal proceedings in New South Wales Civil and Administrative Tribunal — where builder unsuccessfully appealed to Appeal Panel — whether leave to appeal from Appeal Panel decision should be granted — whether proposed grounds of appeal raise questions of law

COSTS — timing of costs order — whether should defer until remaining discrete issue resolved — where cannot conceive how resolution of remaining issue will affect costs orders, no reason to defer. SANDERSON OR BULLOCK ORDERS – principles at [31]-[39] — solicitor joined to proceedings after defendants allege that $100M loss wholly caused by solicitor and any damages should be reduced on account of solicitor’s wrongdoing – professional negligence claim not ultimately determined as plaintiffs succeeded in primary claim — whether solicitor a “successful defendant” — whether defendants an “unsuccessful defendant” — whether reasonable to join solicitor — assessment of reasonableness to be made as at time of joinder – whether causes of action substantially connected — whether fair to impose cost liability on unsuccessful defendant — Sanderson order made. INDEMNITY COSTS – whether defendants persisted in a hopeless case – principles at [51]-[53] – order not made. UNDETERMINED CLAIMS — unnecessary to determine claims between some parties on cross claim — undetermined claims were minor – claimant represented by same lawyers as successful claimants – substantial overlap of evidence. OFFER OF COMPROMISE — whether court should make an order otherwise – principles at [66]-[68] —whether offer a “genuine offer of compromise” — indemnity costs ordered.

APPEALS — from finding of fact — documentary evidence —contemporaneous correspondence — logic of events — inferences from objectively determined facts — application of rule in Jones v Dunkel — whether primary judge erred in making factual findings CORPORATIONS — directors and officers — whether first respondent was an officer of the first appellant — upheld primary judge’s finding that first respondent was not an officer of the first appellant CORPORATIONS — statutory duties under ss 180–183 of the Corporations Act 2001 (Cth) — fiduciary duties — whether first and second respondents breached fiduciary and statutory duties owed to first appellant — upheld primary judge’s finding that no breach of duties established — held that first respondent did not owe duties to the first appellant — held that second respondent not involved in alleged conduct at relevant time EQUITY — trusts and trustees — constructive trusts — whether constructive trust should be ordered over first and second respondent’s competing business — held that no breach of duties established — no basis for constructive trust CONSUMER LAW — misleading or deceptive conduct — whether deed of settlement executed by reason of misleading or deceptive conduct by first respondent — where first respondent negotiated deed on behalf of own interests — held that first respondent’s conduct was not misleading or deceptive

APPEALS – Procedure – Application for interim stay – Enforcement of costs orders – Proposed appointment of a tutor – Applicant’s legal incapacity unresolved – No material changes in circumstances justifying longer stay

APPEALS — procedure — stay pending appeal — urgent stay of execution upon judgment for possession and writ of possession — stay previously granted following undertaking to pay money into court within 21 days — money not paid — application to vary undertaking to extend time — evidence to explain failure to pay deficient — evidence about prospects of payment by alternative date deficient --- application refused

CRIME — Appeals — Appeal against sentence — Where applicant entered plea of guilty to an offence of facilitating the exit of a person from Australia by deception — Whether sentencing judge erred in assessing objective seriousness of the offence — Whether contended findings were made without proper evidentiary foundation which infected the sentencing discretion — Where contended relevant considerations were misconstrued — Whether sentence imposed was unreasonable or plainly unjust

SENTENCING — appeal against sentence — co-offenders — disparity between sentences — whether the applicant had a justifiable sense of grievance having regard to the sentence imposed on his co-offender — where both offenders were sentenced by the same judge — where the applicant’s undiscounted indicative sentence in respect of one count was double that imposed on his co-offender

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of one count of attempting to possess commercial quantity of border controlled drug – border controlled drug contained in hessian sacks – circumstantial Crown case – whether reasonable inferences available to be drawn – where the jury’s advantage is slight – whether it was open to the jury to draw the ultimate inference on the whole of the evidence that the applicant knew or was reckless beyond a reasonable doubt to the fact that the sacks contained a border controlled drug – whether failure to exclude an inference consistent with the applicant’s innocence that was reasonably open

CIVIL PROCEDURE – adjournment application – no question of principle

CONTEMPT — Civil contempt — Breach of undertakings — Clarity of terms — Distinction between defendant as a natural person in his own right and where acting in right of companies of which he was sole director and shareholder

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Sale of premises – Termination by Landlord – Where landlords and tenants both contributed to the purchase of the property – Whether the landlord holds a portion of interest in the property on trust for the tenant LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — NSW Civil and Administrative Tribunal — Jurisdiction and power – Whether the Supreme Court has jurisdiction to direct NCAT to order the termination of a lease

COSTS – applications by defendant and cross-defendant for security for costs – where defendant is a foreign corporation with no Australian assets – whether plaintiff is an “attacker” or “defender” – quantum – plaintiff and cross-claimant to provide security for costs

CIVIL PROCEDURE – Representative proceedings – Settlement or discontinuance – Court approval – Where proposed settlement is reasonable between the parties to the proceedings – Where the settlement is fair and reasonable amongst all group members – Known and unknown group members considered – Court satisfied – Settlement approved

CIVIL PROCEDURE — Hearings — Adjournment — Where pending review of Federal Court Bankruptcy order — Continuation of case against second defendant — No viable defence to the claim — Other consequential orders

COSTS – Party/Party – Costs application for appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) – whether to depart from usual order for costs to be paid out of the proceeds of sale – no question of principle

COSTS – gross sum costs order – whether appropriate to make a gross sum costs order – no question of principle

COSTS – Party/Party – Costs application for appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) – whether to depart from usual order for costs to be paid out of the proceeds of sale – no question of principle

CHILD WELFARE — Adoption — where proposed adoptive parent is child’s current foster parent —whether adoption order is in child’s best interests — whether birth parents’ consent should be dispensed with — whether change of name should be approved — whether adoption plans are in the best interests of child and proper in the circumstances — HELD — adoption order is clearly preferable and in child’s best interests — consent dispense orders are in the best interests of child — change of name approved — adoption plans are in the best interests of child and proper in the circumstances — adoption plans registered CHILD WELFARE — Adoption — Aboriginal placement principles — reasonable inquiries — where birth mother identifies as Aboriginal — where Secretary considers child is not Aboriginal — whether Secretary has made reasonable inquiries as to whether the child is an Aboriginal child — whether child is an Aboriginal child on the evidence before the court — HELD — reasonable inquires made — insufficient evidence to determine the child is an Aboriginal child

ADMINISTRATIVE LAW — Remedies — Equitable remedies – the plaintiff, a tenant was ordered by the NSW Civil and Administrative Tribunal (NCAT) to vacate certain premises for non-payment of rent – the plaintiff’s case that rent of the premises was abated because of an unexecuted repairs at the premises was rejected by NCAT – the plaintiff seeks relief in the nature of prerogative relief under Supreme Court Act 1970, s 69 – plaintiff moves for interlocutory relief staying the orders of the Tribunal pending a final hearing – whether interlocutory orders should be made – consideration of a serious question to be tried and the balance of convenience – no question of principle.

LAND LAW – Caveats – Extension of operation of caveat – where deed of family arrangement between mother, brother and sister – where brother lodges caveat over sister’s land pursuant to deed – where sister seeks to provide security to remove caveat pursuant to deed – whether adequate security provided LAND LAW – Caveat – Removal of caveat – whether Court should remove caveat pursuant to s 74MA of the Real Property Act 1900 (NSW)

CIVIL PROCEDURE — dispute between parties about discovery — scope of proposed categories of discovery

CIVIL PROCEDURE — application for stay of proceedings — construction of dispute resolution clause in international agreement

CIVIL PROCEDURE – dismissal application by the First and Fourth Defendants to dismiss the proceedings pursuant to UCPR r 13.4 or alternatively have the proceedings struck out pursuant to UCPR r 14.28 – no reasonable cause of action – proceedings dismissed

NEGLIGENCE — Medical negligence — Whether primary judge overlooked or incorrectly rejected expert radiological evidence — Whether doctor failed to take reasonable care — Whether hip prosthesis loose at time of revision surgery or thereafter until 2017

APPEAL – Application for leave to appeal from the decision of an Appeal Panel of the New South Wales Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Principles governing grant of leave to appeal – Discrete treatment of contractual and statutory issues – No appeal as to question of contract APPEAL – Question of law – Construction of building contract – Whether the Appeal Panel’s construction of the contract was erroneous – Whether the contract provisions preclude the builder’s claim because the builder failed to take out warranty insurance – Principles of construction of commercial contracts – Notations APPEAL – Question of law – Whether the Appeal Panel erred in holding that the builder’s claim was part of the contract price – Builder not entitled to any payment from the owner except for the contract price APPEAL – Whether Appeal Panel erred in definition of “residential building work” – Home Building Act 1989 (NSW) – Operation of ss 10, 92 and 94 – Whether work of a preparatory nature constitutes “residential building work” – Effect of failure to obtain warranty insurance – Statutory bar on recovery – Relationship between Home Building Act 1989 (NSW) and contractual rights APPEAL – Relief – Failure to appeal Tribunal Decision on contract – Failure to bring effective appeal to Appeal Panel on contract or in Supreme Court appeal – Leave refused on contract ground – Appeal otherwise dismissed

CIVIL PROCEDURE – application to strike out paragraphs of defence – where paragraphs do not adequately plead material facts – application granted in part

CIVIL PROCEDURE – proceedings commenced on behalf of persons under legal incapacity – settlement approval applications – Court to consider the best interests of persons under legal incapacity – settlements approved

CIVIL PROCEDURE – Pleadings – Particulars – Order sought for further particulars – Whether further particulars required – Where defendant has already filed List Response – Where matters were clarified by counsel during hearing of motion – Order for limited further particulars made

MONEY CLAIM – claimed loan – terms – whether monies loaned to company or director – whether proceedings were brought out of time – whether term of loan three months or loan repayable on demand

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 – application for leave under Civil Liability (Third Party Claims Against Insurers) Act 2017 and s 151D of the Workers Compensation Act 1987 to proceed against insurer – unopposed leave given – failure to comply with subpoena for production of documents – application to examine director – granted

ADMINISTRATIVE LAW — Jurisdictional error — Whether reviewable error of law — Whether Appeal Panel erred in characterisation of medical dispute — Whether medical assessment of lower extremity following ankle injury can include knee

CIVIL PROCEDURE – Representative proceedings – Pre-trial issues – Determination of common questions – Breach of consumer guarantees – Section 61 of the Australian Consumer Law – Fitness for a particular purpose – Merck orders – Whether questions need to be ventilated at trial – Where the disputed questions should be included as common questions and fixed for hearing

CIVIL PROCEDURE – Separate determination of questions – Whether a construction of statute argument should be heard separately – Where the construction of statute would be determinative of evidence led at trial – Consideration of countervailing efficiency considerations – Where the construction of statute cannot be separated from facts of the case – Where there are overlapping factual issues – Where the separate determination of questions would not facilitate the overriding purpose – Separate determination of questions refused EVIDENCE – Advance rulings – Whether an order should be made for the Court to give advance rulings as to the admissibility and use of evidence in chief – Whether overriding purpose facilitated by advance rulings – Where admissibility and use of evidence will depend on the way the case unfolds at trial – Where no significant benefit to the advance rulings

CIVIL PROCEDURE – summary disposal – application for summary judgment by plaintiffs – where statements of claim plead malicious prosecution, misfeasance in public office and collateral abuse of power – notice to admit facts – where defendant disputes notice to admit facts – whether the defendant has no real defence arising from the pleadings or there are no serious conflicts as to material facts or important matters – where the motions are entirely without merit

CONTRACTS – Formation – Uncertainty – Intention to contract – Whether a contract existed between the parties – Objective assessment of conduct and surrounding circumstances to demonstrate an intention to create legal relations – Where party has a history of dealing with the plaintiff in both a personal and professional capacity – Where history of friendly favours for reimbursement of expenses exists between the parties – Requisite intention not proved – Lack of specific terms and indicia suggesting intention to create legal relations – Ground of appeal upheld CONTRACTS – Error of law – Where it is an error of law for a finding of fact to be made where there is no evidence to support that finding – Agency – Whether a party was acting as agent for the defendant when engaging the plaintiff – Where no evidence to suggest that the party had the authority as agent for the defendant – Where evidence suggests the contrary – Where party allegedly acting as agent an undischarged bankrupt – Error of law established – Ground of appeal upheld APPEALS – From error of law – Appeal from Local Court to Supreme Court – Terms of the Local Court judgment varied

CIVIL PROCEDURE – Pleadings– Amendment to Statement of Claim – Notice of Motion seeking leave to file and serve an Amended Statement of Claim – Leave opposed – Principles of requirements for a proper pleading – Vicarious liability – Where the perpetrator had previously been misidentified and amendment sought to attach vicarious liability to an unidentified officer – Where only broad, general description of perpetrator provided – Whether sufficient detail in pleadings to allow defendant to meet the case – Whether delay was sufficient to warrant refusal of leave – Whether there are sufficient material facts to allow the defendant to understand the nature of the perpetrator’s employment for the purpose of vicarious liability – Where plaintiff unable to positively identify abuser beyond general physical description – Where defendant still able to meet the claim – Principles of case management – Leave granted

DEFAMATION — Practice and procedure — Trial by jury — Discharge of jury — Application for trial to continue without jury — Defamation Act 2005 (NSW), s 21 — Applicable principles — Whether primary judge identified incorrect source of power — Whether primary judge failed to take into account argument that change in mode of trial would occasion prejudice to applicant

CRIME — appeal against conviction — offence of sexual intercourse with a child under the age of 10 — presumption of doli incapax — whether Crown rebutted presumption on the available evidence — whether applicant understood that his acts were seriously or gravely wrong and not merely naughty or mischievous — RP v The Queen (2016) 259 CLR 641 considered — evidence as to the applicant’s contemporaneous character or maturity not sufficient to rebut the presumption beyond reasonable doubt — appeal allowed

CRIME – appeals – appeal against sentence – appropriate test to be applied to challenges to factual findings in criminal sentence appeals – test from R v O’Donoghue inconsistent with House v The King test and should no longer be followed CRIME – appeals – appeal against sentence – meaning of “mistake of fact” within meaning of House v The King – whether finding of sentencing judge “reasonably open” CRIME – appeals – appeal against sentence – whether sentencing judge erred in finding that the offences took place against a background of similar offending – no “mistake of fact” within House v The King test – no error established CRIME – appeals – appeal against sentence – whether sentence manifestly excessive – no misapplication of principle by sentencing judge – no error established

CIVIL PROCEDURE – Pleadings – Strike-out or summary dismissal – Whether leave to replead should be granted CIVIL PROCEDURE – Transfers to other courts – Local Court ESTOPPEL – Res judicata – Whether claim barred by cause of action estoppel – Whether exception for special circumstances JUDGMENTS AND ORDERS – Amending, varying and setting aside – Whether orders made or entered irregularly

PAROLE – revocation – application for directions to Parole Authority – false and misleading information – application dismissed

OPPRESSION — members’ rights and remedies — whether oppression established — whether buy-out order available where company in liquidation

EQUITY – Remedies – where the first and second defendants diverted fourteen projects from the first plaintiff to the third and fourth defendants – where the first and second defendants dishonestly breached their fiduciary duties in diverting those projects and third and fourth defendants knowingly assisted in those breaches – where thirteen of those projects resulted in a net profit for the third and fourth defendants and one resulted in a loss – where first plaintiff elected for an account of profits in respect of the thirteen profitable projects and did not seek any remedy in respect of the loss-making project – whether the defendants were entitled to set off, against their liability to account for the profits of thirteen profitable projects, the loss on the remaining project – whether the first plaintiff was entitled to compound interest

CRIMINAL LAW – murder – trial by judge alone –circumstantial Crown case – where unidentified intruder hypothesis does not rise to the level of a reasonable possibility – satisfied beyond reasonable doubt that the accused was the assailant – mental health impairment defence raised under s 28 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – where the accused diagnosed with Schizophrenia disorder – distinction between legal and ‘moral’ wrongfulness – verdict of act proven, but not criminally responsible.

PROCEDURE – application to set aside judgment entered in absence of party – whether primary judge erred in dismissing application – defendants unrepresented after failed adjournment application at commencement of 10 day trial – no challenge to finding that no satisfactory explanation for failure to appear at trial – whether primary judge erred in failing to consider matters outside scope of pleadings – no basis for grant of leave made out