Cases and authorities

COSTS – gross sum costs orders – assessment of gross sum – orders made – quantum of order COSTS – gross sum costs order – second and third respondents each retained a firm in which they were employed to act for them – whether second and third respondents entitled to costs for their own time

APPEALS — leave to appeal from stay of judgment — where quantum of costs under review — whether primary judge misapprehended effect of orders — whether primary judge erred in description of applicant’s conduct — whether express reference to principles governing grant of stay was required

Criminal practice – Admissibility of evidence – Sexual offences against child – Where evidence said to be available that complainant displayed sexualised behaviour prior to alleged offending – Where application to call evidence and cross-examine complainant about prior sexual history refused – Where s 293(3) of Criminal Procedure Act 1986 (NSW) rendered inadmissible evidence that discloses or implies complainant had or may have had sexual experience or lack of sexual experience, or had or may have taken part or not taken part in sexual activity – Whether evidence admissible under exception to s 293(3) – Whether "disclosed or implied in the case for the prosecution" that complainant had or may have had sexual experience or lack of sexual experience or had or may have taken part or not taken part in sexual activity – Whether disclosure or implication from prosecution adducing evidence that complainant was nine years old and from not adducing evidence of complainant's alleged prior sexual experience – Whether Crown Prosecutor's final address unfair. Words and phrases – "assumption or inference a juror might hold or draw", "complainant's age alone", "disclosed or implied in the case for the prosecution", "evidence adduced or the submissions made in the case for the prosecution", "expressly or implicitly relied on by the prosecution", "failure of the prosecution to adduce evidence", "had or may have had sexual experience", "miscarriage of justice", "sexual activity", "sexual experience", "unfair reasoning". Criminal Appeal Act 1912 (NSW), s 6(1). Criminal Procedure Act 1986 (NSW), s 293.

Trade practices – Misleading or deceptive conduct – Where "House Bed & Bath" trade mark used as name of new soft homewares stores – Where network of stores throughout Australia sold soft homewares under trade marks including "BED BATH 'N' TABLE" since 1976 – Whether use of "House Bed & Bath" trade mark misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of Australian Consumer Law – Whether trader's wilful blindness to possibility of confusion relevant to objective question of misleading or deceptive conduct – Whether primary judge's conclusion involved material error. Words and phrases – "appellate review", "conduct", "confusion", "context", "deceptive similarity", "deceptively similar", "distinctiveness", "evidentiary approach", "immediate and broader context", "inference", "likely to mislead or deceive", "misleading or deceptive", "objective assessment of fact", "reputation", "state of mind", "trade mark", "trade or commerce", "trader", "wilful blindness". Competition and Consumer Act 2010 (Cth), Sch 2, s 18(1). Trade Marks Act 1995 (Cth), s 120(1).

Administrative law – Judicial review – Jurisdictional error – Where application for student visa refused on basis that plaintiff not genuine applicant for entry and stay as student – Where plaintiff informed Tribunal he did not have current Confirmation of Enrolment in registered course of study – Where plaintiff consented to decision being made without hearing – Where Tribunal affirmed refusal decision on basis that plaintiff not enrolled in registered course of study – Where Federal Circuit Court of Australia refused application for judicial review – Whether decision by Federal Court of Australia to refuse extension of time and leave to appeal involved jurisdictional error – Whether abuse of process to contend Tribunal fell into jurisdictional error. Words and phrases – "abuse of process", "certiorari", "consent", "jurisdictional error", "mandamus", "prospect of success", "reasonably impressionistic level", "registered course of study", "student visa". Federal Court of Australia Act 1976 (Cth), ss 24, 25, 33. Migration Act 1958 (Cth), ss 359, 359C, 360. Federal Circuit Court Rules 2001 (Cth), r 44.12. High Court Rules 2004 (Cth), r 25.09.3. Migration Regulations 1994 (Cth), r 1.03, Sch 2 cll 500.111, 500.211, 500.212.

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

LAND LAW – possession of land – deed of settlement included short minutes of order for judgment and possession executed by the parties – a payment required 5 December 2025 – no payment made – no basis to set aside settlement deed – possession and judgment ordered

CIVIL PROCEDURE – separate determination of questions – proceedings for breach of equitable and contractual obligations of confidence – proposed separate determination of pecuniary relief subsequent to determination of “all other issues” in the proceedings – significant risk of bifurcation and delay in the event of an appeal – separate question refused

APPEALS — leave to appeal orders of the Local Court — Local Court Act 2007, ss 39, 40 — no appeal as of right — where amount of dispute under statutory threshold — leave refused — no issue of principle, question of general importance or reasonably clear injustice — costs disproportionate to amount in dispute APPEALS — appeal on question of law — whether primary judge erred in applying discount for damages — no error established

MENTAL HEALTH – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – forensic patient – extension of status as forensic patient – final hearing – whether unacceptable risk of causing serious harm if status as forensic patient ceases – whether risk can be managed adequately by less restrictive means

CRIMINAL LAW – subpoena issued by prosecution – calls made by accused from gaol – whether access should be given to the sound files produced – 20 out of 21 calls were in fact to co-accused’s wife – personal matters irrelevant to the matters for determination in the trial discussed – one call in which co-accused came onto the phone and spoke to accused – personal matters irrelevant to the issues for determination in the trial – four calls to Joseph Vokai – one call another person got on phone at gaol end and spoke in language other than English – three other calls social chat

WILLS, PROBATE AND ADMINISTRATION – informal wills – Succession Act 2006 (NSW) s 8 – where a document saved on deceased’s iPhone in the Notes application – whether deceased intended document without more to operate as a will – evidence that the deceased considered the document final – where no publication of will prior to death – where will discovered after death

ADMINISTRATIVE LAW – judicial review – jurisdictional error – review of interlocutory decisions of District Court in its appellate criminal jurisdiction – effect of s 176 of District Court Act 1973 (NSW) on judicial review of decisions of District Court – decision not to grant an adjournment pursuant to s 40 of the Criminal Procedure Act 1986 (NSW) – decision not to allow fresh evidence on appeal pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) – subsequent decision not to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) – whether denial of procedural fairness or natural justice – whether constructive failure to exercise jurisdiction – whether reasonable apprehension of bias APPEAL AND REVIEW – application for extension of time for filing of summons – where applicants self-represented – application to rely in judicial review proceedings on all of the evidence that was before Local Court and District Court

APPEAL — leave to appeal — leave required as the amount does not exceed $100,000 —failure to establish issue of principle, question of public importance or reasonably clear injustice — by consent leave granted in respect of proposed ground 5 and appeal allowed for failure to award separate amounts for damages and order judgment against each applicant separately — leave to appeal otherwise refused DEFAMATION — defamatory matter — multiple publications — emails — Facebook comments — alleged misuse of charitable funds for personal financial benefit — applicants held to have published defamatory material — Wild2Free — wildlife care — common law qualified privilege — reply to attack — triviality defence — Defamation Act 2005 (NSW), ss 33, 39

CONTRACTS – contract for the sale and purchase of Crown lease – defects – cracks in concrete slab – measure of damages – rectification damages – where multiple methods of rectification are available – where evidence led only in respect of one method of rectification – reasonableness of methods of rectification

CRIME — appeals — appeal against sentence —Commonwealth offence — family hardship — Totaan v R — error conceded — no lesser sentence warranted in law

ENVIRONMENT AND PLANNING – environmental crime – offending contrary to ss 342(1)(a) and 343(1) of Water Management Act 2000 – strict liability offences – where appellants fined for damaging or interfering with work owed or under control of irrigation corporation – where appellants took water from water supply work without authorisation SENTENCING – appeal against sentence – principle of totality in the imposition of fines – error in sentencing judge’s approach to totality – considerations when sentencing a corporation – parity – appellants’ resentenced PRACTICE AND PROCEDURE – arithmetical error in sentence – r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) – amendment made under slip rule – slip rule incorporated into the Land and Environment Court Rules 2007 (NSW) in respect of Class 5 proceedings – amendment permissible – application of the slip rule does not permit re-exercise of sentencing discretion – no re-exercise of discretion required here

CRIME – appeal against sentence – misapplication of principle – irrelevant considerations – error at sentence – applicant’s criminal history not to be considered in determining the objective seriousness of an offence CRIME – appeal against sentence – re-exercise of sentencing discretion – no lesser sentence warranted

CRIME – appeals – appeal against sentence – whether the sentencing judge erred in setting the commencement date of the sentence – whether sentencing judge failed to account for a period of custody referable to an offence for sentence – no question of principle – appeal upheld – applicant re-sentenced

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 – proceedings commenced on behalf of persons under legal incapacity – interim payment approval – where plaintiff incapable of managing affairs – interim payment made to manager of plaintiff’s estate

ADMINISTRATIVE LAW – application to have summons dismissed – orders sought quashing decision to revoke security license – where NCAT had previously upheld the decision – where appeal from NCAT’s decision had been dismissed and application to reinstate appeal withdrawn – where summons discloses no reasonable cause of action and judicial review of challenged decision is not available given binding NCAT decision

EQUITY — Trusts and trustees — Resulting trusts – Where legal title of property passed from parents to children – Whether transfer of property was an absolute gift – Whether transfer gave rise to resulting trust in favour of parents – HELD transfer of property gave rise to a resulting trust in favour of parents JUDGMENTS AND ORDERS — Form of Orders — Orders conditional on repayment of social security benefits – Indemnity out of trust fund against capital gains tax and expenses COSTS — Party/Party — Payable out of a fund — Trust – Whether costs of reasonable but unsuccessful claims should be paid out of trust moneys – HELD all parties are entitled to costs to be paid out of trust moneys COSTS — Party/Party — Payable out of a fund — Trust – Where the identity of the trustee was debated – Where plaintiffs as previous trustees may have acted in their own interests by asserting that they were not trustees – Whether UCPR r 42.25 entitles all former trustees to indemnity costs – HELD plaintiffs were not entitled to indemnity costs

EQUITY — Breach of fiduciary duty— Liability to account as a constructive trustee as distinct from the constructive trust as a remedy EQUITY — Breach of fiduciary duty — Application of Barnes v Addy — Knowing receipt — whether personal liability extends to cases where the claimant has no proprietary interest in subject property — whether liability dependent upon demonstration of some judicially recognised antecedent or current proprietary interest — HELD — claimant’s ability to assert a proprietary interest in the subject property is not determinative of personal liability in knowing receipt in this jurisdiction — personal liability fixes on the conscience of the recipient by reference to their knowledge at the time of receipt EQUITY — Breach of fiduciary duty — Application of Barnes v Addy — Knowing receipt — application to non-trustee fiduciary relationship — scope of property to which fiduciary obligations attach — whether unauthorised profits obtained in breach of fiduciary duty are within the ambit of “trust property” — where extant judgment holding errant fiduciary liable to account and not mere allegations — HELD — unauthorised profits obtained in breach of fiduciary duty constitute property to which a fiduciary obligation attaches and are within the ambit of “trust property” for the purpose of liability in knowing receipt EQUITY — Breach of fiduciary duty — Application of Barnes v Addy — Knowing receipt — whether transfer to recipient itself must be in breach of trust or fiduciary duty — HELD — liability in knowing receipt extends to “downstream recipients” EQUITY — Breach of fiduciary duty — Application of Barnes v Addy — Knowing receipt — Standard of knowledge required — Relationship with the standard for knowing assistance — HELD — Baden categories (i) to (iv) will sustain an action in knowing receipt but Baden category (v) constructive notice is insufficient EQUITY — Breach of fiduciary duty — Application of Barnes v Addy — Knowing receipt — Beneficial receipt — whether liability in knowing receipt extinguished by intermediary who holds funds temporarily in a ministerial capacity — application of bona fide purchaser for value without notice “defence” in this context — HELD — questions of title and priority in respect of property not determinative of personal liability in knowing receipt EQUITY — Tracing — Real property — Registered mortgage — Indefeasibility — where in personam exception to indefeasibility does not extend to cases of a constructive trust under the first limb of Barnes v Addy at least in relation to proprietary claims — where mortgage discharged and claimant seeks to trace into payments received to discharge mortgage — HELD — payments received to discharge mortgage are distinct from a claim of title to either the property or the mortgages themselves

CRIMINAL LAW — proceeds of crime — proceeds assessment order — assessment of expenditure under Criminal Assets Recovery Act 1990 (NSW) — whether market value of drugs in appellant’s possession properly included as proceeds — compulsory examination — maintenance payments — weight of admissions — credibility — objective probabilities — alleged loans — failure to discharge onus under s 28(3) — Browne v Dunn — alleged denial of procedural fairness — beneficial ownership of property — judicial notice — objective probabilities — whether inference open — appeal dismissed EVIDENCE — compulsory examination — admissibility of transcript to prove truth of admissions — operation of ss 59, 81, 82 of the Evidence Act 1995 (NSW) — effect of s 54(5) of the Criminal Assets Recovery Act 1990 (NSW) — first-hand versus second-hand hearsay — probative value of admissions — use of admissions against interest — weight of evidence concerning maintenance payments — availability of Jones v Dunkel inference — whether appellant “gave evidence” by being examined under s 12

CIVIL PROCEDURE – stay of proceedings – concurrent civil and criminal proceedings – prejudice to defendants – Australian civil proceedings and Hong Kong criminal proceedings

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

CIVIL PROCEDURE – claim under guarantee – case management – various orders sought – delay – adjournment of motion but matter listed for hearing

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

EVIDENCE ON COMMISSION – application pursuant to s 32 of the Evidence on Commission Act 1995 (NSW) – where application relates to family law proceedings in overseas Court – orders made

HIGH RISK OFFENDER – preliminary hearing – serious violence offender – application for interim supervision order (ISO) – making of order not contested by defendant – contentious conditions – whether there is a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence – orders for expert assessment and ISO imposed

BUILDING AND CONSTRUCTION – payment claims served but no payment schedules provided – claim for unpaid portion of payment claims under s 15(2)(a)(ii) of the Building and Construction Industry Security of Payment Act 1999 (NSW) – application for summary judgment – whether triable issues exist as to validity of payment claims BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – insurance – excluded dwellings – development of high physical support accommodation – whether “self-contained units” – whether analogous with a share house in Newtown

APPEALS – appeal from decision of Associate Justice – interlocutory decisions – separate but related proceedings – regrettable – rehearing – grounds – whether error in refusing leave to file amended summonses – whether error in dismissing application for discovery – whether error in dismissing application for stay of costs assessment – whether failure to provide reasons – finding that the primary judge erred in refusing leave to amend summonses – orders made granting leave – appeal otherwise dismissed APPEALS – further evidence – where plaintiff sought to rely on two affidavits not before primary judge – contents known to plaintiff at time of hearing – contents not in dispute – tender rejected

PRIVATE INTERNATIONAL LAW — orders with extraterritorial effect — anti-suit injunction in equitable and inherent jurisdiction — whether clearly inappropriate forum — whether stay or dismissal in California required — exclusive jurisdiction clauses — principles of comity — whether complete correspondence of foreign and local proceedings — whether legitimate juridical advantage CORPORATIONS — injunction — whether contravention of the Act — statutory derivative action in foreign jurisdiction — proof of foreign law — where no leave sought

CRIME – appeal against sentence – use carriage service to threaten to kill a person with the intention that the person would fear the threat would be carried out – use carriage service in a way that reasonable persons would regard as being in all the circumstances menacing and/or offensive – whether primary judge erred in determining suitability of an ICO – whether primary judge erred by failing to consider a Recognizance Release Order – effect of mental health on offending – degree of notional accumulation – sentence not manifestly excessive – appeal dismissed

CRIME — appeals — appeal against sentence — whether sentencing judge failed to make findings about remorse and prospects of rehabilitation — nature of sentencing judge’s obligation to give reasons CRIME — appeals — appeal against sentence — manifest excess — whether inadequate weight given to subjective circumstances

CIVIL LAW – foreign judgments and orders – recognition or enforcement at common law – People’s Republic of China – judgment enforced

INSURANCE – PROCEDURE – Civil – whether leave should be granted to amend pleading to proceed against underwriters pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – exclusion clauses – whether underwriters can disclaim liability – discretion of the Court – leave refused.

EQUITY — Equitable interests in property — Priority disputes — Competing with other interests — Self-dealing executor holds property on institutional constructive trust for estate beneficiaries from moment of breach of fiduciary duty EQUITY — Fiduciary duties — Breach — Self-dealing by executor EQUITY — Trusts and trustees — Breaches of trust — Court’s power to excuse

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Developer — meaning of developer — meaning of residential development — whether non-contiguity of land determinative of existence of residential development BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — phrase “in relation to the work … a developer” in contract of insurance — whether Appeal Panel considered developer status in the abstract — whether Appeal Panel applied incorrect temporal focus to term INSURANCE — onus of proving exception to contract of insurance — whether Appeal Panel misapplied onus — onus of proof involves risk of non-persuasion, which risk did not arise

REAL PROPERTY – Old system title – Adverse possession – Extinguishment of documentary owner’s title on expiry of limitation period – Identifying documentary owner’s legal representative through chain of executors

NEGLIGENCE — Duty of care — Foreseeability — Where plaintiff alleges sexual abuse committed upon him whilst a detainee at Mount Penang Juvenile Justice Centre — Where sexual abuse allegedly committed by a staff member in the vicinity of where detainees showered in the gym at Mount Penang Juvenile Justice Centre — Whether the plaintiff’s evidence of the sexual abuse is credible NEGLIGENCE — Duty of care — Non-delegable duty — Where plaintiff claims that defendant owed and breached its duty of care to protect the plaintiff from sexual and physical abuse and from circumstances where he would be abused or fear abuse NEGLIGENCE — Damages — Personal injury damages — Where damages are sought by plaintiff consequent to sexual abuse committed upon him as a detainee at Mount Penang Juvenile Justice Centre NEGLIGENCE — Vicarious liability — Course of employment — Where plaintiff claims that he occupied a position of vulnerability as a child detainee — Where plaintiff claims that sexual abuse committed upon him occurred in the course of the abuser’s employment with the defendant

HIGH RISK OFFENDERS — extended supervision orders — application — extended supervision order granted HIGH RISK OFFENDERS — extended supervision orders — matters to be considered — history of offending — serious sexual offending

SUCCESSION — Administration of estates — contested proceedings among siblings in relation to the administration of the estate of their mother – the proceedings settled – the first defendant, a daughter of the deceased, appointed administrator of the estate pendente lite – the plaintiffs, the first defendant’s siblings, and the first defendant herself, receive substantial funds under the settlement after the sale of estate real property – two of the plaintiffs are under a legal disability and their entitlements under the settlement were to be paid to the NSW Trustee and Guardian – solicitors acting for the first defendant on the settlement receive the funds from the sale of the estate’s real property and give control of those funds to the first defendant to be managed by her before distribution pursuant to the settlement – the first defendant misappropriates most of the funds without the knowledge of the plaintiffs and either expends them herself, or distributes them to members of her family – plaintiffs seek freezing orders and recover some of the misappropriated funds – first defendant to be removed as administrator – what further steps should be taken in the administration of the estate and in particular to recover misappropriated funds or compensation from third parties, and if so by what means – what steps should be taken to deal with the funds recovered so far, which have been paid into Court – whether any interim distributions can and should be made to any of the plaintiffs – should an order for general administration be made, or by what other means should the Court assist the future administration of this estate – should the first defendant and any other defendants be referred to the Attorney General as first law officer of the State for further investigation as the circumstances point to the likely occurrence of criminal conduct.

BUILDING AND CONSTRUCTION — design and construct contract — apartment development — payment for variations —construction of “variation”, “direction” and contractual pricing mechanism CONTRACTS — interpretation — whether parties agreed to exclude consultants’ fees from contract sum — practical completion — whether date for practical completion varied by agreement — claim for liquidated damages for delay EQUITY — contribution — co-ordinate liability — deed of settlement — whether settlement conferred benefit on builder requiring reduction of damages — valuation dispute as to alleged undervalue of transferred properties

CRIME – Appeals – appeal against sentence – obtain financial advantage by deception – threaten witness – manifest excess – concurrency – whether sentence should be backdated to imprisonment for unrelated offending – no error found – appeal dismissed – self-represented applicant

CIVIL PROCEDURE — Discontinuance of proceedings — Leave of court — Terms on which proceedings discontinued — Importance of giving defendant reasonable and specific final pre-action opportunity to perform

CIVIL LAW – criminal assets recovery – delay – order for examination of third parties regarding defendant's property

COSTS – Party/Party – Costs orders in interlocutory proceedings – where two identical motions from separate parties – where one party consents to a costs order – whether to order costs against other party

CORPORATIONS — application for rectification of records maintained by ASIC — where appointment of receivers to property held by company on trust — whether the court has power to and should order rectification of registers maintained by ASIC — application of s 1322(4) of the Corporations Act 2001 (Cth)