Cases and authorities

CONTRACTS – construction – finance consultancy agreement (FCA) in relation to funding solutions for the refinancing and development of the defendant’s property – where FCA provided that, in consideration for the plaintiff performing the “Work”, the defendant must pay to it a non-refundable fee comprised of four payments – dispute about whether the plaintiff performed the “Work” as defined in the FCA – dispute about when each of the payments comprising the plaintiff’s fee became due on the proper construction of the FCA – dispute about whether, in the events that had happened, two of those payments were due under the FCA, properly construed, and secured by equitable charge against the defendant’s property pursuant to a charging clause in the FCA – no question of principle

Criminal practice – Directions to jury – Distress evidence – Where respondent found guilty of offences against two complainants – Where evidence of pre-trial distress when one complainant made complaint – Where trial judge gave directions in relation to evidence of complainant's distress – Whether trial judge's directions invited jury to use distress evidence as independent support for complainant's account – Whether directions occasioned substantial miscarriage of justice – Whether Court of Appeal's reasoning contrary to R v Churchill (a pseudonym) (2025) 99 ALJR 719; 422 ALR 265 – Whether evidence inadmissible under s 137 of Evidence Act 2008 (Vic) – Whether miscarriage of justice because prosecutor described distress evidence as "independent evidence". Words and phrases – "alleged offending", "capable of supporting", "causal connection", "circumstantial evidence", "corroboration", "credit", "direction", "distress evidence", "hearsay rule", "historical evidentiary rules", "independent evidence", "indirect evidence", "pre-trial distress evidence", "probative value", "sexual offence", "substantial and compelling reasons", "substantial miscarriage of justice", "unfair prejudice", "unreliable", "weight". Evidence Act 2008 (Vic), ss 55, 56, 66, 137. Jury Directions Act 2015 (Vic), ss 12, 15, 16, 31, 32.

Practice and Procedure – Jurisdiction – Jurisdiction of the Full Court of the Supreme Court of the Northern Territory on referral under ss 15 and 21 of Supreme Court Act 1979 (NT) – Where application for declaration referred for determination by the Full Court – Where the Full Court declined to accept the referral – Where parties subsequently made no submissions to the Full Court regarding application for declaration – Where the Full Court subsequently purported to order that application for declaration be dismissed – Whether the Full Court had jurisdiction to order dismissal of application – Whether regard may be had to extrinsic material in interpreting the Court's order. Words and phrases – "decline to accept referral", "determination", "extrinsic material", "jurisdiction", "order", "public housing", "referral", "remote communities", "rent", "special leave to appeal", "tenant". Housing Act 1982 (NT), s 23. Housing Regulations 1983 (NT). Residential Tenancies Act 1999 (NT), s 41. Residential Tenancies Regulations 2000 (NT), Sch 2 cl 2. Supreme Court Act 1979 (NT), ss 15, 18, 21.

Statutes – Construction – Housing Act 1982 (NT), s 23 – Power of Minister to make determinations regarding rent to be paid for dwelling or class of dwelling – Where rent determined by Minister is to be paid despite anything to the contrary in existing tenancy agreement – Where Minister made determinations without giving notice to any tenant or inviting any tenant to make submissions on the proposed change in rent – Whether Minister owed duty to afford procedural fairness – Whether content of duty to afford procedural fairness included obligation to give hearing – Whether failure to afford procedural fairness was material – Whether determinations were legally unreasonable. Words and phrases – "content", "determination", "duty of procedural fairness", "eligible person", "fair rent", "general policy", "individual rights and interests", "judicial review", "landlord", "lease", "legal unreasonableness", "let a dwelling", "materiality", "natural justice", "not adequately housed", "prior notice", "procedural fairness", "public housing", "rebate", "remote communities", "rent", "residential accommodation", "safety net", "statutory power", "submissions", "tenancy agreement", "tenant". Housing Act 1982 (NT), ss 6, 14, 15, 16, 17, 23, 34, 37. Housing Regulations 1983 (NT), regs 3, 4, 5. Residential Tenancies Act 1999 (NT), ss 3, 41, 42, 46.

CRIME — appeals — appeal against sentence — application for leave to appeal out of time — offence of attempt to possess commercial quantity of border-controlled drug — manifest excess — parity with sentence of co-offenders, one sentenced separately — appeal dismissed

CORPORATIONS — insolvency — winding-up — where application for adjournment of winding up refused — where winding up order made and liquidator appointed COSTS — where costs of adjournment application not ordered against administrators — where gross sum costs ordered in respect of winding up

CIVIL LAW – proceeds of crime – restraining orders – order for compulsory examination – ex parte hearing

COSTS – party/party costs – application to set aside statutory demand – where statutory demands were formally withdrawn – whether indemnity costs order should be made – whether appropriate to make a gross sum costs order – no issue of principle COSTS – third party costs order – where Defendants have no assets – whether third party costs order should be made against sole director and shareholder of Defendants – no issue of principle

CRIMINAL LAW – murder – defence of mental illness – accused suffering from a schizophrenia spectrum illness – expert evidence unanimous that accused was suffering from a mental health impairment at the time of the acts – expert evidence unanimous that accused could not reason with a moderate degree of sense and composure about whether his acts, as perceived by reasonable people, were wrong –verdict of not guilty by reason of mental illness

CIVIL PROCEDURE – pleadings – application to strike out defence – application to file amended defence

Criminal law – Appeal against conviction – Where appellant charged with two forced labour offences contrary to Criminal Code (Cth) – Where County Court of Victoria exercised federal jurisdiction for appellant's trial and conviction on indictment – Where trial judge proceeded on basis that ss 63 and 64 of Jury Directions Act 2015 (Vic) applied in accordance with s 68(1)(c) of Judiciary Act 1903 (Cth) – Where jury directed in accordance with s 64(1)(e) of Jury Directions Act that "[a] reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility" – Whether indication that "reasonable doubt is not ... an unrealistic possibility" alters, impairs, detracts from or diminishes criminal standard of proof "beyond reasonable doubt" – Whether indication inconsistent with s 13.2 of the Criminal Code (Cth). Constitutional law – Whether explanation contained in Jury Directions Act inconsistent with requirements of "trial on indictment ... by jury" in s 80 of Constitution – Whether essential content of "trial on indictment ... by jury" includes requirement that jury be unanimously satisfied of guilt beyond reasonable doubt. Words and phrases – "alter, impair or detract", "beyond reasonable doubt", "Commonwealth offences", "compound expression", "connotation", "controlling standard", "denotation", "essential feature", "explanation", "federal jurisdiction", "imaginary or fanciful doubt", "improbable", "inconsistency", "picked up and applied", "proof beyond reasonable doubt", "standard of proof", "sure", "trial on indictment by jury", "unreal possibility", "unrealistic possibility". Constitution, ss 80, 109. Criminal Code (Cth), ss 13.2, 270.6A. Judiciary Act 1903 (Cth), s 68. Jury Directions Act 2015 (Vic), ss 63, 64.

CONTRACTS — construction — where parties entered into deed for staged sale by put and call options of parcels of land identified as Properties 6 to 10 — where appellants were required to provide respondents with plan of subdivision — whether primary judge erred in finding that plan of subdivision must be “based upon” draft plan annexed to deed — whether primary judge erred in finding that rights to acquire Properties 7 to 10 are lost when right to acquire Property 6 is lost

WORKERS COMPENSATION – claim for compensation following injury – alleged constructive failure to exercise jurisdiction – alleged failure to properly consider submissions – no error established

CRIME – charge of murder – defence of mental health impairment – parties agree defence of mental health impairment established – evidence by forensic psychiatrists – s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – special verdict – orders under s 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – consequential orders – victims impact statement

HIGH RISK OFFENDERS – extended supervision orders (ESO) – final hearing – assessment of unacceptable risk of the commission

EXPERT DETERMINATION – expert engaged to determine “fair value and market value” of shares to enable buy-out of interests in unit trust – expert required to determine whether contributions ought be characterised as loans or equity – issue decided adversely to plaintiff – whether “manifest error” – whether expert postulated an erroneous dichotomy – no issue of principle

CIVIL PROCEDURE — Commencement of proceedings — Leave to commence action — plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted retrospectively

CIVIL PROCEDURE – Commencement of proceedings – leave to commence action – plaintiff in custody serving a sentence for the commission of a serious indictable offence – leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings – leave granted retrospectively

SUCCESSION – Probate and administration – Missing original will – presumption of revocation by destruction – testator assumed the original was held by solicitors – testator assumed the will remained current – presumption not engaged – presumption rebutted in any event.

CIVIL PROCEDURE – summary judgment for possession sought by plaintiffs – no issue except identity of the parties to the mortgage – where evidence establishes that the defendant has no defence – summary judgment for possession ordered

CIVIL PROCEDURE – Parties – Persons under legal incapacity – where Defendants seek an order for medical examination of the Plaintiff in relation to capacity – UCPR r 23.4 – where Second Defendant is the son of the Plaintiff – where Second Defendant is in dispute with mother and sister – where Second Defendant has concern regarding whether Plaintiff has capacity to give instructions to commence and conduct proceeding - where Defendants will consent to relief sought in proceeding in event that medical examination confirms that the Plaintiff has such capacity - whether sufficient evidentiary basis established for concern regarding capacity – whether Court should order medical examination – whether the proceeding should be stayed and its continuation made conditional on medical examination

COSTS – Offer of compromise – Whether offer of compromise was reasonable – Where offer was conditional – Where offer was not more favourable than the order or judgment obtained – Indemnity costs refused JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Where pre-judgment interest was not the subject of submissions nor particularised in schedule of damages – Where interest nonetheless claimed in statement of claim – Whether pre-judgment interest available in those circumstances – Pre-judgment interest ordered

ADMINISTRATIVE LAW — judicial review — motor vehicle accident — review of decision under Motor Accident Injuries Act 2017 (NSW), s 7.20 not to refer a claim for assessment — whether existence of a medical dispute a jurisdictional fact for the Court to determine on an application for judicial review — whether procedural rules of the Commission inconsistent with s 7.20 — whether certiorari is available under s 69 of the Supreme Court Act 1970 (NSW) in respect of a decision not to refer

CRIME — Appeals — Appeal against conviction — Aggravated sexual intercourse with a child — Directions required to be given in respect of using uncharged acts for a tendency purpose — Reference to party adducing evidence best understood as identifying the party seeking to use evidence for a tendency purpose — Evidence may be used for tendency purpose without determining issues raised by ss 97, 97A and 101 if no objection taken CRIME — Appeals — Appeal against conviction — Application to adduce new evidence — Where new evidence could have been obtained at trial and did not raise reasonable doubt about guilt — Application refused CRIME — Appeals — Appeal against conviction — Where direction given to jury that if they had or could not reach unanimous verdict they would be given further directions — Where direction did not place pressure on jury CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Where complainant unable to be specific as to timing of sexual assaults — Where complainant’s reasons were reasonable and plausible

CRIME – appeals – appeal against sentence – whether manifestly excessive

CRIMINAL LAW – jury – discretionary discharge of jurors

CIVIL PROCEDURE — Implied undertakings — Release from — Special circumstances — To assist in criminal prosecution

CIVIL PROCEDURE – Discovery – Practice Note SC Eq 11 – whether documents sought in notice to produce relevant to real issues in dispute COSTS – Party/Party – Costs orders in interlocutory proceedings – Indemnity basis

COSTS – General rule that costs follow the event — Application of the rule and discretion – plaintiff partly successful on motion for discovery against four defendants – plaintiff represents himself – plaintiff seeks payment of a lump sum on account of the costs of the whole proceedings against each of the four defendants – the plaintiff does not seek costs of the motion – proceedings have not yet been set down for final hearing.

CIVIL PROCEDURE – summary disposal – application for summary judgment CIVIL PROCEDURE — Cross-vesting — application for transfer under Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), subs 5(1) — application opposed — held debt recovery and possession parts of the proceeding do not arise under federal law – held it is not in the interests of justice to transfer claims arising under the general law — whether claims concern a “special federal matter” under Bankruptcy Act 1966 (Cth) which must be transferred — if not, whether discretion to transfer should be exercised

CIVIL PROCEDURE — judgments and orders — leave to reopen — procedural fairness

LAND LAW — Conveyancing — rules of construction — Standard form easements — scope of rights conferred by an ‘easement to drain water’ in standard form LAND LAW — Easements — Substantial interference with easements — Whether obstructions present on easements constitute substantial interference with rights conferred LAND LAW — Easements — Substantial interference with easements — Remedies for substantial interference — Whether refusal of consent to development application by dominant owner constitute substantial interference with rights conferred — Whether consent could be compelled by way of injunctive relief WORDS AND PHRASES — ‘easement to drain water’

HIGH RISK OFFENDERS – preliminary hearing – high risk sex offender – offender with long history of violent sexual offending – offender currently serving sentence of imprisonment for breach of interim supervision order – application for interim detention order – orders made

CORPORATIONS – statutory derivative action – application to bring proceedings on behalf of company – where Plaintiff entered into funding agreement in relation to application and proposed claim – where Plaintiff entitled to various payments under funding agreement – whether Plaintiff is acting in good faith – whether it is in the best interests of company that leave be granted – whether a serious question to be tried EVIDENCE – Hearsay – Exceptions – Non-hearsay purpose – Limitation on use of evidence

CORPORATIONS LAW – share transfer – whether Form 484 lodged with ASIC erroneous – whether register ought to be rectified or particulars amended – where original owner of shares is deceased – where undetermined dispute who owned shares at time of death – where parties entered into deed requiring signed transfer after obligations completed – where obligations will complete in matter of weeks – where undertaking given – whether utility in making order

ADMINISTRATIVE LAW — judicial review of a decision of a medical assessor of the Personal Injury Commission of New South Wales — procedural fairness — whether the medical assessor failed to determine the dispute between the parties — whether the medical assessor determined matters that were not open on the known material — where medical assessor referred to materials not raised by the parties

PRACTICE & PROCEDURE – pleading – abuse of process – UCPR 13.4 – Anshun estoppel – whether present proceedings assert matters that were so relevant to the subject matter of earlier proceedings that it would have been unreasonable not to rely on them PLEADING – UCPR 14.28 – whether statement of claim liable to be struck out on the basis that it tends to cause prejudice, embarrassment or delay in the proceedings

COSTS – indemnity costs – whether relevant misconduct in the proceedings warranted an indemnity costs order – unreasonableness of plaintiff’s failure to comply with the Court’s earlier orders – costs ordered on indemnity basis

FAMILY LAW AND CHILD WELFARE — Where application is one for leave to appeal and to set aside a previous decision by the Children’s Court refusing leave to apply for rescission and variation of care orders under s 90 of the Children and Young Persons (Care and Protection Act) 1998 (NSW) — Whether Supreme Court has jurisdiction to entertain such an application on a basis apart from its parens patriae jurisdiction or under s 69 of the Supreme Court Act 1970 (NSW) PRACTICE AND PROCEDURE — Final or interlocutory judgment — Where in first judgment Children’s Court refused leave to apply to vary some existing care orders and allowing leave in respect of others — Where in second judgment Children’s Court considered the substantive application to vary care orders on grounds for which leave was granted in first judgment —Where appellant now appeals seeks to set aside both judgments — Whether appellant has done so in a manner which directly challenges the first judgment on its own, rather than on the grounds that said judgment affected the final result in the second judgment

SUCCESSION — Contested probate — Suspicious circumstances — Lack of knowledge and approval —Where interested party present during preparation and execution of wills — Where interested party’s entitlement increased with each successive will — Where interested party was a paid carer SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow — Soundness of mind, memory and understanding — Where deceased diagnosed with mild-mixed dementia — Where significant bequest and gifts made to a paid carer SUCCESSION — Contested probate — Undue influence — Where testator vulnerable — Where interested party a carer with control of testator’s affairs — Where testator dependent on interested party — Where background circumstances created coercion

LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of offence under s 400.3(1) of the Criminal Code (Cth) of dealing in proceeds of crime – sentence of imprisonment – declaration that the practitioner is not a fit and proper person to remain on the roll of Australian lawyers – order that practitioner’s name be removed from roll – orders not opposed

APPEALS — issue not argued below — conduct of trial — enforceability of agreement — offer and acceptance and intention to create legal relations only issues of contractual formation raised below — alleged absence of consideration raised on appeal — principles against allowing new points to be run on appeal — question of construction with factual aspects — possibility of further evidence below — additional possibility of alternative claim being pursued if the point had been raised — inimical to administration of justice — argument not entertained CONTRACTS — formation — consideration — forbearance to sue — respondent previously sued as guarantor for appellant under Chinese loan agreement — appellant agreed to pay respondent for judgment debts incurred in Chinese litigation — right to commence legal proceedings if payment not made — appellant fails to pay — respondent sues under agreement — whether forbearance to sue on proper construction of agreement — unnecessary to decide

HIGH RISK OFFENDERS – preliminary hearing – interim supervision order – appointment of experts –orders not opposed – where defendant subject to an extended supervision order – serious sex offences –diagnosis of Paedophilia – significant history of sexual offending – “Well Above Average” risk range – orders made HIGH RISK OFFENDERS – conditions – schedule of movement conditions opposed – where defendant progressed to “Stage 3” monitoring – compliant – option to regress defendant maintained – conditions imposed as sought

COSTS – party/party – indemnity costs order – where offer of compromise made – no question of principle COSTS – gross sum costs order– where sufficient information before the Court to enable the assessment of a gross sum costs order – where desirable to avoid the expense of a costs assessment – gross sum costs order made

CRIMINAL LAW – closing address – unfairness – document unfair purporting to be a “summary” of exhibits – not a summary – text messages out of context – unfair document

HIGH RISK OFFENDERS — final hearing – high risk violent offender – application for extended supervision order – whether there is high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order – extended supervision order imposed for three years with conditions – making of order and nature of some conditions contested by defendant – discussion about appropriate conditions

CONTRACTS – Contract for sale – Deed of life estate – Obligations in a deed – Whether the deed formed part of the consideration for the contract of sale CONTRACTS – Construction of terms of deed of life estate – Consideration of whether maintenance condition was an essential or intermediate term – Breach of intermediate term established – Whether breach constituted valid basis for termination – Consideration of insurance condition – Whether there was an implied duty of cooperation – Where insurance condition unable to be performed by the defendant – Impossibility of performance – No breach established EVIDENCE – Credibility findings – Where first plaintiff found to be unsatisfactory witness – Weight to be given to evidence EQUITY – Relief against forfeiture

CIVIL PROCEDURE — Interlocutory applications — Third defendant seeking access to plaintiff’s/first cross-defendant’s and second-cross defendant’s social security records from Services Australia and taxation records from the Australian Taxation Office — Orders sought to compel plaintiff/first cross-defendant and second cross-defendant to request or authorise requests for documents — Where the substantive proceedings concern promises alleged to have been made to plaintiff/first cross-defendant in relation to a property — Consideration of what the appropriate test is when orders are sought to compel a party to request or to authorise a request for documents — Whether the categories of documents sought by third defendant are apparently relevant to the real issues in dispute

APPEALS – appeal from Local Court – whether findings by the Magistrate demonstrate an error of law – whether Magistrate erred in finding that plaintiff had a contractual obligation to reinstate the building – whether Magistrate erred in finding defendant entitled to abatement of rent CONTRACTS – construction – commercial lease – whether plaintiff had an obligation to reinstate premises after flood damage – surrounding circumstances – consideration of text, context and commercial purpose or objects of the lease – where conflict between provisions of the lease and special condition – lease to be read as a whole CONTRACTS – option to renew – exercise of option – whether option should be characterised as an irrevocable offer – where defendant exercised option outside of specified time

CRIMINAL LAW – Murder – Single count of murder – Where accused pleaded not guilty of murder but guilty of manslaughter – Trial by Judge alone CRIMINAL LAW – Features of offending – Gang violence – Stabbing death by single stab wound – Offence committed at Sydney Royal Easter Show – Two groups of young males confronting each other in public – Post-offence conduct of the accused – Videos posted mocking the death of the deceased – Relevance of disrespectful post-offence conduct to the s 23A(1)(b) test CRIMINAL LAW – Manslaughter – Alternative to murder – Intention – What was the accused’s intention at the time he inflicted the stab wound – Where Crown asserts that the accused had the intention to kill or cause grievous bodily harm – Where the accused was affiliated with a gang and may have been motivated by a desire for revenge – Where accused armed with a weapon at a public event – Where accused had witnessed the fatal consequences of a stab wound previously CRIMINAL LAW – Manslaughter – Alternative to murder – Excessive self-defence – Whether the accused acted in excessive self-defence – Whether the accused believed that his actions were necessary in the defence of himself or others in the circumstances as he perceived them – Whether the accused observed the deceased to be a threat – Whether the accused’s group were the aggressors – Where PTSD impacted the accused’s perception of events CRIMINAL LAW – Manslaughter – Alternative to murder – Substantial impairment – s 23A Crimes Act 1900 (NSW) – Substantial impairment because of mental health impairment or cognitive impairment – Whether the accused’s capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by a mental health impairment or a cognitive impairment – Whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter – Application of community standards – Factors relevant – Young age and vulnerability of the accused – Diagnosis of PTSD – Accused’s history of involvement in gang activity and violence – Lack of developmental maturity CRIMINAL LAW – Witness evidence – Eyewitness evidence – Expert psychiatric evidence – Where both psychiatric experts agree on mental health diagnosis but disagree on degree of impairment