Cases and authorities

LAND LAW – possession of land – urgent application to stay execution of writ of possession – previous application for temporary stay previously granted and since expired – no adequate explanation for lack of action by applicant

CIVIL PROCEDURE – application for summary dismissal/strike out under rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW) – where the plaintiff advances an inadequate case of fraudulent conspiracy or collusion proceedings – proceedings summarily dismissed COSTS – gross sum costs order – where the costs of preparing a bill for assessment would be disproportionate – where the costs claimed in respect of the proceedings are modest – where proceedings could be finalised at an appropriately early time – third defendant entitled to gross sum costs subject to a discount of 30%

COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs thrown away by an adjournment — No issue of principle

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — No issue of principle

EVIDENCE – written statements – admissibility – whether the evidence is admissible under s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether the material was not reasonably available to the plaintiff when the pre-filing statement was served – whether the failure to grant leave would substantially prejudice the plaintiff’s case

BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — Whether there was a “construction contract” within meaning of s 4 of the Act — Whether payment claim complied with s 13(2)(a) — Whether payment claim validly served — Whether subcontractor liable to pay amount claimed COSTS — Whether primary judge erred in ordering costs on indemnity basis in relation to entire proceedings — Where court in position to re-exercise discretion — Whether unreasonable not to accept Calderbank offer

CIVIL PROCEDURE – application for leave for an inmate to commence civil proceedings nunc pro tunc – prima facie ground for the proceedings supported by expert evidence – where the proceedings are not vexatious or an abuse of process

CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings – prima facie ground for the proceedings supported by expert evidence – where a broad impression has been formed that the proceedings are not vexatious or an abuse of process

COSTS – plaintiffs’ application for interlocutory injunction dismissed – where plaintiffs contend costs should be costs in the cause – where defendants contend costs should follow the event – whether there is a usual position as to costs in interlocutory applications – plaintiffs to pay defendants’ costs of the interlocutory application

TORTS — trespass to the person — assault and battery — historical sexual misconduct — sexual abuse — serious physical abuse — claim for damages for psychiatric harm LIMITATION OF ACTIONS — personal injury — child abuse — legislative removals of previous limitation periods — meaning of serious physical abuse — where serious physical abuse established

PROBATE – Practice and procedure – Uncontested application for probate – Consideration of application not deferred pending determination of claim that estate property held on trust outside the will SUCCESSION – Costs – Consequences of abandonment of several claims for relief including, but not limited to abandonment of opposition to grant of probate

COSTS — r 42.20(1), Uniform Civil Procedure Rules (2005) — owners of high-rise development bring four proceedings against developers, builder and others for building defects — fifth proceeding against developer dismissed as abuse of process — whether defendants entitled to costs of proceedings — whether “the Court orders otherwise” — principles at [2]-[4] — plaintiffs seeks to exclude substantial categories of costs as evidence relevant to remaining four proceedings and given suggested failures by defendants — no reason to make “orders otherwise”.

CRIME – Appeals – Appeal against sentence – whether sentencing judge erred by finding that general deterrence weighed heavily on the sentence – appeal allowed – resentence

LAND LAW – Caveats – extension of caveat – plaintiff’s application to extend caveat over the defendant’s commercial property – the plaintiff is the lessee under a commercial lease agreement – the plaintiff claims an equitable interest in the defendant’s property on account of the plaintiff’s claimed expenditure in the property – but the substance of the caveat does not reflect the interest articulated by the caveator in court on this application – defendant claims the plaintiff/lessee is in default in paying rent – caveator claims there was an agreement to waive rent by the defendant – defendant disputes any arrangement to waive rent – whether caveat should be struck out – whether plaintiff should be given leave to amend his Statement of Claim to reflect the interest claimed in the property as articulate on this application.

CIVIL PROCEDURE – Pleadings – Amendment – Amendment to Statement of Claim – Application for leave to file a Proposed Second Amended Statement of Claim – Where no cause of action pleaded arising out of the material in a paragraph of a pleading – Where a paragraph in a pleading exists to provide context against which conduct can be considered – Paragraph deemed unnecessary – Reference to objects of the Crimes (Administration of Sentences) Act 1999 (NSW) deemed inappropriate for inclusion in pleadings – Leave granted to file Proposed Amended Statement of Claim STATUTORY INTERPRETATION – Objects – s 2A of the Crimes (Administration of Sentences) Act 1999 (NSW) – ‘safe, secure and humane environment’ – Whether the incorporation of the objects of the Crimes (Administration of Sentences) Act 1999 (NSW) into a pleading is inconsistent with the provision in subs (3) of that Act – Whether one provision or statute can dictate the answer to a question of statutory construction – Whether the correct interpretation of subs (3) of the Crimes (Administration of Sentences) Act 1999 (NSW) is that the objects of the Act cannot give rise to a statutory civil cause of action – Issues demanding a full argument and hearing

COSTS – Party/party – Costs order in interlocutory proceedings – Each party to pay their own costs – No issue of principle

CRIME — Sentence — where guilty plea made at first available opportunity — where offences inadvertent but gave rise to serious risk to human health — objective seriousness of offending below mid-range for all but one offence — objective seriousness mid-range for one offence — application of totality principle — corrective advertising ordered

COSTS — Party/Party — Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers — Where plaintiff obtained judgment more favourable than two offers made to the defendant — Whether indemnity costs should be ordered from date of one of the Calderbank offers — Whether it was unreasonable for the defendant to reject the offers

CIVIL PROCEDURE – interim preservation – freezing orders – where ancillary orders for the provision of information are sought in aid of asset preservation orders

EQUITY – trusts and trustees – judicial advice – whether trustees justified in defending proceedings brought by beneficiaries – where beneficiaries seek access to trust documents – where trustees not obliged to provide trust documents under trust deed – advice given – trustees justified in defending proceedings

ADMINISTRATIVE LAW — judicial review — District Court — whether primary judge’s decision affected by jurisdictional error — legal unreasonableness — alleged denial of procedural fairness — alleged errors in assessment of evidence and credibility — whether such errors capable of founding jurisdictional error — Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18 CRIMINAL LAW — intimidation with intent to cause mental harm — residents of aged care facility with dementia — circumstantial case — use of photographic evidence as corroborative of eyewitness account — tendency evidence — Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)

CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury verdicts of guilty on two counts of sexual intercourse without consent, knowing the other person does not consent, and two counts of intentional sexual touching without consent, knowing that the victim does not consent, were unreasonable — where no reasonable doubt — where any doubt the Court may have had could readily have been resolved by the jury’s advantage in seeing and hearing the evidence CRIME — appeals — appeal against conviction — miscarriage of justice — whether miscarriage of justice occasioned by trial judge’s comment to jury in summing up that complainant confused or misled by questioning in her cross-examination — where no such miscarriage of justice occasioned and comment did not deflect jury from its fundamental task of deciding whether prosecution had proved the elements of the charged offences beyond reasonable doubt CRIME — appeals — appeal against conviction — miscarriage of justice — whether miscarriage of justice occasioned by trial judge’s direction to jury to decide element of knowledge by considering what applicant’s state of mind would have been if he had not been intoxicated — where no complaint made at trial about trial judge’s direction to jury in this regard — where leave therefore required under r 4.15 of Supreme Court (Criminal Appeal) Rules 2021 — where jury not deflected from its fundamental task and no such miscarriage of justice occasioned — where leave therefore refused under r 4.15 to raise ground

COSTS – Costs orders in interlocutory proceedings – appropriate order where measure of success to all parties – appropriate order where no final determination of motion necessary – no question of principle

COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion – where mixed outcome – where provisions of Lease providing for lessor’s costs – no order as to costs – no question of principle

LAND LAW — Caveats — Removal of caveat – plaintiff’s application to remove defendant’s caveat – where the parties have settled family law proceedings – where the form of the caveat insufficiently describes defendant’s interest in the property – where the defendant allegedly filed the caveat by reason of the plaintiff’s default of the family law settlement orders - where both parties are in breach of the settlement agreement – relief granted to the plaintiff, conditional on the defendant having the opportunity to challenge allegations against the plaintiff about undervaluing the property.

CIVIL PROCEDURE – interim preservation – preservation of property – trustees for sale appointed to sell certain former matrimonial property – plaintiff seeks relief in relation to the performance of trustees for sale of their duties in completing their sale of certain real estate – orders claimed for an inquiry into the integrity of the auction process – other orders sought which repeat prior interlocutory claims made by the plaintiff which have already been determined – what orders should be made to preserve the estate of the parties and limit the unnecessary incurring of legal costs and costs of the trustees for sale to the detriment of the parties – no issue of principle.

CIVIL PROCEDURE – application under UCPR rr 36.15, 36.16(1)-(3A), 36.17 to set aside orders dismissing notice of motion – whether orders entered irregularly, illegally or against good faith – whether denial of procedural fairness – applicants in Commercial List expected to prosecute motions expeditiously – motion misconceived – no procedural unfairness in dismissing motion where counsel present and previous adjournments granted – application dismissed

APPEALS — right of appeal on question of law — whether rescission notice under s 925A(2) of the Corporations Act 2001 (Cth) was given within a reasonable period — whether the recipient’s state of mind was an irrelevant consideration — whether the primary judge asked the wrong question — no error established APPEALS — leave to appeal on question of mixed law and fact — whether appeal should be granted under s 40(1) of the Local Court Act 2007 (NSW) — no issue of public importance — lack of proportionality between the monetary amount at issue and the cost of proceeding — leave refused

APPEALS – appeal from a decision of the NCAT Appeal Panel from a decision of NCAT where the plaintiff became self-represented after a failed adjournment application – whether the plaintiff’s self-represented status was given sufficient consideration – whether a constructive failure to exercise jurisdiction where fresh evidence was not admitted by the Appeal Panel – whether the correct test for the admissibility of fresh evidence was considered by the Appeal Panel

COSTS – party/party – appeals – general rule that costs follow the event

APPEAL — appeal against liability in the tort of deceit — whether primary judge erred in concluding that the appellant had knowledge of, or was reckless as to, falsity — where primary judge’s conclusion was based on inferences — inferences not to be disaggregated — appellate review of witness evidence — whether primary judge’s findings were glaringly improbable or contrary to compelling inferences — advantage of primary judge in seeing and hearing the witnesses give evidence

COSTS – where award of damages below jurisdictional limit of District Court – whether costs charged by practitioners are reasonable and proportionate – whether practitioners should be referred to OLSC CIVIL PROCEDURE – application to amend judgment under UCPR r 36.16 – where Court misapprehended plaintiff’s case – where plaintiff’s pleading did not include deposit – where leave to amend pleading was refused – where judgment mistakenly awarded damages for deposit

CIVIL – Criminal Assets Recovery Act 1990 (NSW) – substituted serious crime use property declarations under s 22AA and forfeiture orders under s 22 – whether interest in property an available interest for purposes of the Act – property sold and substituted serious crime use property declaration sought in respect of net proceeds of sale – whether original property was “used in, or in connection with” the serious crime related activity of the defendants – original property used to conceal a large commercial quantity of methylamphetamine for the purposes of supply – whether original property used in or in connection with manufacture of methylamphetamine by refinement – where the original property was used in, or in connection with the serious crime related activity of manufacturing and supplying a large commercial quantity of a prohibited drug contrary to ss 24 and 25 of the Drug Misuse and Trafficking Act 1985 (NSW) – declarations and forfeiture orders made STATUTORY INTERPRETATION – Criminal Assets Recovery Act 1990 (NSW) – construction of s 9B – meaning of "used in, or in connection with”

CRIMINAL LAW – subpoena issued by Prosecutor – calls made by the accused from gaol to a phone subscribed to co-accused’s wife – calls made by the accused from gaol to a phone subscribed to Joseph Vokai, a person known to be a member or associate of the Alameddine OCN – murder of Mejid Hamzy, the head of the Hamzy OCN – “feud” between the Hamzy and Alameddine OCNs raised by counsel for the accused as being “the reason behind the shooting” – on the cards that the gaol calls will materially assist the Crown – first access to the accused

COSTS — Party/Party — Orders when proceedings involve multiple parties — Whether parties with same interests — No issue of principle

CIVIL PROCEDURE — Service — Subpoena to attend to give evidence — Requirement for personal service — Whether service effected by leaving the document in the deponent’s mailbox or attaching to her gate — Whether r 10.26 Uniform Civil Procedure Rules 2005 (NSW) applies — Service not effected

PRIVATE INTERNATIONAL LAW – service – leave to proceed under r 11.8AA of UCPR – service in Hong Kong and the British Virgin Islands – conflict between Part 11 and Part 11A of the UCPR – whether the Hague Service Convention is an exclusive mechanism for service – exclusive jurisdiction clause – necessary or proper party – not a clearly inappropriate forum – leave granted CIVIL PROCEDURE – default judgment – claim for debt under r 16.6 of UCPR – judgment awarded

COSTS – substantive proceedings resolved by consent – whether ultimate agreement between the parties represented a better or worse outcome for the plaintiff than a previous offer of compromise by the defendant – no hearing on the merits and therefore no event – whether defendant’s conduct prior to and after commencement of proceedings was unreasonable – where plaintiff almost certain to have succeeded at trial

JUDGMENTS AND ORDERS — Application to vary orders — Where head of claim dismissed by primary judge on particular basis — Where basis successfully disturbed on appeal — Where head of claim not reagitated on appeal — Where Court of Appeal referred “remaining amounts claimed” to referee — Whether head of claim included in reference — Whether orders should be varied to include head of claim in reference

CRIME – appeals – appeal against sentence – attempt sexual intercourse without consent – alleged material error of fact – leave to appeal against sentence refused – no point of principle

TORTS – negligence – liability for crush injury at work – whether occupier breached duty of care – vicarious liability – defendant failed to establish the defence of contributory negligence TORTS – negligence – identification of risk of harm – whether risk of injury was an obvious risk – precautions which a reasonable person would have taken in the circumstances – precautions including safe zones, exclusion zones and hand signals – whether adequate precautions taken DAMAGES – quantum of damages – out of pocket expenses – economic loss – non-economic loss and superannuation – domestic assistance and care – apportionment – s 151Z Workers Compensation Act 1987 (NSW)

BUILDING AND CONSTRUCTION — adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) — whether adjudicator’s finding of existence of construction contract reviewable — whether payment claim validly served — whether email address “specified” for service of documents — determination set aside

JUDGMENTS AND ORDERS – Enforcement of foreign judgment – Whether PRC post judgment interest regime amounts to penalty – Whether it would be contrary to public policy to enforce foreign judgment

CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – where respondent is a National Disability Insurance Scheme participant – where respondent became a forensic patient pursuant to s 73(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act) – where the applicant seeks the respondent’s status as a forensic patient to be extended by 18 months – whether material obtained by the applicant from a registered NDIS service provider pursuant to s 138 of the MHCIFP for the purpose of that application is admissible – whether there is an operational inconsistency between s 138 of MHCIFP Act and s 67G of the National Disability Insurance Scheme Act (2013) (Cth) such that to that extent the former is invalid pursuant to s 109 of the Commonwealth Constitution

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Actions on judgments prior to expiry of deadline for enforcement – Proceedings brought four days before expiry of limitation period – Whether bringing an action on a judgment instead of enforcing the judgment debt is necessarily an abuse of process – No manifest unfairness or oppression from mere delay LIMITATION OF ACTIONS – Action on a judgment – Interaction with enforcement provisions in Civil Procedure Act 2005 (NSW), Pt 8 and Limitation Act 1969 (NSW), s 17 – Whether commencement of action on judgment circumvents time restrictions which would otherwise apply – No circumvention

COURTS AND JUDGES – Bias – Application for recusal – On the grounds of actual bias and/or apprehended bias – Applicable principles – Principles in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 – Whether a Judge is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented – The ‘double might’ test – Whether a fair-minded lay observer might reasonably apprehend that a Judge might not bring an impartial and unbiased mind to the resolution of the question for determination – Principles in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 COURTS AND JUDGES – Allegations of bias – Where the applicant alleges several acts of judicial conduct which demonstrate an apprehension of bias on the part of a Judge – Where the Judge has previously refused a recusal application by the same applicant – Where a deceased defendant was removed from the proceedings as a matter of procedure – Where no substantive harm to the plaintiff as a result of the State of NSW accepting vicarious liability – Where the applicant alleges clandestine communication between a Judge and legal representatives – Where such communication was purely the routine and procedural collection of information for upcoming hearing – Where the applicant alleges that a transcript of a hearing has been altered – Where no motive for and evidence of such alteration exists – Whether the Court has an obligation to make orders purely on the basis that the parties consent to them – Where the Court was deemed not to – Where the applicant has failed to satisfy the legal tests for actual bias or apprehended bias – Where no factual basis for the allegations of the applicant as to actual bias or apprehended bias – Motion dismissed

SUCCESSION — Family provision — Guidance as to purpose, use and content of family tree diagrams or genograms — Encouragement of common-sense approach SUCCESSION — Family provision — Identification of purposes of appropriate specification of proper names and guides informing specification of names — Practical guidance SUCCESSION — Family Provision — Practice note — Discussion of introduction and development WORDS & PHRASES — ‘lagom’ (Swedish) SUCCESSION — Family Provision — Disregarding of interests under s 61(2)(b) Succession Act 2006 (NSW) — Previous spouses initially unable to be located — Residential address, email address and phone number of one particular spouse unknown following initial searches — Further searches disclosed sufficient information — All relevant persons ultimately served

LAND LAW — Caveats — Extension of operation of caveat — Whether extension of operation of caveat permissible when service of the lapsing notice has been effected — No issue of principle LAND LAW — Caveats — Lodgment of second caveat claiming same interest as previous caveat — Whether interest claimed in caveat in fact ‘in respect of the same estate, interest or right and purporting to be based on the same facts as the first caveat’ — No issue of principle

SUCCESSION – Contested Probate – Practice and Procedure – Caveats – Caveat against grant – Application for order that caveat cease to be in force – Doubt as to whether grant of probate or administration should be made – Circumstances that warrant investigation before pleadings – Nature of “evidence” to be considered by Court - Case management – Orders for disclosure of information about a deceased estate, testamentary instruments and personal circumstances of a deceased person – Orders for discovery affidavits deposing to circumstances in which a will was prepared and executed – Supreme Court Rules 1970 (NSW), rule 71.4

CIVIL PROCEDURE — Dismissal of proceedings — Want of due despatch — Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 51.5 — Where applicant failed to file White Folder — Where applicant has explanation of delay and is now legally represented CIVIL PROCEDURE — Expedition of proceedings — Where respondent of advanced age — Where respondent suffers anxiety and is kept out of funds