Cases and authorities

CONTRACTS — remedies — damages — mitigation of loss — whether conduct was unreasonable in the circumstances such that some or all of the claimed loss should be disregarded — legal and evidentiary onus on the party asserting a failure to mitigate — no “positive obligation” to provide builder an opportunity to rectify damage — invocation of a “shifting” or “tactical onus” misconceived and should be avoided CIVIL PROCEDURE — alternative dispute resolution — court referral to referee — claimed denial of procedural fairness — no procedural unfairness established

CRIMINAL LAW – appeal – appeal against conviction – where the applicant was found guilty of murder by a jury – whether the verdict was unreasonable – where the Crown case was circumstantial – whether the circumstances of the Crown case were adequate to prove the applicant’s presence at the scene of the murder CRIMINAL LAW – appeal – appeal against conviction – surveillance device material – where parts of the recorded conversation were unclear – whether the recorded conversation contained admissions – whether the surveillance device material was relevant – whether admission of the recorded conversations by the trial judge was unfairly prejudicial to the accused CRIMINAL LAW – appeal – appeal against conviction – surveillance device material – whether the jury was properly directed as to the manner in which the surveillance device material could be used – whether the jury was directed in accordance with Shepherd v The Queen and Burns v The Queen CRIMINAL LAW – appeal – appeal against conviction – fresh evidence – where it cannot be said that the evidence was not available to the applicant in the preparation of his case – where the evidence did not give rise to doubt about the applicant’s guilt – leave to appeal granted – appeal dismissed

CRIME – appeals – appeal against sentence – Commonwealth offences of attempting to cause a person under the age of 18 to enter into a forced marriage SENTENCING – appeal against sentence – whether there was evidence of the applicant’s conduct as an accepted cultural practice in the sentence proceedings – whether s 16A(2A) of the Crimes Act 1914 (Cth) precluded a finding of reduced moral culpability because of a cultural practice SENTENCING – appeal against sentence – consistency in sentencing federal offenders – whether this Court should follow decisions of intermediate appellate courts in other States and Territories – leave to appeal granted – appeal dismissed

PROCEDURE — contempt of court — penalty hearing — question of defendant’s capacity — where recurrent pattern of late service of capacity evidence — where plaintiff denied opportunity to test capacity evidence — held that lack of capacity not established — proceedings adjourned — hearing date to be allocated for penalty phase.

CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether birth parents’ consent should be dispensed with – whether adoption order clearly preferable – whether change of name should be approved

REAL PROPERTY – where the plaintiff seeks an extension of a caveat – where the defendants entered into a contract to sell the property – where there is no dispute that there is a seriously arguable case – balance of convenience favours extending caveat for 6 months subject to conditions

CIVIL PROCEDURE – Subpoenas – Application to set aside – Legitimate forensic purpose – Oppressive – Where legitimate forensic purpose demonstrated through a subpoena designed to test the evidence of a practitioner’s usual medical practice – Where oppression demonstrated due to large number of patient records requiring examination due to subpoena as currently formulated – Proportionality of the task which is to be undertaken to the apparent relevance and forensic need for the documents

ADMINISTRATIVE LAW — judicial review — refusal of State Parole Authority to rescind parole revocation order — consideration of Crimes (Administration of Sentences) Act 1999 (NSW) and Crimes (Administration of Sentences) Regulation 2014 (NSW) — where decision constitutes “final” determination under s 193C(4) of Crimes (Administration of Sentences) Act 1999 (NSW) — whether plaintiff denied procedural unfairness — whether State Parole Authority failed to consider rescission application on its merits — whether State Parole Authority misapprehended statutory scheme

CRIMINAL LAW –– appeal against conviction –– indecent assault of a child under 16 –– appellant convicted of two counts and acquitted of one count ––verdict unreasonable –– whether trial judge misapprehended elements of the offence to be proved ––whether the trial judge afforded the applicant procedural fairness–– whether context evidence properly admitted –– whether an Edwards lie submission was open to the Crown CRIMINAL LAW –– sentence appeal ––question of utility of sentence appeal where full sentence has been served and parole period expired –– where objection taken to registration as a child sex offender

CONSUMER LAW – misleading or deceptive conduct – where defendant admits conduct was misleading and deceptive – remedies – damages, declaratory and injunctive relief sought – scope of declarations CORPORATIONS – receivers and managers – standing of receiver and manager to seek relief in respect of shares – whether shares formed part of secured property – whether shares transferred by defendant in compliance with company constitution – shares formed part of secured property – standing of receiver and manager confirmed

LEGAL PRACTITIONERS — disciplinary proceedings — application by Prothonotary for removal of name from roll — practitioner convicted of criminal offences — breach of undertakings to Law Society — failure to complete practice management course — practising without a practising certificate — holding-out as solicitor — misappropriation of trust monies — forgery and uttering of false court orders — subsequent criminal offending including breaches of bail, common assault and driving offences — practitioner unfit to remain on roll

SUCCESSION — Executors and administrators — Rights, powers and duties – deceased appoints executors who will encounter conflicts of interest in the administration of the estate – executors have delayed in seeking probate of the estate and have not yet taken steps to administer the estate – whether the Court should appoint an independent administrator to administer the estate – whether the Court should take some other course, including accepting an undertaking from the executors to retain an Australian legal practitioner to assist them in the administration of the estate.

CIVIL PROCEDURE – Representative proceedings – Conduct of proceedings – Notices – Group members – Identifying – Opting out – Where plaintiff proposes orders to encourage unknown group members to register for an ordered mediation via the distribution of an approved notice – Where the defendant opposes the imposition of the plaintiff’s registration process and seeks an order for the provision of information about presently known group members – Whether the plaintiff’s proposal will result in duplication of the process and wasted expenditure at a later point in proceedings following mediation – Whether the distribution of unnecessary notices will negatively affect vulnerable group members – Application of s 56 Civil Procedure Act 2005 (NSW) – Court determined that a greater number of known claimants prior to mediation will result in greater assistance in reaching settlement – Vulnerability of the class not affected by distribution of two notices – Orders made in favour of plaintiff

COSTS – party/party costs - where Calderbank offer made – whether indemnity costs order should be made – whether unreasonableness in conduct of defence to cross-claim – whether appropriate to make a gross sum costs order – no issue of principle INTEREST – whether interest should be awarded where no dispute about entitlement to sum, or where claims compromised at hearing – no issue of principle

CHILD WELFARE — Adoption — where proposed adoptive parents are child’s current foster parents —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 order is 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

CRIME – firearms offences – firearms prohibition orders CRIMINAL LAW – power to seize property –whether seizure of cash and mobile phone by police was lawful – return of seized property

APPEALS – Procedure – Application for interim stay – Enforcement of costs orders – Proposed appointment of a tutor – Applicant’s legal incapacity unresolved – Evidence of applicant’s psychological condition apt to deteriorate – Balance of convenience favours applicant

CRIME — appeals — appeal against conviction — indictment containing 12 counts — offences of intimidation, assault, choking and sexual assault — whether the jury’s verdicts in relation to specific counts on the indictment were unreasonable and inconsistent — whether the amendment of one count on the indictment during the trial caused unfair prejudice to the applicant CRIME — appeals — appeal against conviction — admissibility of phone recordings between the applicant and the complainant — where the phone recordings were not objected to by counsel at the trial — where the trial judge was not asked to exclude the phone recordings — where an anti-tendency direction was given by the trial judge CRIME — appeals — appeal against conviction — whether a miscarriage of justice was occasioned by the Crown Prosecutor’s closing address CRIME — appeals — appeal against conviction — offences of aggravated sexual assault — where the applicant was convicted on the principal counts — whether the trial judge erred by leaving to the jury statutory alternative verdicts CRIME — appeals — appeal against sentence — manifest excess — where the sentence imposed was not unreasonable, plainly unjust or outside the range of sentences available to the sentencing judge — where the applicant was self-represented during the appeal hearing — appeal brought out of time — extension granted — leave refused on two grounds — leave granted on five grounds — appeals against conviction and sentence dismissed

CRIMINAL LAW — appeal against sentence — sexual offences against child — whether sentencing judge failed to take into account limited criminal history as mitigating factor — whether sentencing judge failed to properly consider prospects of rehabilitation — whether aggregate sentence manifestly excessive — approach to weighing prior good character and limited record — relevance of Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 — assessment of rehabilitation where offender maintains denial — value of comparisons with other sentences — Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

SUCCESSION — Will construction — Deceased by her Will gives whole of her estate to be held on trust and divided equally amongst her grandchildren “as survive me and attain the age of [25]” — Clause providing estate given to 2 named charities “if no grandchild of mine survives me and attains a vested interest” — Dispute regarding when the interest vests — Determined that interest vested upon deceased’s death SUCCESSION — Will construction — General principles discussed SUCCESSION — Will construction — Vesting in interest and vesting in possession explained — Presumptions regarding vesting discussed — Presumption of early vesting has not been subject to desuetude SOLICITORS — Practice — Record keeping—Encouragement for solicitors who destroy files after certain period of time to consider a practice of creating and preserving a digital archive of Will files SOLICITORS — Practice — Will drafting —Encouragement for solicitors in drafting Wills to clarify testator’s intentions regarding when a gifted interest vests, including discussing timing with testators and using clear language such as ‘vested in interest’ and ‘vested in possession’ CONSTRUCTION — ‘Surplusage’ rule — Exceptions — Accepting prima facie all words should be given some meaning, sometimes the use of words which are not strictly necessary are included to emphasise intention WORDS & PHRASES — desuetude

CORPORATIONS — statutory demand — application to set aside — whether genuine dispute about existence or amount of debt

PRACTICE & PROCEDURE – summary dismissal – UCPR 12.7 – proceedings commenced over 21 years ago – self-represented litigant in custody – numerous previous adjournment applications – failure to comply with directions – serious historical allegations of Police misconduct – failure to tender any evidence in support of the statement of claim – proceedings dismissed for want of due despatch

CIVIL PROCEDURE — Hearings — Adjournment — Where plaintiff seeks adjournment of final hearing/ stay of proceedings pending release from custody — failure to comply with previous orders — long and tortuous history — lack of evidence to support application

CIVIL PROCEDURE – default judgment – mixed claim for liquidated and unliquidated damages – costs limited for default judgment – judgment for the plaintiff for unliquidated damages to be assessed PRIVATE INTERNATIONAL LAW – service – leave to proceed under r 11.8AA of UCPR – submitted to the jurisdiction – service in New Zealand and United States – not a clearly inappropriate forum – leave granted

CIVIL LAW – high risk offender – plaintiff’s application for revocation of extended supervision order (ESO) – index aggravated sexual assault offence – defendant’s application to vary and/or reimpose conditions of the ESO – no real or live constitutional issue – no reduction in risk of committing a further serious offence – no other reason for revocation – plaintiff’s application to revoke ESO dismissed – condition 4 and 8 of the ESO reimposed – electronic monitoring reimposed – condition requiring the plaintiff to not spend the night anywhere other than his approved address reimposed

CIVIL PROCEDURE — separate determination of questions — where appropriate — allegations of trespass to land by police while purporting to conduct bail compliance checks — whether there would be a substantial saving in time and cost by ordering a separate determination — where preparation for trial would otherwise take several years — where an “all issues” trial would be expected to exceed three months — where resolution of one question could resolve approximately 75% of the alleged attendances depending on its outcome — where an order for separate determination would enable earlier judicial consideration of a question of law — where the question of law concerns whether police can rely on an implied licence under the common law or the Bail Act 2013 (NSW) to enter land for the purpose of bail compliance checks in the absence of a bail condition otherwise permitting them to do so

CIVIL PROCEDURE – Application for pro bono referral – Relevant considerations discussed – Referral confined to the provision of advice in relation to proceedings

LAND LAW — loan agreement — default — claim for monetary judgment — whether second and third defendant personally guaranteed loan amounts — whether guarantee vitiated for lack of consent

COSTS – where successful defendant still holds funds in trust – whether usual costs order should be made – whether circumstances warrant a departure from ordinary rule that costs follow the event – usual order made

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — interim extension order granted pending resolution of Attorney General’s application for extension order — application for extension order refused by Supreme Court — refusal appealed to Court of Appeal — notice of motion filed by Attorney General seeking new interim extension order — whether three month limit on interim extension orders prevents granting of new interim extension order in appeal proceedings — meaning of “proceedings”

EQUITY – Trusts and trustees – Trust instrument – interpretation – where the object of an 1873 deed was to “provide an efficient course of education for youth” – whether “youth” referred to boys only or was gender-neutral – unambiguous gender-neutral meaning – “ancient document rule” not enlivened – no compelling surrounding circumstances

WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member – Presidential member dismissed appeal on basis that findings made at first instance were “open” prior to decision in State of New South Wales v Culhana [2025] NSWCA 157 – whether the error was material – where there was no realistic possibility that appeal would have been upheld had the correct standard of review been applied WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member – alleged constructive failure to exercise jurisdiction – where no constructive failure to exercise jurisdiction

CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement — whether requirements to order scheme meeting are satisfied

CONTRACTS — breach of contract — default by borrower — enforcement of guarantee — development of hotel in Surfers Paradise — contract interpretation — intention to create legal relations — whether no signature affects validity of contracts — whether the assignment was valid and enforceable — whether there was a breach of the loan and/or mortgage — whether the plaintiff is entitled to rely upon the guarantee CIVIL PROCEDURE — cross-claim — against plaintiff — breach of duty — Corporations Act 2001 (Cth) s 420A — Property Law Act 1974 (Qld) s 85(1) — plaintiff took reasonable steps to sell for market value — whether funds were unavailable in breach of facility documents — misleading or deceptive conduct — unconscionability

COSTS – gross sum determination

REAL PROPERTY – where plaintiffs, as mortgagees in possession, seek that caveats be withdrawn – where plaintiffs have entered into a contract for sale of the property – where defendant opposes the withdrawal on the basis that the plaintiffs acted in bad faith in conducting the sale process – where defendant offers to provide security – defendant’s caveats withdrawn

COSTS – offers of compromise – Calderbank offers – UCPR rr 20.26 and 20.29 – where offer of compromise made by defendant not in proper form – need to specify essential terms of offer if relying on Calderbank COSTS – variation of costs order – UCPR r 42.34 – whether proceedings could have been commenced in the District Court – commencement and continuation of proceedings in the Supreme Court warranted – pursuit of unmeritorious issues – reduction of plaintiff’s costs by a percentage

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

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

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 – cross-vesting – transfer to other Supreme Court – relevant factors – whether other Supreme Court is the more appropriate forum – few objective connecting factors – proceedings not transferred

SUCCESSION — Family provision — Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – Where the plaintiff and deceased were estranged in the final 13 years of the deceased’s life – Where the plaintiff received 15% of the deceased’s estate under the will – Where the plaintiff has few assets and relies on government support – Whether the deceased fulfilled his moral obligations towards the plaintiff.

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Where plaintiff obtained judgment in the absence of the defendant — Whether judgment should be set aside pursuant to r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) — Whether defendant’s explanation for non-appearance at hearing and delay in bringing application to set aside is adequate SUCCESSION — Family provision — Claim by alleged de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Where claim brought out of time — Whether sufficient cause shown to ‘otherwise order’ pursuant to s 58(2) of the Succession Act

TAXES AND DUTIES — Payroll tax — Liability — Employment agents — Where each plaintiff operates a commercial cleaning business — Where there are contracts between plaintiffs and their clients for provision of cleaning services — Where cleaning services under contracts are carried out by subcontractors and employees of the plaintiffs — Whether contracts are ‘employment agency contracts’ under s 37 of the Payroll Tax Act 2007 (NSW) — Whether ‘indicia’ relevant to determining when subcontractor and employee works ‘in and for’ the client’s business — Whether plaintiffs discharged onus of showing that assessments were excessive

CIVIL PROCEDURE – Cross-vesting – Transfer to Federal Circuit and Family Court of Australia – whether this court has jurisdiction to order the transfer – whether it is in the interests of justice to transfer the proceedings – balancing the interests of justice – HELD – proceedings transferred

CORPORATIONS — receivers and managers — special purpose receiver — application for release and discharge of receivership — where substantive work of the receivership complete — where approval sought for renumeration in respect of completed work and limited further work — applications for release and discharge and renumeration approved CIVIL PROCEDURE — whether leave required to bring proceedings against court-appointed receiver in another court — where special purpose receiver appointed by Supreme Court of NSW — held that leave required to commence proceedings — decline to grant leave to bring the proposed proceedings

CONTEMPT — sentence — civil contempt — breach of orders — defamation proceedings — deliberate and wilful disobedience of court order — no genuine contrition — fine ordered COSTS — indemnity basis — relevant delinquency — indemnity costs ordered in substantive proceedings

LEASES AND TENANCIES — Default and termination — Relief against forfeiture — Relief for breaches other than payment of rent – where lease specified permitted uses of property – where permitted use was disputed – where relationship between lessor and lessee broke down – HELD lease was validly terminated and relief against forfeiture should not be granted

CRIME — appeal and review — application for review of District Court judgment dismissing appeal from Local Court ruling — where apprehended personal violence order made against applicant — whether District Court judgment involved jurisdictional error — whether District Court extended term of apprehended personal violence order in excess of jurisdiction — whether applicant unfairly denied opportunity to make submissions on term of apprehended personal violence order and costs COSTS — application for review of District Court order awarding costs to respondents — whether appeal judge wrongly relied on Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 99 and 99A — whether order involved jurisdictional error

CRIME — appeals — appeal against conviction —inconsistent verdicts — where applicant tried jointly with co-accused — where Crown alleged joint criminal enterprise — whether verdict of not guilty for co-accused inconsistent with guilty verdict for applicant — whether Crown case was “all or nothing” as between both accused — whether trial judge required to direct jury to render same verdict for both accused — no inconsistency — no requirement to give jury direction CRIME — appeals — appeal against sentence — manifest excess — whether comparison between indicative sentences and aggregate sentence reflected a latent misapplication of totality principle — where offences involved multiple victims — where different injuries captured by separate offences — error not established