Cases and authorities

WORKERS COMPENSATION – Liability – employment connected with a state – state in which the worker is usually based and works – whether payments were caused by mistake or made voluntarily – where inaccurate information gathered by claim investigators – where usual efforts of an insurer to inform itself of the true facts before accepting liability were made – held – payments made by mistake WORKERS’ COMPENSATION – Double compensation – compensation received in other law area – statutory choice of law rule – mechanism of recovery of payments – where restitution retains the character of compensation originally paid – held – cross defendant prevented from retaining benefit of cross claimant’s mistake to the extent to which it was relieved of liability

CONTRACTS — Loan agreement — Whether representations were made as to enforceability of the agreement — Whether plaintiff operated through agents — Effect of credit on existence of the representations — Whether default interest clause constituted a penalty — Where rate of interest upon default is 3% per month, compounding — Whether the interest provisions could be applied in part or were void ab-initio BANKRUPTCY — Cross-claim previously commenced by a debtor subject to a personal insolvency agreement under the Bankruptcy Act 1966 (Cth) — Effect of Bankruptcy Act 1966 (Cth) on the proceedings — Resulting stays of parts of the proceedings -— Cross-claims and action against second defendant stayed

Removal of practitioner from roll of Australian lawyers – Declaration that practitioner is not a fit and proper person to remain on the roll – Misappropriation of trust funds – Need for consideration of factual circumstances warranting removal from Roll – Entitlement of Council of the Law Society to costs of application

SUCCESSION – Construction – Gifts – Where deceased’s will provided for a gift of residue to three children, including the plaintiff, in equal shares – Where deceased’s will also provided for land previously transferred to the plaintiff to be “brought into account” and “taken in satisfaction to that extent” – Whether gift of residue to the plaintiff should be construed as subject to reduction by the value of the land previously transferred to him – Principles for construction of wills – Whether “scheme” of will should be considered – Hotchpot clauses

CRIME — Bail — Release application — Application opposed — Where applicant charged with a serious money laundering offence — Show-cause not applicable — Unacceptable risk assessment in respect of failure to appear — Where applicant faces prospect of five years on remand — Where likely sentence if convicted would be well in excess of five years — Whether applicant has access to significant funds

CORPORATIONS — debentures, charges and mortgages — extension of time for registration — where security interests incorrectly registered — inadvertence — where company subsequently entered voluntary administration — whether extension of time should be granted to register corrected security interests

CONSTITUTIONAL LAW – Commonwealth and State relations – Inconsistency of laws – Whether s 138 of Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) is operationally inconsistent with s 67G of the National Disability Insurance Scheme Act (2013) (Cth) – Where inconsistency found – Where State law invalid to extent of inconsistency

PRIVATE INTERNATIONAL LAW – Jurisdiction – Service outside of the jurisdiction – Where defendant a foreign State – Foreign States Immunities Act 1985 (Cth) (FSIA) ss 23 and 24 – Hague Service Convention – Availability of diplomatic channel for service pursuant to s 24 of the FSIA where plaintiffs and defendant are signatories of the Hague Service Convention – Whether Hague Service Convention the exclusive means of serving a foreign state with initiating process – Whether service of process pursuant to s 24 of the FSIA consistent with Hague Service Convention or in violation of Australia’s international law obligations and international comity – Valid service of initiating process

COSTS – plaintiff agrees to dismissal of proceedings – plaintiff agrees to orders sought under cross-claim – proceedings not decided on the merits – defendant almost certain to have succeeded at trial – plaintiff ordered to pay defendants’ costs – no issue of principle

BUILDING AND CONSTRUCTION – adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) – second or subsequent adjudication – where first adjudicator determined no jurisdiction to decide first defendant’s claim – first defendant withdrew application and obtained second adjudication – whether first adjudication decision a determination under s 22(1) – whether withdrawal was valid – whether second determination an abuse of process – whether issue estoppel applies – consideration of appropriate relief

CIVIL PROCEDURE – default judgment – procedural imbroglio – non-compliance with self-executing order – mistake by defendant’s solicitor – whether Court has power to extend time for compliance – where no ongoing prejudice to plaintiff and defendant’s solicitor submits to personal costs order

Appeal — leave to Appeal — where summary judgment granted in favour of plaintiff for possession of land — failure to establish arguable error in reasoning — failure to establish issue of principle, question of public importance or reasonably clear injustice — failure to establish error in the Courts exercise of jurisdiction — leave refused

CIVIL PROCEDURE – Representative proceedings – Conduct of proceedings – Notices – Group members – Identifying – Opting out – Imposition of a Registration Deadline – Whether to grant leave to the plaintiff to amend pleadings to close the class – Whether closure of the class would provide a pathway to settlement without infringing on the rights of potential class members who may not wish to be bound by any settlement or judgment – Whether it is necessary for the State of New South Wales to quantify the number of class members and total value of the representative proceedings – Whether the relief sought is necessary for a meaningful mediation – Overriding purpose of the Civil Procedure Act – Judicial power to amend pleadings so as to refine the group member definition in representative proceedings CIVIL PROCEDURE – Judicial discretion – Where plaintiff and defendant both consent to the granting of leave – Grant of leave refused – Where the closing of the class of claimants determined to be unnecessary for an early mediation – Where the State of New South Wales is not subject to indemnity under an insurance policy and therefore does not need the financial certainty provided by a closed class – Where the amendment sought to introduce a one-month limitation period in which potential group members could commence proceedings

CIVIL PROCEDURE – Hearings – Vacation of hearing date

CIVIL PROCEDURE — Infant settlement approval — Whether settlement in best interests of infant — Settlement approved

CIVIL PROCEDURE — Settlement approval — Consent judgment issued

COSTS – costs of notice of motion – costs reserved

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

HIGH RISK OFFENDERS — Interim Supervision Order — serious violence offence — unacceptable risk of committing a serious offence — risk factor of alcohol consumption — relevance of conditions to risk — application granted

Administrative Law – Review of administrative decision – Statutory appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – Whether question of law or fact – Where Appeal Panel finding concerned only a question of fact – Where leave to appeal would nonetheless be refused

CORPORATIONS – Members’ rights and remedies – Oppression – where breakdown in relationship between shareholders – where first plaintiff received a notice alleging breaches of shareholders agreement – where shareholders agreement provided that if, following receipt of such notice, breaches were not remedied, the shareholder was deemed to have issued a transfer notice, triggering a compulsory sale process – whether first plaintiff breached shareholders agreement – whether breach notice was valid – whether first plaintiff remedied any such breaches – whether first plaintiff issued a dispute notice – whether a valuer was validly appointed in accordance with the shareholders agreement – whether the valuer’s valuation complied with the terms of the shareholders agreement – whether compulsory sale of first plaintiff’s shares was in breach of the shareholders agreement – whether there was oppressive conduct – whether the price paid to the first plaintiff was less than the fair value, or market value, for his shares.

COSTS — Party/Party — Orders against non-parties — Personal costs order against lawyer

CONTRACTS — plaintiff buys controlling interest in foreign exchange trading and investment platform ‘Pepperstone’ for $150 million — vendor wholly finances the purchase in return for sharing ‘super return’ profits above $25 million for 4 years after vendor finance repaid — deal recorded in Heads of Agreement followed by Share Sale Agreement — when time comes to share ‘super returns’, plaintiff asserts Share Sale Agreement has $100 million drafting mistake requiring vendor finance to be deducted before ‘super returns’ are shared – plaintiff claims to have known this all along – parties seek competing declarations as to the proper construction of the contract. BROWNE v DUNN – plaintiff does not refer to damaging document in three witness statements – whether cross-examiner obliged to invite witness to give explanation about document in cross-examination – fairness does not require this: at [142]-[145]. ONUS AND INFERENCES – plaintiff claims legal privilege – privilege waived after cross-examination – no evidence as to what legal advice was – whether cross-examiner obliged to ask what the advice was – onus on plaintiff – any inference draw adverse to the plaintiff, at [409]-[410]. PAROL EVIDENCE RULE — entire agreement clause – whether can have regard to commercial context, including Heads of Agreement — principles at [231]-[236], [257]. INTERPRETATION – complex drafting with defined terms and embedded definitions – multiple transaction documents — whether can construe contract with multiple transaction documents, where parties are not identical – consideration of McVeigh v National Australia Bank at [217]-[220] — testing initial construction in reiterative process, at [239]— whether construction leads to commercial nonsense — principles at [259], [266] — plaintiff’s construction makes contract vulnerable to manipulation – results in ‘double counting’ — dealing with surplusage at [245]-[246], [270]. RECTIFICATION — attribution of knowledge — Pepperstone shares held by corporate trustee — share sale negotiated by manager — transaction documents executed by trustee — trustee obliged to comply with direction by manager — principles at [388]-[390] — trustee intended to give effect to deal negotiated by manager — knowledge attributable — COMMON MISTAKE – principles at [397]-[400], [423] — UNILATERAL MISTAKE — consideration of Maralinga v Major Enterprises — principles at [426]-[428] — whether plaintiff unconscionably took advantage of defendant’s mistake — ‘sharp practice’. CORPORATIONS – s 912A(1)(h), Corporations Act 2001 (Cth) – obligation to have adequate risk management systems at [452]-[453] – connection between s 254T(1), Corporations Act and directors’ duties at [454]-[456]. BREACH OF CONTRACT — ‘dividend sweep’ —purchaser obliged to maximise Pepperstone dividends ‘to the extent permitted by law’ — Pepperstone entitled to retain funds to meet “required NTA” under s 912AB, Corporations Act plus $10 million buffer — Pepperstone increases capital retention beyond agreed funds – whether purchaser has performed its obligation – principles at [476] – breach established. PROFESSIONAL NEGLIGENCE — solicitors — retained to draft complex documents — urgency — solicitors work 24-7 to meet client demands — whether solicitor breached duty — unnecessary to decide.

CONTRACT — Deed of release — Construction — Whether right to employment bonus released by deed

LAND LAW — easements — substantial interference with easements — whether cropping over a right of carriageway constituted a substantial interference with dominant owner’s rights — remedies for substantial interference — whether dominant owner entitled to construct proposed crowned road — width of road which the dominant owner is entitled to undertake work on — whether 14 day notice period prior to undertaking work expressed as part of declaration is justifiable TORTS — nuisance — trespass — whether appellant entitled to have the full width of the right of carriageway cleared — whether appellant entitled to greater amenity damages — whether appellant entitled to exemplary damages APPEALS — point not taken below — pleadings — whether issue of substantial interference raised before primary judge and understood to be in issue

COSTS – gross sum costs order – plaintiff retained firm of which he was sole director and shareholder to act for him – whether plaintiff entitled to costs for his own time – quantum of order – many claimed professional costs and disbursements not fair and reasonable – fair and reasonable amount for ex parte interlocutory applications and default judgment a fraction of amount claimed PRECEDENT – conflicting decisions of High Court and Court of Appeal – position of judge at first instance

CRIMINAL PROCEDURE — Co-accused murder trial — Application to vacate trial date — Various bases contended — Where one co-accused seeking permanent stay of indictment on the basis of abuse of process involving his deportation from Türkiye to Australia — Where stay application cannot be prepared nor heard prior to trial date — Whether prima facie evidence of an abuse of process involving the deportation

CRIMES – appeals – admissibility of evidence related to sexual experience – whether exclusion of evidence relating to child’s sexual experience resulted in a miscarriage of justice CRIMES – appeals – leave to appeal – where evidentiary ruling applicant says should have been given was not sought before the trial judge – where leave to appeal required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) – where decision at trial was an objectively rational decision – leave to appeal refused

APPEALS — Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 101(e) — Where barrister called to give evidence by opponent at first instance — Where barrister proposed appearing on leave to appeal applications — Whether r 101(e) applies — Whether barrister should be heard on applications

CRIME — Appeals — Appeal against conviction — Crimes Act 1900 (NSW), s 66EA —International Covenant on Civil and Political Rights not enacted in domestic law CRIME — Appeals — Appeal against conviction — Standard of proof under s 66EA CRIME — Appeals — Appeal against conviction — Whether applicants suffered forensic disadvantage — Whether police officer failed to properly investigate case — Whether Office of the Director of Public Prosecutions improperly delayed charging applicants — Whether sentencing judge’s findings inconsistent with verdicts of guilty CRIME — Appeals — Appeal against conviction — Irregularity at trial — Where Crown Prosecutor’s disclosure incomplete — Whether irregularity material CRIME — Appeals — Appeal against conviction — Where inappropriate remarks in Crown Prosecutor’s address — Where trial judge refused application to discharge jury — Whether prejudice occasioned by remarks material CRIME — Appeals — Appeals against sentence — Unlawful sexual relationship with child — Six grounds of appeal — Whether the trial judge was required to ask the jury which acts they found proved — Whether trial judge was obligated to sentence the applicants on a basis most favourable to them — Whether trial judge added extra charges — Manifest excess — Applicability of the ICCPR under Australian law — Reliance on events which post-date sentence — Appeal brought out of time — Extension granted — Leave granted on one ground — Appeal dismissed

CRIME – appeals – appeal against sentence – application of R v Henry guideline judgment – whether subjective factors were relied on in the determination of objective seriousness – finding that applicant did not accept responsibility for harm to victim- whether finding of remorse should have been made – parity where no joint criminal enterprise – manifest excess – where judgment delivered ex tempore – appeal brought out of time – extension granted – ground 1 upheld – no lesser sentence warranted – appeal dismissed

EQUITY — Trusts and trustees — Judicial advice — Matters about which advice can be given — Where administrator of deceased estate seeking judicial advice in relation to execution of short minutes of order as a step in settling family provision proceedings — Where not all beneficiaries have consented to the settlement outcome — Whether there is a question respecting the management or administration of trust property under Trustee Act 1925 (NSW), s 63 — Whether judicial advice should be granted

CIVIL PROCEDURE — Uniform Civil Procedure Rules 2005 (NSW) r 28.2 — Design and Building Practitioners Act 2020 (NSW) ss 37, 40, Schedule 1 Para 5 — Application for separate determination of questions involving contractual and statutory construction — Where an appeal is likely — Where the principal proceedings are in an advanced state of preparation — Where the Applicant has recently amended its defence which amendment gives rise to the issue sought to be dealt with by the separate questions — HELD — Application for separate determination of questions dismissed

SENTENCING – murder – where offenders previously found guilty by a jury and sentenced for murder – where offender successfully appealed against the conviction – where offenders to be sentenced after second finding of guilt by jury – application of the ceiling principle – objective seriousness of offending – where moral culpability reduced by reason of youth and background of disadvantage – where offender has made progress toward rehabilitation in custody

CONTRACTS — construction — written contract for supply of aviation fuel and services for aerial fire fighting — aircraft supplied to third parties pursuant to separate contracts — whether contract automatically terminated when contract with third parties came to end — whether obligations under contract automatically ceased when contract with third parties came to end — contract permitted termination for convenience — respondent entitled to liquidated fee if contract terminated for convenience within 100 days of “start of the fire season” — construction of “start of the fire season”

PRIVATE INTERNATIONAL LAW — foreign judgments and orders — statutory registration of judgments under Foreign Judgments Act 1992 (Cth) — motion to stay enforcement pending determination of appeal of default judgment in United Kingdom court — appeal unsuccessful — no appearance by applicant at part-hear hearing of motion — motion dismissed

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

CIVIL PROCEDURE — UCPR r 13.4 — Application for summary disposal of proceedings — Frivolous or vexatious proceedings — HELD — Proceedings frivolous and vexatious, no reasonable cause of action disclosed, proceedings an abuse of the process of the Court — Proceedings against the First Defendant dismissed with costs

COSTS — party/party — Proceeds of Crime Act 2002 (Cth) s 323 — indemnity costs — where the Court refused orders for forfeiture of property suspected of being proceeds of indictable offence — commencement and conduct of proceedings by the Commissioner was not unwarranted or unreasonable — costs awarded on ordinary basis

PRACTICE AND PROCEDURE – application for leave to amend – no question of principle

CIVIL PROCEDURE – striking out and dismissal – application by the tenth and fifteenth defendants to dismiss the proceedings pursuant to UCPR r 13.4(1)(b) or alternatively have the proceedings struck out pursuant to UCPR r 14.28 – no reasonable cause of action disclosed – proceedings dismissed

HIGH RISK OFFENDERS — Extended supervision orders — Preliminary hearing — Appointment of psychiatrists or psychologists — Whether matters in supporting documentation would, if proved, satisfy the Court “to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order” — Where certain conditions are opposed by defendant

CIVIL PROCEDURE — Summary disposal — UCPR r 13.4 – Dismissal of proceedings — Contempt of court — Abuse of process — Collateral purpose —Statement of charges prolix — Evidence in support defective — No suggestion that problems will be remedied — Proceedings seeks to cavil with District Court sentencing judgment and Court of Criminal Appeal judgment on appeal — Proceedings summarily dismissed

CONTRACTS – intention to create legal relations – where first plaintiff, defendant and defendant’s now deceased life partner signed a Heads of Agreement for sale of a one-third interest in defendant’s property to be “converted to an agreement for the sale of land” containing numerous “additions”, including the grant of an “irrevocable right of survivorship” to the plaintiffs – where no contract for the sale of land incorporating the “additions” in the Heads of Agreement subsequently executed – whether parties intended to create legal relations by signing Heads of Agreement – Held: the parties did not intend to create legal relations EQUITY – unconscionability – undue influence – where defendant and life partner suffering special disadvantage at the time of signing Heads of Agreement – where plaintiffs had actual or constructive knowledge of that special disadvantage – where defendant and life partner not deprived of free choice by pressure exerted by plaintiffs at time of signing Heads of Agreement, but their signatures were procured by plaintiffs unconscionably taking advantage of their special disadvantage – where terms of Heads of Agreement highly disadvantageous to defendant and life partner and correspondingly advantageous to plaintiffs – Held: if parties had intended to create legal relations by signing Heads of Agreement, it would have been set aside on grounds of unconscionability, but not on the grounds of undue influence CONTRACTS – Contracts Review Act 1980 (NSW) – Held: if parties had intended to create legal relations by signing Heads of Agreement, the Court would have declined to enforce it on the grounds that it was unjust in the circumstances relating to it at the time it was made EQUITY – proprietary estoppel by encouragement – where representations made by defendant and life partner that plaintiffs would receive interests in their property – where those representations were made in, and arose out of, Heads of Agreement – where Heads of Agreement not intended to create legal relations and where plaintiffs procured defendant and life partner to sign Heads of Agreement by unconscionable conduct – Held: Equity will not grant relief to avoid detriment that plaintiffs will otherwise suffer as a result of a relying on representations contained in and arising out of Heads of Agreement which plaintiffs procured defendant and life partner to sign by unconscionable conduct EQUITY – joint endeavour constructive trust – where plaintiffs rely on joint endeavour founded in Heads of Agreement – Held: Equity will not grant relief to plaintiffs on the basis of a joint endeavour constructive trust where the joint endeavour is the product of plaintiffs’ unconscionable conduct EQUITY – common intention constructive trust – where plaintiffs rely on common intention founded in Heads of Agreement – Held: Equity will not grant relief to plaintiffs on the basis of a common intention constructive trust where the common intention is the product of plaintiffs’ unconscionable conduct RESTITUTION – money had and received – no question of principle

CIVIL PROCEDURE — summary dismissal – where plaintiffs’ land adjoins land formerly vested in second defendant and held on testamentary trust for third defendant, and now owned by third defendant – where plaintiffs claim declaratory and injunctive relief in respect of alleged breaches of covenants recorded on title to third defendant’s land – where plaintiffs are successors in title to the covenantee – where second defendant (and the deceased whose estate he represented) and third defendant are successors in title to the covenantor – principles applicable to the construction of covenants – whether covenant creates a positive obligation or a restriction – whether plaintiffs’ contention that the covenant is enforceable against successors in title to the covenantor is so obviously untenable that it cannot possibly succeed at trial CIVIL PROCEDURE — Anshun estoppel – abuse of process – where plaintiffs initiated earlier proceedings claiming declaratory and injunctive relief in respect of alleged breaches of covenants against second defendant – where plaintiffs raise substantially the same issues against second and third defendants in these proceedings – where plaintiffs seek leave to amend to introduce claims for additional relief (compensation or damages for alleged breaches of covenants) and cause of action in nuisance – where earlier proceedings settled on terms that included discontinuance of those proceedings by consent – whether third defendant is privy in interest with the second defendant in respect of the earlier proceedings – whether or to what extent doctrines of Anshun estoppel and/or abuse of process operate to preclude plaintiffs from maintaining their claims and proposed claims in these proceedings

TORTS – malicious prosecution – misfeasance in public office – where State conceded malicious prosecution in relation to one police officer but denies in respect of others – plaintiff spent 22 in days in gaol – whether officer in charge and police prosecutor should also be found to have committed the tort of malicious prosecution – damages – previous dishonesty proceedings concerning the plaintiff – scandalous website operated by plaintiff – medical evidence inconsistent with plaintiff’s claims – failure to establish plaintiff would have gained admission as a solicitor – aggravated and exemplary damages awarded

CRIME – appeals – appeal against sentence – supply large commercial quantity of prohibited drug – manifest excess – comparative cases – appeal dismissed

APPEALS — amendment of notice of appeal — where proceedings ought not be remitted to Court below — where appellate court to determine quantum of damages — damages determined on the papers DAMAGES — measure of damages — misleading or deceptive conduct — where reliance on misleading conduct caused the appellants to agree to a contractual variation — measure of loss or damage suffered as a result of variation — cost of rectification — rectification costs for installation of cladding — reliance on expert quantity surveyor evidence — proportionate liability — whether reduction required under principles of proportionate liability — where respondents bound by case put in court below

CRIME – appeals – appeal against sentence – driving offences – whether the sentencing judge erred in setting the commencement date of the sentence by failing to give effect to stated intention regarding totality – no question of principle – appeal upheld – applicant re-sentenced

CRIME – sentencing – appeal against sentence – manifest excess – manslaughter – fight between two young persons where applicant brought a knife – unlawful and dangerous act – appeal dismissed