Cases and authorities

LEGAL PRACTITIONERS – practice and procedure – solicitor’s lien –solicitor’s general lien over proceeds of sale of a business held in trust – where extension of time for application to have assessed costs reviewed granted by this Court – whether lien applies to the assessed costs and to costs of these proceedings – s 144 of the Legal Profession Uniform Law 2014 (NSW) – whether it permits solicitor’s lien to be exercised in respect of the disputed costs

SUCCESSION — Family provision — Security for costs — Plaintiff (who claims to be de facto partner of deceased at time of death) resident in Greece — Defendant (executrix and spouse of deceased at time of death) seeks orders for security for costs against plaintiff SUCCESSION — Security for costs — Counsel vigorously advanced contestable factual and legal propositions as to various issues — Regarding prospects of success, the exercise of the Court is to make an impressionistic evaluation SUCCESSION — Family provision — Joint schedules — Parties should prepare joint schedules in a way that facilitates ease of reading, even if the schedule is qualified in some way revealing some aspect in which the parties are in contention EVIDENCE — Family provision — Objections to affidavits — Practical guidance SUCCESSION — Family provision — Eligibility — Section 57(1)(e) Succession Act — There is no requirement for the facts which give rise to alleged dependency to coincide or co-exist with those that give rise to membership of a household SUCCESSION — Family provision — Eligibility — Section 57(1) Succession Act — The fact that parties do not own accommodation they are living in does not preclude finding that they are in a de facto relationship or members of the same household SUCCESSION — Family provision — There is no legal principle that so-called “bare satisfaction of eligibility criteria” necessarily dictates a low level of provision or necessarily moderates the amount of provision such an applicant might receive — That is not to gainsay that provision ‘primacy’ might arise in a specific case by dint of the facts rather than as a legal axiom JUDGMENTS — Enforcement — Discussion of means and criteria of recognition of an Australian court judgment in Greece and enforcement or seizure options in Greece WORDS & PHRASES — Promise ring SUCCESSION — Family provision — Costs — Discussion of applicability of the so-called probate cost exceptions such as the “testator cause exception” or the “investigation exception” to family provision claims — The costs of a unsuccessful family provision plaintiff are not necessarily nor generally informed by analogous application of the so-called probate cost exceptions SUCCESSION — Family provision — Costs — The financial circumstances of an unsuccessful family provision applicant may be a material consideration, though not necessarily a compelling (let alone decisive) consideration in assessing an appropriate costs order CIVIL PROCEDURE — Non-inspection application — Discussion of apparent relevance of documents sought to the issue of the extent of the deceased’s estate

CONTRACTS – Construction – Interpretation – where multiple interest rate clauses in Loan Agreement – whether contract void for uncertainty – no question of principle CONTRACTS – Construction – Penalties – whether compounding interest clause constituted penalty – no question of principle

HIGH RISK OFFENDER – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – whether there is an unacceptable risk of the defendant committing another serious violence offence – no subsequent serious violence offending in the 11 years since the index offending – consideration of the objects of the Act – primary object being the safety and protection of community – further object being encouraging rehabilitation

PROCEDURE – application to amend – amendments advanced new claim against existing defendant – existing claims sued defendant as employer – new claims sued defendant as occupier or controller – defendant appointed new solicitors to appear in response to new claims – new solicitors claimed trial of new claims could not be conducted fairly – Dust Diseases Tribunal granted leave to amend – whether injustice warranting grant of leave in matter of practice and procedure made out – no updating evidence about readiness of defendant – in fact, no hearing date as yet allocated, three months after ruling – no suggestion that hearing date would be allocated so as to give rise to injustice - no basis for grant of leave PROCEDURE – parties – circumstances in which same defendant may be represented by more than one legal practitioner – such representation only to occur in exceptional cases – steps to be taken to prevent prejudice to other parties

ADMINISTRATIVE LAW – Appeals – judicial review – decision of review panel – motor vehicle accident – where respondent injured during attempted theft of motorcycle – psychological injury – whether primary judge erred in finding procedural fairness afforded to appellant – no practical injustice – whether primary judge erred in finding cl 6.41 of the Motor Accident Guidelines did not apply – where appellant asserted inconsistencies in respondent’s reporting history – whether primary judge erred in finding review panel performed its statutory function – single causative event – whether primary judge erred in finding review panel exposed actual path of reasoning – whether primary judge erred in finding review panel responded to substantial clearly articulated argument

CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge denied applicant procedural fairness in contravention of rule in Browne v Dunn — where no such procedural unfairness CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge elided two components of test in s 19 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) in deciding whether to make an apprehended violence order — where no such jurisdictional error established CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge applied incorrect standard of appellate review on an appeal against finding that conduct insufficient to warrant making of an apprehended personal violence order — where correctness standard applies to finding that the court has jurisdiction to make an apprehended violence order under s 19 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) — where primary judge did not apply incorrect standard of appellate review CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge took into account irrelevant factors or failed to take into account relevant factors in applying s 19 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) — where no such jurisdictional error made out CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge erred in finding that ss 7, 19 and 35(2)(f) of Crimes (Domestic and Personal Violence) Act 2007 (NSW) did not impermissibly burden the constitutionally protected implied freedom of political communication — where burden limited and of minor significance — where purpose accepted as legitimate in relevant sense — where impugned provisions suitable in relevant sense and burden outweighed by benefits

CRIME – appeals – appeal against sentence – Form 1 matters – where sentencing judge indicated a starting point for Count 1 before taking into account the Form 1 offences – whether an error in this approach CRIME – appeals – appeal against sentence – where the sentencing judge failed to make findings in respect of the applicant’s remorse and prospects of rehabilitation – where evidence adduced in support of remorse and rehabilitation – where competing submissions made about mitigating factors – where the differences required “clear and transparent resolution” – appeal allowed

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of one count of intentionally sexually touching a child under the age of 10 years – whether reasonable possibility complainant’s evidence was a result of a hallucination

CRIMINAL APPEALS – appeal against sentence – fact finding – importation of marketable quantity of cocaine – “rolled up” charge involving three consignments – where co-offender disposes of one consignment – threat to kill co-offender – act to influence witness – whether Judge erred in calculating quantity of missing consignment – where offender referred to quantity in intercepted call – no evidence of purity of drug – where offender referred to “pure coke” – whether Judge made finding of exact quantity – whether error (if established) material – whether safe to act on offender’s disclosures – whether sentence manifestly excessive

CRIMINAL PROCEDURE – Suppression and non-publication orders – Grounds – Grounds in s 8 not made out – Application for order made in the inherent jurisdiction of the Court – Specific material deemed to be of no public interest – Application successful – Third-party access prohibited without further order or application

CIVIL PROCEDURE — Parties — Joinder — Proceedings for possession of property by a beneficiary against a trustee — Where trustee has capitulated — Where joinder would require the hearing listed for next week be vacated — Where applicant seeking joinder is also a unit holder in the trust — Where applicant seeks to run the trustee's defence and cross-claim as a derivative action

HIGH RISK TERRORISM OFFENDER – preliminary hearing – interim supervision order (ISO) under s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW) – examination order under s 24(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) – whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order – consideration of “matters alleged in the supporting documentation” – power to order ISO engaged – exercise of discretion whether to make ISO – ISO made – examination order made – conditions of ISO

EVIDENCE – Evidence Act 1995 (NSW) s 130 – The Cabinet Office claims public interest immunity over documents – The documents contain commercially sensitive information which would undermine the ability and confidence of the Cabinet Office to maintain confidentiality over internal dealings – The limited forensic value of the documents is outweighed by the public interest in preserving confidentiality – There is no exceptional situation warranting disclosure of the documents – HELD – Claim of public interest immunity upheld

EVIDENCE — opinion evidence — exceptions — expert opinion — expert reports on liability — general and specific objections EVIDENCE — hearsay — hearsay rule

CIVIL PROCEDURE — Hearings — vacation of trial date pending anticipated legislation reform — where one bases of plaintiff’s claim is vicarious liability — where proceedings commenced before High Court ruling of Bird v DP — institutional abuse Discontinuance — where plaintiff proposes determination of costs deferred until fresh proceedings completed

CORPORATIONS –– whether repayment of informal loans repayable on demand constituted unreasonable director-related payments contrary to s 588FDA of the Corporations Act – where company solvent – where company had no other trade creditors and no ongoing rent or employee expenses – where company had no existing contractual obligations – where company contemplating entering into future contracts for export of chickpeas to India

CRIME – appeals – appeal against conviction – unreasonable verdict – trial by judge alone – historical sexual offending – where complainants’ evidence at trial and in police statements regarding timing of alleged offending inconsistent with objective circumstances – where Crown amended time period of alleged offending in indictment prior to trial to account for alibi – where complainants’ evidence regarding timing of alleged offending inconsistent with amended indictment – whether open to trial judge to be satisfied of guilt beyond reasonable doubt notwithstanding complainants’ mistakes as to timing – verdict not unreasonable

CRIME – appeals – appeal against sentence – denial of procedural fairness – finding of aggravating factor not raised at sentencing hearing – finding not inevitable – applicant deprived of the opportunity to make submissions – miscarriage of justice SENTENCING – aggravating factor – substantial harm, injury, loss or damage – difference between significant and substantial harm – whether incorrect test applied SENTENCING – appeal against sentence – severity – whether sentence manifestly excessive – aggravating factor – substantial harm, injury, loss or damage – victim impact statement as evidence of harm – substantial harm established – no lesser sentence warranted in law – adjustment of commencement date of sentence

CIVIL PROCEDURE – urgent application by spouse for sperm retrieval from deceased body of partner

SUCCESSION — Family provision — Claim by adult child whose affairs are under financial management — Procedure where defendant executor declines to participate in proceedings — Hearing in absence of defendant

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

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

CRIME – Murder – Non-publication orders – Takedown orders – Present trial concerning member of Alameddine OCN charged with offences arising out of feud with opposing OCN – Where accused in future trials belonged to OCN and alleged to have committed different offences but in the context of the same feud – Where prejudice asserted arising from similarities in evidence – Principle of open justice prevails.

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

COSTS — where directors were personally interested in authorising defence of proceedings — whether third party costs order should be made against directors

SUCCESSION – Construction – General principles – Structure and scheme of will – a will contains provisions dividing the deceased estate after notionally augmenting the value of the estate to include the value of certain real property distributed to one beneficiary, the plaintiff, during the lifetime of the deceased (the inter vivos distribution) – parties dispute whether (a) the provisions in substance divide the net value of the estate and ignore the inter vivos distribution to the plaintiff, or (b) whether the inter vivos distribution to the plaintiff is brought to account and deducted from the distribution to the plaintiff.

CIVIL PROCEDURE — Stay of judgment — application made after final determination of all issues — whether in interests of justice — finality of litigation — where applicant seeks a stay of judgment after final determination of issues in the proceedings — HELD — stay refused CIVIL PROCEDURE — Transfer of proceedings — application to transfer to Common Law Division to be heard with related proceedings — proceedings already finally determined and judgment given — HELD — no transfer CIVIL PROCEDURE — Stay of proceedings — Pending proceedings in other court — no stay where final judgment given JUDGMENTS AND ORDERS — Amending, varying and setting aside — application to set aside judgment pursuant to rr 36.15 and 36.16 of the UCPR — discretionary power to be exercised sparingly and with great caution — public interest in finality of litigation — where no irregularity, illegality or bad faith — applicant’s disagreement with judgment insufficient basis for setting aside or varying judgment JUDGMENTS AND ORDERS — Entry — Effect of — proceedings concluded — cannot be revived after entry of final judgment APPEALS — Procedure — Time limits — where applicant did not appeal within 28 days — where applicant aware of appeal procedures

Commissioner of Taxation v Stokely-Van Camp Inc Commissioner of Taxation v PepsiCo Inc Commissioner of Taxation v PepsiCo Inc Commissioner of Taxation v Stokely-Van Camp Inc Commissioner of Taxation v Stokely-Van Camp Inc Income tax (Cth) – Notice of assessment – Royalty withholding tax – Diverted profits tax – Where non-resident companies entered into agreements with Australian company to bottle, sell and distribute beverages – Where agreements licensed intellectual property to Australian company – Where agreements did not provide for payment of royalty for use of intellectual property – Where no payment made by Australian taxpayer to non-resident companies – Where payment made to Australian subsidiary of non-resident companies for beverage concentrate – Whether payments to subsidiary included royalty for use of intellectual property owned by non-resident companies within meaning of s 6 of Income Tax Assessment Act 1936 (Cth) ("ITAA 1936") – Whether payments paid or credited to or derived by non-resident companies within meaning of s 128B of ITAA 1936 – Whether non-resident companies liable to pay diverted profits tax under s 177J of ITAA 1936. Words and phrases – "alternative postulate", "antecedent monetary obligation", "basis or condition", "consideration", "consideration for", "derived by", "diverted profits tax", "DPT", "DPT tax benefit", "exchange of promises", "income derived", "paid or credited", "payment by direction", "postulate", "principal purpose", "reasonable alternative", "reasonable expectation", "royalties", "royalty", "royalty withholding tax", "scheme", "single, integrated and indivisible transaction", "substance of the scheme", "tax benefit", "tax benefit in connection with the scheme". Income Tax Assessment Act 1936 (Cth), ss 6, 128A, 128B, 177A, 177C, 177CB, 177D, 177F, 177H, 177J, 177N, 177P. Taxation Administration Act 1953 (Cth), s 14

Parliamentary elections (Cth) – Communication of electoral matter – Where s 321D(5) of Commonwealth Electoral Act 1918 (Cth) requires "notifying entity" to ensure certain "particulars" notified – Where s 321D applies in relation to electoral matter that is "communicated to a person" – Where "electoral matter" posted on Facebook page on three occasions – Where failure on each occasion to ensure required "particulars" included in post – Where each post seen by several people who viewed Facebook page – Whether s 321D(5) contravened on each occasion person viewed post or on each occasion post made available for viewing. Words and phrases – "authorisation", "civil penalty provision", "communicated", "communication", "conduct", "contravention", "deterrence", "digital", "disclosure entity", "dominant purpose", "electoral advertisement", "electoral matter", "federal election", "free and informed voting", "impressions", "notifying entity", "particulars", "political communication", "political entity", "proportionality", "reach", "statutory construction", "text, context and purpose". Acts Interpretation Act 1901 (Cth), ss 15AA, 23(b), 33(3A). Commonwealth Electoral Act 1918 (Cth), Pt XXA, ss 4AA, 321B, 321C, 321D, 321

COSTS – Application for gross sum costs order – Lack of justification for gross sum costs order – Need for firm foundation for Court to be satisfied as to quantum – Inappropriateness of awarding gross sum costs in respect of proceedings below

CIVIL PROCEDURE – professional negligence by solicitors – calculation of damages – UCPR 20.14 – where parties were directed to provide ‘the usual form of order’ for reference of four disputed taxation accounting issues to experts – where the defendants contend none of the issues should be referred – whether the issues should be referred to appropriate experts for consideration and report – where defendants contend two issues have already been decided by the Court or ‘dealt with’ – where issues raise complex matters of tax accounting practice – where all four issues should be referred NEGLIGENCE – damages – calculation of damages – final issue to be determined by the court in proceedings – competing versions of issue – timing of hypothetical cashflows – parties agree the issue has not been determined – expert evidence – application of 5% discount for non-diversifiable risk – whether the joint venture would have distributed the project proceeds to the joint venture participants on the agreed dates – whether distribution of the proceeds would have been postponed past the date of receipt until 31 July 2016 – interpretation of clauses in Joint Venture Agreement prescribing mechanism for distribution of project proceeds –where parties had a ‘toxic’ or disharmonious relationship – consideration of mercantile reality and modern commercial conduct

CIVIL PROCEDURE – personal injury – application for separate trials of the questions of liability and damages – where parties agree that damages cannot be assessed until applicant is older – where respondent does not oppose or consent to trial being heard separately – orders made

EVIDENCE – Litigants in person – leave to issue subpoenas – legitimate forensic purpose – Improperly or illegally obtained evidence – motion for order for access to human tissue of deceased person for DNA testing – the senior next of kin, the respondent to the motion, did not consent to the removal of human tissue from the body of the deceased – criminal charges brought against the first applicant to the motion for improperly interfering with a corpse – first respondent pleads guilty to the charges – the human tissue the subject of this motion was illegally obtained – whether the applicants should be allowed to issue a subpoena for the illegally obtained evidence.

SUCCESSION – administration of estates – application for administration of an estate upon presumption of death and upon intestacy – plaintiff has had no contact with her father, the defendant, for 25 years – plaintiff seeks a declaration that her father is presumed to have died before her mother who died in 2020 – plaintiff seeks administration of her mother’s estate on intestacy – discussion of Conveyancing Act 1919, s 35.

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

PRIVATE INTERNATIONAL LAW — Jurisdiction — Stay of local proceedings — Whether earlier judgments in China on matters with some degree of overlap to current NSW proceedings can give rise to res judicata, issue estoppel, Anshun estoppel or a plea of abuse of process in relation to latter proceedings PRIVATE INTERNATIONAL LAW — Jurisdiction — Non-exercise of jurisdiction — Forum non conveniens — Whether earlier judgments in China on matters with some degree of overlap to current NSW proceedings sufficient to render NSW Supreme Court forum non conveniens in respect of latter proceedings CIVIL PROCEDURE — Admissions — Admission of facts — Withdrawal of admissions CIVIL PROCEDURE — Interim preservation — Freezing orders — General principles to be applied

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

COSTS – Offer of Compromise for $700,000 plus costs not accepted by plaintiff – plaintiff obtains judgment for $698,000 plus costs, including interest after offer not accepted – costs order made under UCPR 42.15 – no point of principle

CORPORATIONS — Winding up — Conduct of liquidation — Application for directions regarding claims to be made in proceedings and assignment of claims

COSTS — special costs order — offer of compromise by defendants not accepted — Uniform Civil Procedure Rules 2005 (NSW) r 20.26 COSTS — costs of appeal — consequence of offer of compromise made prior to proceedings — indemnity costs — Uniform Civil Procedure Rules r 42.15A COSTS — costs of appeal and notice of motion — ordered on a gross sum basis — Civil Procedure Act 2005 (NSW) s 98(4)(c)

PRACTICE & PROCEDURE – pleadings – summary judgment – claim for unpaid income tax, interest and penalties – application to strike out the defence pursuant to UCPR 14.28 or for summary judgment pursuant to UCPR 13.1 – whether pleading discloses a defence, or has a tendency to cause delay or is otherwise an abuse of the process of the court – whether there is a triable issue

APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused

COSTS — special costs order — offer of compromise by respondent not accepted — whether offer open for such time as reasonable in circumstances — Uniform Civil Procedure Rules r 20.26 COSTS — costs of appeal — consequence of offer of compromise made prior to trial — indemnity costs — Uniform Civil Procedure Rules r 42.15A

SUCCESSION — Will construction — “Home-made” Wills — Contention regarding whether two sentences deal with the same real property — Clauses of Wills should be read in their context — Submission that the sentences are disconnected rejected — Consequently, submission that property adeemed rejected SUCCESSION — Will construction — Properly understood, the task of searching for a “scheme” or a “plan” is not the unequivocal “first” step or task in Will construction. Rather, it is simply one of a number of analytical or constructive tools to discern the deceased’s intention SUCCESSION — Rectification — Submissions regarding rectification rejected — Meaning can be effectively derived through an approach of construction

CIVIL LAW – legal costs – provisional costs order made against plaintiffs – where plaintiffs’ application for leave to rely on expert evidence granted despite late service and failure to comply with case management orders – where parties afforded opportunity to make submissions for different costs orders – opportunity taken – surprise to nobody – where provisional order against the general rule that costs follow event – whether it appears that some other order should be made – relevant considerations – costs order confirmed

CORPORATIONS – application for winding up on ground of insolvency – application for freezing order – whether presumption of insolvency is established under s 459C(2)(b) of the Corporations Act 2001 (Cth) – whether partly unsatisfied garnishee order is sufficient to trigger presumption of insolvency – whether writ for levy of property enlivens presumption of insolvency – whether writ was returned – whether writ was returned unexecuted or unsatisfied – whether defendant is insolvent pursuant to s 95A of the Corporations Act – where defendant is able but unwilling to pay debts as and when they fall due – finding defendant is solvent – applications dismissed with costs

CRIME – SENTENCE – appeal against sentence - dishonestly obtaining a financial advantage by deception – services Australia – relief payments - failure to place evidence before the court relevant to the applicant’s subjective circumstances – where sentencing judge only has a sentencing assessment report before them – where new material goes to the applicant’s attempt to seek rehabilitation – background of disadvantage – Bugmy principles – sentence quashed – resentence - Recognizance Release Order

CIVIL PROCEDURE — parties — representation — by unqualified persons — application by plaintiff’s husband for leave to appear for her as lay representative — no evidence of medical condition said to give rise to legal incapacity — no evidence that plaintiff cannot afford representation by a lawyer — no special or exceptional circumstances demonstrated — not in the interests of justice to grant leave — application dismissed

SUCCESSION — Family provision — Claim by adult child — Small estate — Costs and any provision could only come from superannuation as notional estate — Defendant estranged wife still owed money by deceased from property settlement