Cases and authorities

JUDGMENTS AND ORDERS — calculation of pre-judgment interest and post-judgment interest COSTS — application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) — court’s discretion as to quantum of gross sum costs order CIVIL PROCEDURE — interim preservation — freezing orders — variation of — varied to be discharged on payment of amounts owing

CIVIL PROCEDURE – court administration – case management – failure to comply with case management orders – cost orders arising from the need to vacate a hearing date due to non-compliance with case management orders

MENTAL HEALTH — forensic patient — extension of status as forensic patient — consideration of statutory criteria — whether the defendant poses unacceptable risk of causing serious harm to others if forensic patient status ceases— whether risk can be adequately managed by less restrictive means — diagnosis of schizophrenia and polysubstance use disorder — history of unprovoked violence and poor medical compliance

CIVIL PROCEDURE — evidence in reply — whether evidence in chief — principles at [6]-[15] — whether entitled to costs ‘thrown away’ — plaintiff sues for loss of chance to build hotel development — evidence in chief based on hotel design considered at time of breach of contract — defendant serves evidence pointing out problems with that design and an alternate design conceived by defendant — plaintiff reply evidence includes further design said to meet issues identified by defendant — $100 million claim — no trial date set — plaintiff amenable to defendant putting on further evidence in respect of further design — case management directions made.

LIMITATION OF ACTIONS — causes of action not maintainable — extension under s 60G(2) of the Limitation Act 1969 (NSW) — where the plaintiff sues for medical negligence alleged to have occurred in 1999-2000 — where proceedings commenced in 2021 — whether the plaintiff was aware of the connection between the personal injury and the defendant’s act or omission for the purpose of ss 60I(1)(a)(iii) and 60I(1)(b) of the Limitation Act — where the plaintiff denied sending the defendant a letter in 2007 referring to a solicitor and calling for an explanation of her treatment — whether the letter was written by the plaintiff

CIVIL LAW – application to set aside default judgment – judgment for possession and repayment of money lent and interest – debt to private lender secured by guarantee and mortgage – whether arguable defence – where previous defence struck out – applicability of National Credit Code – whether arguable that transaction a “sham” – where loan to company secured by property owned by individual who was the sole director – whether attempt to resurrect same defence that was previously struck out – relevance of delay – extent of prejudice to plaintiff – where application to set aside judgment related only to amount of interest – no contest as to principal sum – no contest that lender entitled to sell property – whether arguable defence of unconscionability

TAXES AND DUTIES – payroll tax – liability – application pursuant to s 97 of the Taxation Administration Act 1996 (NSW) to review decision of the appellant disallowing the respondent’s objection to a payroll tax assessment pursuant to the Payroll Tax Act 2007 (NSW) – the primary judge held that the amounts paid by the respondent to drivers were not paid for or in relation to the performance of work under the relevant contract – where the primary judge held that the amounts paid by the respondent were not taken to be wages paid or payable – where the primary judge held that payroll tax was not payable on those amounts and revoked the tax assessment – where the primary judge held that, if payroll tax was payable, premium interest should be remitted in full – following issues raised on the appeal/cross-appeal: whether driving was a service supplied by drivers to the respondent under the driver contracts – whether the primary judge erred in finding that rating was a service supplied to Uber “under” the driver contracts – whether the act of rating and referring was de minimis – whether the primary judge erred in implicitly concluding that the referrals were supplied or provided to the respondent under the driver contracts – whether the primary judge erred in accepting that the driving service was one and the same as the use of the vehicle – whether rating was ancillary to the use of the driver’s vehicle – whether amounts collected by the respondent from riders and remitted to drivers were “for or in relation to the performance of work” – whether amounts collected by the respondent from riders and remitted to drivers were “paid or payable” by the respondent – whether the primary judge erred in ordering remission of any premium interest payable – re-exercise of discretion as to remission of premium interest – appeal by the Chief Commissioner allowed and cross-appeal by Uber dismissed with costs

CIVIL PROCEDURE – undefended judgment – setting aside – where respondent did not appear at hearing of proceedings – whether primary judge erred in describing the principles for setting aside an undefended judgment under r 36.16(2)(b) – primary judge did not err having regard to the transcript of the hearing as a whole CIVIL PROCEDURE – undefended judgment – setting aside – explanation for non-attendance – whether primary judge erred in taking into account or giving inappropriate weight to the medical evidence – primary judge did not err

NEGLIGENCE – causation – professional negligence – where contract for sale of land provided for 5-year deferred settlement and life estate in favour of vendor – where purchaser did not complete on completion date and vendor died two days later – sale contract subsequently rescinded by vendor’s legal representative – where solicitor found to have breached duty of care by failing to identify difficulties with grant of a legal life estate over a portion only of unsubdivided land but primary judge found no loss caused by that breach – whether primary judge erred in concluding that appellants did not discharge their onus of establishing that any negotiations with vendor prior to exchange of contracts in 2012 would likely have resulted in vendor agreeing not to require a life estate – whether primary judge erred in concluding that problem with life estate played no part in the purchaser’s failure to complete in 2017 and was thus not causative of loss – appeal dismissed.

REAL PROPERTY — conveyancing — where land was transferred by director to his mother on same day that company entered voluntary administration — whether property transferred with intent to defraud creditors — whether first respondent was purchaser for good faith without notice — whether first respondent had notice of intent to defraud creditors at time of transfer — alienation of property — Conveyancing Act 1919 (NSW), s 37A

CRIME — appeals — appeal against sentence — allegation of error in assessment of offender’s subjective case — allegation of manifest excess — error in determination of indicative sentence — aggregate sentence not unreasonable or plainly unjust

CRIME – Appeals – Crown appeal against sentence – Commonwealth offences of importing and trafficking controlled drugs – State offence of supplying prohibited drugs – matters placed on schedules – whether aggregate Commonwealth sentence was manifestly inadequate – whether sentence for State offence was manifestly inadequate – whether effective total sentence was manifestly inadequate – whether the sentencing judge erred in making a factual finding as to hierarchy – residual discretion not exercised – re-sentence

CIVIL PROCEDURE – substitution of parties – where plaintiff died prior to conclusion of proceedings – plaintiff removed as a party pursuant to UCPR, r 6.29 – representative of the plaintiff’s estate appointed pursuant to UCPR, r 7.10

PRIVATE INTERNATIONAL LAW — Jurisdiction — Personal jurisdiction — Service outside of the jurisdiction

INSURANCE – Application by plaintiff for leave to proceed against second defendant insurer under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) in respect of claims against first defendant for alleged breaches of contract for design and construction of building works – Where first defendant and second defendant insurer entered into design and construct professional indemnity insurance policies – Where first defendant now in liquidation – Whether arguable case that first defendant would be entitled to indemnity under the relevant insurance policies if found liable to the plaintiff for the alleged breaches of the design and construct contract – HELD: Leave to proceed against second defendant insurer refused

COSTS – Party/Party – costs of application for appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) – whether usual order should be made for costs to be paid out of the proceeds of the sale of land – whether unreasonable conduct caused costs to be incurred unnecessarily

CIVIL PROCEDURE – Commercial List, Technology and Construction List – Transfer to – Principles governing exercise of discretion – Where plaintiffs initially entered proceedings in General List of Common Law Division alleging various breaches of contract – Where proceedings transferred by consent following amendment of pleadings to General List of Equity Division – Where parties consent to proceedings remaining in General List – Where plaintiffs’ solicitors unilaterally request reasons for dismissing application for transfer to Commercial List notwithstanding indication of consent – Application for transfer dismissed – No issue of principle PRACTICE AND PROCEDURE – Email communications with Judge’s Chambers – Unilateral email communications – Where Chambers notified that correspondence sent without consent of defendant – Where Chambers further notified that defendant’s solicitors copied in to correspondence for transparency – No issue of principle

CIVIL PROCEDURE — application to set aside default judgment — applicant’s non-compliance with court orders — applicant obviously not pursuing its motion

WORKERS COMPENSATION — medical assessment — medical dispute — degree of permanent impairment as a result of an injury — whether appeal panel erred in confirming medical assessment certificate — whether error of law on the face of the record for appeal panel to confirm medical assessment certificate — whether medical assessor failed to explain why his assessment of the plaintiff’s degree of permanent impairment differed substantially from that of an orthopaedic surgeon upon which the plaintiff had relied for the purpose of her claim — where medical assessor did not so err and therefore not error of law on the face of the record for appeal panel to confirm medical assessment certificate WORKERS COMPENSATION — medical assessment — medical dispute — degree of permanent impairment as a result of an injury — whether appeal panel erred in confirming medical assessment certificate — whether error of law on the face of the record for appeal panel to confirm medical assessment certificate — whether medical assessor failed to give proper, genuine and realistic consideration to the report of an orthopaedic surgeon upon which the plaintiff had relied for the purpose of her claim — where medical assessor did not so err and therefore not error of law on the face of the record for appeal panel to confirm medical assessment certificate WORKERS COMPENSATION — medical assessment — medical dispute — degree of permanent impairment as a result of an injury — whether appeal panel erred in confirming medical assessment certificate — whether appeal panel implicitly found error in the medical assessment certificate and thus did not have jurisdiction to confirm the medical assessment certificate — where appeal panel did not so err

COSTS – order for costs following summary dismissal of plaintiff’s proceedings against the bank – application for payment of indemnity costs or alternatively as a gross sum – whether costs should be awarded on an indemnity basis – where plaintiffs commenced proceedings with no cause of action or prospect of recovering damages – frivolous and vexatious proceedings – order for costs on indemnity basis

CIVIL PROCEDURE — Court of Appeal — whether appeal should be dismissed as incompetent where leave to appeal not sought — whether leave to appeal required — Supreme Court Act 1970 (NSW), s 101(2)(r) — whether $100,000 jurisdictional limit satisfied — assessment of the value of the matters realistically in contest in the appeal — realistic assessment of the merit of relief claimed HUMAN RIGHTS — discrimination — grounds — sexual-orientation discrimination — homosexual vilification — whether damages in default of compliance with an order pursuant to Anti-Discrimination Act 1977 (NSW), s 108(7) payable to third party COSTS — whether costs should follow the event where purported intervener successful on motion

WORKERS COMPENSATION — appeal to Deputy President — where Deputy President dismissed appeal on basis that findings were “open” — where Court recently departed from established authority in State of New South Wales v Culhana [2025] NSWCA 157 — where appeal under s 352 governed by principles in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 — Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353

CORPORATIONS — takeover bid — whether this proceeding commenced contrary to s 659B of Corporations Act 2001 (Cth) — whether this is a proceeding “in relation to a takeover bid” — s 659B(1) does not apply to this proceeding CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors – Notice — where respondent issued notice of intention to move a resolution at general meeting of shareholders removing directors of first appellant and notice of intention to nominate new directors — whether notices were valid

CRIME – appeals – costs – interlocutory appeal – appeal against granting of costs certificate to defendant under s 2 of the Costs in Criminal Cases Act 1967 (NSW) – construction of “before the proceedings were instituted” in s 3(1)(a) of that Act – institution of proceedings referred to is limited to the institution of proceedings by filing of a court attendance notice or other permitted means of setting the criminal justice process in motion and does not include steps in proceedings such as committal for trial or commencement of trial STATUTORY INTERPRETATION – construction of “before the proceedings were instituted” in s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW) – institution of proceedings referred to is limited to the institution of proceedings by filing of a court attendance notice or other permitted means of setting the criminal justice process in motion and does not include steps in proceedings such as committal for trial or commencement of trial

SENTENCING – Crown appeal against sentence – where offender deployed taser in course of responsibilities as police officer – where offender convicted of manslaughter – non-custodial sentence for manslaughter conviction – whether sentence manifestly inadequate – whether sentence imposed unreasonable or plainly unjust – where a number of grounds raised, on proper analysis, went only to weight given to role of general deterrence and assessment of objective seriousness – strong subjective circumstances – honest error of judgement – no ongoing risk posed to the community – no malice – extra-curial punishment – loss of employment – inability to continue to reside in local community – sentence lenient but not manifestly inadequate – where no relevant error in sentencing disclosed SENTENCING – Crown appeal against sentence – Court of Criminal Appeal’s discretion to intervene – s 5D(1) of the Criminal Appeal Act 1912 (NSW) – residual discretion – purposes of Crown appeals against sentence – unusual circumstances of offending – inapt vehicle for laying down general principles – inapt vehicle for ensuring consistency in sentencing – where offender’s health deteriorated since sentence – where offender already undertaken not insubstantial part of sentence imposed – residual discretion not exercised in favour of Crown

CRIME – Appeals – Appeal against sentence – Assistance to authorities – Whether sentencing judge failed to take into account the applicant’s disclosure to the police immediately after the subject offence as evidence of assistance to authorities and as evidence of remorse – Discount under s 23 Crimes Sentencing Procedure Act 1999 (NSW) – Appeal allowed – Applicant resentenced

EQUITY – Trusts and trustees – Court’s supervision of – Appointment and removal of trustees – where three adjoining properties – where trustees appointed in respect of one property – whether to remove trustees in respect of the first property – whether to appoint trustees in respect of the other two properties

CONTEMPT – sentence for contempt – where contemnor pleaded guilty to charges of refusing to give evidence in a criminal trial – where re-trial of the criminal proceedings will raise the prospect that the contemnor will be required to give evidence again – where the contemnor’s attitude to giving evidence at the re-trial not known – whether it is in the interests of justice to adjourn the sentence proceedings until after that issue is clarified

SUCCESSION — Administration of estates — Persons entitled on intestacy – deceased dies intestate – dispute as to whether his mother is his next of kin – a young person claims to be the deceased’s daughter – DNA testing establishes that the claimant is the deceased’s daughter – the deceased’s mother contends that he did not acknowledge his daughter during his lifetime – the deceased’s mother began to administer his estate acting in good faith on the basis that she was the deceased’s next of kin – two disputes remain – whether the daughter should be referred to on the headstone of the deceased’s grave and whether the mother is entitled to commission for her “pains and troubles” for administering the estate during the period of her practical administration before a formal grant.

CIVIL PROCEDURE – pleadings – form and content of pleading – whether leave should be granted to amend pleadings – where parties are already making final submissions – where prior pleadings are “highly compressed” and economical – whether the pleadings “mirror” the case as put or are an enlargement of that case – whether granting leave would cause significant prejudice – leave granted

CONTRACTS — Remedies — Damages — Loss of chance — Where defendant breached various restraints in employment agreement and shareholders’ agreement — Where breaches caused loss to plaintiffs — Whether ‘Sellars’ discount should be applied to the calculation of damages to be awarded to the plaintiffs EQUITY — Equitable remedies — Injunctions — Where undertakings made by and injunctions ordered against party who was previously the second defendant — Where plaintiffs gave the relevant undertaking as to damages — Where Court of Appeal reversed findings as to the second defendant’s liability — Whether second defendant now entitled to damages flowing from the undertakings and injunctions

BANKING AND FINANCE – CONTRACT – banker and customer – where their contractual relationship is governed by written terms and conditions (Conditions) which permit the defendant bank to close the account immediately to protect the defendant’s Legitimate Interests (a defined term) or to meet the defendant’s prudential requirements or is reasonably necessary to protect the defendant against a material risk of financial detriment – where Conditions provide that except where there are exceptional circumstances (which is not this case) the defendant will give the customer at least 14 days advance notice before closing the account – where the defendant gave notice to close the account for the reason that the defendant lacks the risk appetite involved in continuing to operate the account in circumstances where it concluded that there was a risk that in providing services to the plaintiff, the defendant could be assisting in money laundering or terrorist financing – where the plaintiff customer, contends that the defendant did not have Legitimate Interests in closing the account and its notice to do so is ineffective because it is in breach of the express terms in the Conditions and/or implied terms that the defendant was required to act honestly, for a proper purpose and reasonably in giving notice – where the plaintiff seeks declarations as to the breach and an injunction restraining the defendant from closing the account – HELD – the defendant had Legitimate Interests in closing the account and if the defendant was obliged to act honestly, for a proper purpose and reasonably, it did so – even if the plaintiff had established breach, an injunction requiring the defendant to keep it as a customer and operate a bank account with it would not be granted

CORPORATIONS — directors and officers — appointment, removal and retirement of directors — where director resigned by written notice to company chairman — where company did not provide notice of director’s resignation to the Australian Securities and Investment Commission within 28-day period — where relief sought under s 203AA of the Corporations Act 2001 (Cth) — orders made fixing director’s resignation date at the time that notice of resignation was provided to company’s managing director

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, after previous meeting adjourned — whether requirements to order scheme meeting are satisfied.

PRIVATE INTERNATIONAL LAW — Orders with extraterritorial effect — Anti-suit injunctions — Anti-suit injunctions restraining oppressive or vexatious foreign proceedings PRACTICE AND PROCEDURE — Injunctions — Interlocutory injunctions — Interim order

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 – whether scheme booklet should be amended prior to despatch to shareholders

COSTS — application for costs on an indemnity basis — whether indemnity costs should be ordered. COSTS — whether indemnity costs should be awarded against Plaintiff on basis of Calderbank principles —whether unreasonable not to accept Calderbank offer(s) COSTS — whether third party costs order should be made. COSTS — security for costs — payment of funds out of Court.

CIVIL PROCEDURE – professional negligence by solicitors – where breach of duty and breach of retainer admitted – UCPR 20.14 – calculation of damages – where plaintiffs seek reference to experts for inquiry and report on four remaining taxation accounting questions – whether reference out preferable to contested hearing on the issues before the trial judge

ADMINISTRATIVE LAW — review of medical assessment by appeal panel — judicial review of appeal panel decision — where medical assessment certificate revoked by appeal panel — whether appeal panel erred in finding demonstrable error in assessment of impairment for concentration, persistence and pace — whether appeal panel misunderstood statutory task

EVIDENCE – tendency evidence – exclusion of tendency evidence – where Crown served tendency notice shortly before trial – trial judge held that reasonable notice had been provided for the purposes of s 97(1)(a) of the Evidence Act – where late service caused no prejudice or unfairness to the accused – reasonable notice was provided CRIME – appeals – appeal against sentence – manifest excess – child sexual assault offences – where indicative sentences are said to be manifestly excessive – neither the indicative sentences nor the aggregate sentence manifestly excessive

CRIMINAL PROCEDURE — Evidence Act 1995 (NSW), s 137 — Where trial judge excluded recognition evidence — Where evidence had high probative value — Whether respondent would have to adduce unfairly prejudicial evidence to challenge recognition evidence — Whether directions to the jury would be sufficient to cure prejudice — Appeal allowed

CIVIL PROCEDURE — Hearings — Suppression and non-publication — defamation proceedings — findings of sexual misconduct involving a minor — where alleged conduct occurred in the United States and Queensland

LAND LAW ­­— Conveyancing ­­— Alienation of property ­­— Intent to defraud CIVIL PROCEDURE ­­— Interim preservation ­­— Detention, custody or preservation of property

ADMINISTRATIVE LAW — judicial review — jurisdictional error — motor vehicle accident — review panel assessed permanent impairment on the basis of an injury which had not been identified by the parties or in the material before the panel — where review panel denied procedural fairness – where review panel did not provide adequate reasons — error of law on the face of the record and jurisdictional error — decision of review panel set aside — Motor Accidents Injuries Act 2017 (NSW), ss 4.11, 7.20, 7.21, 7.26

CIVIL PROCEDURE – Default judgment – Default in entering appearance and filing defence – application of Part 16 of Uniform Civil Procedure Rules 2005 (NSW) by analogy to proceedings commenced by Summons and Commercial List Statement – No issue of principle

COSTS – gross costs order – where costs ordered on both an ordinary and indemnity basis – where orders not opposed –orders sought supported by relevant evidence – gross costs order made

EVIDENCE – pre-trial ruling – joint trial – charges of murder and assault with intent to rob, with wounding and armed – whether the Crown can advance a case of extended joint enterprise – where the Crown cannot prove which of the two participants in the joint criminal enterprise is the principal offender

EVIDENCE – application to exclude evidence – s 137 Evidence Act – whether evidence as to expectation of financial gain is prejudicial – whether evidence of lies can be admitted as proof of consciousness of guilt – whether view warranted – whether evidence can be given by audio-visual link

CRIME – sentence – murder – intent to kill – firearms offence – deceased was shot twice – plea of guilty – disputed facts – several aggravating features –reduced moral culpability – limited evidence of remorse – aggregate sentence

BUILDING AND CONSTRUCTION – Adjudication – Adjudication certificate – Application for maintenance of interlocutory injunction enjoining request for or filing of adjudication certificate – Relevant principles – Where no evidence suggesting that first defendant at risk of insolvency – Where relevant statutory policy mandates prompt payment of subcontractors and suppliers – No issue of principle