Cases and authorities

EQUITY — Trusts and trustees — Variation of trusts — s 86A of the Trustee Act 1925 (NSW) — Application to vary vesting date of trust — Where trust deed of discretionary family trust provides for vesting date in 2032 — Whether proposed variation to trust is in the best interests of beneficiaries — Nature of Court’s power under s 86A — Appropriate form of relief under s 86A

TAXES AND DUTIES — Dutiable transactions — Dutiable property — Agreement for sale or transfer — Where executor purchased land forming part of residue of unadministered estate in her personal capacity — Whether transaction was an ‘agreement’ under s 8(1)(b)(i) of the Duties Act 1997 (NSW) — Meaning of agreement TAXES AND DUTIES — Dutiable transactions — Dutiable property — Surrender of an interest in land — Land forming part of residue of unadministered estate — Whether other residuary beneficiaries’ interests were ‘interests in land’ under s 8(1)(b)(iii) of the Duties Act — Nature of interests of residuary beneficiaries — Whether interests of residuary beneficiaries were ‘surrendered’ in transfer of land to executor

CIVIL PROCEDURE – security for costs – where plaintiff claims he suffered damages as a result of criminal proceedings instituted against him without reasonable and probable cause – plaintiff resident outside Australia – no assets in Australia – where the State claims its defence is strong – security for costs ordered

ADMINISTRATIVE LAW — whether reviewable error of law — error of law on the face of the record COSTS — judicial review of a costs decision by a Magistrate in a criminal matter — whether jurisdictional error or error of law on the face of the record

CIVIL PROCEDURE — rule in Browne v Dunn — whether inferences drawn by primary judge contradicted witness’s evidence — whether rule extends to any construction of conduct legally adverse to a party’s case RESTITUTION — quantum meruit — fair and reasonable remuneration — whether sufficient evidence that rates and hours were fair and reasonable

SUCCESSION – Family provision claim – No provision made for respondent in father’s will due to estrangement – Whether primary judge erred in granting provision to the respondent – Significance of comparison to provision made for sibling – Whether provision unreasonable and plainly unjust – Where appellant cites failure to give reasons but does not seek remittal – Where litigation costs have severely eroded estate

NEGLIGENCE — duty of care — breach of duty — causation — nature and scope of a school’s duty of care — student attacked after school outside school grounds by other students, instigated by a student with previous history of incidents — alleged breaches involving lack of teacher supervision or available staff assistance and inadequate risk assessment process — whether a school’s duty is breached with respect to an injury sustained outside of school hours beyond school grounds is dependent on the particular facts — issue here is at borderline between identifying scope of the duty and whether or not it has been breached — breach established — causation established

EQUITY — Fiduciary duties — Fiduciary relationships — whether primary judge erred in finding fiduciary duties are owed — whether directors owe a fiduciary duty to shareholders in issuing shares — where director holds special position EQUITY — Fiduciary duties — Fiduciary relationships — whether appellants not given fair opportunity to address finding that fiduciary duty was owed — whether issue raised in pleadings — allegation of fiduciary duties raised at trial without objection EQUITY — Equitable remedies — Equitable compensation — causation and loss — whether loss would not have been suffered “but for” the breach of duty — whether speculation that capital raising would have proceeded identically save for the conduct found in breach of fiduciary duty — uncontradicted expert evidence about valuation of shares EQUITY — Equitable remedies — Equitable compensation — reflective loss — whether loss claimed was reflective of a loss that could have been claimed by company — application of Central Coast Council v Norcross Pictorial Calendars Pty Ltd (2021) 391 ALR 157; [2021] NSWCA 75

CRIME – appeals – appeal against sentence – supply not less than the commercial quantity of methylamphetamine – deal with proceeds of crime – Form 1 offences – allow premises to be used as drug premises – supply methylenedioxymethamphetamine – advanced age – whether failure to take into account utilitarian discount – whether error in including “the presence of children” as aggravating factor – whether failure to include remorse and age as mitigating factors – whether sentence manifestly excessive – s 25D(2)(a) Crimes (Sentencing Procedure) Act not applied – s 25F(7) Crimes (Sentencing Procedure) Act not complied with – failure to take into account applicant’s remorse – leave to appeal granted – appeal allowed – sentence quashed – resentence

LAND LAW – co-ownership – statutory trust for sale – ownership interests in the property – failure to account for rent – occupation fee – no question of principle

CORPORATIONS – application to set aside creditor’s statutory demand under Corporations Act 2001 (Cth) s 459G – whether there is a genuine dispute about the existence of the debt – whether there is some other reason for statutory demand to be set aside – statutory demand set aside

MENTAL HEALTH – forensic patient – extension of status as a forensic patient – interim extension order set to expire – where defendant has been diagnosed with intellectual disability and schizophrenia – extension order appropriate – duration of extension order – order that status as a forensic patient be extended for 3 years

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Where plaintiff’s summons dismissed with costs in principal judgment — Where defendant had previously written to plaintiff encouraging them to discontinue proceedings — Where defendant had rejected plaintiff’s subsequent offer — Whether plaintiff should now be ordered to pay defendant’s indemnity costs

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where plaintiff’s summons dismissed in principal judgment — Where plaintiff seeks a variation of the order for it to pay the defendant’s costs — Whether the court should make an order for no orders as to costs

COSTS – costs for multiple concurrent applications – where the usual order is opposed – where first defendant opposes costs thrown away order in favour of plaintiff – plaintiff to bear the costs of the defendants’ motion – where second defendant seeks costs of the motion but accepts a costs thrown away order in favour of plaintiff as result of leave granted

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for order approving shareholders’ scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved

CIVIL PROCEDURE – Application to adjourn hearing of urgent appeal – Where notice of motion filed day prior to the hearing – Where Applicant’s counsel briefed one day prior to hearing due to previous counsel returning brief as a result of Applicant’s alleged failure to hold moneys on trust to secure the previous counsel’s fees – Where Applicant’s previous counsel had settled submissions and amended notice of appeal – Application dismissed

ENVIRONMENT AND PLANNING – development applications – judicial review – whether development consent validly granted – mandatory considerations under s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) and cl 2.20 of the State Environmental Planning Policy (Resources and Energy) 2021 (NSW) – whether Independent Planning Commission failed to consider whether to impose conditions to minimise Scope 3 greenhouse gas emissions resulting from the development – whether Independent Planning Commission failed to consider the likely impact on the locality of Scope 3 greenhouse gas emissions resulting from the development JUDGMENTS AND ORDERS – where judicial review proceedings dismissed in Land and Environment Court and orders under Pt 3 Div 3 of the Land and Environment Court Act 1979 (NSW) not there considered – whether to remit matter subject of appeal brought pursuant to s 58 of the Act – whether to make orders under Pt 3 Div 3 of the Act COSTS – where matter remitted to Land and Environment Court – order sought as to costs of first instance proceedings

COSTS – Part/Party – General rule that costs follow the event – Application of the rule and discretion – where mixed outcome – whether to apportion costs – costs apportioned – no question of principle

ESTOPPEL – proprietary estoppel by encouragement – where plaintiff is the daughter of the defendants who are co-owners of property – where plaintiff claims the defendants made repeated representations to her that, if she worked full-time in the parents’ real estate business without pay, she would be “given” the property and the business within her parents’ lifetime – where plaintiff did work in the business without pay for approximately 22 years – where first defendant (father) has sold the rent roll of the business and, in separate proceedings, seeks an order under s 66G of the Conveyancing Act 1919 (NSW) for the sale of the property – where plaintiff claims the defendants are estopped from denying her alleged entitlement to have the property transferred to her, hold the property on constructive trust for her, and should account to her for proceeds of sale of the rent roll – Held: alleged representations were not made, proprietary estoppel claim fails EQUITY – trusts – common intention constructive trusts – where plaintiff is the daughter of the defendants who are co-owners of property – where plaintiff claims the parties agreed or had the common intention that, if the plaintiff worked full-time in the parents’ real estate business without pay, she would be “given” the property and the business within her parents’ lifetime – where first defendant (father) has sold the rent roll of the business and, in separate proceedings, seeks an order under s 66G of the Conveyancing Act 1919 (NSW) for the sale of the property – where plaintiff claims the defendants hold the property on constructive trust for her and should account to her for proceeds of sale of the rent roll – Held: alleged common intention or agreement not established, constructive trust claim fails EQUITY – trusts –constructive trust following failure of alleged joint endeavour – where plaintiff is the daughter of the defendants who are co-owners of property – where plaintiff claims the parties were engaged in a joint endeavour to “enhance the material wellbeing of their family” pursuant to which the plaintiff worked in the parents’ real estate business without pay – where plaintiff claims the defendants have received a windfall benefit arising from applying revenue of the business to repay loans secured against the property – where first defendant (father) seeks in separate proceedings an order under s 66G of the Conveyancing Act 1919 (NSW) for the sale of the property – where plaintiff claims the defendants hold the property on constructive trust for her – where subject property was acquired prior to the commencement of the alleged joint endeavour – Held: alleged understanding or joint endeavour not established, constructive trust claim fails LAND LAW – co-ownership – statutory trust for sale – application by plaintiff (father) under s 66G of the Conveyancing Act 1919 (NSW) – where plaintiff and first defendant (mother) are co-owners of property – where first defendant has filed a submitting appearance – where claim by second defendant (daughter) that property is held on constructive trust for her fails – trustees for sale appointed – no question of principle

BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) ss 13, 14 and 31 — a written construction contract between the parties provides that if a payment claim under s 13 is made by email after 5:00pm on a business day it is deemed to have been received at 9:00am on the next business day (the Deeming Clause) — s 14 of the Act provides that if a payment schedule in response to service of a payment claim is not provided by the respondent to the claimant within the time provided by the relevant construction contract or within 10 business days of the time it is served, whichever time expires earlier, the respondent is liable to pay the amount claimed — the payment claim was served after business hours on Friday 28 February 2025 and the payment schedule was provided on 17 March 2025 — if the Deeming Clause operated to deem service of the payment claim to have been on the next business day ie. 3 March 2025, the payment schedule was within 10 business days of that day, but if service took place on 28 February 2025 it was out of time — HELD — service of the payment claim took place on Friday 28 February 2025 — the Deeming Clause did not operate to change that time for service to 3 March 2025 because on its proper construction s 14 of the Act permits the parties to agree a shorter period for service of a payment schedule than 10 business days from service of the payment claim but not a longer period — the payment schedule provided was out of time and the respondent became liable to pay the amount of the payment claim

SUCCESSION – wills, probate and administration – contested probate – testamentary capacity – knowledge and approval of will – where deceased suffering cognitive impairment – evidence that deceased expressed intention to disinherit sole beneficiary under previous will – whether primary judge erred in making various factual findings and evidentiary rulings – whether primary judge erred in not accepting unchallenged expert evidence as to capacity and giving weight to lay evidence and that of solicitor witnessing the new will – whether primary judge erred in obiter finding that if new will invalid the evidence as to capacity as at that time would raise a doubt, which was not resolved by the evidence, as to capacity at time of previous will COSTS – whether primary judge erred in making costs order against appellant personally and not applying so-called probate exception to costs

BAIL – release application – detain for advantage – aggravated sexual assault – sexual assault in the alternative – show cause test – unacceptable risk test – Crown case very strong – unrelated charge of sexual touching – delay – recent birth of applicant’s child – residence away from where offences allegedly committed – no prior criminal record – cause shown – bail granted with conditions BAIL – evidence – where almost entirety of alleged offences captured by closed circuit television (CCTV) – where Crown proposed to tender and play CCTV – exposure to footage of serious crimes potentially damaging for persons engaged within court and victims – significant responsibility of courts to take care in determining necessity for viewing such footage – assessment of necessity dependent on nature of matter and issues footage said to address – bail application not a “mini trial” – issues dealt with based upon Crown Case Statement alone – tender of CCTV rejected

CIVIL PROCEDURE – appearance – no appearance at hearing – where defendant afforded ample opportunity to attend and be heard – whether appropriate to proceed with hearing – no question of principle LAND LAW – co-ownership – statutory trust for sale – application by trustees for disbursements from the proceeds for sale – occupation rent – plaintiff’s costs – trustees’ costs – whether costs to borne by the defendant

CIVIL PROCEDURE – Commercial List, Technology and Construction List – Transfer to – Principles governing exercise of discretion – Where plaintiffs entered proceedings alleging negligence and unconscionable conduct in General List of Equity Division – Where defendant contends such claims properly and customarily dealt with in Commercial List – Whether discretion to transfer proceedings ought to be exercised – Application for transfer dismissed – No issue of principle

MEDIA AND COMMUNICATIONS – bail application – media application for access to application evidence and submissions – potential prejudice to any future trial – open justice – where proceedings took place in open court – access granted to redacted exhibit subject to conditions – application for suppression of bail judgment – suppression ordered

CRIME – murder – special verdict – where defence and prosecution agree mental health impairment defence is available – a total of 30 knife stab wounds to neck, chest, arms and legs – schizoaffective disorder – psychiatric evidence – where forensic psychiatrists agree the accused suffers from a mental health impairment – whether the evidence satisfies that the defence is established – verdict of act proven but not criminally responsible entered

CIVIL PROCEDURE – Pleadings – Application to strike out proceedings – Whether pleadings disclosed no reasonable cause of action – Whether pleadings embarrassing – Strike out motion dismissed CIVIL PROCEDURE – Pleadings – Particulars – Alternative motion – Order sought for further particulars – Whether further particulars required – Where plaintiff conceded further particulars should be provided – Order for further particulars made

MENTAL HEALTH – forensic patient – preliminary application to extend status as forensic patient –schizophrenia – substance use disorder – traumatic brain injury – whether matters alleged in the supporting documentation would, if proved, justify the making of an extension order – psychiatric reports – orders made pursuant to ss 126(5), 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020

CRIME — murder CRIMINAL PROCEDURE — trial — jury — discharge of individual juror

CRIME — murder CRIMINAL PROCEDURE — trial — case management — voir dire EVIDENCE – admissibility – credibility of witness

CRIMINAL PROCEDURE – Trial – Voir dire – Where objected was taken to the evidence of a witness – Reliable or proper witness – Where the witness was a prison informer – Whether the evidence of the witness was of significant probative value – Where evidence of the witness admitted

CORPORATIONS – Application for leave pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) extending the time to bring voidable transaction claims – where delay caused by complexity of liquidation – where liquidator’s investigations incomplete – extension granted

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — Plaintiffs after numerous defaults and delays over five years required to provide security for defendant’s costs of preparation for hearing — Security not provided — Plaintiffs’ claims dismissed and defendant’s cross-claim heard as undefended CONTRACTS — Breach of contract — Consequences of breach — Right to damages — No issue of principle

INTEREST — simple or compound — monies owing under Share Sale Agreement — whether a presumption in favour of simple interest — whether ‘clear agreement’ on compound interest needed — whether simply a question of construction — principles at [12]-[19] — no agreement for compound interest. COSTS — Calderbank offer — principles at [23]-[24] — while offer open, plaintiff omits to provide copies of 22 discovered documents but provides in good time for consideration — documents not said to be significant — further privileged documents produced after offer expires — not suggested to be significant either — offeror then amends defence — amendment not substantial — special costs order made.

CIVIL PROCEDURE — discovery — practice note SC Eq 11 – scope of proposed discovery categories – whether subpoenas should be set aside – whether several paragraphs of a notice to produce should be set aside

COSTS – general rule that costs follow event – application of rule and discretion – exception regarding dominant or separable issues – where plaintiffs enjoyed general success at trial except as regards claim for specific performance against second defendant – whether appropriate to reduce amount payable for plaintiffs’ costs

CIVIL PROCEDURE — audio visual link (AVL) evidence — Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B — key witness unavailable due to long-planned overseas holiday — trial date known for 12 months — no subpoena issued — plaintiffs seek order for evidence to be given by AVL from United Kingdom — principles at [34]-[38] — whether adducing evidence by AVL unfair in the circumstances. SUBPOENA TO GIVE EVIDENCE – cooperative witness – whether good practice to serve a subpoena to give evidence — principles at [22]-[28].

COSTS – r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) – whether success on one aspect of the cross-claim is its own event – relevance of dishonest credibility findings to costs – whether ordinary costs should be apportioned – other historical factors bearing upon costs – costs awarded to the plaintiff

CIVIL PROCEDURE – interim preservation – preservation of property – Trustees for sale appointed to sell certain former matrimonial property – plaintiff seeks a stay on Trustees for sale completing their sale of certain real estate – orders made for goods to be removed from certain real estate and placed in storage to facilitate the Trustees for sale selling the real estate – dispute about the ownership of and access to the goods so removed – what orders should be made to preserve the rights of all parties – no issue of principle.

CIVIL PROCEDURE – Commercial List, Technology and Construction List – Entry in – Where proceedings seek declaratory and compensatory relief for alleged breaches of leasehold covenants – Where proceedings ought be entered in Real Property List – No issue of principle

EVIDENCE – summary – Evidence Act 1995 (NSW), s 50 – plaintiff seeks to tender summary of 395 lever-arch folders of documents – whether “evidence of the contents of … documents in question” – whether summary interprets underlying documents, involves exercise of judgement, is a submission or gives expert opinion – principles at [6]-[12] – plaintiff reduces tender to 16 lever-arch folders – now possible conveniently to examine the evidence.

CIVIL PROCEDURE – Commercial List, Technology and Construction List – Removal from – Where proceedings neither arose out of commercial transaction nor of importance in trade or commerce – No issue of principle

CIVIL PROCEDURE – Administrative law – Judicial review – Interim relief – Whether orders sought are necessary to ensure the plaintiff’s effective access to the courts in civil proceedings – Whether the plaintiff has access to an “irreducible minimum” of resources required in order to ensure effective access to the courts – Courts are not to second guess the defendant’s expertise about the safe and secure management of correctional facilities – Suppression and non-publication orders – Amicus curiae – Referral to Pro Bono Panel for legal assistance

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Consent orders — Where parties had agreed a form of interlocutory orders — Where plaintiff now seeks to vary those interlocutory orders — Whether Court can order for interlocutory orders to be varied

ADMINISTRATIVE LAW — judicial review — jurisdictional error — motor vehicle accident — medical assessor assessed permanent impairment of a body part which did not fall within the scope of referral to medical assessor — where medical assessor denied procedural fairness — error of law on the face of the record and jurisdictional error — President’s delegate refused to refer decision to appeal panel — decisions of medical assessor and President’s delegate must be set aside — Motor Accidents Injuries Act 2017 (NSW), ss 4.11, 7.20, 7.21, 7.26 ADMINISTRATIVE LAW — application for extension of time granted as review panel could have corrected error had President’s delegate allowed it to be referred

ADMINISTRATIVE LAW – judicial review – where plaintiff has been repeatedly refused eligibility for Home Building Compensation Fund insurance – where notice of resignation of directorship was not immediately lodged by accountant – unacceptable risk scenario – where refusal of eligibility could affect the plaintiff’s “ongoing viability” – whether the reasons included an apparently baseless but material finding that the plaintiff’s director had engaged in phoenix activity – no issue about the adequacy of reasons – interaction between the eligibility manual and eligibility guidelines – use of the word “fatal” – amended summons dismissed

SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for relief PRACTICE AND PROCEDURE — Injunctions — Interlocutory injunctions — Interim order

CORPORATIONS – application for relief under s 1322(4)(a) of the Corporations Act 2001 (Cth) regarding plaintiff’s failure to properly appoint an auditor for a period spanning approximately 9 years – where failure to appoint auditor was due to honest inadvertence – where plaintiff acted promptly to address the error once identified – where no substantial injustice resulted from non-compliance or is likely to be caused through granting relief – declaration that appointment of auditor not invalid by reason of contraventions of the Corporations Act

LEGAL PRACTITIONERS — Disciplinary proceedings — Where practitioner communicated directly with opposing lawyers’ client on numerous occasions — Where practitioner’s communications with lawyers, Law Society and the NSW Civil and Administrative Tribunal (NCAT) were routinely offensive and discourteous — Breach of rr 4.1.2 and 33 of Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) — Where NCAT made finding of professional misconduct and recommended the practitioner’s removal from the Roll of Australian lawyers – Lack of insight by practitioner – Finding that respondent not a fit or proper person to remain on the Roll.