Cases and authorities

EVIDENCE — witness evidence — warnings — unreliable evidence — whether s 165(1)(d) warning required — whether witness might reasonably be supposed to have been criminally concerned in events giving rise to the proceedings — whether “events giving rise to the proceedings” includes criminal activity that makes up the background to the alleged crime

CORPORATIONS — voluntary administration — Deed of company arrangement — application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to DOCA — whether residual equity in company — whether shareholders unfairly prejudiced

EVIDENCE – course of evidence – reopening case – whether the interests of justice are better served by allowing or rejecting the application – where significant shift in plaintiff’s financial resources and financial needs following reservation of judgment SUCCESSION – family provision – claim by adult daughter for provision from mother’s estate under Succession Act 2006 (NSW), Ch 3 – proceedings not commenced within time – whether sufficient cause shown to extend time – where claim for provision brought by amended statement of claim 19 days out of time SUCCESSION – family provision – claim by adult daughter from mother’s estate – where nominal provision made for plaintiff in mother’s will – where estate left to plaintiff’s brother – where brother caring for mother – where plaintiff and mother had complete breakdown of their relationship – where plaintiff had minimal contact with mother for two years before her death amidst fiercely contested legal proceedings – where needs of brother exceed those of the plaintiff – whether adequate provision made for the proper maintenance, education or advancement in life of the plaintiff – nature and quantum of provision to be made having regard to the facts known to the court at the time the order is made COSTS – family provision – collective costs outrageously disproportionate to the value of the deceased estate

CRIME – bail – release application – further release application – change of circumstances – where trial date was vacated – conspiracy to import a commercial quantity of a border controlled drug – AN0M devices – admissibility of AN0M evidence – strength of prosecution case – very strong Crown case – where substantial delay – lengthy period of time in custody – stringent bail conditions – where substantial security offered – combination of circumstances – cause shown – unacceptable risk test – bail concerns – where risk of flight – strong evidence of association with international criminal syndicates – where applicant committed present offence whilst on parole – non-compliance with parole – unacceptable risks of failure to appear and committing further serious offence – bail refused

CRIME — murder CRIMINAL PROCEDURE — trial — case management — voir dire EVIDENCE — discretions — exclusion of evidence — criminal proceedings

EVIDENCE – Admissions – Criminal proceedings – Oral admissions – Whether the effective cross-examination of a witness by the defence would necessitate the adducing of inadmissible material likely to prejudice the accused’s ability to receive a fair trial – Where the credibility and accuracy of a witness’ testimony is to be determined by the jury and not the judge in advance of a trial – Whether the Court has the power to order the Crown not to call a witness CRIMINAL PROCEDURE – Application for stay of proceedings – Application refused

CIVIL LAW – habeas corpus – urgent call to Duty Judge – where no formal application made – where Judge exercised supervisory role by calling police station – no evidence of unlawful detention – putative application for orders refused

CIVIL LAW – application for expedition – trespass to person – elderly infirm defendant – where allegations of sexual abuse admitted – where fairness dictates defendant allowed opportunity to retain expert evidence

COSTS — party/party — where multiple issues in proceedings — where plaintiff substantially successful in result but not on all bases of claims.

CONTRACTS – Breach of contract – Remedies – Damages – Expectation damages – Quantification of expectation loss – Whether evidence adduced by plaintiff sufficient to establish extent of expectation loss occasioned by repudiation – Whether plaintiff expected to adduce further evidence to establish expectation loss – Plaintiff’s evidence insufficient – No damages awarded on head as claimed CONTRACTS – Breach of contract – Remedies – Damages – Limits on recovery – Remoteness – Where plaintiff claims loss in form of wages paid to carpenters retained on construction of defendants’ residence – Where plaintiff’s employment of carpenters not brought to defendants’ attention prior to retention – Whether loss natural result of defendants’ repudiation of contract – Whether second defendant assumed responsibility for loss – Loss too remote – No damages awarded on head as claimed CONTRACTS – Recovery on quantum meruit – Nature of claim in quantum meruit – Free acceptance – Where plaintiff effected further construction works at defendants’ request – Whether plaintiff entitled to restitution for construction work outlaid – Contract in favour of plaintiff inferred from defendants’ request for further construction works

LEASES AND TENANCIES – possession of commercial property – where property leased by mother to son for many years – dispute over terms of undocumented lease and payment of rent – notices to quit served – declaratory relief in respect of lease sought – refused – order for possession made LOANS – where money loaned by mother to son – dispute about interest and repayment of loans – payment of unpaid interest and repayment of loans ordered PROCEEDS OF THE SALE OF LAND – son and his parents previously registered proprietors of a farming property – proceeds of sale split between parents – claim for share of proceeds pursued against mother – Pallant v Morgan equity – son not entitled to share of proceeds

CRIME — murder CRIMINAL PROCEDURE — trial — case management — pre-trial hearing EVIDENCE – admissibility – credibility evidence

EVIDENCE – Tendency evidence – Coincidence evidence – Criminal proceedings – Notice – Significant probative value – Section 97 of the Evidence Act 1995 (NSW) – Tendency rule – Coincidence rule – Where the accused demonstrates a tendency to use or threaten violence towards women in whom he has a sexual interest when he perceives that his relationship with them is breaking down – Whether the passage of time between the events the subject of the tendency and the offence on trial rendered the evidence too old – Whether the conduct of the accused in the events the subject of the tendency were sufficiently similar to the offence on trial – Whether the tendency goes to the substantial issue in proceedings – Whether the evidence could rationally affect the probability of a fact in issue – Coincidence evidence inherently linked to tendency evidence – Evidence admitted

CRIMINAL PROCEDURE – Suppression and non-publication orders – Pseudonym order – Grounds – Where a suppression and non-publication order and pseudonym order is necessary for the protection of a police informant – Where the safety of a witness and the prevention of harm to the administration of justice significantly outweighs the public interest in open justice

COSTS — application for a gross sum costs order — where plaintiff an incorporated legal practice acting for itself — where evidence before the Court insufficient to support extent of costs claimed — exercise of discretion to award discounted costs

SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 SUCCESSION — Construction — General principles — Structure and scheme of will SUCCESSION — Construction — Gifts

COMMERCE – Restraint of trade – Interlocutory relief – Whether orders should be made for an interlocutory injunction – Whether there is a serious question to be tried – Whether the balance of convenience favours the granting of interlocutory relief

CIVIL PROCEDURE – Service – Informal service – Where plaintiff’s agents personally served originating documents on defendant’s ex-father-in-law – Whether such service sufficient steps taken for purpose of bringing originating documents to notice of defendant – Application for confirmation of informal service dismissed CIVIL PROCEDURE – Service – Substituted service – Where defendant ordinarily resident in People’s Republic of China – Where defendant prohibited by Consumption Restriction Orders from departing from People’s Republic of China – Where plaintiff attempted personal service on two occasions – Whether originating documents unable practicably to be served on defendant – Application for order for substituted service dismissed

APPEAL — whether leave to appeal ought be granted from decision of primary judge dismissing appeal from NSW Civil and Administrative Tribunal — no issue of principle, question of public importance or serious injustice demonstrated GUARDIANSHIP — Public Guardian appointed to VY — decision reviewable in October 2025 — grant of leave not warranted

COSTS – costs recoverable by litigant in person – where litigant in person successful in District Court in appealing conviction from Local Court – where District Court ordered Director of Public Prosecutions (DPP) pay litigant in person’s costs – whether costs for printing, travel and accommodation recoverable by litigant in person – meaning of “professional costs” in s 211 of the Criminal Procedure Act 1986 (NSW) ADMINISTRATIVE LAW – judicial review – jurisdictional error – where now impugned costs were conceded as payable by DPP in District Court – where small quantum of costs in dispute – where no evidence of the costs incurred are before this Court – where matter would have to be remitted to District Court if applicant successful – discretion to refuse claim exercised – summons dismissed

CIVIL LAW – orders to facilitate the taking of evidence of commission – request from overseas court – statutory criteria satisfied – delightfully succinct submissions – no question of principle

CIVIL PROCEDURE — Application by plaintiff for vacation of hearing dates of a family provision claim — Illness of counsel — Plaintiff’s counsel contracted RSV less than two business days before two-day hearing scheduled to commence — Counsel’s discussion with doctor indicates he would be quite unwell for at least 3-4 days — Counsel has been involved from the beginning of the matter for a period of two years and is acting on a conditional fee basis — Subject matter not overly complex but strongly contested — One of the defendants is the deceased’s elderly widow with significant health issues — Experienced counsel for the plaintiff confirmed the day before the scheduled hearing that the position regarding his health and asserted inability to discharge his duties has not changed — Hearing dates vacated — Defendants’ counsel’s submission that plaintiff’s counsel should simply “soldier on” rejected LEGAL PRACTITIONERS — Discretion of judge in urgent circumstances to act upon representations from the bar table

CORPORATIONS – insolvency – winding up – application for leave under s 459S of the Corporations Act – where applicant failed to serve the s 459G application within the statutory period – where applicant seeks to rely on the ground that the debt claimed in the statutory demand is disputed – whether requirements for leave under s 459S are satisfied – application dismissed

CRIME — murder — plea of not guilty — elements of murder — causation — circumstantial evidence — inferences — where medical mechanism of death is not straightforward — where experts disagree on cause of death — whether assault by accused caused death — cause of death versus mechanism of death — methadone overdose — commotio medullaris — positional asphyxiation — axonal injury — domestic violence — requisite intention not found — verdict of not guilty to murder but guilty of manslaughter CRIME — manslaughter — alternative to murder — unlawful killing — plea of not guilty — elements of manslaughter — verdict of guilty CRIME — violent offences — assault occasioning actual bodily harm — guilty plea CRIMINAL PROCEDURE — trial — judge alone — Criminal Procedure Act 1986 (NSW) s 133

MEDIA AND COMMUNICATIONS – Publication – Court Suppression and Non-Publication Orders Act 2010 (NSW) – Public interest in open justice – Whether order necessary to prevent prejudice to the proper administration of justice – Judicial power to make a suppression or non-publication order – Where an applicant is seeking a non-publication order to prevent the mistaken identification of a perpetrator in institutional abuse proceedings – Where an applicant is seeking a non-publication order on future publication but not a takedown order on existing publication – Whether a non-publication order prohibiting the publication of some information by some organisations whilst the information remains in the public domain is inconsistent with the objective of the Courts Suppression and Non-Publication Orders Act 2010 (NSW)

CHILD WELFARE — Adoption — Order — No issue of principle — Public interest in encouraging fostering and adoption of children where restoration to birth parents or family not possible

COSTS – party/party – where defendant made an offer of compromise pursuant to UCPR r 20.26 – where plaintiff rejected this offer – where plaintiff obtained judgment for nominal damages – where UCPR r 42.15 is enlivened – whether the Court should order otherwise under r 42.15 – where there is no reason the Court can only otherwise order if it is in favour of the offeree – where plaintiff was substantively the unsuccessful party – where the policy underpinning the regime is to encourage the proper compromise of litigation – plaintiff is to pay defendant’s costs up to the date of the offer of compromise on the ordinary basis and on the indemnity basis thereafter

SUCCESSION — Family provision — Notional estate — Whether Court has jurisdiction to grant interlocutory injunction restraining dealing in property liable to be designated as notional estate — Succession Act 2006 (NSW), s 62(3) SUCCESSION — Family provision — Practice — Application to amend to introduce substantive equitable claim after Court-annexed mediation — Where no explanation for lateness and not based on facts not previously discoverable with reasonable diligence

CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Whether leave required under the Felons (Civil Proceedings) Act 1981 (NSW) –Whether the Felons (Civil Proceedings) Act 1981 (NSW) applies exclusively to persons in custody in NSW who have been convicted of or found to have committed a serious indictable offence in New South Wales STATUTORY INTERPRETATION – Legal presumptions – Jurisdiction – Extraterritorial application – General law rule of construction – References to New South Wales implied under the Interpretation Act 1987 (NSW)

MENTAL HEALTH – forensic patient – extension of status as forensic patient – cognitive impairment – unacceptable risk of causing harm – no alternate (less restrictive) means of adequately managing the risk – interim orders neither consented to or opposed – consideration of statutory criteria

PROBATE – informal will – whether handwritten document signed by testator and witnessed by two witnesses was intended to form her will and to revoke earlier will – whether necessary to show continuing intention thereafter – significance of absence of revocation clause – handwritten document admitted to probate

ADMINISTRATIVE LAW – application for judicial review of decisions of Delegate of President of the Personal Injury Commission and of Appeal Panel – whether Delegate obliged to give reasons for decision to refer to Appeal Panel – whether Appeal Panel gave adequate reasons and exposed its actual path of reasoning – application dismissed

CRIME – evidence – murder – application to release evidence given before the Crime Commission – Crime Commission Act 2012 (NSW) s 45(5) – where material relevant to murder trial – whether disclosure ‘may’ be desirable in the interests of justice – where witness is protected – where Crown given a summary of coerced evidence given before Crime Commission – procedural fairness in pre-trial disclosure

APPEALS — orders on appeal — whether proceedings should be remitted to Court below — where Court ought determine quantum finally CONSUMER LAW — misleading or deceptive conduct — supply and assembly of prefabricated home — reliance on misleading conduct caused the appellants to agree to a contractual variation — measure of loss or damage suffered as a result of variation CONSUMER LAW — enforcement and remedies — action for damages — measure of damages — loss of bargain — whether cost of rectification is unreasonable — Australian Consumer Law, ss 236, 237 CONTRACTS — breach of contract — breach of express terms — contractual variation based on misleading or deceptive conduct

APPEALS — leave to appeal — whether leave required — summary dismissal — whether summary dismissal interlocutory in nature — whether appeal otherwise by right

HIGH RISK OFFENDER – preliminary hearing – serious violence offender – application for Interim Supervision Order (ISO) – where making of order and some conditions contested by defendant – whether there is high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order – orders for expert assessment and ISO imposed

CIVIL PROCEDURE — stay of proceedings — potential for concurrent civil and criminal proceedings — same subject matter — prejudice to applicant.

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

CIVIL PROCEDURE – application to adjourn proceedings – where cross claim dismissed and part of defence struck out – where defendants failed to comply with court orders and still have not served all the evidence – where still no explanation given – adjournment refused CONTRACTS – contract for acquisition of land for joint venture development – where defendant did not appear – where plaintiffs evidence about the proper construction of the contract was not challenged – judgment for the plaintiff

CIVIL PROCEDURE — Interlocutory applications — Freezing orders – Ex parte — Duty of disclosure — Whether plaintiffs failed to put before the Court all material facts and arguments within their knowledge which the defendants, if present, could be expected to have brought to the Court’s attention — Held: Material non-disclosure, which was deliberate on the part of the plaintiffs and inadvertent on the part of counsel appearing at the ex parte hearing — Held: Freezing orders discharged — Held: Plaintiffs not permitted to treat the hearing of the defendants’ application to discharge the freezing orders as a de novo application for the freezing orders or equivalent orders under r 25.3 of the Uniform Civil Procedure Rules

COSTS – Security for costs – where second and third defendants and plaintiff both claim interests in first defendant’s property and there is a priority dispute between them – where parties made agreement and orders were made by consent facilitating the registration of the second and third defendants’ mortgage, the sale of the property and the preservation of the sale proceeds, on the basis that priority between plaintiff’s claimed interest and the second and third defendants’ mortgage would be determined in these proceedings as at the date of those orders immediately before the registration of the second and third defendants’ mortgage – where second defendant now seeks an order requiring the impecunious plaintiff to provide security for its costs within 14 days, and orders dismissing the proceedings, releasing the second and third defendants from their obligations under the agreement, and discharging the order requiring the sale proceeds of the property to be preserved, if such security is not provided – whether an order for security would work an injustice

CIVIL LAW – separate determination of issue of liability – where toddler injured when kicked by horse at show-jumping event – where plaintiff’s injuries unlikely to stabilise for many years – quantum uncertain until that time – where liability in issue – where memories of witness will fade – relevant consideration – whether potential savings illusionary – order for separation of issues made

COSTS — Party/Party — bases of quantification —— whether plaintiff entitled to special costs order because of non-acceptance of offer of compromise — offer only capable of acceptance by both defendants COSTS — Party/Party — exceptions to general rule that costs follow the event — consideration of “rule of thumb” approach to the apportionment of costs where a plaintiff succeeds against one jointly represented defendant but not another

CORPORATIONS — application by special purpose receiver for directions — where applicant was appointed by the Court as special purpose receiver under s 283HB of the Corporations Act — whether Court has jurisdiction under s 283HB of the Corporations Act to give such directions — whether the directions sought are within the class of questions on which the special purpose receiver may properly seek directions — whether directions sought by the special purpose receiver should be given

CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — Whether plaintiffs unable to obtain sufficient information to make decision about whether to commence proceedings — Whether inspection of documents sought would assist plaintiff to make decision — Preliminary discovery ordered

CRIMINAL PROCEDURE – Discharge of jury – Application for Suitors’ Fund Certificate – Where the NSW Police disclosed a substantial volume of documents on the sixteenth day of the trial – Trial adjourned through no fault of accused or his lawyers – Certificate granted

CRIMINAL PROCEDURE – Trial – Adjournment – Vacating of hearing date – Where NSW Police first disclosed to the DPP and the accused, 37.3 gigabytes of data by way of a Cellebrite download two weeks before trial - A misleading affidavit erroneously identifying that all documents had been disclosed – Where counsel failed to allocate sufficient time for trial preparation – Where the DPP continued to serve material which necessitated consideration and contextualisation before agreements on proposed edits could occur

PRACTICE AND PROCEDURE – application for leave to appeal – interlocutory decision – decision to grant freezing orders – whether primary judge erred in determining that the Court had jurisdiction to grant freezing orders against the appellant – whether ‘ordinary course of business’ transactions can ground the requisite danger for the purpose of Uniform Civil Procedure Rules 2011 r 25.14 – whether application raised a point of general principle

CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy

CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy CRIME – appeals – appeal against sentence – where applicant diagnosed with PTSD – whether sentencing judge failed to engage with contention that there was a link between diagnosis and the offending – where primary judge rejected this contention SENTENCING – appeal against sentence – co-offenders – where co-offenders received the same sentence – where there was comparable criminality between co-offenders – no basis for interference with sentences