Cases and authorities

ADMINISTRATIVE LAW – Judicial review – Motor Accidents Compensation Act 1999 (NSW) – Decisions of medical assessor and delegate of President of Personal Injury Commission on review applications – Failure of Review Panel to exercise jurisdiction as required – Where Review Panel issued medical assessment certificate determining plaintiff’s whole person impairment at 8% - Where Review Panel failed to determine the extent of whole person impairment as it existed at the time of assessment – Where Review Panel failed to determine whole person impairment relating to subsequent injury and conduct appropriate calculation as required – Errors established – Medical assessment and review determination set aside – Matter remitted for re-determination

LEGAL PRACTITIONERS - contested litigation concerning the admission to probate of wills of the deceased made in 2015, 2019 and 2021 – solicitor acted for the deceased in relation to the preparation of the 2019 will and now acts for the plaintiff (the executor of that will) in seeking admission of the 2019 will to probate, alleging that the deceased lacked testamentary capacity at the time of making the 2021 will – deceased uplifted the 2019 will from the solicitor before making the 2021 will – other parties contend that the deceased’s 2021 will is valid and that he destroyed the 2019 will – solicitor is a witness in the contest in relation to contentious factual circumstances of the deceased’s making of the 2019 will and his later uplifting of the 2019 will from the solicitor’s office before the will’s alleged destruction – whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires that the solicitor be prevented from acting for the plaintiff in the proceedings.

PRELIMINARY DISCOVERY — Mass departure of personnel from the Australian professional services partnership conducted by the plaintiffs (EY) including D2-6 (ex-partners), with all being employed by the D1, a global competitor of EY — Remaining partners contend that the ex-partners may have engaged in wrongful conduct and they may be entitled to make claims for relief against D1 and D2-6 — EY seeks preliminary discovery PRELIMINARY DISCOVERY — Purported ‘Goldilocks’ dilemma — Plaintiffs know enough to be concerned but not enough to make a sensible and informed decision about whether or not to commence substantive proceedings against the defendants PRELIMINARY DISCOVERY — Elements for enlivening the discretion to order preliminary discovery — The correct test is the “appears to the Court” test — Submissions regarding “reasonable cause to believe” test rejected EVIDENCE — Inferences — Drawing such inferences where the relationship is between a given fact and a human act WORDS & PHRASES — Garden Leave PRELIMINARY DISCOVERY — Costs and expenses — Distinction between the cost of the litigation per se and the costs of actually providing discovery

LAND LAW – easements – protracted dispute between neighbours – where primary judge ordered applicants to disable audio recording on CCTV camera which pointed at easement – where primary judge made orders curtailing applicants’ rights under easement for four year period APPEALS – leave to appeal – no issue of principle, question of public importance or reasonably clear injustice – leave refused

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) — where orders made fixing director’s resignation date at the time that notice of resignation was provided to company’s chairman

CIVIL PROCEDURE — Cross-claims — Connection with subject-matter of claim — Whether cross-summons should be dismissed or in the alternative stayed COSTS — Security for costs JUDGMENTS AND ORDERS — Enforcement — Charging orders

BUILDING AND CONSTRUCTION – claim by subcontractor against principal in relation to debt certificates issued under Contractors Debts Act 1997 (NSW) – subcontractor’s right of recovery under s 11(4) subject to any defence the principal would have had against recovery of the debt by the contractor – whether principal entitled to raise matters of set-off defending debt claim

SUCCESSION — Family provision — Limitation period — Where claim brought almost two years after the expiry of limitation period — Whether sufficient cause shown to ‘otherwise order’ SUCCESSION — Family provision — Claim by alleged de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether eligible person — Whether in a de facto relationship pursuant to s 21C of the Interpretation Act 1987 (NSW) — Whether couple ‘living together’ SUCCESSION — Family provision — Notional estate — Restrictions on out of time or additional applications — Where estate already fully distributed — Whether ‘special circumstances’

COSTS — Party/Party — Bases of quantification —Indemnity basis — Offer under the rules — Whether to ‘otherwise order’ — Where defendant claims they were surprised by case run at final hearing

HIGH RISK OFFENDER – interim supervision order – where no issue is taken with the making of the order – the Court is required to be independently satisfied of the statutory preconditions – dispute as to appropriate conditions – balancing the intrusion on a defendant’s liberty and privacy with the safety of the community, which must be given primacy – order made – conditions amended

COSTS — Security for costs — Relevant factors — Place of incorporation or residence out of jurisdiction — Where plaintiff domiciled in People’s Republic of China and has significant assets — Whether cross-claim is in substance defensive — Whether security for costs should be limited to costs of enforcing judgment — Security for costs granted

CRIME – Sentence – Judge alone trial – not guilty of murder but guilty of manslaughter – fatal stab wound to the chest – cousins – where the offender and the deceased were slapboxing and “mucking around” minutes before the fatal stabbing – where the offender’s anger escalated quickly “zero from a hundred” – no planning – youth – sexual assault as a child – Bugmy Bar Book “Childhood Sexual Abuse” – mental health condition of PTSD – reduced moral culpability – guarded prospects of rehabilitation – little acceptance of responsibility – offer to plead guilty to manslaughter rejected

TORTS – Compensation to relatives – case management orders made

CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving creditors’ scheme of arrangement — where formal requirements satisfied — whether scheme of arrangement should be approved.

COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.

PROCEDURE — advance ruling under s 192A Evidence Act — whether defect reports prepared by quantity surveyor are business records — whether prepared for purpose of proceedings — s 69(3)(a), Evidence Act 1995 (NSW) — whether opinions expressed in business record admissible — limitation made under s 136 Evidence Act (NSW).

CIVIL PROCEDURE – Interim preservation – preservation of property – where plaintiff obtained orders to enter real property to obtain personal goods but has failed to comply with a Court order as to retrieving the goods – where the Court has provided further opportunity for the plaintiff to obtain personal goods FAMILY LAW — Property — Property of relationship — Injunctions and restraints – Where Husband has obtained orders to enter real property to obtain personal goods but has failed to comply with Court orders as to retrieving goods – where trustees have been appointed to dispose of family property – where Husband has been restrained from entering property

COSTS – Gross sum costs order – Where costs assessment likely to involve further expense and delay – Where assessment would disadvantage party seeking order because of other party’s inability to discharge costs liability – Whether sufficient evidence for Court to undertake fair and just quantification

CORPORATIONS – winding up – insolvency – statutory presumption of insolvency – plaintiff’s application to wind up defendant on the ground of insolvency pursuant to s 459A – where plaintiff relies on a debt that was not the debt that was the subject of the statutory demand - defendant’s application for leave under s 459S to oppose the winding up application on the ground that there is a genuine dispute - whether plaintiff has standing as a creditor under s 459P(1)(b) to bring winding up application – whether there is a genuine dispute about the alleged debt forming the basis of the winding up application – where the plaintiff does not have standing as a creditor – where the pursuit of these proceedings would have been an abuse of process if the plaintiff had standing – originating process and amended interlocutory process dismissed

CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether change of name should be approved

CIVIL PROCEDURE — Default judgment — Motion to set aside – where defendant is vendor and plaintiff is purchaser under a contract for sale of land – where default judgment for specific performance of the contract was entered against the defendant on 14 June 2024 – where defendant’s first motion to set aside default judgment dismissed on 6 December 2024 in the absence of any appearance by the defendant – where defendant continued to deal with the property despite being on notice of the Court’s orders requiring specific performance of the sale contract and took other steps to interfere with completion of the sale contract in accordance with those orders – whether defendant asserts a bona fide defence and cross-claim – whether there is an adequate explanation for defendant’s default and delay – prejudice to plaintiff caused by delay – whether an order setting aside default judgment is in interests of justice and consistent with the overriding purpose and objects contained in ss 56-60 of the Civil Procedure Act 2005 (NSW)

EVIDENCE — Privileges — Client legal privilege — Litigation — inadvertent disclosure of email communication — where privileged communication accessed via Dropbox link with specialist IT assistance — whether privilege waived — whether there was knowing and voluntary disclosure — whether there was deliberate abuse of power — no waiver established APPEAL — costs — costs assessment — appeal from Review Panel — s 89(1) Legal Profession Uniform Law Application Act 2014 (NSW) — whether Review Panel erred in fact or law in determining the amount payable by the plaintiffs — where proceedings conducted without reference to the email communication — no error of fact or law established CIVIL PROCEDURE — Jurisdiction — Monetary limits — leave required under s 89(1)(b) Legal Profession Uniform Law Application Act 2014 (NSW) — leave refused CIVIL PROCEDURE — Time — Extension of time — Leave required under r 50.3 UCPR — approximately three months out of time — leave refused

COSTS – no question of principle.

CIVIL PROCEDURE – interim preservation – freezing orders – freezing orders discharged

CRIME – appeals – appeal against conviction – unreasonable verdict – whether jury’s verdicts in relation to specific counts on the indictment were unreasonable and inconsistent – whether unreasonableness of verdicts for those specific counts renders the verdict for a separate count unreasonable

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

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – rr 13.4 and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) – frivolous or vexatious proceedings – order made under the Vexatious Proceedings Act 2008 (NSW)

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — frivolous or vexatious proceedings —where plaintiff’s notice of motion seeks various orders — where plaintiff now only seeks two orders with respect to unfreezing company bank accounts and discharging a statutory manager — case management

CRIMINAL PROCEDURE – application to vacate trial date – where accused will receive a fair trial - where accused has had a baby since the last trial who will only be four months old at the time of the trial - difficulty in concentrating - steps that can be taken to prevent unfair trial - public interest in finalisation of matter

CRIMINAL LAW – Murder – application for judge alone trial – retrial – where the matter has a protracted and unusual history – where the Crown case relies on constructive murder by way of joint criminal enterprise – whether it is in the interests of justice to grant the order sought – whether the complexity of the issues are such that it is in the interests of justice that the order be granted – where there is a strong interest in efficiencies and finality in the trial – whether a jury is better placed to assess credibility – application for a judge alone trial granted

Appeal from Local Court — Questions of Law and Questions of Mixed Law and Fact — Appeal from Interlocutory Decision — Allegation of Fraud

COSTS — Further security for costs — Relevant factors — Procedure and discretion — Strength of the claim — Stultification — proceedings — Impecuniosity of opponent — Impecuniosity attributable to the applicant’s conduct – Whether the plaintiff is effectively in the position of a defendant

Limitation defence – Personal injury – Negligence – Interrogatories – Discovery – Special reasons – Client Legal Privilege – Implied waiver

Interpretation ss 160 (1) and (2) Evidence Act – Onus of Proof – Postal Service

CHARITIES AND NOT-FOR-PROFITS — charitable gifts and trusts — administration of two trusts in parallel — appointment of a common trustee to the two trusts ineffective — proposed scheme to transfer trust property of two trusts into new trust to be administered by a new trustee — whether cy près or administrative scheme

JUDGMENTS AND ORDERS – amending, varying and setting aside – order sought under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to recall and replace order declaring scope of extended curtilage with a declaration extending the curtilage to enable vehicular access across appellants’ land – perceived misapprehension as to matters relating to vehicular access – application to vary costs orders COSTS – party/party – application for variation of costs orders – application for indemnity costs of motion

PRACTICE – interlocutory relief pending appeal – appellant a subsidiary of respondent – respondent called members’ meeting to replace directors – primary judge determined meeting valid and found appellant’s efforts to adjourn it motivated by improper purpose – appellant had also made off-market takeover offer for respondent, conditional on its directors not being removed – appellant sought injunctive relief pending appeal preventing meeting from occurring – consideration of strength of appeal – whether primary judge erred concerning exclusive jurisdiction of Takeovers Panel – whether primary judge erred concerning appellant’s Constitution – whether primary judge erred in failing to find respondent motivated by improper purpose – prospects of success weak at best – consideration of balance of convenience – significance of failure by appellant’s directors to become parties or offer any undertaking – ongoing breach of s 201A(2) of Corporations Act 2001 (Cth) – unchallenged finding that earlier attempt to vacate meeting for improper purpose – costs thrown away – interlocutory relief refused

CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — District and Local Courts — transfer of proceedings from Local Court to Supreme Court — where cross claim sought equitable relief

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

CRIME — Confiscations — Restraining order — Ancillary order for examination of third-party regarding defendant's property — s 12(1)(b)(ii) Criminal Assets Recovery Act 1990 (NSW)

CRIMINAL LAW – sentencing – reckless infliction of grievous bodily harm – appeal against sentence – uncontested evidence of frontal lobe damage, cognitive impairment and post-traumatic stress disorder and/or depressive illness – submissions made on relevance to moral culpability and general deterrence – robust exchange but submissions not withdrawn – where sentencing judge found on balance that mental health issues played some role in commission of the offence – absence of engagement with relevant principles conspicuous – appeal upheld and offender re-sentenced

SENTENCING – appeal against sentence – co-offenders – parity principle - disparity between sentences – where the applicant pleaded guilty to aiding and abetting the importation of a commercial quantity of a border controlled precursor – where a co-offender was sentenced by a different judge in respect of a related offence of attempting to import a commercial quantity of border controlled precursor – whether there was error in the sentencing judge’s sentence having regard to parity principles – where his Honour made appropriate findings about the applicant's offending and circumstances – where those findings were compared to the offending and circumstances of the co-offender – where the imposed undiscounted starting point took into account the differences between the applicant and the co-offender – where the applicant received a lower sentence than the co-offender – no error in his Honour’s sentence having regard to parity principles

EXPERT DETERMINATION — vendor sells company for $2M plus ‘earn out’ based on EBIT x multiplier — expert determination clause requires chartered accountant of 10 years’ experience — expert determines earn-out payment is $9.7M — whether parties agreed to be bound by expert’s construction of contract — principles at [124]-[129] — purchaser raises proper construction of contract outside timeframe prescribed by expert determination clause — whether expert should have determined that matter at all — expert determination clause varied by letter appointing expert, at [146] — “manifest error” — where suggested error of law — principles at [150]-[153] — Bagata Pty Ltd v Runner Pty Ltd [2024] QCA 17 followed — construction not obviously wrong — no manifest error — parties bound. RECTIFICATION — principles at [231]-[235] — purchaser’s board had authority to vary contract – board papers and minutes, contemporaneous documents and post-contractual conduct paint compelling picture of common intention – purchaser seeks to avoid bad deal by exploiting imperfect drafting – appropriate case for rectification. JONES v DUNKEL — issue waiver — written communications with lawyer tendered — whether to draw inference where solicitor not called — whether unnecessary witness — no evidence that lawyer and client had confidential oral communication – inference not drawn, [11].

EVIDENCE ON COMMISSION – Application for assistance in obtaining evidence for proceedings in the Prague District Court – Orders made

EQUITY — Fiduciary duties — Fiduciary relationships — Where plaintiffs and defendant were joint and several co-attorneys for principal — Whether defendant breached her fiduciary duty in selling principal’s shares and borrowing the proceeds at interest for specified purpose — Whether principal consented to the sale of the shares and the terms of the loan — Where plaintiffs and defendant actively worked together to decide which shares were to be sold and the terms on which the funds would be lent COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Whether indemnity costs should be awarded COSTS — Party/Party — Bases of quantification — Trustee basis — Whether exception in r 42.25 of the Uniform Civil Procedure Rules 2005 (NSW) applies

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

COSTS – where defendant’s statutory demand served on plaintiff was set aside pursuant to s 459G of the Corporations Act 2001 (Cth) – where plaintiff seeks an order that defendant pay its costs of the proceedings on the indemnity basis – where plaintiff relies on without prejudice letters as the basis for their indemnity costs application – where plaintiff made a Calderbank offer but only provided a modest amount of compromise – where defendant seeks there to be no orders made in relation to costs or for costs to be limited to those assessed on the standard basis – where defendant seeks a stay on the enforcement of any costs orders – where defendant submits that any costs orders would be punitive and futile – no departure from the usual position that costs follow the event – defendant is to pay plaintiff’s costs of the proceedings on the ordinary basis

PROCEDURE – Contempt, attachment and sequestration – Contempt of court – Where court makes freezing order and orders disclosure affidavits – False invoices to obtain payments purportedly under exception for business expenses – Breach of freezing orders.

BAIL – where applicant is accused of murder – Aboriginal mother with mental health challenges – where the Crown’s case is strong – whether cause has been shown – application refused

APPEAL – appeal from Local Court – dispute between landlord and tenant – whether Magistrate was biased – whether hearing was procedurally unfair – whether any other irregularity in hearing – whether Magistrate erred in upholding landlord’s claim for unpaid rent and damages – appeal dismissed