Cases and authorities

SUCCESSION — Family provision — Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether factors warranting – whether deceased promised child provision – whether child suffered detriment due to reliance on alleged promises – whether a Crisp order should be made – whether estate assets were misappropriated – provision refused – no issue as to principle

CRIME — murder CRIMINAL PROCEDURE — trial — voir dire EVIDENCE — credibility evidence — cross-examination

LAND LAW – possession of land – urgent application to stay execution of writ of possession – too little to late – no adequate explanation for lack of action by applicant – defence struck out in April 2025 – question mark over legitimacy of alleged contract for sale – stay refused

COSTS — Party/Party — Bases of quantification — Assessed as a gross sum — No issue of principle

CRIME – appeal and review – application to Supreme Court under Part 7 – Crimes (Appeal and Review) Act 2001 (NSW) – conspiracy to murder – where co-conspirator found not guilty of conspiracy and acquitted – whether doubt or question as to applicant’s guilt – whether verdict unsustainable as a matter of law – principle of incontrovertibility of an acquittal – broader claim of inconsistency – impact of “fresh” evidence led at co-conspirator’s trial – responses of each accused to Crown case of conspiracy substantially different – conviction of applicant consistent with acquittal of co-conspirator – abundant evidence at applicant’s trial to support guilt – discretion under s 79(3) – application refused

PROCEDURE – appointment of amicus curiae – suggested by respondent and unopposed by applicant – questions of general principle arising – matter referred to Registrar for purpose of appointing amicus

CRIME – appeals – appeal against sentence – dishonestly obtain financial advantage by deception – contravention of section 192E(1)(b) Crimes Act 1900 (NSW) – whether breach of De Simoni principle – where advantage particularised was the obtaining of loan facilities – where sentencing judge assessed objective seriousness by reference to quantum and period of drawdowns of facilities – whether objective seriousness assessed by reference to criminality comprising a more serious offence CRIME – appeals – appeal against sentence – whether sentencing judge failed to take into account “risk management” – whether sentencing judge failed to take into account absence of loss – where applicant sought to rely on loan facilities as security for the amount drawn down CRIME – appeals – appeal against sentence –whether sentence manifestly excessive

MENTAL HEALTH – Hearing – Review – Forensic patient – Extension of status as a forensic patient – Previous review by Mental Health Review Tribunal – Where Attorney-General seeking orders pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Where defendant has been subject to previous extension orders – Section 122 test – Whether the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient – Whether the risk cannot be adequately managed by other less restrictive means – First limb made out – Where alternative treatment regime is unsatisfactory – Second limb made out – Extension order made

OPPRESSION – Members’ rights and remedies – whether oppression established – terms of buy-out order available where company in liquidation COSTS – Whether indemnity costs should be awarded against Defendants on basis of Calderbank principles – Whether unreasonable not to accept Calderbank offer

CORPORATIONS – Directors and officers – Appointment, removal and retirement of directors – Notice – Where Plaintiff issued notice of intention to move a resolution at general meeting of shareholders removing directors of Defendant and notice of intention to nominate new directors – Whether notices were valid CORPORATIONS – Meeting of members – Notice – Where Plaintiff issued notice to Defendant’s shareholders convening a general meeting of shareholders – Where Defendant’s directors resolved to postpone and change venue of general meeting of shareholders– Whether Defendant’s directors’ resolution was valid – Whether Plaintiff’s notice was valid – Where independent chair of general meeting of shareholders ordered

EQUITY — Equitable remedies — Equitable compensation — Assessment — Where equitable compensation to be assessed on the basis of a loss of opportunity — Whether discount should be applied pursuant to Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 EQUITY — Equitable remedies — Where defendants accept that plaintiff entitled to make a ‘split election’ for different remedies as between them — Where the second defendant was the sole director of the first defendant — Where the defendants were found in substance to owe the same fiduciary duties to the plaintiff — Where acts constituting separate breaches by each of the defendants were in each case performed by the second defendant only — Whether risk of double recovery

EQUITY — Trusts and trustees — Judicial advice — Where the object of the association is to afford assistance in necessitous and deserving cases — Whether association funds may be used to provide a counselling service — Where association was plainly intended to be charitable in the legal sense — Where counselling service is directed to former and current barristers and their dependents

ADMINISTRATIVE LAW — Jurisdictional error — Whether NSW Civil and Administrative Tribunal ("NCAT") had jurisdiction to determine tenancy when District Court proceedings already afoot — Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 5(7) — Where District Court proceedings concerned the relationship between landlord and tenant — Where NCAT proceedings sought enforcement by the landlord of a s 85 termination notice — Whether there was an overlapping of issues between the NCAT proceedings and the District Court proceedings

LIMITATION OF ACTIONS — Discoverability — Personal injury — When plaintiff “ought to know” facts — Medical negligence — Where plaintiff has been diagnosed with a non-functioning pituitary macroadenoma with symptoms including memory impairment — Whether there should be an extension of the long-stop limitation period — Whether just and reasonable to extend the limitation period

CONTRACTS – Construction – Interpretation – where no time specified for the completion of the contract for the sale of land – whether contract void for uncertainty – implied reasonable time for completion of contract – no question of principle CONTRACTS – Termination – whether breach by either party – whether repudiation of contract – whether acceptance of repudiatory conduct – no question of principle LAND LAW – Conveyancing – Contract for sale – Termination – whether necessary for vendor to show readiness, willingness and ability to perform contract at time of termination – whether vendor ready, willing and able – question of principle LAND LAW – Conveyancing – Contract for sale – Deposit – relief against forfeiture of deposit – where deposit is 13% – whether deposit is a penalty – whether deposit should be returned pursuant to Conveyancing Act 1919 (NSW), s 55(2A) – question of principle

LEASES AND TENANCIES – Default and termination – Relief against forfeiture – where the change of ownership of the shares of the tenant company constitute an assignment of the lease – where consent was not sought for the assignment of the lease – whether to grant relief against forfeiture – no question of principle EVIDENCE – Standard of proof – Civil cases – where defendant alleges that plaintiff made up evidence of serious wrongful conduct of defendant – application of Briginshaw – application of s 140(2) of Evidence Act 1995 (NSW) – no question of principle ESTOPPEL – Cause of action estoppel – Anshun estoppel – no question of principle

APPEALS — leave to appeal — principles governing — where proceedings raise questions of public importance — leave to appeal granted — time limits — extension of time — extension of time granted CIVIL PROCEDURE — effect of admission in points of defence in NCAT — where applicant admitted lessee was an impacted lessee under COVID-19 regulatory regime — Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 53 — Evidence Act 1995 (NSW), s 191 LEASES AND TENANCIES — retail leases — retail shop lease — termination of retail lease covered by COVID-19 Regulation — whether lessee an impacted lessee under COVID-19 regulatory regime — application of Retail and Other Commercial Leases (COVID-19) Regulation 2021 (NSW), cll 6A, 6B, 6C, 6D

CIVIL PROCEDURE – application to amend summons seeking declaratory relief – leave to amend summons – marked differences between proposed amended pleadings and current pleadings – whether amended pleadings disclosed reasonable cause of action – whether amended pleadings embarrassing – where allegations of dishonesty, collusion and abuse of process – whether arguable evidential basis for allegations – dictates of justice – whether applicant’s changes in position caused significant injustice – whether procedural unfairness CIVIL PROCEDURE – costs – whether applicant should pay costs of settled strike out motions – whether offers of compromise were relevant to costs application – whether applicant’s conduct unreasonable – whether applicant should pay costs on the motion to re-plead

CRIME – Appeals – Appeal against sentence – whether sentencing judge failed to take into account mitigating factor of provocation on sentence – findings of fact open to sentencing judge – no error established CRIME – Appeals – Appeals against sentence – whether offender was entitled to discount for the facilitation of justice pursuant to s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) – factors said to facilitate justice not identified by defence counsel at hearing – no further discount beyond 25% for guilty plea warranted – no error established

CRIME — appeals — appeal against sentence — application for leave to appeal — whether the sentencing judge erred in the determination of objective seriousness — whether the sentencing judge erred in her determination that the s 17A threshold was crossed thus necessitating the imposition of a full-time custodial term of imprisonment — whether the sentencing judge erred in the application of the parity principle — whether the overall sentence was manifestly excessive — Commonwealth and State offences — appeal allowed — applicant resentenced

CRIMINAL LAW – sentencing – aggravated sexual intercourse with a child – two counts – whether aggregate sentence manifestly excessive – penile/vaginal intercourse – offender of good character – findings of remorse and prospects of rehabilitation – early pleas of guilty – comparison with past sentencing cases – use of statistics – helpful and thorough submissions – sentence imposed not manifestly excessive – sentence not plainly wrong or unjust

CRIME – appeals – appeal against sentence – where the applicant and co-accused drove a stolen vehicle in a police pursuit whilst in possession of a firearm – where the vehicle was abandoned and set on fire – whether the sentencing judge failed to properly assess the applicant’s role in the offending – where the sentencing judge made no distinction between being liable for an offence as part of a joint criminal enterprise and the culpability of a participant by reason of that person's role – where, as a result, the applicant’s moral culpability was not given consideration – where the sentencing judge rejected the submission that there was a reasonable possibility that the co-offender started the fire – where a finding against the applicant needed to be made beyond reasonable doubt – where there was a reasonable possibility that the co-offender lit the fire – where the submission should not have been rejected to the applicant’s detriment

CRIME — Murder — Voluntary act— whether the question of automatism should be left to the jury — where the accused leads no evidence — where the accused is self-represented — finding that there is no evidence from which an inference could be drawn that the accused’s actions were not wilful or voluntary

CIVIL PROCEDURE — appearance — withdrawal of appearance — leave of Court — where breakdown in relationship between solicitor and client — leave granted CORPORATIONS — winding up — practice and procedure — leave of Court — where director of company seeks leave to appear for company — leave granted CORPORATIONS — winding up — statutory demand — failure to comply with statutory demand — whether company should be wound up — where winding up ordered subject to a stay

CIVIL PROCEDURE – judgments and orders – amending – whether reasons for judgment require amendment to reflect arguments made and consequences of findings made

MORTGAGES AND SECURITIES – claim by mortgagee for possession of land following default by mortgagors – default judgment entered and writ of possession issued – application for stay of execution of writ of possession – factors relevant to application for stay – stay in terms sought refused

BAIL – multiple bail applications – Bail Act 2013 (NSW) s 74 – whether there are grounds to hear a further bail application in circumstances where there is a change in the identity of the surety, the sum offered and more information about the Crown’s case – s 74 satisfied BAIL – charge of supplying a commercial quantity of a prohibited drug, direct activities of criminal group and deal with proceeds of crime – show cause offence – cause is not shown

CORPORATIONS – action for enforcement of judgment debt due to corporate trustee – form of orders to give effect to reasons for judgment – whether any reason why costs should not follow the event – no issue of principle

APPEALS – Challenge to underlying findings of fact and credit-based findings – Where appellant unrepresented – Consideration of extent of court’s role in relation to unrepresented parties SUCCESSION – Where probate not granted in respect of a 2013 Will – Where primary judge not satisfied that deceased had testamentary capacity at time of making of 2013 Will – Where clinical notes recorded cognitive defects both before and after execution of 2013 Will – Significance of such evidence – Where will witnessed by a solicitor – Where testatrix unaware about why she was attending solicitor’s office – Application of Banks v Goodfellow (1870) LR 5 QB 549 COSTS – Where family provision claim rejected on basis that 1998 Will provided adequately for the appellant – Where primary judge may have held differently if appellant ordered to pay costs – Where primary judge unaware of Calderbank offer and formal offer of compromise made well prior to trial – Where different judge revisited costs order following primary judge’s retirement – Where, notwithstanding holding that Calderbank offer and offer of compromise unreasonably rejected, respondent awarded less than one quarter of his costs – Whether exercise of discretion vitiated by error or otherwise miscarried – Relevance of notional “buffer” that had been referred to by primary judge

BUILDING AND CONSTRUCTION – progress payments – Building and Construction Industry Security of Payment Act 1999 (NSW) – validity of payment claim – identification of work to which progress claim relates – payment claim operating by reference to contents of earlier invoices – identification, in a reasonable way, of the work to which claim relates – no express or implied requirement in the Act that purported payment claim have the objective character of being a claim “for” construction work or for related goods or services CIVIL PROCEDURE – summary disposal – judgment for plaintiff – requisite material and necessary assistance from parties to enable Court to reach definite and certain conclusion – only defence identified is one bound to fail – final hearing would be otiose

Constitutional law (Cth) – Legislative power – Implied freedom of political communication – Judicial power of Commonwealth – Acquisition of property on just terms – Where Construction and General Division ("C&G Division") of Construction, Forestry and Maritime Employees Union ("CFMEU") is organisation of employees registered under Fair Work (Registered Organisations) Act 2009 (Cth) ("FWRO Act") – Where Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) inserted Pt 2A of Ch 11 into FWRO Act and s 177A into Fair Work Act 2009 (Cth) – Where C&G Division of CFMEU and each of its branches placed under administration in accordance with Pt 2A of Ch 11 of FWRO Act – Where Attorney-General of Commonwealth determined Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 ("Scheme") – Where Administrator of Scheme appointed – Where during ongoing administration of C&G Division of CFMEU and its branches under Pt 2A of Ch 11 of FWRO Act, Administrator has and will continue to have powers of control, management and disposition of property of CFMEU previously used solely or predominantly for purposes of C&G Division or any of its branches – Where plaintiffs had been office holders in C&G Division of CFMEU until removed from offices as a result of Scheme – Whether impugned legislative provisions unsupported by head of Commonwealth legislative power – Whether impugned legislative provisions and/or Scheme infringed implied freedom of political communication – Whether impugned legislative provisions infringed Ch III of Constitution – Whether impugned legislative provisions effected "acquisition of property" within meaning of s 51(xxxi) of Constitution otherwise than on just terms. Words and phrases – "acquisition of property", "administration", "best interests", "bill of pains and penalties", "collective will", "compensation", "constitutional corporations", "constitutionally prescribed system of representative government", "control", "detriments", "dysfunction", "effective burden", "efficient and democratic conduct", "extrinsic material", "foreseeable effects", "forfeiture", "head of power", "illegitimate purpose", "implied freedom of political communication", "intention", "invalidity", "judicial power", "legislative intent", "legislative purpose", "level of generality", "motive", "party-political donations", "prima facie punitive", "private correspondence", "property", "protective purpose", "public interest", "punishment", "reasonably appropriate and adapted", "reasonably capable of being seen as necessary", "shipwrecks clause", "single question of characterisation", "structured proportionality", "trade unions". Constitution, ss 7, 24, 51(xx), 51(xxxi), Ch III. Acts Interpretation Act 1901 (Cth), s 15A. Fair Work Act 2009 (Cth), s 177A. Fair Work (Registered Organisations) Act 2009 (Cth), Ch 11, Pt 2A. Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 (Cth).

Criminal practice – Appeal – Wrong decision on question of law – Where appellant convicted of sexual offences – Where Crown led evidence of appellant smacking complainant's backside as evidence of sexual interest – Where direction to jury permitted use of that evidence as propensity evidence – Where appellant's trial counsel did not object to admission of evidence or to direction – Whether admission of evidence wrong decision on question of law – Whether direction wrong decision on question of law – Whether wrong decision on question of law has materiality threshold – Whether direction material – Whether substantial miscarriage of justice. Words and phrases – "appeal", "common form criminal appeal provision", "conduct of counsel", "context evidence", "could realistically have affected the reasoning of the jury to a verdict of guilty", "decision", "decision over objection", "direction to the jury", "error or irregularity", "evidence of sexual interest", "failure to object", "fundamental", "inadmissible evidence", "materiality", "misdirection", "Pfennig direction", "Pfennig test", "propensity direction", "propensity evidence", "propensity reasoning", "proviso", "question of law", "relationship evidence", "rule in Pfennig", "second limb", "sexual interest", "sexual offence", "substantial miscarriage of justice", "trial counsel", "wrong decision", "wrong decision on a question of law". Criminal Code (Qld), s 668

EVIDENCE – admissions – whether certain paragraphs are admissible under s 87(1) of the Evidence Act 1995 (NSW) – whether certain paragraphs can be properly characterised as admissions – statement from school principal – notification of sexual and other offending against schoolchildren

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.

COSTS – party/party – costs orders in interlocutory proceedings – where cross-defendant seeks previous costs order made on the notice of motion be varied – whether defendant should pay cross defendant’s costs – whether defendant’s notice of motion went primarily to the issues on the cross-claim – where cross-defendant filed no evidence nor provided written submissions on the notice of motion – where cross-defendant’s appearance could have been mentioned by plaintiff – where no orders were made against cross-defendant

CONTRACTS — Termination — Whether parties agreed to terminate building contract CONTRACTS — Remedies — Damages — Proof of loss or damage — Whether plaintiff entitled to loss of bargain damages following defendant’s alleged repudiation — Where plaintiff has failed to adduce precise evidence of quantum of loss of bargain damages

BUILDING AND CONSTRUCTION — adjudication — judicial review — whether adjudicator’s opinion that a submission was not “duly made” was reviewable — whether the adjudicator erred in law — whether adjudicator’s determination affected by jurisdictional error on the basis that he found certain submissions were not “duly made” — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 14, 17, 20, 22, 26, 32A

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of murder as an accessory before the fact – whether it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt on all the evidence – circumstantial Crown case – where the appeals of the co-accused have been allowed – whether certain inferences can be drawn from communications between the applicant and the co-accused where evidence of the content of those communications is unavailable or limited – whether other reasonable possibilities remain available – whether the applicant ‘procured’ the assault to cause really serious injury to the deceased – leave to appeal granted – appeal allowed – verdict quashed – applicant acquitted

EVIDENCE – admissibility of evidence – ruling on summary of DNA table – s 50 Evidence Act not satisfied – where the evidence can be given by reference to expert certificate and/or oral evidence – where crime scene evidence already given sufficiently establishes the basis for various matters contained in the expert's report.

CRIMINAL PROCEDURE – trial – unrepresented accused – closing address – discretion to permit Crown Prosecutor to give a closing address

CRIMINAL PROCEDURE – Trial – Voir Dire EVIDENCE – relationship evidence – where there were issues in the relationship – where the accused referenced these issues to an investigating officer after being informed of the death of the deceased – multiple inferences available – s 85 of the Evidence Act 1995 (NSW) – where circumstances in which the admission were such as to make it unlikely the truth of the admission was adversely affected

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Final hearing — History of schizophrenia and polysubstance use disorder — Where two forensic experts were appointed by the Court to conduct examinations of the forensic patient — Dispute as to the appropriate length of extension period of the defendant’s status as a forensic patient

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Act 1996 (NSW), s 210 — whether applicant required to allege that a protected matter is the cause of any detrimental action — whether Commissioner impermissibly reversed onus — where no evidence given by particular police officer in first defendant’s case — where Commissioner found matters involving that police officer not a substantive and operative cause of identified detrimental action — no jurisdictional error ADMINISTRATIVE LAW — judicial review — extension of time to file application — where applicant pursued appeal rights to Full Bench of Industrial Relations Commission — where grounds of review overlapped with argument advanced to Full Bench — where no suggestion first defendant suffered prejudice — where issues fully argued — extension granted

CONTRACTS — Construction — Interpretation — Whether plaintiff entitled to payment from defendant under special condition for what plaintiff contends is additional work — Scope within contract sum

EVIDENCE – expert evidence – application to exclude expert evidence – s 79 Evidence Act – opinion within area of expert’s specialised knowledge of bloodstain pattern analysis – where the expert conducted technical review of secondary materials generated in the investigation – HELD expert formed own independent opinion

CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Whether leave required under Felons (Civil Proceedings) Act 1981 – Whether a plaintiff in custody requires leave to commence civil proceedings – Where section 4 of the Felons (Civil Proceedings) Act 1981 has been incorrectly applied to a plaintiff in custody

CIVIL PROCEDURE – Application for the appointment of pro bono representation – Where special reasons exist to justify further referral for pro bono representation

EVIDENCE – criminal proceedings – exclusion of prejudicial evidence – where representations made in prior proceedings are unfairly prejudicial and contain information of marginal relevance EVIDENCE – criminal proceedings – admissions – whether previous representations are adverse to the accused’s interest in the outcome of the proceeding – where previous representations made by accused are prima facie exculpatory – where contradictory evidence may be adduced at trial

COSTS – Discontinuance – UCPR r 42.19 – whether otherwise costs order should be made – otherwise order not made – no question of principle

CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Whether leave required under Felons (Civil Proceedings) Act 1981 – Whether a plaintiff in custody requires leave to commence civil proceedings – Where section 4 of the Felons (Civil Proceedings) Act 1981 has been incorrectly applied to a plaintiff in custody