Cases and authorities

SUCCESSION — Family provision — Claim by adult child — Two adult sons in dispute over mother’s estate — Mother’s clear and rational intention to leave most of her estate to one of her sons in preference to the other

COSTS — withdrawal of caveat — no caveatable interest — substituted service on defendant — relevance of no personal service on defendant — costs follow the event

ADMINISTRATIVE LAW — Judicial review — Jurisdictional error — Decision regarding the share component for a replacement floodplain harvesting access licence — Whether the decision required the Minister to estimate the volume of water capable of being used by the plaintiff’s water supply works — Whether the Minister’s calculation omitted water used for direct irrigation — Whether the omission constituted a failure to exercise jurisdiction, as stipulated by the Regulations

CONTRACTS – construction of standard form contract – terms in standard form contract may make provision for eventualities only to apply to the extent activated by parties – parties’ choice not to activate those provisions is not to be undermined by seeking to stretch other words in the contract to fill the purported gap EVIDENCE – onus of proof – language of “shifting” onus apt to deceive – notion of doubtful utility at the end of a hearing or in an appeal

APPEALS – leave to appeal – where the applicant seeks to appeal two District Court decisions made on 23 September 2024 relating to the applicant’s criminal proceedings – where the related criminal proceedings have since been resolved – whether the District Court had jurisdiction to hear the appeal from the decision of the magistrate –whether the present appeal lacks utility – leave refused APPEALS – leave to appeal – where the applicant was a party to parenting proceedings before the Federal Circuit and Family Court of Australia – where the applicant sought to commence a private prosecution against the judge who made the parenting proceeding orders – where the applicant seeks leave to appeal from orders made on 10 October 2024 and on 15 August 2024 dismissing an application for review of a Local Court Registrar’s decision to refuse to issue the Court Attendance Notice for the applicant’s private prosecution – leave refused

INSURANCE – policy for life and total and permanent disability (TPD) cover – where life insured provided services to appellant as a construction manager and project supervisor – where life insured undertook hip replacement – where appellant made claim for TPD under policy – meaning of “Own Occupation” under policy – whether primary judge erred in construing “Own Occupation” – no error EVIDENCE – whether primary judge erred in finding the life insured exaggerated his evidence – whether primary judge failed to give adequate weight to expert and documentary evidence – no error

CRIME – appeals – appeal against sentence – pleas of guilty - whether the sentencing judge erred by discounting the aggregate sentence rather than the indicative sentences or whether the sentencing judge’s remarks are insufficient in disclosing how the discount was applied – whether the sentence was manifestly excessive

CORPORATIONS — statutory demand — application to set aside — offsetting claim — whether Graywinter principle applicable — where plaintiff contends that defendant’s delay and representations as to costs of building works created offsetting claim — statutory demand set aside

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 — 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.

CORPORATIONS – Winding up – Conduct of liquidation – Meeting of creditors – Where liquidators did not convene a meeting of the company’s creditors in response to creditors’ direction – Whether creditors’ direction was unreasonable

CIVIL PROCEDURE — pleadings — defamation — leave to file Proposed Further Amended Statement of Claim — capacity to convey pleaded imputations — imputations different in substance — contradictory imputations — single meaning rule — embarrassing and vexatious — aggravated damages — republication — leave refused

WORKERS COMPENSATION — limitation period — s 151D Workers Compensation Act 1987 (NSW) — application for leave to commence proceedings more than three years after injury — prejudice to defendant — different versions of accident — absence of witnesses — extension of time granted

CONTRACTS — Remedies — Specific performance — Whether buyer ought be ordered to specifically perform unit sale and purchase agreement — Whether buyer’s parent ought be ordered to specifically perform guarantee and/or indemnity GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability — Whether guarantee on proper construction is “see to it” or primary obligation to pay money — Whether indemnity requiring buyer’s parent to pay certain amounts on demand requires payment of balance of purchase price where completion has not occurred CIVIL PROCEDURE — Discontinuance of proceedings — Leave of court — Whether cross-claimants ought be granted leave to discontinue claims for declaratory relief at the commencement of hearing — Where claims raised by cross-claim said to be hypothetical

CRIME — appeals — appeal against conviction — Liberato direction — application of proviso — trial judge made reference in summing up to competing evidence — appeal by co-accused upheld on the basis of failure to give Liberato direction — majority in co-accused’s appeal declined to apply the proviso — whether earlier appeal decision should be followed in relation to the Liberato direction and the proviso on the basis of the principle outlined in Kwu v R [2024] NSWCCA 199 — whether any evidence only applicable against applicant constitutes material distinction between applicant and co-accused’s case CRIME — appeal against conviction — extension of time in which to appeal — co-accused’s appeals not heard jointly — delays in preparing appeal — unnecessary judgments of the court — wastage of resources

CRIME – appeals – appeal against conviction – miscarriage of justice – where the applicant pleaded guilty to the murder of his sister – where the applicant was under the influence of drugs at the time of the offending – where the applicant was diagnosed with schizophrenia – where the applicant entered his plea on the basis of advice that the applicant did not meet the definition of “mental health impairment” – whether the advice was wrong and thus constituted a miscarriage of justice – whether the applicant’s impairment at the time of the offending was “solely caused” by drug ingestion – where none of the expert evidence engaged with the “caused solely by” test – the advice given to the applicant was wrong – conviction set aside STATUTORY INTERPRETATION – whether the Crown bears the onus of demonstrating that s 4(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) applies – where s 4(3) provides an exception or a qualification to what is contained in s 4(1) – where the Crown asserts no mental health impairment by reason of ingestion of drugs or substance use disorder the Crown bears the onus of proof under s 4(3)

CRIME — murder CRIMINAL PROCEDURE — trial — voir dire EVIDENCE — discretions — whether limitation of use of evidence

EVIDENCE – admissibility – photographic evidence admissible for limited purpose of illustrating witness evidence – where photographs have been digitally enhanced and zoomed in – where photographs taken some 19 months after the event – jury direction regarding limited purpose of evidence

EVIDENCE – fairness to a witness – directions to jury – where the matter of a witness having seen video evidence in the trial was elicited in cross-examination – where re-examination as to that matter was put to the witness – where direction made to jury regarding the practice of legal representatives’ conferring with witnesses – HELD no further jury direction required EVIDENCE – fairness to a witness – directions to jury – where the witness cross-examined on the state of mind of another person – questions asked outside rulings on cross-examination – objection to questions upheld – where direction made to jury to disregard exchange between counsel and witness – HELD no further jury direction to be made as proposed

LAND LAW – possession of land – claim by trustee in bankruptcy against bankrupt – where bankrupt has not in engaged in proceedings – judgment for possession

EVIDENCE – tendency evidence – whether the tendency evidence has “significant probative value” under s 97(1) – sexual and other offending against schoolchildren

COSTS – application for gross sum cost order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – whether appropriate to make a gross sum cost order – quantum of gross sum – no issue of principle

COMMERCIAL ARBITRATION – arbitration agreement – stay of proceedings – proper construction of scope and effect of arbitration clause – where plaintiff and first defendant are parties to a joint venture deed – where deed included arbitration agreement with arbitral seat in Singapore – where first defendant’s rights in joint venture deed transferred to creditors’ trust administered by remaining defendants as trustees under deed of company arrangement – where plaintiff seeks declaratory relief and specific performance in relation to acquisition of first defendant’s interest in the joint venture – where first, second, and fifth defendants raise matters in defence of the proceedings and a cross-claim for contribution to a call on performance security – whether those claims are arbitrable – whether the proceedings involve any “matter” that is “capable of settlement by arbitration” pursuant to s 7(2)(b) of the International Arbitration Act 1974 (Cth) COMMERCIAL ARBITRATION – arbitration agreement – stay of proceedings – whether arbitration agreement is null, void, inoperative or incapable of being performed – whether arbitration agreement “inoperative” pursuant to s 7(5) of the International Arbitration Act 1974 (Cth) – whether commencement of proceedings was a repudiation, waiver or abandonment of arbitration agreement

CORPORATIONS – winding up – application by contributory and sole director to set aside orders for winding up and appointment of liquidator – where winding up orders were made in the absence of applicant – where applicant was unaware of the statutory demand or winding up application – where liquidator consents to the termination of the winding up – where creditor neither consents nor opposes the termination of the winding up – where company is solvent and profitable - where creditors are protected – where liquidator’s remuneration is agreed

BUILDING AND CONSTRUCTION — Contract — Specific performance – Where changes to zoning laws altered contractual parameters – Whether contract was frustrated by changes to zoning laws – No issue as to principle BUILDING AND CONSTRUCTION — Contract — Termination — Frustration – Where changes to zoning laws altered contractual parameters – Whether contract was frustrated by changes to zoning laws – Whether frustration is impacted by statutory scheme – No issue as to principle LAND LAW — Conveyancing — Contract for sale — Off the plan Contracts — Rescission – Where rescission of an off the plan contract for sale of land was sought – Where the Conveyancing Act 1919 s 66ZS creates requirements for rescission – Where changes to zoning laws altered commercial conditions – Whether developers acted unreasonably COSTS — Party/Party — Exceptions to general rule that costs follow the event – Orders when proceedings involve multiple parties – How parties liable – Multiple claims in multiple proceedings – Where statutory scheme modifies the general rule that costs follow the event – Whether statutory scheme captures the entirety of the multiple claims – Held: Conveyancing Act 1919 s 66ZS(8) applies only to claims under s 66ZS, not the proceedings as a whole

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payments Act 1999 (NSW) – service of payment claims – where payment claim sent after business hours through agreed electronic messaging system – where that system generated an email to an authorised recipient – where that email not opened until next business day – where contract deemed service after 5pm to be service on the next business day – whether deeming provision modified the operation of the Act and therefore void – operation of Electronic Transactions Act 2000 (NSW)

LAND LAW – conveyancing – contract for sale – notice to complete – where vendor finances portion of purchase price – where purchaser’s offer of finance in relation to balance conditional upon vendor executing proposed deed of priority – where vendor rejects terms of proposed deed of priority – where issue of priority was not the subject of prior agreement as between purchaser and vendor – whether completion was dependent on vendor executing proposed deed of priority – whether vendor’s conduct prevented issuance of valid notice to complete – whether termination valid based on failure to comply with notice to complete. CONTRACTS – express terms – construction of express terms – construction of multiple contracts executed contemporaneously – construction of further assurance clause – whether covenant for further assurance obliged vendor to negotiate and execute the proposed deed of priority. CONTRACTS – implied terms – construction and interpretation – terms implied in law – general rule of construction – implied duty to cooperate – consistency with express terms of contract – whether implied duty to cooperate obliged vendor to negotiate and execute the proposed deed of priority.

CIVIL PROCEDURE – Notice to Produce – Application to set aside – no issue of principle COSTS – Security for costs – whether there is reason to believe the Plaintiff will be unable to pay the Defendants’ costs if ordered to do so – quantum of security

DEFAMATION — defamatory matter — particular imputations — fraud — misuse of charitable funds for personal financial benefit — misappropriation of funds — misleading people for the purpose of raising funds — registered charity — Wild2Free — wildlife care DEFAMATION — defamatory matter — capacity to convey pleaded imputations — ordinary reasonable reader — ordinary and natural meaning of words — Grapevine effect — onus of proof on plaintiff — on the balance of probabilities — Jones v Dunkel — publications found to have conveyed some pleaded imputations DEFAMATION — publication — multiple publications — emails — social media — Facebook — Facebook comments — defendants found to have published defamatory material — republication — defendants responsible for republication DEFAMATION — harm — Defamation Act 2005-2019 — previous version of legislation applicable — assumption of harm — serious harm not necessary to prove — plaintiff suffered significant harm DEFAMATION — defences — Defamation Act 2005 (NSW) — justification— triviality — honest opinion —contextual truth — lack of jurisdiction — where email was published overseas — common law qualified privilege — mutual interest and/or duty — reply to attack — where Facebook comments posted for a short period of time — onus of proof on defendants — plaintiff to prove malice in relation to qualified privilege — malice not found — plaintiff was not acting dishonestly DEFAMATION — remedies — injunctive relief — general damages — aggravated damages — malice — where plaintiff had a good reputation — where plaintiff suffered hurt and damage to reputation — general damages awarded

Statutes – Interpretation – Valuation of land – Where land with heritage residence subject to site-specific heritage overlay – Where definition of "site value" in s 2(1) of Valuation of Land Act 1960 (Vic) means value of land assuming improvements not made – Where definition of "improvements" in s 2(1) of Valuation of Land Act means work done or material used that increases value of land and has unexhausted benefit – Whether question whether work done or material used increases value of land determined at time of valuation or at time work was done or material was used – Whether Court of Appeal's erroneous construction of "improvements" was material to its decision to dismiss appeal. Words and phrases – "benefit is unexhausted", "development potential", "financially feasible", "heritage overlay", "highest and best use", "hypothetical prudent buyer", "hypothetical prudent seller", "improvements", "increases the value", "land value", "legally permissible", "market value", "materiality", "physically possible", "site value", "time of the valuation", "unimproved value", "valuation for rating and taxing purposes", "work done or material used". Valuation of Land Act 1960 (Vic), ss 2, 5

CRIME — murder CRIMINAL PROCEDURE — trial — voir dire EVIDENCE — discretions — admissibility of evidence

EVIDENCE – Crown application to cross-examine unfavourable witness – s 38(3) Evidence Act – where the Crown raised the proposition the witness has tailored evidence and/or not told the whole truth – where the witness has not had the opportunity to respond to the proposition

EQUITY – Equitable remedies – where equitable mortgagee seeks order for judicial sale – whether order for judicial sale should be made – no question of principle

CIVIL PROCEDURE – extension of time – application to rely on expert evidence served out of time – where expert evidence is essential to the Plaintiffs’ case – where explanation for delay in serving expert evidence provided – where no prejudice identified by Defendant – extension granted

EQUITY – trusts and trustees – where building contract provided that retention shall be held in trust by defendant developer for plaintiff builder until such time as either became entitled to retained funds – where plaintiff builder alleges breach of trust against defendant developer – where plaintiff builder alleges defendant director knowingly involved in the defendant developer’s breach of trust – whether any trust constituted – no trust constituted EQUITY – contribution – coordinate liability – where plaintiff builder settled claims against some defendants prior to hearing by transfer of residential lots – whether settling parties had coordinate liability to the plaintiff builder for the defendant developer’s contractual debts – whether coordinate liability arose by reason of knowing involvement in breach of trust or by reason of mortgages entered over properties – whether effect of settlement was to discharge that liability – whether transfer of residential lots was at an undervalue such that the plaintiff builder achieved a benefit – no discharge of coordinate liability BUILDING AND CONSTRUCTION – contract – variation – where defendant developer’s representative priced and approved variations – where plaintiff builder obliged to do work when directed by defendant developer under contract – whether defendant developer now entitled to contest variations – construction of “variation” and “direction” BUILDING AND CONSTRUCTION – contract – damages – delay – where defendant developer claims liquidated damages against plaintiff builder for delay – factual dispute over the original contracted date for practical completion

EVIDENCE – admissibility – hearsay evidence – exceptions – criminal proceedings if maker not available – s 65 Evidence Act 1995 – where witness has been issued a subpoena to give evidence – whether the witness is mentally or physically unable to give the evidence – where the witness does not have a recognised psychiatric illness or psychiatric history – where it is reasonably practicable for witness to overcome manifestations of trait anxiety

CRIMINAL PROCEDURE – application to discharge the jury – where there is disputed admission of enhanced photoshopped crime scene photographs – where meeting the additional evidence may require independent expert opinion – whether there is a real risk the jury will form an unreasonable view that the defence seek to challenge the crime scene investigation unfairly – HELD Crown may meet defence challenges during the presentation of the Crown case – application refused

EVIDENCE – criminal proceedings – discretions – exclusion of evidence – hearsay – video walkthrough – positioning of vehicles – exception to hearsay rule – where maker available – whether representations concern identity of a person, place or thing for the purpose of s 66(3) of the Evidence Act 1995 (NSW)

EVIDENCE – criminal proceedings – discretions – exclusion of evidence – text messages between co-accused – “half done job” – competing inferences – where inference is available that the sender of text messages was party to an agreement to harm persons seeking revenge for earlier attack – whether probative value outweighed by danger of unfair prejudice

JUDGMENTS AND ORDERS — Amending, varying and setting aside — For irregularity, illegality or against good faith — Limited application of rule after full hearing on the merits — Not available where merits of decision challenged such that appeal is the proper course — UCPR Pt 36 r 36.15(1)

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of secured creditors to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

COSTS – Whether costs order should be made – Whether costs should follow the event

FINANCIAL MANAGEMENT ORDERS — New hearing consequent upon orders allowing an appeal of financial management orders of the Guardianship Division of the NSW Civil and Administrative Tribunal under the Guardianship Act 1987 (NSW) PROTECTIVE JURISDICTION — Evidence — New hearing — In the exercise of its protective jurisdiction the Court is not necessarily bound by strict rules of evidence but, subject to or with due regard to considerations of procedural fairness, has a discretion to act on material which is rationally probative of material facts and issues, even though excluded by technical rules of evidence PROTECTIVE JURISDICTION — New hearing — Application for financial management orders — Repeated impermissible correspondence by applicant (first defendant) to Judge’s chambers email disclosed actuating purposes in respect of the new hearing which were very remote from the purported purpose of whether the third defendant was incapable of managing her affairs — Case management directions to achieve procedural fairness required service of affidavit material by the parties for the new hearing and relevantly by the applicant before mid-December 2024 — In early February 2025 the new hearing of the application was fixed to take place in early May 2025 — Applicant in early March 2024 provided certain “witness statements” rather than affidavits — That material was not rationally probative and not permitted to be relied upon — No subsequent application was made by the applicant, prior to the hearing, to be permitted to rely upon oral evidence (nor other materials) on the hearing — At the listed hearing the applicant had not served affidavit evidence, had travelled to China and sought to be permitted to conduct the hearing by AVL from China and contemplated that oral evidence would be called from two witnesses who had not been subpoenaed to attend to give any such evidence — That request was refused (in light of above context and prejudice to the active respondent) and the application for financial management order dismissed FINANCIAL MANAGEMENT ORDERS — Permissible purposes — A financial management order, per se, is not a vehicle for commandeering and otherwise realising and dividing family wealth by reference to purported intentions of the deceased family members or otherwise than in accordance with the principles that properly inform the jurisdiction to make a financial management order CIVIL PROCEDURE — Dismissal of proceedings — Civil Procedure Act 2005 (NSW) s 61(3)(a) — Failure to comply with case management orders PRACTICE AND PROCEDURE — Principles regarding email communications with Judge’s chambers — Approach with self-represented litigants HEARINGS — Mode of appearance at hearing —Proceedings in Supreme Court are generally held in person — Audio visual and other modes of appearance — r 31.3 Uniform Civil Procedure Rules 2005 (NSW), Pt 1A Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

BUILDING AND CONSTRUCTION – Damages – where admitted defects in structural design prepared by the second and third defendant engineers for the plaintiff’s home – where breach of general law duty of care admitted by engineers – where it is common ground that additional wind bracing is necessary and reasonable to rectify the structural defects – where the design for the additional bracing is agreed – where scope of works required to implement that design is disputed – where the reasonable cost of undertaking the rectification works is disputed – quantum of damages – no question of principle.

CONTRACTS – Breach of contract – Sale of business contract – Whether vendors in breach of contract for failing to adjust the purchase price for tax liabilities and employee entitlements – Where clause did not impose an obligation on the vendors – Where two inconsistent clauses – Application of generalia specialibus non derogant maxim – No breach established CONTRACTS – Restraint of trade – Sale of business contract – Whether vendor in breach of restraint of trade – Where vendor loaned real estate licence to a competing business during the restraint period – Construction of restraint of trade clause – Meaning of ‘capacity to exercise control’ – Where vendor found to have capacity to exercise control of competing business pursuant to Property and Stock Agents Act 2002 (NSW) – Breach established CONTRACTS – Breach of contract – Sale of business contract – Where vendor did not discharge registered security interest – Whether vendor failed to comply with conditions precedent – Where vendor failed to satisfy conditions precedent – Classification of a contingency versus a promise – Whether purchaser waived the requirement to satisfy conditions precedent by proceeding with completion of the sale – Waiver of condition precedent established CONTRACTS – Breach of contract – Sale of business contract – Whether vendor breached warranty – Whether shares were sold free of any security interests – Whether a security interest over the assets of a company is different from a security interest over the shares in a company – Where a company does not own its own shares – Where shares were sold free of any security interests – No breach of warranty established CONTRACTS – Construction and interpretation – Principles of construction of commercial contracts – Application of principles set out in Electricity Generation CONSUMER LAW – Misleading or deceptive conduct – Where certain pleaded representations not established on the evidence –Representation made as to intention to retire – Representation made as to future employment – Representation made as to predicted sales figures – Whether representations were misleading or deceptive or likely to mislead or deceive – Where representations as to future matters – Whether reasonable grounds for making representations as to future matters – Where reasonable grounds established – No misleading or deceptive conduct established CONTRACTS – Remedies – Damages for breach of restraint of trade – Whether loss suffered as a result of relevant breach – Where failure to establish causation – Where failure to quantify damages – Where failure to demonstrate any loss – No entitlement to damages EQUITY – Equitable remedies – Rescission – Whether restitutio in integrum possible – Where substantial time elapsed and substantially altered circumstances – Rescission not available – Whether partial rescission an available remedy –Partial rescission not available CONSUMER LAW – Remedies – Remedies for misleading or deceptive conduct – Declaring whole or part of contract void – Whether court’s discretion informed and guided by principles at common law and equity – Where partial rescission not possible – Where no loss established – Partial rescission not available EVIDENCE – Credibility of witnesses – Where similarities in affidavit evidence calls into question credibility of that evidence – Where no contemporaneous record – Where denial of the account by another witness – Evidence with striking similarity found not to be credible

PRACTICE – application to reopen under UCPR r 36.16 – no basis for reopening

ADMINISTRATIVE LAW — jurisdictional error — procedural fairness — where District Court refused application to re-examine complainant on conviction appeal — where prosecution case depended on evidence of complainant — whether refusal amounted to denial of procedural fairness ADMINISTRATIVE LAW — jurisdictional error —relevant considerations — whether District Court failed to take into account matters supportive of applicant’s case ADMINISTRATIVE LAW — jurisdictional error — irrelevant consideration — whether District Court incorrectly assumed existence of evidence corroborating complainant’s account — whether District Court failed to take into account evidence inconsistent with complainant’s account ADMINISTRATIVE LAW — jurisdictional error — whether District Court failed to consider all elements of offence — whether sufficient evidence to find conduct was “towards” another person — whether sufficient evidence to find defendant knew of lack of consent

CRIME — appeals — appeals against convictions — offences of publishing or broadcasting the name of a child with respect to whom proceedings before the Children’s Court were brought — posts uploaded to Facebook referring to child by name — self-represented appellants — whether indictment invalid — whether failure to leave alleged defences to jury — whether error in instructing jury of effect of removing Facebook posts — whether error in directions to jury about time of the offences — whether failure to dismiss matter where no harm to child allegedly shown — whether failure to allow the appellant Katelaris to inform jury of right to acquit even if offence had been proved — where grounds 1, 2 and 7 raised a question of law alone and did not require leave — leave to appeal on grounds 3, 4, 5 and 6 granted — appeal dismissed

CIVIL PROCEDURE — Interlocutory applications — second motion brought in the Equity duty list to restrain the continuation of proceedings in the Industrial Relations Commission – previous motion raising the same subject matter which was determined adversely to the applicant – whether the second motion is founded on a material change of circumstances since the first motion was heard or upon the discovery of new material which could not reasonably have been put before the Court on the hearing of the first motion.

CIVIL PROCEDURE – separate determination of questions – where appropriate – where defendant seeks separate determination on the plaintiff's application for preliminary discovery –where resolution of the proposed separate questions would not be dispositive of the plaintiff’s claim and would require determination of possibly multiple contested questions – no order for separate question