Cases and authorities

CIVIL PROCEDURE – review of procedural decisions of Registrar – where applicant filed notice of motion seeking extension of time to file notice of appeal – extension refused by Registrar – where applicant filed notice of motion seeking access to unedited transcript – no demonstration why transcripts were required – application refused

CRIMINAL PROCEDURE – trial – closing address to jury by Crown Prosecutor – where the applicant was found guilty of multiple counts of intimidation, sexual intercourse without consent, and assault occasioning actual bodily harm – where the complainant and the applicant were in a relationship and lived together – where evidence was led of the applicant threatening self-harm after the non-consensual sex – whether there was a miscarriage of justice due to the introduction of consciousness of guilt evidence by the Crown – where it was clear that the Crown was not relying on consciousness of guilt as past of its case – where the only rational inference left to the jury was that the self-harm behaviour was related to the applicant’s manipulation of the complainant – no miscarriage of justice from anything in the Crown’s closing address CRIMINAL PROCEDURE – trial – directions to jury – where the trial judge said in her summing up that the Crown submitted that the sexual activity was nonconsensual and was supported by what followed, being the breakup “coupled with” the threats of self-harm – whether there was a miscarriage of justice from any direction or failure to give a direction by the trial judge to the jury not to use this evidence as consciousness of guilt evidence – where r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applied – where any decision by the applicant’s trial counsel not to object to the trial judge’s summing up was a forensic one – where a reading of the proceedings as a whole shows that consciousness of guilt from the self-harm incident was not contemplated by either side or the trial judge – where it would have been wrong of the trial judge to give a consciousness of guilt direction in the absence of its being sought – no miscarriage of justice

CRIME — murder CRIMINAL PROCEDURE — trial — case management — pre-trial hearing EVIDENCE — discretions — admissions

EVIDENCE – admissibility of evidence – where the parties seek to tender a selection of enhanced still photographs of CCTV and dashboard camera footage central to the fatal incident – where the footage depicts a degree of violence and use of makeshift weapons by the accused and the deceased – no forensic purpose found – where the stills present a skewed view of the circumstances – where the jury have access to the entirety of the footage

EQUITY – equitable remedies – injunctions – shareholder dispute – where first defendant issued default notice to plaintiffs and commenced process for compulsory sale of plaintiffs’ shares – where plaintiffs seeks to restrain first defendant from acting on default notice – serious consequences for plaintiffs – whether plaintiffs committed a material irremediable breach of the shareholders deed by disclosing confidential information to parties that signed confidentiality deeds poll where draft deeds not first offered to the remaining shareholders for comment – whether breach was “material” – whether serious question to be tried – whether balance of convenience favours making of injunction

HIGH RISK OFFENDERS – supervision and other orders under the Crimes (High Risk Offenders) Act 2006 (NSW) – application for extended supervision order (ESO) – ESO not opposed – conditions to be imposed as part of the ESO – no point of principle

LAND LAW — Caveats — Removal of caveat — Removal by order of court – consequent upon a family law dispute a wife is appointed as the trustee for sale of two matrimonial properties – due to continuing conflict between husband and wife the wife fails to sell the properties – wife replaced as trustee for sale – independent professional trustees for sale appointed – trustees for sale seek the removal of caveats securing obligations to a former professional adviser of the husband and a lender to the wife, to enable the properties to be sold – trustees for sale offer to set aside funds to cover the security of the caveators.

CORPORATIONS – constitution and replaceable rules – construction of company’s construction – company limited by guarantee – whether board empowered to decide that plaintiff’s membership not be renewed – where constitution makes elaborate provision for dealing with sanctionable conduct – whether board may bypass those procedures and itself determine that membership should not be renewed

ADMINISTRATIVE LAW – judicial review of the decisions of two medical Appeal Panels – whether the Appeal Panels committed jurisdictional error by not assessing whole person impairment in accordance with the relevant Guidelines – whether the Appeal Panels acted beyond jurisdiction – whether the Appeal Panels failed to provide adequate reasons – where the Appeal Panels were bifurcated to separately decide on neurological and psychological matters – where the bifurcated Appeal Panels shared a common member – many grounds and sub-grounds of appeal – amended summons dismissed WORKERS COMPENSATION – horse spooked by fox – plaintiff fell from horse – physical and psychological injuries – dispute about the assessment of whole person impairment – new medical assessment certificates previously issued

CIVIL PROCEDURE — parties refer calculation of damages to referee — referee calculates lost profits for ‘charcoal chicken’ business from when vendor re-took possession of premises until purchaser regains possession after judgment — whether to adopt referee’s report — principles at [3]-[5] — report adopted. DAMAGES — contract for sale of business — vendor changes his mind and re-takes possession of shop to exclusion of purchaser — purchaser elects damages — whether discount should be applied to lost profits calculated by referee — no discount. COSTS — costs of reference — purchaser entitled to costs of reference as substantial lost profits calculated and awarded — costs of proceedings — Calderbank letter — difficult to say that plaintiff achieved better outcome when offer was ‘flip slip’ of outcome.

CORPORATIONS – application for an order compelling the Defendant to provide a copy of its members’ register – where Plaintiff is majority shareholder of Defendant – where Plaintiff intends to propose resolutions for the removal of the current directors of the Defendant and for the appointment of the Plaintiff’s nominees – where Plaintiff has requested copy of members’ register of Defendant and Defendant has refused or failed to comply with this request – whether there has been compliance with the requirements for a valid request under s 173 of the Corporations Act 2001 (Cth) – whether Defendant should be ordered to provide copy of register PRACTICE AND PROCEDURE – application for adjournment – where application for adjournment made when matter came on for hearing – where adjournment sought to allow Defendant to bring an application challenging the retainer of the Plaintiff’s solicitors – whether any evidentiary basis established for believing that the proceeding may not have been validly constituted – adjournment refused

LAND LAW – equitable mortgages – security interest over real property granted by guarantor in loan agreement – borrower in default under loan agreement – guarantor in default under guarantee in loan agreement – lender seeks to enforce rights against guarantor as equitable mortgagee of real property EQUITY – Equitable remedies – order for judicial sale – whether order for judicial sale should be made

CRIMINAL PROCEDURE – pre-trial hearing – ruling on admissibility of late served additional material served – no identified forensic disadvantage in the conduct of the trial arising EVIDENCE – s 146 Criminal Procedure Act – application for exclusion for non-compliance with pre-trial disclosure requirements – where late served evidence included is in Amended Crown Case Statement – non-compliance waived

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.

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

COSTS – costs of costs application – pending appeal

MENTAL HEALTH – criminal proceedings – fitness to be tried – where defendant suffering from severe chronic and treatment resistant mental health and cognitive impairments – where experts agree that the defendant is unfit to be tried under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and will not become fit to be tried within 12 months – finding that the defendant is not fit to be tried and will not become fit to be tried within 12 months

COSTS – where respondents seek indemnity costs – where applicant advanced unmeritorious grounds in application for review – indemnity costs granted COSTS – where respondents seek gross sum costs order – where there is a real doubt about whether applicant can meet a costs order against it – gross sum costs order made

ADMINISTRATIVE LAW – Jurisdictional error – Application to appear by audiovisual link under s 5B of the Evidence (Audio and Audiovisual Link) Act 1998 (NSW) – Convenience of applicant to be taken into account – Whether magistrate excluded consideration of applicant’s “convenience” APPEALS – Leave to appeal – Departure from arguments advanced before primary judge – Relevance to grant of leave to appeal – Importance of formal orders of lower courts being attained for purposes of appeals and applications for leave to appeal

CONTRACT — agreement to commercialise intellectual property — repudiation — whether primary judge erred in finding no breach of obligation to reassign intellectual property — whether primary judge erred in finding no loss of valuable commercial opportunity CONTRACT — obligation to use best endeavours to offer further employment — whether primary judge erred in not awarding substantial damages

CRIME – Appeals – Crown interlocutory appeal – murder – robbery with wounding – 4 counts on indictment – severance of counts 3 and 4 – whether ruling substantially weakens Crown case – whether O’Leary principle applies – whether evidence in severed counts is relevant to facts in issue – whether evidence unfairly prejudicial – assessment of probative value – whether House v The King error

EQUITY – equitable interests in property – whether second defendant held interests in property on trust for plaintiff – evidence of trust — Statute of Frauds – limitation defence – laches – no question of principle

COSTS – where the Plaintiff was successful in motion for summary judgment – where the Plaintiff seeks indemnity costs against the First Defendant – whether there was a relevant delinquency by the First Defendant justifying an exceptional costs order – where the First Defendant’s contentions lacked merit at the hearing – where it is not justified to depart from the usual position as to costs.

CIVIL PROCEDURE – application for the transfer of proceedings to the Supreme Court of Victoria – costs – where the Plaintiff and Second Defendant initially consented to the transfer – application by the Second Defendant to transfer the proceedings to the Federal Circuit and Family Court of Australia – where the Second Defendant abandoned that application – where the Plaintiff and Second Defendant reversed their position a second time and again consented to the transfer to the Supreme Court of Victoria – whether the conduct of the Plaintiff and Second Defendant was unreasonable and reckless – whether there should be an order for indemnity costs – whether costs should be reserved – costs payable on the ordinary basis up to 9 April 2025 and no order as to costs thereafter – costs payable forthwith.

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.

CHILD WELFARE — adoption — where proposed adoptive parents are child’s current foster parents —whether adoption order is in child’s best interests — whether birth parents’ consent should be dispensed with — whether change of name should be approved

PRACTICE AND PROCEDURE - stay of proceedings - where cross-defendants in these civil proceedings are the accused in concurrent criminal proceedings - whether civil proceedings should be stayed pending final determination of criminal proceedings - where civil and criminal proceedings are each at an early stage and criminal proceedings may not be resolved for several years – whether there is real risk of prejudice to the accused in the conduct of their defence of the criminal proceedings if these civil proceedings are not stayed - whether protective measures other than a stay could ameliorate risk of prejudice - whether it is in the interests of justice to grant a stay – consideration of terms and conditions of stay

CONTRACTS — Formation — Agreement — Whether share purchase agreement had effect of transferring shareholding — Whether agreement a sham FRAUD — Misrepresentation — Whether ASIC misled by Form 484 that contained false representations — Whether plaintiff suffered loss and damage CONSUMER LAW — Australian Consumer Law (ACL) s 18 — Whether plaintiff misled into signing share purchase agreement — Whether ASIC misled by Form 484 that contained false representations —Whether plaintiff suffered loss and damage CORPORATIONS — Oral application for rectification of records maintained by ASIC pursuant to s 1322(4)(b) Corporations Act 2001 (Cth) — Where ASIC neither joined as party nor notified before application was brought — Whether court ought to order rectification of the register maintained by ASIC

CORPORATIONS – Winding up – Public examination of directors, officers and others – Application to set aside summons to attend examinations, orders for production and related orders – Where applicants rely on medical evidence of purported incapacity to attend examinations – Where medical evidence noncompliant with Expert Witness Code of Conduct CIVIL PROCEDURE – Appearance – Withdrawal of appearance – Leave of Court refused

CIVIL PROCEDURE – pleadings – amendment – late application for amendment of Technology and Construction Cross Claim List Statement – hearing imminent – pleading of causation – necessity to identify likely credible sequence of events that would have occurred but for impugned conduct

CORPORATIONS – action for enforcement of judgment debt owed to a corporate trustee by a director of the company and by the unitholder which he controls – whether liability has been discharged by reason of entries which were alleged to have been made to the unitholder’s loan account of the company as at 30 June 2022 following instructions given by the director in February 2025 EQUITY – trusts and trustees – court-appointed trustees for sale sought advice and directions regarding the retention of sums from net proceeds of sale – whether trustees are justified in retaining sums proposed by them in respect of various contingent liabilities

ADMINISTRATIVE LAW — Industrial Relations Commission of New South Wales — nature and extent of jurisdiction conferred by s 229 of the Work Health and Safety Act 2011 (NSW) — whether questions of construction and application of the Act within jurisdiction ADMINISTRATIVE LAW — denial of procedural fairness — where plaintiff had no notice of evidence — where plaintiff alleged not given opportunity to lead rebuttal evidence — where surprise evidence not relied on in Commissioner’s dispositive findings — whether outcome would have inevitably been the same had alleged error not been made — no jurisdictional error

COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise – where judgment for defendant entered - whether it was reasonable for the plaintiff to refuse two offers of compromise – where the first offer was made before a defence had been filed – where the first offer was a walk-away offer – not unreasonable to refuse the first offer – where second offer (not a walk-away offer) made following service of defendant’s experts reports and after mediationj - not reasonable to refuse the second offer – costs order varied

CIVIL PROCEDURE – advance rulings and findings – notice of motion filed by defendant seeking advance rulings and determination of separate questions before the balance of proceedings – where plaintiff opposes application – where plaintiff submits trial judge should make any final determination – directions and orders made with a view to addressing issues

CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales – parens patriae jurisdiction – the plaintiff, the paternal grandmother of a child under the care of the Minister seeks urgent relief for the removal of the child from the Minister’s care and the placement of the child with the plaintiff and her husband – the child is due to be placed with a non-kin carer within days with a view to long-term placement with that carer following a hearing in the Children’s Court exercising jurisdiction under the Children and Young Persons (Care and Protection) Act 1998 – the defendant, the Secretary of the Department of Communities and Justice (DCJ) opposes the relief sought – whether the application raises exceptional circumstances warranting the exercise of the Courts parens patriae jurisdiction – discussion of delay in obtaining a response from DCJ - comments made about the need for more accessible points of contact at DCJ and communication for the Court and parens patriae plaintiffs.

CIVIL PROCEDURE – where trustee in bankruptcy appointed for plaintiffs – where proceedings were dismissed by consent except as against second defendant - where second defendant served a notice of action on trustee – where trustee is deemed to have abandoned action – where proceedings were not prosecuted with due despatch – where fourth plaintiff sought to make submissions as to costs due to sufficient interest – where fourth plaintiff made no claim for relief against second defendant – where there was no hearing on the merits – proceedings against second defendant dismissed – no costs order against fourth plaintiff – application by third plaintiff to make a claim after reasons delivered – application by third plaintiff after reasons delivered to revisit orders – orders unchanged

CIVIL PROCEDURE – consent judgment – transfer of proceedings to the Land and Environment Court – parties have agreed proceedings be transferred to be heard with related proceedings – proceedings transferred to Land and Environment Court

CONTRACTS — Formation — Agreement – Whether parties entered into a binding oral agreement – Whether agreement was in the nature of a mortgage - Whether either of the parties breached the agreement CONTRACTS — Formation — Contracts requiring written evidence — Statute of frauds — Where parties entered into written contracts for the sale of two properties — Whether the doctrine of part performance applied to concurrent oral agreement — MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagor — Equity of redemption — Whether parties have ever exercised redemption ESTOPPEL — Proprietary estoppel — Encouragement — Whether defendant’s alleged representations gave rise to an estoppel — Whether plaintiffs detrimentally relied on defendant’s alleged promises

CIVIL PROCEDURE – stay of proceedings – assault alleged against police officers – self-represented litigant – where there is considerable danger of litigant being unable to present his case – whether the appointment of a tutor is appropriate – where a just outcome cannot be reached if proceedings continue as presently constituted – where any solution at this stage is likely to be unsuccessful – stay of proceedings ordered

CIVIL PROCEDURE – negligence proceedings – historical sex abuse – cross-claim by State for contribution or indemnity from former school teacher – where cross-claimant submits cross-defendant for first time raised reliance on s 31 Civil Liability Act during closing submissions – where cross-claimant objects to reliance on s 31 – where Notice of Motion is filed by cross-claimant seeking determination on s 31 issue – where cross-claimant submits damages sought are “personal injury damages” – where cross-defendant submits s 31 did not need to be pleaded – where cross-defendant submits damage alleged is “pure mental harm” – whether it is inappropriate to resolve questions raised by submissions on the Notice of Motion at this stage of the proceedings CIVIL PROCEDURE – negligence proceedings – s 136 Evidence Act limitation – where cross-claimant sought s 136 limitation on affidavit exhibiting psychiatrist reports – where medical evidence was limited to the reasonableness of the settlements – whether cross-claimant can seek leave to re-open its case and remove the limitation – whether medical opinion is to the effect that the plaintiffs are suffering from a recognised psychiatric illness – where application is resolved by pragmatic and practical approach

CIVIL PROCEDURE – application for release from implied obligation stated in Hearne v Street (2008) 235 CLR 125 – where plaintiff seeks to use documents obtained in these proceedings for the sole purpose of prosecuting a separate claim against her former legal advisors – consideration of the categories of documents which the implied obligation applies to – clear commonality between the two proceedings – special circumstances established – application granted

CRIME – Sentencing – murder – plea of guilty – domestic violence offence – where special circumstances

ADMINISTRATIVE LAW – judicial review – medical assessor’s determination of whole person impairment for the purposes of the Motor Accident Injuries Act 2017 (NSW) – assessment of whole person impairment as a result of psychiatric injury – whether the medical assessor took into account an irrelevant consideration – consideration that “no overt cognitive difficulties noted during the assessment” wrongly assigned to the “concentration, persistence and pace” area of functional impairment as defined in the Motor Accident Guidelines – error established – decisions and reasons of assessor set aside AMDINISTRATIVE LAW – judicial review – where medical assessor’s function included obtaining necessary information to assess whole person impairment for the purposes of the Motor Accident Guidelines – where necessary information not obtained – medical assessment of class 2 for the “Concentration, consistency and pace” area of functional impairment – where class rating based on considerations that did not provide a basis for distinguishing between class rating 2 and class rating 3 – error established

TAXES AND DUTIES – Mining Act 1992 (NSW) ss 282(1), 283, 287(1), 287A, 289, 291, 291A – Taxation Administration Act 1996 (NSW) (TA Act) ss 3, 5B, 9, 14, 17, 21, 25, 26, 33, 97, 101 – Plaintiffs are members of a corporate group and are miners and sellers of coal, and hold mining leases – Under the Mining Act, the holders of such leases are liable to pay royalty to the Crown on publicly owned minerals recovered by them – Application for review of decision of the Chief Commissioner of State Revenue to disallow (in part) Assessment Notices for royalty under the Mining Act plus interest and penalty tax – Whether the giving by the Chief Commissioner of a “confirmation” on a Royalty Online Service (ROS) for the making of royalty returns is the making of an assessment of the tax liability of a taxpayer with the consequence that the Assessment Notices were reassessments to which a five year limitation period under the TA Act applies – HELD: the “confirmation” is not a making by the Chief Commissioner of an assessment of the tax liability of the Plaintiffs – Where the Plaintiffs submitted royalty returns on the basis of an intra-group arrangement (the Return Arrangement) which permitted the making of negative royalty returns and set-off within the group against positive returns of members of the group – Royalty was returned and paid on this basis with the knowledge and cooperation of senior members of the government department then responsible for the administration of the royalty system and was subject to audits which were passed – The Return Arrangement is not permissible under the Mining Act as a basis for rendering royalty returns – Whether the only assessments that were permissible for the Chief Commissioner to make was a nil one because the Crown waived the right to claim royalty on any other basis or was party to a binding agreement with the Plaintiffs not to do so or was estopped from claiming royalty on another basis – HELD: waiver, even if available, not established, binding agreement not established, and estoppel not available and, in any event, not established LIMITATION OF ACTIONS – Limitation Act 1969 (NSW) ss 10(3)(a), 14(1)(d) – The Limitation Act s 10(3)(a) does not apply to an action by the Crown for the recovery of a tax – Whether the royalty payable to the Chief Commissioner is a tax – HELD: it is INTEREST AND PENALTY TAX – Whether the Court should remit market interest, the premium component of interest and penalty tax imposed by the Assessment Notices – HELD: it should until 1 November 2022, when the Assessment Notices were issued and which have not been paid by the Plaintiffs, because the Return Arrangement was fully disclosed, implemented with the cooperation of a government department and audited, the Plaintiffs took reasonable steps to comply with their tax obligations, an audit which called it into question and which led to the issue of Assessment Notices took four years to complete and the Plaintiffs’ case was not unreasonably brought or unarguable – However, from the date of the Assessment Notices the Plaintiffs fell into wilful default because they did not pay on them

ADMINISTRATIVE LAW – application for judicial review of decision Personal Injury Commission Appeal Panel– where applicant had suffered psychological injury – whether Panel reasons were inadequate – whether Panel failed to adhere to applicable Guidelines and erred in having regard to a secondary psychological injury –decision set aside and remitted back to Personal Injury Commission

LAND LAW – adverse possession – where the first respondent’s land borders on land owned by the appellants (Lot 41) – where the first respondent sought a declaration that he was entitled to legal title of part of Lot 41 (the contentious land) by reason of decades of adverse possession – whether the first respondent and his predecessors in title had demonstrated continuous exclusive possession and an intention to possess the contentious land – whether the primary judge erred in concluding that the Lot 41 paper title owners lost title to the contentious land in 1989 LAND LAW – adverse possession – extent of relief – whether the court ought to declare any part of the contentious land beyond which the appellants conceded in an open offer as curtilage

ADMINISTRATIVE LAW — Appeals — judicial review — whether the primary judge erred in holding that the medical assessor to whom the medical dispute was referred by the Personal Injury Commission under the Motor Accident Injuries Act 2017 (NSW) fell into jurisdictional error or error of law on the face of the record — where the primary judge did so err ADMINISTRATIVE LAW — Appeals — judicial review — whether the primary judge erred in holding that the delegate of the President of the Personal Injury Commission fell into jurisdictional error or error of law on the face of the record in concluding that he was not satisfied that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application under the Motor Accident Injuries Act 2017 (NSW) — where the primary judge did so err

BUILDING AND CONSTRUCTION — adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) — service of underlying payment claim and notice of intention to apply for adjudication — jurisdictional error — where primary judge found adjudication application filed prematurely — whether adjudicator lacked jurisdiction to hear and determine payment claim BUILDING AND CONSTRUCTION — service — service under s 31(1)(d) of the Building and Construction Industry Security of Payment Act 1999 (NSW) — whether email address “specified” for service of payment claim and notice of intention to apply for adjudication BUILDING AND CONSTRUCTION — adjudication — Home Building Act 1989 (NSW) — where statutory requirements for licence and insurance contravened — whether ss 10 or 94 of Home Building Act prevent enforcement of adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW)

LEASES AND TENANCIES – where Applicant was evicted from student accommodation – whether residence under residential agreement between Applicant and University exempt from Residential Tenancies Act 2010 (NSW) – meaning of “hall of residence” – residential agreement and residential premises excluded from operation of Residential Tenancies Act 2010 (NSW) APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused

CORPORATIONS – voluntary administration – where respondents are said to be in possession of property belonging to the applicant – where the respondents are in administration – where administrators propose to move under s 442C of the Corporations Act 2001 (Cth) for leave to dispose of the property – whether applicant should be granted leave to proceed under s 440D of the Corporations Act 2001 (Cth) for delivery up of property – leave under s 440D refused APPEALS – application for leave to appeal – where decision concerns a matter of practice and procedure – whether application raises an issue of principle or a significant injustice will occur if leave is not granted – point of principle raised – leave to appeal granted