Cases and authorities

OCCUPATIONS – Health practitioners – Professional misconduct – Where appellant prescribed somatropin off-label – Where clinical records inadequate – Requirement for NSW Civil and Administrative Tribunal to provide adequate reasons – Requirement to afford procedural fairness by notifying appellant of allegations through amended complaint – Where findings of fact contradicted by contemporaneous clinical records

CIVIL PROCEDURE — Notices to produce — Before hearing — Relevant to a fact in issue — Oppression

CIVIL PROCEDURE — Medical examinations —Whether a medical examination of the plaintiff should be ordered to determine capacity

CORPORATIONS – insolvency – application by liquidators seeking orders to be appointed as voluntary administrators under s 436B(2)(g) of the Corporations Act 2001 (Cth) – application for “truncated administration orders” under s 447A of the Act and for a stay of the winding up of the company under s 482(1) of the Act – application granted

CRIMINAL PROCEDURE — Trial — Jury — Access to transcript — Where request is not opposed

CORPORATIONS – Directors and officers – Appointment, removal and retirement of directors – whether director validly resigned – steps required to effect directors’ resignation – long delay in giving notice of resignation. EQUITY – Trusts – Constructive trust – Where property acquired in name of defendant’s parents to effect “asset protection” scheme – Where defendant now asserts beneficial interest in property – Orders not made

MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – loan to first defendant guaranteed by second and third defendants - security interest over vehicle registered - where borrower disposed of vehicle to fourth defendant who subsequently disposed of vehicle in Victoria - default judgment against the second and third defendants – plaintiff to bring proceedings in Victoria for the recovery of the motor vehicle CIVIL PROCEDURE – subpoenas – Harman undertaking – where plaintiff ascertained current owner of vehicle by subpoena to public authority – where plaintiff sought release from Harman undertaking to bring proceedings in Victoria against current owner of vehicle – release granted

COSTS — Security for costs — Power to order — Relevant factors — Whether plaintiffs’ impecuniosity, mis-statement of address and prior relationship with litigation funder were grounds for the making of an order for security for costs

SUCCESSION — Probate and administration – plaintiff seeks probate of the wills of a deceased couple – the defendant, the couple’s daughter has a grant of probate in common form of an earlier will of her deceased mother and seeks probate of the will of her father – the plaintiff claims to be a friend of the couple, a contention which is contested – the plaintiff in substantial default of the Court’s procedural orders in the proceedings – whether the plaintiff has raised sufficient doubt about the wills of the deceased couple that the Court should not strike out the proceedings. CIVIL PROCEDURE – Motion for Summary Dismissal – Where plaintiff has failed to comply with directions – discretionary considerations relevant to summary dismissal for failure to prosecute probate proceedings.

CONTRACTS – breach of contract – whether binding agreements existed between the parties – whether agreements were lawfully executed on behalf of the plaintiff – s 127 Corporations Act 2001 (Cth) – where plaintiff did not read own affidavit – amended statement of claim and cross-claim dismissed

SUCCESSION — Construction — Life interest — Respective rights of life tenant and remaindermen TRUSTS — Construction — Life interest — Trustee’s power to secure alternative residence for beneficiary

SUCCESSION — Family provision — Jurisdiction — Property in respect of which order may be made — Property held on constructive trust — Crisp type order where provision borne by property subject to constructive trust SUCCESSION — Joint and mutual wills — Parents make binding agreement with son to leave property by will to each other and then half proceeds of sale to son — Second parent to die breaches agreement by making later inconsistent will — Property held on constructive trust for son on terms of earlier mutual will — Whether that property available for sister’s family provision claim

CIVIL PROCEDURE – parties – representation – solicitor seeking leave to file a notice of ceasing to act – leave required under Uniform Civil Procedure Rules 2005 (NSW), r 7.29(2) – application based on unpaid fees and money not paid into trust prior to trial – appropriate efforts by solicitor to obtain funds and brief counsel – need to advance just, quick and cheap disposal of proceeding – leave granted CONTRACTS – breach of contract – repudiation – total failure of consideration – employment contract and shareholding agreement – claim for unpaid wages and capital payments part-paid in instalments for shares in prospective overseas holding company – plaintiff employed to develop business overseas – plaintiff’s right to shares in non-existent company never crystalised – plaintiff attempted to perform contract but was prevented by defendant – defendant repudiated contract – contract not frustrated by COVID-19 health orders – moneys paid into personal bank account recoverable CONTRACTS – misleading or deceptive conduct – alleged representation that company was a going concern and would be able to pay plaintiff’s wages – contract included entire agreement clause – insufficient evidence of express or implied representation – insufficient evidence that employer unable to pay wages at time contract was executed – if there were an implied representation, it had no material effect on the plaintiff’s decision to accept employment EMPLOYMENT AND INDUSTRIAL LAW – Superannuation – superannuation not provided for in contract – mandatory employer contribution not payable in respect of employee who is not Australian resident and is not working in Australia – Superannuation Guarantee (Administration) Act 1992 (Cth), s 27(1)(b) JUDGMENTS AND ORDERS – calculation of prejudgment interest – discretion of court – judgment sums sought in foreign currency – judgment sum awarded in United States dollars – no evidence as to appropriate interest rate – application of local rates –avoiding over-compensating – Civil Procedure Act 2005 (NSW), s 100 – Uniform Civil Procedure Rules 2005 (NSW), r 6.12(8)(a)

CIVIL PROCEDURE – pleadings – particulars – defects – whether impugned paragraphs should be struck out – where particulars are not to be provided by reliance on, or reference to, evidence which will be relied upon – impugned paragraphs neither properly pleaded or particularised – impugned paragraphs struck out

Aviation – Carriage of passengers by air – Contract of carriage – Where Air Canada's International Passenger Rules and Fares Tariff ("Air Canada Tariff") formed part of contract of carriage with passengers – Where defences to liability recognised by Convention for the Unification of Certain Rules for International Carriage by Air (1999) ("Montreal Convention") – Where treaty provisions given effect in domestic law – Where liability rules of Montreal Convention expressly incorporated into Air Canada Tariff – Where partial defence in Art 21(2) of Montreal Convention raised – Whether open to Air Canada to waive partial defence limiting extent of passengers' recovery of damages for bodily injury allegedly caused by turbulence experienced on flight – Whether any waiver of partial defence in Air Canada Tariff. Words and phrases – "aviation", "bodily injury", "context", "contract of carriage", "damages", "defence", "financial limit", "liability cap", "liability rules", "partial defence", "purpose", "tiers of liability", "travaux préparatoires", "treaty", "treaty interpretation", "unlimited liability", "waiver". Civil Aviation (Carriers' Liability) Act 1959 (Cth), ss 9B, 11. Convention for the Unification of Certain Rules for International Carriage by Air (1999), Arts 17, 21, 25. Vienna Convention on the Law of Treaties (1969), Arts 31, 32.

CRIMINAL LAW - procedure - whether fitness inquiry required – where lawyer raises the question of fitness of client

CRIME — murder CRIMINAL PROCEDURE — trial — case management — pre-trial hearing CRIMINAL PROCEDURE — subpoena — application to set aside

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Whether leave to bring derivative action should be granted.

CIVIL PROCEDURE – freezing orders – where default judgment has been set aside – dispute about an agreement for funding of proceedings in the Equity Division – issue as to validity and construction of parties’ agreements –good arguable case –real risk that the defendant’s assets would be disposed of and plaintiff unable to recover judgment made in its favour – freezing orders made against defendant and against non-party respondents

CONTRACT – Construction – Contracts successively made – Whether second contract terminates or varies first contract depends on intention of parties as disclosed in second contract CONTRACT – Advance of money – Characterisation as loan – Onus of proof of character of loan borne by payer – Onus of proof of repayment on borrower AUSTRALIAN CONSUMER LAW – Misleading and deceptive conduct – Express misrepresentation – Concealment of material fact – Intention to mislead – Reliance on misleading and deceptive conduct – deed procured by misleading and deceptive conduct declared void - Australian Consumer Law, section 18

CIVIL PROCEDURE — interrogatories — personal injury claim — whether "special reasons" shown — where "special reasons" not required in parallel proceedings being heard together — whether interrogatories order "necessary" — where defendants disputed plaintiff’s admitted facts and authenticity of documents — whether proposed interrogatories are cross-examination

APPEALS — Leave to Appeal — Australian Consumer Law — Local Court Act — Probative Evidence

CIVIL PROCEDURE – non-appearance by self-represented plaintiff – third occasion of non-appearance on purported psychiatric medical grounds – trial proceeded and claim dismissed in the absence of the plaintiff to prosecute his case

CONTRACT – Interpretation - construction of a retainer agreement - whether the Defendant had a right to terminate the retainer agreement – whether the Defendant validly terminated the retainer agreement – whether the Defendant’s right to terminate had to be exercised within a specific timeframe.

CRIME — bail — release application — private electronic monitoring — new legislation — Bail Amendment (Ban on Private Electronic Monitoring) Bill 2025 — three month transition period — prohibits courts allowing private electronic monitoring

CIVIL PROCEDURE – Discovery – Practice Note SC Eq 11 – Exceptional circumstances warranting disclosure before evidence exchanged – Where disclosure before exchange of evidence would facilitate the just, quick and cheap resolution of the real issues in dispute

CIVIL PROCEDURE – interim preservation – freezing order – whether applicant has good arguable case against first and second defendant – evidence of risk of dissipation of funds and assets by first defendant – no reasonably arguable case against second defendant – second defendant’s interest in the funds withheld in court not amenable to enforcement of any judgment – HELD – percentage of funds referable to first defendant’s contribution to property retained in court – remaining sum paid to defendants

ASSOCIATION – Incorporated by Royal Charter –Management and administration – Application for order requiring association to indemnify plaintiff to bring proceedings against association’s current and former officers ASSOCIATION – Incorporated by Royal Charter – where plaintiff former member of association – consideration of derivative action at general law

JUDGMENTS AND ORDERS – interest – pre-judgment interest – calculation of judgment amounts – whether plaintiff entitled to pre-judgment interest – no question of principle COSTS – where plaintiff entitled to judgment of less than $500,000 – whether plaintiff entitled to costs in view of UCPR r 42.34 – no question of principle

CORPORATIONS – Winding up – Application for leave to oppose winding-up – Statutory demand – Where company disputes statutory demand

CIVIL PROCEDURE – application strike out cross-claim and corresponding provisions of defence – where cross claim stayed because further security ordered not provided – where defendant has not served evidence as ordered nor complied with notice to produce – impending hearing – where defendants propose guillotine orders be made granting extension of time to serve evidence and provide security– cross-claim dismissed and defence struck out

REAL PROPERTY – Torrens title – Joint tenants – unilateral severance of joint tenancy – where defendant father and two plaintiff children purchase property as joint tenants – where transfer severing joint tenancy lodged with Registrar-General by father – application by children to restrain registration – where agreement not to sever the joint tenancy – HELD – parties reached agreement not to sever joint tenancy and father restrained from severing joint tenancy CONTRACTS – Formation – Consideration – mutual promises not to sever joint tenancy good consideration

APPEALS – appeal jurisdiction – Supreme Court – appeal as of right from Local Court under Local Court Act 2007 (NSW), s 39 – appeal only on a question of law – notice of contention available under Uniform Civil Procedure Rules 2005 (NSW), r 50.11 – limits on fact-finding on appeal – whether defendant can agitate issue of fact on a notice of contention – scope of appeal under Supreme Court Act 1970 (NSW), s 75A – whether scope expanded by Uniform Civil Procedure Rules 2005 (NSW), r 50.16 – rules subject to statutory limit on jurisdiction COURTS AND JUDGES – jurisdiction of Local Court – scope of “debt, demand or damage (whether liquidated or unliquidated)” in definition of “money claim” – power to grant equitable compensation or monetary relief – historical basis of jurisdiction - Local Court Act 2007 (NSW), ss 29A, 30 CONTRACTS – novation – owner/operator of retirement village entered into village contracts with residents – land sold to new owner/operator – new operator did not enter into written contracts with existing residents – existing contracts not novated – contracts not enforceable against residents EQUITY – unjust enrichment – unpaid site fees – quantum meruit – mistake not basis for claim of restitution – factual premise for claim not open on evidence STATUTORY INTERPRETATION – ordinary meaning – absence of ambiguity – purposive construction – retirement villages legislation protective of vulnerable retirees – residence contracts to be enforceable “against” a new operator – whether court justified in reading that as a two-way provision – Retirement Villages Act 1999 (NSW), s 40

CIVIL PROCEDURE – pleadings – application to amend – proceedings initiated against law firm previously retained by plaintiff regarding a personal injury matter – where law firm is alleged to have been negligent – whether proposed amended statement of claim reveals existence of viable cause of action – where there has been several attempts to amend the pleadings – where proposed pleadings are not in proper form and do not clearly plead allegations against the lawyers

CORPORATIONS – meetings – general meeting convened pursuant to Corporations Act 2001 (Cth), s 249F to remove directors – majority of members cast votes in favour of removal of three of four directors prior to meeting – directors appointed administrator on evening before meeting – chairman of meeting purported to adjourn meeting – no challenge to finding that purported adjournment invalid – authorised representative of major shareholder assumed chair – resolutions removing three directors and appointing replacements carried – whether authorised representative was appointed interim chair and was unable to chair meeting – whether other directors willing to act as chair – whether authorised representative, who was not himself a member, entitled to act as chair – whether grounds which had not been raised at trial ought be raised on appeal – whether s 1322 available to cure any defect

CRIME - appeals - appeal against conviction - where the appellant was convicted of multiple counts of assault with the act of indecency – where the appellant was convicted of sexual intercourse in circumstances of aggravation (under authority) – where the appellant was convicted of common assault – whether the trial judge’s reasons on the subject of consciousness of guilt were inadequate and failed to comply with s 133(2) of the Criminal Procedure Act 1986 (NSW) – whether the trial judge erred by applying consciousness of guilt reasoning in relation to each count on the indictment when it was not open to do so. CRIME - appeals - extension of time in which to appeal – where the appellant seeks an extension pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal from his convictions – where the notice of appeal was filed six months after the expiry of the notice of intention to appeal

EMPLOYMENT AND INDUSTRIAL LAW – work health and safety – where employee may have contracted silicosis as a result of carrying out work for the Applicant – where SafeWork NSW brought prosecution for an offence under s 32 of the Work Health and Safety Act 2011 arising from breach of health and safety duty under s 19(1) – where Applicant plead guilty in District Court – where Applicant now contends SafeWork commenced prosecution outside of time limit under s 232 of the Work Health and Safety Act 2011 (NSW) – whether prosecution brought in time – when did SafeWork have sufficient information to infer the offence had been committed – prosecution commenced in time APPEALS – appeal out of time – whether leave should be granted to bring appeal out of time – appeal futile – leave refused

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of six sexual offences – whether it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt on all the evidence – whether the apparently ‘consistent’ evidence from the applicant should have been preferred by the jury – where knowledge of consent was the issue at trial – where the applicant sent suggestive and unrelenting messages to the complainant before and after the offending – where the complainant was affected by prescription medication and alcohol – where the complainant had no memory of the offending – where the complainant had established her ‘boundaries’ – leave to appeal granted – appeal dismissed

EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – Injunction sought in the Supreme Court –Applicant seeks by her next friend, her husband, an injunction against her dismissal from a teaching position – where dismissal is effected prior to hearing – where concurrent proceedings in the Industrial Relations Commission – discretionary considerations. COSTS – Party/Party – Orders against non-parties –Personal costs orders against next friend.

CORPORATIONS – Insolvency – Administration – Extension of time for adjournment of second meeting of creditors CIVIL PROCEDURE – Non-publication order – Where evidence tendered in application contains commercially sensitive information

SUCCESSION — Family provision — Practice — Subpoena to third party — “Cohabiting” — Succession Act 2006 (NSW), s 60(2)(e)

COSTS – Party/party – Where multiple issues in proceedings – Where plaintiff successful in some claims and unsuccessful in other substantial claims.

EQUITY – ACCOUNTING – Where plaintiff is 101 years old and under a disability – Where the defendant, her granddaughter, receives into her own account net proceeds from the sale of the plaintiff’s house and spends a large part of it and not able to show that she did so with the plaintiff’s lawful authority or for her benefit despite it being within her power to bring evidence on that subject – Where an order for an accounting is ultimately not opposed and the Court itself conducts the account – HELD: Judgment for the plaintiff together with indemnity costs from the date upon which the plaintiff sought the accounting

COSTS – Party/Party – Specific court rules in relation to costs – Apportionment – Whether action should have been brought in inferior court

CONTEMPT — Civil contempt — Breach of undertakings – Where parties entered into binding heads of agreement – Where interlocutory undertakings provided to court never discharged – Whether contempt could be found where undertakings given under heads of agreement overlapped with earlier undertakings given to court CONTEMPT — Civil contempt – No appearance by alleged contemnor at hearing CIVIL PROCEDURE – Settlement – Orders under s 73 of the Civil Procedure Act 2005 (NSW) to give effect to a settlement between the parties

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – insurance – construction of home warranty insurance policy – separate questions – whether letter sent in 2012 constitutes a claim under the policy – whether letters sent in 2022 constitute claims within time under the policy – effect of s 92(5) of the Home Building Act – effect of long stop provision in s 103BC of the Home Building Act

CIVIL PROCEDURE – request to reinstate cross-claims – consent orders made

MORTGAGES AND SECURITIES – Personal Property and Securities Act 2009 (Cth) – security interest – goods (solar panels) sold subject to retention of title – seller perfected purchase money security interest (PMSI) – buyer authorised to sell or dispose of goods in ordinary course of business – where buyer agreed under subcontract with contractor to design, supply and install solar photovoltaic equipment at principal’s premises – buyer supplied and delivered goods to site of works subject to retention of title – buyer transferred possession of goods to principal – whether dealing with collateral (panels) gives rise to proceeds – whether proceeds constituted buyer’s chose in action against contractor for milestone payment for delivery of goods – whether proceeds constituted monies paid by principal to contractor for delivery of goods by contractor to site – whether buyer has an interest in the proceeds – s 32, PPSA MORTGAGES AND SECURITIES – Personal Property and Securities Act 2009 (Cth) – taking free – grantor of security interest disposes of goods – where goods delivered to site of works under terms of subcontract – no transfer of title until seller paid in full invoice relevant to goods – ordinary course of seller’s business of selling goods of that kind – meaning of “sold” – whether “sold” requires a transfer of title – whether ordinary course buyer includes buyer under an agreement for sale – s 46, PPSA STATUTORY INTERPRETATION – Commonwealth and state legislation – meaning of “sold” in s 46, PPSA – whether “sale” as referred to in Sale of Goods Act 1923 (NSW) restricts the operation of ordinary course buyer protection in s 46, PPSA

COURTS AND JUDGES – bias – application for recusal – actual or apprehended bias – where primary judge previously decided cases adversely to the applicant – where plaintiff alleged that primary judge altered transcripts – no actual or apprehended bias PROCEDURE – notice of motion – application to access audio recording of hearing – where applicant alleged that transcript had been altered – where applicant led no evidence – notice of motion dismissed

COSTS – appellant enjoys partial success on appeal – common ground usual rule as to costs displaced – how costs order should reflect partial success