Cases and authorities

JUDGMENTS AND ORDERS – amending, varying and setting aside – application under Uniform Civil Procedure Rules 2005 (NSW), (UCPR) r 36.16(3A) – application made within time and competent – motion to re-open judgment and set aside orders – whether Court overlooked two relevant legal principles – first issue not a focus of appeal or trial which turned on factual disputes – second issue dealt with in appeal judgment and not overlooked – application dismissed JUDGMENTS AND ORDERS – amending, varying and setting aside – application under UCPR, r 36.16(3A) – original application in time – proposed amendment to challenge different order out of time – Court lacks power to entertain further application JUDGMENTS AND ORDERS – application for reimbursement of costs paid under order set aside – failure to seek order under UCPR r 51.19 – application to vary orders made in time – orders generally made as of right

Criminal practice – Appeal – Irregularity in criminal trial – Where principal issue at trial was whether perpetrator was appellant or another adult member of complainant's community – Where after trial prosecution disclosed appellant's father had been charged with sexual offences against another child – Where appellant appealed conviction on ground that there had been a miscarriage of justice – Where Court of Appeal of Supreme Court of South Australia found prosecution breached prosecution's common law duty of disclosure – Where Court of Appeal found no miscarriage of justice because appellant did not demonstrate that defence would have been conducted differently but for breach of duty of disclosure – Whether Court of Appeal erred in finding no miscarriage of justice – Whether error or irregularity must be material to establish miscarriage of justice. Words and phrases – "all relevant evidence", "appeal", "burden", "categories of potential miscarriages of justice", "character evidence", "common form criminal appeal provision", "concession", "conviction set aside", "could realistically have affected the reasoning of the jury to a verdict of guilty", "disclosure after the trial", "duty of disclosure", "error or irregularity", "fanciful or improbable", "final address", "forensic utility", "fundamental", "identity of the perpetrator", "informing a relevant line of inquiry", "maintaining an unlawful sexual relationship with a child under the age of 17 years", "materiality", "miscarriage of justice", "negative proposition", "new trial ordered", "opening address", "perpetrator", "proviso", "third limb". Criminal Procedure Act 1921 (SA), s 158.

Representative actions – Practice and procedure – Orders – Notices to group members – Where representative proceeding under Pt 10 of Civil Procedure Act 2005 (NSW) ("CPA") – Where defendant proposed to provide notice ("proposed notice") setting out its intention to seek certain order if proceeding settled – Where proposed notice indicated defendant's intention to seek orders that a group member who had neither opted out nor registered to participate in the proceeding would remain a group member, but shall not, without leave of the Court, be permitted to seek any benefit pursuant to any settlement of the proceeding that occurs before final judgment – Where unregistered group member's claims against defendant would therefore be extinguished by settlement – Where intermediate appellate court authority in conflict – Whether Supreme Court of New South Wales could make an order under s 175(5) of CPA that proposed notice be given to group members. Words and phrases – "appellate jurisdiction", "compelling reason", "conflict of interest", "forensic advantage", "fundamental precept", "group member", "inconsistency of interest", "intention to seek an order", "intermediate appellate court", "notice", "opt in", "opt out", "plainly wrong", "power to order", "precedent", "ratio decidendi", "registration", "representative proceeding", "separate question", "seriously considered obiter dicta", "settlement", "settlement approval", "settlement negotiations", "statutory context". Civil Procedure Act 2005 (NSW), Pt 10, ss 159(1), 161, 162, 166(1)(d), 171(1), 173, 175(1), 175(5), 175(6), 176, 177, 179(b), 183.

EVIDENCE — Witness evidence — Unfavourable witnesses — Where application is opposed — Ex-tempore judgment

CONVEYANCING – breach by purchaser – remedies of vendor – resale – measure of damages – recovery of damages under cl 9 of the standard form contract – effect of resale in falling market – whether appropriate date for the assessment of damages for breach of contract is the date of the breach or a later date – damages assessed at a later date – no question of principle

CONTRACT – Formation – Agreement – oral contract to advance money to developer – whether term of contract that money repayable within 18 months or at the end of the development – relevance of logic and objective facts to determination of terms of contract

CONTRACT – remedies – damages – measure of damages – contract for the sale of shares – where primary judge assessed damages by reference to lost expenditure – where breach results in uncertainty or difficulty of proof of loss – no error in primary judge’s approach CONTRACT – remedies – damages – time of assessment – where purchase price was paid but shares were not transferred in accordance with the contract – where respondents were unaware that shares were not transferred – no error in assessing damages by reference to events that occurred after the breach of contract RESTITUTION – ineffective transactions – general principles – restitution of money paid – failure of consideration– where parties’ relationship was governed by a valid contract – subsidiarity principle – where restitutionary claim did not undermine the parties’ allocation of risk

HUMAN TISSUE – removal of sperm from deceased person for Invitro Fertilisation – storage of gametes – whether plaintiff entitled to possession of stored sperm for use in Invitro Fertilisation in Queensland

CIVIL PROCEDURE – leave sought to rely upon what the plaintiff describes as a ‘proposed fifth further amended statement of claim’ – where proceedings commenced in 2002 – where plaintiff alleges false imprisonment, false arrest, malicious prosecution and abuse of process against the defendant – where matter is listed for hearing in July 2025 – where plaintiff is in custody without access to evidence to be relied on at hearing – where the pleadings sought to be relied upon are not an amendment, but a new case in substitution for the current claim – application dismissed

CONTRACTS – construction – contract for the sale and purchase of land entered into upon the plaintiff purchaser exercising call option at the end of four year option period during which the purchaser had obtained development consent for the property – purchaser issued notice to vendor nominating date for completion of the contract 18 months in the future – whether the contract, properly construed, entitled the purchaser to issue that notice – whether the relevant clause of the contract should be construed in a manner that departs from the language used to correct an obvious mistake or absurdity – dispute concerning the validity of a notice issued by purchaser appointing a valuer for the purpose of a contractual process to determine the residual land value as an integer of the calculation of the price payable to the vendor on completion – whether purchaser’s notice served within the time provided by the contract for the purchaser to give notice appointing a valuer – whether time stipulation of the essence – various other disputes concerning the construction and operation of the contract.

COSTS – application for indemnity costs

CIVIL PROCEDURE - Notice of Motion – re-agitation of matters determined by earlier interlocutory application CIVIL PROCEDURE – Whether the applicant should be required to pay the costs of this application before bringing any further application or proceedings concerning the same matters. COSTS - Application for costs of the application on an indemnity basis - Whether indemnity costs should be ordered.

PRIVATE INTERNATIONAL LAW – orders with extraterritorial effect – where judgment stayed pending the PRC Court’s consideration of the cross-defendant’s application to dissolve Civil Ruling of Court in PRC that restrains it from complying with the judgment – where communications of the PRC Court show its awareness of this Court’s decision – where PRC Court has stated intention to make decision before 30 June 2025 – whether stay in this Court should be lifted

PRACTICE AND PROCEDURE – Adjournment – application to vary ESO – withdrawal of plaintiff’s legal representatives – no issue of principle

COSTS – party/party – general rule that costs follow the event – whether the usual position should be departed from – whether there should be an order for indemnity costs – where the Defendant made a Calderbank offer – where the Defendant was successful at trial – where the Plaintiff submits there should be a departure from the usual position on the basis that the Defendant ran every conceivable argument and did not focus its case – where the Defendant failed on its alternative arguments - where the case was conducted in a timely and efficient manner – whether it was reasonable for the Plaintiff to reject the Calderbank offer – where the Defendant’s offer was modest and involved very little compromise – where the Plaintiff is to pay the Defendants costs on the ordinary basis.

CRIME – Evidence – Murder – Application to release evidence given before the Crime Commission – Crime Commission Act 2012 (NSW) s 45(4) – Where material relevant to murder trial – Whether disclosure ‘may’ be desirable in the interests of justice

NEGLIGENCE – professional negligence – medical negligence – where child has disabilities including infantile seizures and Global Developmental Delay – whether disabilities are a result of a failure to deliver the baby earlier – obstetric evidence – conclave of experts – Civil Liability Act 2002 (NSW) s 5O – where the defendant is a Local Health District – whether the defendant acted in accordance with widely accepted peer professional practice – whether the defendant breached its duty of care – where there are multiple experts with competing opinions – whether any alleged breach of duty of care during labour was causative of the child’s disabilities

BUILDING AND CONSTRUCTION — adjudication — judicial review — money paid into Court when adjudication sought to be challenged by principal — principal’s challenge dismissed by primary judge and not the subject of appeal — whether adjudicator’s determination not to address parts of builder’s claim affected by jurisdictional error on the basis that he erroneously found that some submissions were not “duly made” or failed to consider submissions — issue on appeal whether Court has power to constrain any remitted adjudication to parts affected by jurisdictional error — stay pending appeal refused as builder has determination in its favour and principal does not challenge that part of the determination referable to amount paid into court — risk allocation favoured by Building and Construction Industry Security of Payment Act 1999 (NSW)

INSURANCE – claim for work injury damages – pre-filing procedures under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where employer failed to serve pre-filing defence – where employer subsequently filed defence raising contributory negligence – where s 318(1)(c) prevents employer from filing a defence that wholly or partly disputes liability for the claim if employer has failed to serve a pre-filing defence – whether “wholly or partly disputes liability” includes raising a defence of contributory negligence – whether contributory negligence is an aspect of liability or damages – contributory negligence an aspect of liability – employer barred from raising contributory negligence – defence struck out STATUTORY INTERPRETATION – meaning of “wholly or partly disputes liability” – where statutory note in s 318A(2) in tension with plain interpretation of s 318 – where primary judge had regard to note in s 318A(2) – whether statutory note forms part of the Act – note not part of the Act – note may be considered as extrinsic material – note cannot displace the correct meaning of the section

ADMINISTRATIVE LAW — Appeals — judicial review — whether the primary judge erred in holding that a review panel of the Personal Injury Commission constituted under the Motor Accident Injuries Act 2017 (NSW) did not fall into jurisdictional error, fail to exercise its statutory powers or give adequate reasons ADMINISTRATIVE LAW — Appeals — judicial review — no failure to address clearly articulated submission in circumstances where there had been significant changes in the facts between the making of the submission and the decision under review TRAFFIC LAW AND TRANSPORT — traffic law — Motor Accident Injuries Act 2017 (NSW) — meaning of “threshold injury” under s 1.6 — whether claimant’s radiculopathy caused by motor accident — where Medical Assessor found radiculopathy present after motor accident

SENTENCING — appeals — appeal against sentence — offence of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) — plea of guilty – whether sentencing judge erred in providing a 10% discount as opposed to a 25% discount to reflect the applicant’s plea of guilty — Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D — leave granted — appeal dismissed

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Whether defendants’ rejection of plaintiff’s Calderbank offers was unreasonable JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction

SENTENCING – murder – domestic violence – brutal and frenzied stabbing of former domestic partner – intent to kill – objectively serious offending – background of deprivation and disadvantage – childhood exposure to domestic violence and sexual abuse – significant mental illness – youth – moral culpability diminished – general and specific deterrence

COSTS – security for costs – inherent jurisdiction of the Supreme Court – where plaintiff is a natural person – whether plaintiff’s case is hopeless – whether plaintiff is impecunious – no security ordered - no question of principle

PRACTICE AND PROCEDURE – adjournment – non-compliance with work injury damages pre-filing procedures – no question of principle

CIVIL PROCEDURE – costs – where a notice of motion originally filed under s 73 Civil Procedure Act – where there is no dispute regarding the promise or settlement of interlocutory proceedings within principal proceedings – where the undertaking of the second defendant not to enforce costs unless the plaintiff attempts to recommence proceedings is noted

EQUITY — Trusts and trustees — Judicial advice EQUITY — Trusts and trustees — Charitable trust — Alteration of administrative scheme

COSTS – party/party costs – where the Plaintiffs had substantial success in the proceeding – whether there should be apportionment of costs in respect of any issue on which the Plaintiffs failed – whether the Second Defendant acted unreasonably in defending the litigation and in failing to adopt a position of neutrality – whether the Court should make orders denying or restricting the Second Defendant’s entitlement to be indemnified from the First Defendant’s property in respect of the costs of the proceeding – whether the costs of the Fifth Defendant, who filed a submitting appearance, should be met by the other defendants

CORPORATIONS – Receivers and managers – Application to court for declarations and directions – where company in receivership in possession of surplus funds in the receivership – where competing claims to surplus funds CONTRACT – Formation – Whether a contractual relationship arose from Term Sheets for financing –Whether parties entitled to break fee, reasonable expenses or enforcement costs on proper construction of Term Sheets

CONTRACTS — Construction — Whether contract imposed an obligation to elect between mutually exclusive scenarios — Whether valid election could be made after contract terminated CONTRACTS — Construction — Requirement of clear and unequivocal communication or conduct to exercise rights — Where no relevant communication or conduct within relevant period

PROCEDURE — stay pending appeal — whether the applicant has established an arguable case — whether stay should be granted where bankruptcy proceedings have already commenced — prejudice where applicant was not in a fit state to inform cross-examination — stay ordered in relation to the individual applicant but not the corporate applicants

CIVIL PROCEDURE — Court of Appeal — stay of order for payment out of funds in Court — whether leave to appeal required — whether serious question to be tried — where balance of convenience lies

ADMINISTRATIVE LAW – Error of law on the face of the record – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 98(3) – application to appear in proceedings in Children’s Court dismissed – appeal to District Court dismissed – whether error of law on the face of the record of the District Court – whether sufficient for applicant to be found to have a genuine concern for the safety, welfare and well-being of the child or whether application was subject to a further discretion – conflict in decisions of Supreme Court on approach to s 98(3) – whether relief should be withheld for discretionary reasons

STATUTORY INTERPRETATION – extrinsic material – significance of delegated legislation to construction of a statute – relevance to statutory construction of legislative facts and claims asserted from the bar table – multiple statutory purposes – issue determined by textual considerations where none of the purposive and contextual arguments raised assists greatly to resolve construction issue TRAFFIC LAW AND TRANSPORT – traffic law – motor accident legislation – definition of “threshold injury” – injury to the skin which is not also an injury to nerves is a soft tissue injury

CRIME – appeals – appeals against conviction – admissibility of tendency evidence – where matters in issue at time of pre-trial ruling not significantly different from matters in issue at close of evidence at trial – where tendency evidence still had significant probative value at close of evidence and probative value outweighed danger of unfair prejudice – where tendency direction given – no error established CRIME – appeals – appeals against conviction – miscarriage of justice – jury directions – tendency directions – content of tendency directions and standard of proof – where directions and summing up when considered as a whole would not deflect jury from their proper task of determining whether elements of offences proved beyond reasonable doubt – no miscarriage of justice EVIDENCE – tendency evidence – significant probative value – where asserted tendency is broad – where there is a gap in period where tendency is asserted – given matters in issue the tendency evidence had significant probative value – where probative value outweighed the danger of unfair prejudice – no error in pre-trial ruling STATUTORY INTERPRETATION – definition – definition of “under authority of” in s 61H(2) Crimes Act 1900 (NSW) – whether person receiving treatment from an osteopath is “in the care of” and thus “under the authority of” the osteopath – no error in so directing jury

CRIME – appeals – Crown interlocutory appeal – sexual offences – whether trial judge erred in refusing Crown application to discharge jury – where discharge application based on directions given by trial judge – where trial judge relied on R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 – directions inconsistent with s 294B(7) of the Criminal Procedure Act 1986 (NSW) – directions carried real risk of elevating importance of demeanour – wrong principle – error in determination of application – appeal allowed – matter remitted to be determined according to law EVIDENCE – witness evidence – evidence in sexual offence proceedings – evidence given by alternative arrangements – impact of evidence given by audio visual link – judicial attitudes – research – not equivalent to testimony in courtroom – weaker standard of communication – may affect opposing or calling party – beneficial or detrimental to witness – Kennedy Nixon presidential debate – impact may not be ascertainable EVIDENCE – directions to jury – evidence given by audio visual link – directions in ordinary case likely to contravene s 294B(7) – s 294B(7) cannot convert poor evidence into clear evidence – available direction where impact of audio visual link capable of being identified – direction as to particular quality of evidence – example direction provided

CRIME – appeals – Crown appeal against sentence – federal offences of procuring or attempting to procure persons believed to be children to engage in sexual activity outside of Australia – federal offences of persistent sexual abuse of children outside of Australia – State offence of failing to comply with reporting obligations – guilty pleas – aggregate sentence less than 50 percent of mandatory minimum sentences – nominated indicative sentence less than 75 percent of mandatory minimum sentence for sequence 9 – manifest inadequacy – where respondent conceded all grounds of appeal were established – appeal allowed – resentence SENTENCING – resentence – where it appeared that the persons the subject of the offences were not in fact children – where the Director conceded that it could not be proved they were in fact children – where the concession was wrongly made with respect to certain sequences – respondent’s plea of guilty to some offences not admission of fact with respect to other offences – the Court should do no more than to act on the pleas – offences all objectively serious – offences committed remotely – respondent’s advanced age and health – aggregate sentence imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) – discount for pleas of guilty – equal justice

HIGH RISK OFFENDER – application for an extended supervision order – final hearing – Terrorism (High Risk Offenders) Act 2017 – question of whether defendant poses an unacceptable risk of committing a serious terrorism offence – specificity of risk of serious terrorism offence application opposed – difference between intensive corrections orders and extended supervisions orders – conditions of ESO – as the court thinks “appropriate” – extended supervision order imposed

PRACTICE AND PROCEDURE – Vacation of hearing date – where the Cross-Claimant seeks the vacation of a scheduled hearing date – where the Cross-Defendant opposes the application to vacate hearing – where updating affidavits were served late – where updating affidavits contain evidence of a change of circumstances and further investigations are required – application to vacate the scheduled hearing is granted.

CRIMINAL LAW – evidence – improperly obtained evidence – allegation of murder – vulnerable person – LEPRA and regulations – 18 year old Aboriginal accused – where conduct of police calculated to infringe rights provided under legislation and regulation – where prosecution concedes impropriety – relevant considerations – assessment of police explanations for conduct – suggestion that questions asked out of “fairness” not accepted – whether impropriety deliberate or reckless – accused interviewed despite clear email from Aboriginal Legal Service that he wished to remain silent – grave impropriety – evidence excluded

REAL PROPERTY — Leases — re-entry by landlord — covenant for tenant to reimburse landlord’s outgoings — alleged breach — whether notice required under s 129 of the Conveyancing Act 1919 — adequacy of pleaded allegation of breach — summary judgment for tenant

CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors — Whether director was validly appointed — where director appointed by purported exercise of casting vote of board chairperson — whether chairperson validly appointed by earlier agreement allegedly made during conversation — where primary judge not persuaded that director was validly appointed by earlier agreement made during conversation

CRIME – SENTENCE – appeal against sentence – attempt to import commercial quantity of border-controlled drug – application for leave to appeal out of time – sole ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – “Totaan error” - where resentence process undertaken, but no lesser sentence warranted in law – where structure of sentence did not comply with s 19AB of the Crimes Act – where sentence is to be served concurrently for each count

TORTS — homeowner’s worst nightmare — development site next to plaintiffs’ home — developer excavates 9 metres to construct 55 apartments – geotechnical engineer identifies high risk of landslide at boundary — geotechnical advice ignored — excavations go beyond boundary — landslide — plaintiffs’ driveway collapses into development site — plaintiffs’ unable to access home by vehicle — plaintiffs’ property rendered worthless – developer and builder go in external administration – whether family members who ran the building company are personally liable. CORPORATIONS — directors and officers — whether de facto or shadow director — whether directors personally liable for directing or procuring the tortious conduct for the company — extent of duty owed by disabled director — principles at [236]-[243]. TRESPASS — whether each defendant excavated beyond the boundary – boundary not clearly marked. NEGLIGENCE — duty of care to maintain support for land, s 177 of the Conveyancing Act 1919 (NSW). DAMAGES — whether rectification costs disproportionate to diminution of land value — whether reasonable to award rectification costs in the circumstances – principles at [265]-[270] — general damages. CIVIL LIABILITY ACT — proportionate liability —— whether trespass an apportionable claim.

LAND LAW — Orders compelling vacation of property — Reasonable time for vacation — Mortgagee in possession bears no obligation to exercise power of sale — Where solicitor was non-responsive

COSTS – Application by defendants for costs on an indemnity basis –Where plaintiff significantly amended its case after hearing commenced – Where amendments facilitated just, quick and cheap resolution of real issues in dispute – Indemnity costs not ordered. COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion – No order as to costs of hearing – Where costs thrown away by plaintiff’s amendments already addressed by existing costs orders.

PRACTICE AND PROCEDURE – Proposed amendment to defendants’ Technology and Construction List Responses to introduce alternative limitation defences under s 18E of Home Building Act 1989 (NSW) in addition to existing limitation defences relying on that section – Where plaintiff opposed leave to amend on the sole basis that the proposed amendments were said to be futile – HELD: Amendments not futile. Leave granted.

CHILD WELFARE — Surrogacy — Parentage Order — requirement for report from independent counsellor — counsellor not independent — “exceptional circumstances” relief not applicable — Surrogacy Act 2010 ss 17, 18 — application declined on existing evidence and submissions

CHILD WELFARE – adoption – Aboriginal placement – where birth parents disclosed Aboriginal heritage – whether Secretary has made reasonable inquiries as to whether child is an Aboriginal child – whether child is Aboriginal CHILD WELFARE – adoption – best interests – alternatives to adoption – where child has been cared for by adoptive parents for more than 12 years – where adoptive parents have been granted parental responsibility for child until he attains 18 years of age – where adoptive parents not seeking guardianship orders and seek to support child to lead independent life – adoption clearly preferable in best interests of child CHILD WELFARE – adoption – consent – dispense order – child – where 17 year old child diagnosed with speech and language disorders – where child cannot participate in registered counselling to give consent to his own adoption – where child given opportunity to express views freely about the adoption

CONTRACT – Breach of contract – whether warranties concerning building works were breached – where there was a breach of warranty – whether the purchaser is entitled to damages for breach of contract – whether purchaser is entitled to damages reflecting the cost of making the building conform to the contract – whether replacement of concrete slab is reasonable – where the warrantor discharged his evidentiary onus to show that replacement of concrete slab was not a reasonable course – where purchaser has not otherwise established loss – where purchaser is entitled to nominal damages – whether there should be an order for specific performance.