New South Wales (26 October 2026)

Send us Fan Mail Eight decisions from four courts in the New South Wales edition of Monday 26 October 2026, three of them headnoted. A shareholders' deed indemnity for costs arising out of or in connection with a default is measured by that objective connection, not by a costs assessor's reasonableness, and no reasonableness term is implied; only a grossly excessive expense falls outside it. Defence counsel's failure to put a point to a complainant is no miscarriage of justice if it was a rational forensic decision, or if it could not realistically have affected the verdicts, and the Crown need not cure it by re-examination or recall. A sentencing judge who accepts that a mental condition contributed to the offending may have to weigh deterrence even without submissions. And when the Court of Appeal remits an appeal's costs to the Civil and Administrative Tribunal, it can direct that special circumstances need not be shown. One Illustrative decision on the docket; four list-only decisions on the registry. The criminal appeal and the Tribunal remitter also feature in the Court of Appeal brief of the same day; here they get the New South Wales angle. Commercial Law Desk (opening story). Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports Corporation Limited (No 4) [2026] NSWSC 1330 - (Hammerschlag CJ in Eq, 26 October 2026) judgment for the cross-claimants under a shareholders' deed indemnity against the defaulting shareholder; ordinary costs against two other Dexus entities; a provisional indemnity costs order, discounted by 20% for two claimants; liberty to apply. On its plain words, an indemnity against costs and liabilities 'arising out of or in connection with' a default covers whatever has that objective connection; the yardstick is not reasonableness as measured on an indemnity costs assessment under r 42.5 of the Uniform Civil Procedure Rules 2005 (NSW). An evaluative judgment may be needed, but no discretion is exercised. No term of reasonableness is implied: it is not necessary and is inconsistent with the express terms. A cost so excessive that it flows from the claimant's own choice to spend 'beyond the pale' is outside the indemnity, and grossly excessive claims may breach the covenant to be just and faithful, but that line was not crossed even for senior counsel at $4,000 an hour. Duplication is inevitable in multi-party litigation; shareholders whose board representatives' integrity was under attack need not leave their defence to the company. Salaried staff time and an unevidenced communications retainer were not recovered. The costs of enforcing the indemnity are recoverable under it, save those referable to disallowed claims. Declarations refused. JADE Criminal Law Desk (also in the Court of Appeal brief; a sexual offence and assault appeal, reported as legal doctrine only). Large v R [2026] NSWCCA 175 - (Stern JA, Fagan and Dhanji JJ, 26 October 2026) extension of time and leave granted; appeal against conviction dismissed; appeal against sentence allowed and the applicant resentenced to a lesser aggregate term. The question on a conviction appeal about counsel's conduct is not competence but whether, viewed objectively, a material irregularity occurred; there is none where the course was a rational forensic decision, even one made on a misunderstanding of the rule in Browne v Dunn (1893) 6 R 67 (Stern JA and Dhanji J; Fagan J found conspicuous errors). Counsel's error establishes no miscarriage unless it could realistically have affected the verdicts (Fagan and Dhanji JJ). The Crown was not obliged to re-examine the complainant or seek her recall on a matter for the defence to put; either party may seek recall under s 46 of the Evidence Act 1995 (NSW). On sentence, where the judge accepts that