Browse decisions Displaying 1 - 200 out of 95692 results

Catchwords:

EQUITY – Trusts and trustees – Express trusts – Intention to create – where plaintiffs invested funds to enable first defendant to engage in private placement program arbitrage transactions – intention to create an express trust over principal funds established – damages awarded limited to agreed rate of return described in investment agreement

Catchwords:

FAMILY AND CHILD WELFARE – parens patriae jurisdiction – Aboriginal young person under the parental responsibility of the Minister for all aspects except culture and religion – where orders previously made authorising medical treatment and confinement of the young person as an inpatient in a medical facility for the purposes of undertaking that treatment – where orders now sought to authorise the confinement of the young person to secure premises outside the medical facility for the purposes of continuing medical treatment as an outpatient and rehabilitation and recovery and to protect the young person from risk to their safety – whether it is appropriate to make such orders – appropriate to make orders subject to ongoing review by the Court

Catchwords:

BUILDING AND CONSTRUCTION – contractual rights preserved by s 32 of the Building and Construction Industry Security of Payment Act 1999 (NSW) – party seeking final relief in relation to contractual rights while adjudication determination remains unsatisfied CIVIL PROCEDURE – abuse of process – whether it is an abuse of process for a party to commence and prosecute proceedings seeking to enforce contractual rights – where adjudication determination made under s 22 of the Act – where judgment has been entered against it under s 25 of the Act – where party does not seek to stay or set aside judgment under s 25(1) of the Act – where party does not pay amount of judgment debt into court

Catchwords:

EVIDENCE – evidence on commission – letters of request issued from New Jersey court in USA – evidence for use in USA proceedings – foreign proceedings are civil – examiner appointed – documents to be produced and deposition evidence obtained by subpoena

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW - Application for relief from victimisation -– presumption displaced in respect of dismissal – presumption not displaced in respect of other detriments – compensation awarded

Catchwords:

CRIME – SENTENCING – use of child under 1 to make child abuse material – aggravated incite chle to carry out sexual act – sexually touch child – plea of guilty – assessment of criminality – aggravating factor of “vulnerability” - general deterrence – age and health of offender, whether custody is more onerous – first time in custody – COVID-19 pandemic CRIMES – APPEAL – sentence appeal – aggravated indecent assault - plea

Catchwords:

DEVELOPMENT APPLICATION – concrete recycling facility – expansion of, and increase in the processing capacity of the facility – air quality – appropriate dust management – visual impacts

Catchwords:

APPEAL – easement for drainage of water – conciliation conference – agreement between the parties – orders

Catchwords:

TORTS – fraudulent conspiracy – appellant alleged multiple parties fraudulently conspired to procure him to obtain a short-term loan he was unable to repay – case entirely circumstantial with no direct evidence – matters relied upon fell well short of proving allegations to the relevant Briginshaw standard – findings by primary judge credit-based and not shown to be in error

Catchwords:

ADMINISTRATIVE LAW - Government Information (Public Access) – whether disclosure of government information could reasonably be expected to endanger or prejudice any system or procedure for protecting the safety of any person - whether disclosure of government information could reasonably be expected to endanger or prejudice the security of or any system or procedure for protecting any place, property or vehicle - whether disclosure of government information could reasonably be expected to facilitate the commission of a criminal act – clauses 2 (d), (e) and (f) of the s14 GIPA Act Table – no conditions to be imposed by the Respondent on the use or further disclosure of the information – balancing of public interest considerations for and against disclosure

Catchwords:

ADMINISTRATIVE LAW – registration of birth – whether Registrar should correct the Applicant’s date of birth as recorded in the Register – Applicant born in the early hours of the morning – incorrect date provided for entry into the Register

Catchwords:

JUDGMENTS AND ORDERS – orders concerning interim indemnification of previous trustee for costs of delivery of trust documents to new trustee – whether orders final or interlocutory – orders expressly stated to be subject to any further order – exercise of discretion by primary judge in case management and the working out of earlier orders – no final determination of the issues by primary judge – no utility in granting leave to appeal

Catchwords:

EQUAL OPPORTUNITY - application for leave to proceed with complaint - complaint of victimisation – whether fair or just to grant leave – whether respondent is a body carrying on activities otherwise than for profit

Catchwords:

DEVELOPMENT APPLICATION – nursing home – conciliation conference – agreement between the parties – orders

Catchwords:

PRACTICE AND PROCEDURE – application for interlocutory restraining order pending hearing of appeal – judicial review proceedings – determination of separate question – review of determination by adjudicator under Building and Construction Industry Security of Payments Act 1999 (NSW) – appeal fixed for hearing in 5 weeks – concurrent unresolved claim under Australian Consumer Law (Cth), s 18

Catchwords:

PRACTICE AND PROCEDURE – application for stay – stay of orders of primary judge – application to reopen judgment dismissing appeal – application to rely on evidence not proffered at trial or on appeal relating to credibility of respondent PRACTICE AND PROCEDURE – application for stay – stay of orders of primary judge – application for special leave to appeal to High Court of Australia – whether stay necessary to protect subject-matter of proposed appeal – whether substantial prospect that special leave to appeal will be granted

Catchwords:

CORPORATIONS – not for profit – distribution of surplus on winding up – aged care home – sanction – loss of accreditation – buyer sought – representation will pay surplus to buyer – buyer increases bid – funds needed to improve facility – directions to liquidator, principles at [10]-[14] – requirements of constitution – recipient must prohibit directors’ fees – directors’ fees, principles at [41]-[49] – one interested recipient does not meet criteria – approach to distributing surplus of charity at [61]-[64].

Catchwords:

CIVIL PROCEDURE – cross-vesting – transfer of proceedings from Supreme Court of NSW to Federal Court of Australia – special federal matter – review of decision falling under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – limitation of Supreme Court’s jurisdiction – proceedings transferred

Catchwords:

CIVIL PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – whether proposed settlement is in the interests of the plaintiff

Catchwords:

TORTS – private nuisance – assessment of damages

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DEVELOPMENT APPLICATION – boarding house – determining which DCP controls apply – scale – visual character compatibility – amenity impacts – cross flow ventilation – application of contribution plans – contributions

Catchwords:

DEVELOPMENT APPLICATION – two residential towers comprising 145 dwellings – Newcastle city centre – development standard contraventions – design excellence – conciliation conference – agreement between the parties – orders

Catchwords:

ESTOPPEL – Proprietary estoppel – Encouragement – Where claim of encouragement not based on specific words – Where primary judge emphasised defendant’s knowledge of plaintiffs’ expectation – Whether estoppel as found properly characterised as estoppel by encouragement or acquiescence ESTOPPEL – Proprietary estoppel – Nature of promise – Where relief encompassed property acquired after encouragement and initial reliance – Where detrimental reliance by plaintiffs continuing – Whether necessary for all property the subject of relief to have been identified and owned by defendant at the time of encouragement and initial reliance ESTOPPEL – Proprietary estoppel – Detrimental reliance – Where plaintiffs found to have made “life-changing” decisions – Whether error in giving significant weight to plaintiff’s “hypothetical” evidence of counterfactual behaviour in making finding of reliance – Whether “countervailing benefits” received by plaintiffs by reason of reliance relevant to assessment of detriment – Whether plaintiffs would suffer substantial detriment if expectation departed from ESTOPPEL – Proprietary estoppel – Relief – Where relief involved “acceleration” of the encouraged expectation – Where constructive trust declared by primary judge – Whether to impose conditions on relief – Whether conditions necessary to “do equity” – Whether condition for payment of rent “conceptually inconsistent” with recognition of constructive trust

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – whether the design of apartments within the proposed residential development is acceptable – whether the proposed landscaping and communal open space areas are acceptable – proposed development complies with the provisions of SEPP65

Catchwords:

NEGLIGENCE — General principles — where appellant injured while climbing down from top of load haul dump machine (“LHD”) — whether employer created an unnecessary risk of injury by modifying LHD prior to the injury — where modification required appellant to climb to top of LHD to refuel where previously refuelling was done from the ground — where no evidence that any form of risk assessment was carried out — where rungs and handholds used for climbing already attached to LHD and considered adequate safeguards by employer TORTS — General principles — Contributory negligence — where employer relied on fact that appellant had climb to top of machine without incident numerous times prior to injury — where employer alleged that injury would not have occurred if appellant had been exercising sufficient care for his own safety — where appellant gave evidence that he had been firmly gripping the handholds when descending from top of LHD

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – amenity – character – contamination assessment – conciliation conference – agreement between the parties – orders

Catchwords:

CRIMINAL LAW – trial by judge alone – firearm offences – whether accused in possession of firearm

Catchwords:

PROCEDURE – exercise of discretion to grant early hearing date and expedition

Catchwords:

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, approve a proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied – Length of exclusivity period – Whether appropriate to consider break fee as percentage of enterprise value rather than equity value.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Uniform Civil Procedure Rules 2005 (NSW) r 49.19 – Review of Registrar’s decision not to transfer proceedings from the District Court to Supreme Court

Catchwords:

CONTRACT – construction of employment contract

Catchwords:

PROCEDURE: application for expedition to preserve the status quo of the dispute – issued raised by the summons not speculative – no interim relief sought – no demolition or other remedial relief sought in the summons – no other development impacted by the outcome of the proceedings – matter would take longer than one day to hear to finality – limited hearing days available due to COVID-19 backlog – no public interest in matter being heard expeditiously that was not present in most planning cases – proponent not concerned with any potential liability to third party purchasers arising out of the proceedings – expedition refused.

Catchwords:

CRIMINAL LAW – sentence – murder – plea of guilty – premeditated – intent to kill – aggravated by disposal of the body – manner of death and motive not disclosed.

Catchwords:

TORT – defamation – defendant in person provides two defences inadequately pleading justification – solicitor subsequently retained first retains and then drops the plea of justification while pleading qualified privilege – plea of triviality then abandoned as well – whether repeated amendments to pleadings warrants an order for costs to be assessed forthwith in a gross sum costs order – application refused

Catchwords:

TORTS – negligence – work injury damages – supermarket employee sustained back injury whilst lifting a crate of chicken carcasses – negligence established – contributory negligence not established; DAMAGES – assessment of claimed heads of damage

Catchwords:

CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — Cy-près scheme — Charitable purpose — Original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust

Catchwords:

CIVIL PROCEDURE – summary disposal - application for summary judgment – judgment for plaintiff – no defence COSTS – application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) – where cost order made

Catchwords:

CRIME – appeals – appeal against sentence – manifest excess – aggravated dangerous driving occasioning death conviction – extension of time –objective seriousness of the offence above mid-range – subjective features not out of ordinary or substantial – comparative cases – JIRS statistics

Catchwords:

CIVIL PROCEDURE – where plaintiff injured in motor vehicle accident – where determination made that injury not caused by accident – where application made by plaintiff for judicial review of decision to refuse further medical assessment – s 62 and s 63 of Motor Accidents Compensation Act 1999 – whether medical opinions could only have a material effect on the outcome of the previous assessment if there was also new information – where legislation misconstrued – where error in decision – where proper test is whether material capable of having a material effect on outcome of previous assessment

Catchwords:

HIGH RISK OFFENDERS — Continuing detention orders — Preliminary hearing — Appointment of psychiatrists or psychologists — Where defendant soon to be sentenced for further offences — Relevance of prospective sentence to further period of imprisonment in respect of power to make continuing detention order WORDS AND PHRASES — “total sentence” — Crimes (High Risk Offenders) Act 2006 (NSW), s 13B(3)(a)

Catchwords:

COSTS – liability for costs following settlement – determination of the basis upon which the successful defendant’s costs should be paid by a worker’s compensation insurer which brought the proceedings in the name of the plaintiff company by way of subrogated right pursuant to s 151Z of the Workers Compensation Act 1987 (NSW)

Catchwords:

LAND LAW – Strata title – contravention of by law – failure to comply with notice to remove animals – order for removal under s 157 of the Strata Schemes Management Act 2015 PRACTICE AND PROCEDURE – costs – s 60 of the Civil and Administrative Tribunal Act 2013 – no special circumstances

Catchwords:

MODIFICATION – residential flat building – additional level – reconfiguration of units – conciliation conference – agreement between the parties – orders

Catchwords:

MODIFICATION APPLICATION – application seeks the deletion of conditions that sought to make design amendments to the development for which consent was granted – whether the proposed front fence will impact on the significance of the heritage conservation area – whether the height and form of the proposed fence is inconsistent with the desired future character – whether a splay area is required to provide safe vehicular access – whether the proposed tree removal is acceptable.

Catchwords:

APPEAL – development application – residential flat building – breach of height development standard – conciliation conference – agreement reached

Catchwords:

CIVIL PROCEDURE – subpoenas – to produce documents or things – application for freezing order – bank records concerning proceeds of sale of defendant’s real estate – fishing expedition CIVIL PROCEDURE – interim preservation – freezing orders – defendant sells real estate during prolonged litigation – defendant a natural person resident in Australia – insufficient risk of dissipation – costs – whether separate from general costs of proceedings – second unsuccessful application – order for payment of fixed sum on account

Catchwords:

CRIME – appeals – appeal against sentence – drug offences – supply not less than large commercial quantity of methyl amphetamine – whether sentencing judge erred by double counting factors of aggravation – whether sentencing judge erred in failing to make findings as to remorse and prospects of rehabilitation – failure sufficiently to state reasons – no lesser sentence warranted – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – drug offences – supply not less than large commercial quantity of methyl amphetamine – whether sentencing judge erred by double counting factors of aggravation – whether sentencing judge erred in failing to make a finding as to remorse – no lesser sentence warranted – whether sentence lacked parity with sentence of co-offender – appeal dismissed

Catchwords:

PROFESSIONS AND TRADES - health care professionals - medical practitioners – application for stay of suspension of medical registration

Catchwords:

CRIME – Terrorism offences – Possessing things connected with a terrorist act – Possessing revolver – Reckless as to connection of the thing to the preparation for a terrorist act CRIME – Firearms offences – Supply loaded revolver to person who is not authorised to possess the pistol by a licence or permit. CRIME – Appeals – Appeal against sentence – Whether miscarriage of justice by admission of Exhibit in the absence of an annexure to that statement CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in finding sympathetic towards Islamic State and motivated to commit the offences because of such sympathy CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in finding that disclosed to applicant that revolver was to be used for the purposes of a terrorist attack CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in sentencing applicant on basis that he knew revolver was to be used to shoot a person CRIME – Appeals – Appeal against sentence – Multiple offences - Degree of accumulation between offences CRIME – Appeals – Appeal against sentence – Manifest excess

Catchwords:

CRIME – appeal and review – application to withdraw plea of guilty – whether integrity of plea challenged – where applicant anticipated lesser sentence CRIME – sentence – objective seriousness – revision or reformulation of the case presented below CRIME – sentence – commencement date for sentence – whether House v The King error established

Catchwords:

CONTRACTS — performance — discharge by performance — payment — sale of real property —prior expenditure on property by purchaser — alleged oral agreement to treat expenditure as deposit — collateral contract — restitution COSTS — party/party — specific court rules in relation to costs — whether proceedings could have been commenced in District Court — claim based on contract for the sale of land — purchaser a property developer — whether a “commercial transaction” — whether to depart from ordinary rule that plaintiff deprived of costs

Catchwords:

PRACTICE AND PROCEDURE – injunctions – freezing order – whether plaintiff demonstrated defendant’s conduct in relation to past dealings showed his probity could not be relied on

Catchwords:

CORPORATIONS — Members’ rights and remedies — Oppression — Winding up on the just and equitable ground — Failure to keep adequate books and records — Where conflicting sets of accounts needed to be reconstructed to ascertain companies’ financial positions — Where nature of significant account entries and transactions still cannot be explained — Where companies’ affairs not conducted for the benefit of the members as a whole. CORPORATIONS — Directors and officers — Directors’ duties — Duty to act in good faith in the best interests of company and for proper purpose — Duty not to use position as director or officer improperly — Directors’ involvement in transactions between a company in which they are a director and a company in which they have financial interests in. EQUITY — Fiduciary duties — Conflict of interest and duty — Informed consent — Directors’ involvement in transactions between a company in which they are a director and a company in which they have financial interests in.

Catchwords:

CONTRACTS – building and engineering contracts – residential building work – claim by beneficiary of implied statutory warranties – collapse of side retaining wall – whether builder constructed the wall – whether wall constituted ‘residential building work’ – rectification damages – whether works carried out were necessary and reasonable

Catchwords:

MENTAL HEALTH – criminal proceedings – fitness to be tried – Presser principles – agreement of parties and experts – accused unfit to be tried

Catchwords:

CIVIL PROCEDURE — administrative law — whether plaintiff should be given leave to appeal to amend summons — whether submission made by plaintiff addressing re-examination by approved medical specialist — where submission made by plaintiff — where medical appeal panel failed to consider request for re-examination — failure to consider mandatory consideration — jurisdictional error

Catchwords:

STAY – application pending leave to appeal – application before another puisne judge not trial judge or Court of Appeal – stay would serve no purpose as proceedings already otherwise stayed.

Catchwords:

CRIME – sentencing – accessory after the fact to murder – offender helped concealed getaway vehicle following public execution – moderate objective seriousness – no real subjective case STATUTORY INTERPRETATION – Crimes (Sentencing Procedure) Act 1999 s 25D(4)(a) – facts and evidence of accessory after charge “substantially the same” as original murder charge

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Jurisdiction – Unfair Dismissal Claim – whether applicant required to provide undertaking not to pursue in future an application for reinstatement under Workers Compensation legislation – whether refusal by applicant to provide undertaking deprives Commission of jurisdiction

Catchwords:

DEVELOPMENT APPEAL – subdivision of dual occupancy – frontage to different road – construction of beneficial and facultative provision in Environmental Planning Instrument – orders

Catchwords:

COSTS – indemnity costs – right under contract – also otherwise payable as more appropriate compensation of plaintiff.

Catchwords:

CRIMINAL PROCEDURE – Forensic Procedure – Interim order on minor – permitted without hearing LOCAL COURT – jurisdiction – mistake as to jurisdiction to order interim forensic procedure on child without hearing from the person.

Catchwords:

CRIME — Child sex offences — Sexual assault with child <16 — Circumstances of aggravation CRIME — Child sex offences — Persistent sexual abuse of a child CRIME — Child sex offences — Sexual intercourse with child >10 <14

Catchwords:

APPEAL – development application – multi-dwelling housing – affordable housing – conciliation conference – agreement reached

Catchwords:

PRACTICE AND PROCEDURE – applications – leave to amend pleadings – application by defendants to amend defences – where proceeding commenced in 2016 – where application made on the first day of the final hearing in 2020 – where no explanation given by the defendants for the delay – where plaintiffs suffer no prejudice by reason of the late application – where proposed amendment does not give rise to application to vacate hearing date – leave granted to the defendants to amend defences

Catchwords:

CIVIL PROCEDURE – class action or representative proceedings – separate determination of question of whether on its true construction s 173 of the Civil Procedure Act 2005 (NSW) authorises the making of an order by the Court requiring group members in this matter who have not signed the litigation funding agreement to pay an amount to the funder out of the proceeds of any settlement by way of return on expenditure, commission or other similar remuneration– removal of separate question to the Court of Appeal – whether leave previously granted for the filing of cross-summons seeking removal of separate question to the Court of Appeal should be revoked DECLARATORY RELIEF – whether there is a legal controversy capable of being the subject of declaratory relief between the parties – where there was at least equivocation on the part of the plaintiffs as to whether a common fund order would be sought as some precondition to negotiations during mediation – where plaintiff says it has not had substantial discussions or come to any view as to whether there would be would be any preconditions for settlement – where plaintiff has consented to the dismissal of the interlocutory common fund motion that was on foot

Catchwords:

CRIMINAL LAW - evidence - hearsay evidence - whether admission made with authority - co-conspirators rule - section 87 - previous ruling on same evidence in co-accused case - murder - joint criminal enterprise - where co-accused asserts accused was the shooter - shot the wrong guy - where three accused re-enter the premises - whether merely narrative of past events - whether in furtherance of common purpose - objection not taken in 5 week pre-trial hearing - where co-accused made timely and well-articulated objection - accused liable on two legal bases - joint criminal enterprise - principle in the first degree - evidence admissible to prove existence nature and scope of alleged criminal enterprise - evidence not admissible in direct liability case to prove accused the shooter

Catchwords:

MONEY CLAIM – loan associated with farming business – two separate deeds – interest payable – personal guarantees – default – defendants indicate that they do not wish appear at the hearing – amounts owed

Catchwords:

CONSUMER CLAIM – shipping contract; compensation JURISDICTION – federal matter, maritime claim

Catchwords:

APPEAL — leave to appeal from decision of Consumer and Commercial Division of Tribunal STRATA TITLE - order of Tribunal refusing inspection of financial information and accounting records of Owners Corporation - levies - levy register - privacy - exercise of discretion by Tribunal to refuse inspection of records - application of s 182 Strata Schemes Management Act 2015 - inspection of levy register granted

Catchwords:

ADMINISTRATIVE LAW – Hearing rule – Procedural fairness - Failure to identify whether the appellant’s director’s statements and assertions during the hearing were to be treated as evidence – Failure to accord opportunity for statements and assertions to be treated as evidence

Catchwords:

STATUTORY CONSTRUCTION – inspection of documents by third parties – rule 42 of the Civil and Administrative Tribunal Rules 2014 – where non-party seeks permission from registrar to inspect public access documents in registry relating to proceedings in the Tribunal – whether Tribunal has power to direct the Registrar to determine an application for access in a particular way- non-disclosure order – whether order should be varied or revoked

Catchwords:

TORTS – negligence – motor vehicle accident – liability admitted by respondent – primary judge awarded appellant limited damages for out-of-pocket expenses and past care only – whether primary judge erred in rejecting appellant’s evidence – rejection of evidence credit-based and rational – no arguable basis for challenges to primary judgment

Catchwords:

APPEAL – development application – child care centre – whether there is a breach of the floor space ratio development standard – whether outdoor play areas constitute gross floor area – bulk and scale – character

Catchwords:

PROFESSIONS AND TRADES – lay associate of law practice – used trust monies of the law firm for her personal benefit and caused trust account irregularities by intermixing trust monies with other monies – finding that conduct constituted grounds for indefinite disqualification – costs order refused.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to dwelling house – conciliation conference – agreement between the parties – orders

Catchwords:

SUBPOENA - application to set aside subpoena issued to Roads and Maritime Services - whether the issuing of a subpoena to a third party when that party has also been issued a statutory notice to produce the same documents constitutes an abuse of process - consideration of whether the decision of the High Court in Environment Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74; (1993) CLR 477 applies by analogy - appropriate to apply the High Court’s decision by analogy - issue of subpoena not an abuse of process - application to set subpoena aside as abuse of process rejected SUBPOENA - subpoena said to be invalid as founded on documents unlawfully obtained via notice pursuant to s 119J of the Environmental Planning and Assessment Act 1979 - consideration of bases potentially available for the valid issuing of a notice pursuant to s 119J - s 119J notice validly issued - subpoena validly issued on this basis - second basis for issuing subpoena founded on information provided to a council officer by an employee of the Defendant during the course of a site inspection - information provided was sufficient basis to issue the subpoena - subpoena validly issued on this basis - third basis for issuing subpoena founded on information provided to a council officer by an employee of Roads and Maritime Services - information provided was sufficient basis to issue the subpoena - subpoena validly issued on this basis - fourth basis for issuing subpoena founded on documents obtained pursuant to an application to Roads and Maritime Services under the Government Information (Public Access) Act 2009 - information provided was sufficient basis to issue the subpoena - subpoena validly issued on this basis - application to set subpoena aside as abuse of process rejected on these bases SUBPOENA - application to restrict documents to be produced pursuant to subpoena to those documents relating only to the Defendant’s activities on the dates nominated in each charge - Prosecutor has given required notice that it intends to rely on coincidence and tendency evidence arising from documents relating to the Defendant’s activities on the other dates for which documents have been sought - not appropriate to restrict access to documents to limited dates - whether broader range of documents should be admitted at trial for coincidence or tendency purposes a matter for trial judge - documents to be produced to Prosecutor in satisfaction of subpoena not to be limited to dates nominated in the two charges

Catchwords:

DEVELOPMENT APPLICATION – conditions relating to tree removal and geotechnical – existing consent for a swimming pool – conciliation conference – agreement between the parties – orders

Catchwords:

EVIDENCE — Privileges — Client legal privilege — Legal advice and litigation — waiver EVIDENCE — Privileges — Common interest privilege Evidence — Company books and records — s247A of Corporations Act 2001 (Cth) CIVIL PROCEDURE — Subpoenas — To produce documents or things — Privilege and other claims concerning access to produced documents

Catchwords:

LAND LAW – contract for the sale of land – validity of Notice to Complete – parties enter into contract upon exercise of call option granted by defendant – plaintiff nominated as purchaser under terms of the call option – defendant sends land tax certificate to plaintiff showing land tax charge – completion does not occur on contractual date for completion – defendant issues Notice to Complete – whether defendant in position to issue Notice to Complete – where plaintiff claims defendant in default of agreement for breach of warranty prescribed under the Conveyancing (Sale of Land) Regulation 2017 – plaintiff further claims that defendant not ready, willing and able to proceed to completion where not in a position to issue clear land tax certificate – held that prescribed warranty did not form part of contract – held that in any event a breach of this kind has no relevant bearing upon obligations to complete – held that defendant was in a position to obtain a clear land tax certificate by the time fixed for completion – Notice to Complete held to be valid LAND LAW – contract for the sale of land – termination – validity of termination – on day fixed for completion parties continue to exchange documents including settlement figures – solicitor for plaintiff requests that clear land tax certificate be provided on completion – solicitor for defendant states that land tax will be paid from settlement proceeds – completion does not occur – defendant issues Notice of Termination – not in dispute that plaintiff not ready, willing and able to complete – whether defendant validly terminated contract – held that defendant not ready, willing and able to complete because not in a position to provide a clear land tax certificate on completion – termination held to be ineffective

Catchwords:

PRACTICE AND PROCEDURE – s 63 of the Civil and Administrative Tribunal Act – power to correct error in decision – scope of power – principles to be applied – power to correct name in final order. CONTRACT LAW – residential building work – breach of statutory warranties – s 48MA of the Home Building Act 1989 – work order the preferred outcome – Tribunal declining to make a work order DAMAGES – breach of contract – single quotation provided – whether award is reasonable and appropriate

Catchwords:

MERITS REVIEW – REVENUE LAW – payroll tax - Payroll Tax Act 2007 – Division 7 contractor provisions - relevant contract - Division 8 employment agents - employment agency contract - - onus of taxpayer.

Catchwords:

INTERLOCUTORY ORDER – disciplinary action – cancellation of contractor licence – application for stay – whether condition should be imposed

Catchwords:

ADMINISTRATIVE REVIEW - Victims Rights and Support – Time limits for an application for victims support where the applicant was an adult when the act of violence occurred

Catchwords:

ADMINISTRATIVE LAW – Freedom of information – consultation with third parties – risk of harm, serious harassment or serious intimidation

Catchwords:

ADMINISTRATIVE REVIEW – Security industry – Licences – Where applicant convicted of offence, under firearms legislation, of failing to store ammunition separately from firearm - Where respondent revoked applicant’s security licence – Whether revocation of licence was required by law – Whether offence of failing to store ammunition separately from firearm was an offence relating to the possession of a firearm

Catchwords:

ADMINISTRATIVE REVIEW – health information – review of conduct of agency admitted to be a contravention of Health Privacy Principle – ancillary order that the agency search its records and correct any documents containing incorrect information

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COSTS – administrators seek costs order against plaintiffs unsuccessful in restraining second meeting of creditors – no reason to depart from r 42.7 UCPR

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Catchwords:

TORTS – intentional – assault and battery – false imprisonment – justification for arrest – driving offences – need to identify suspect – claim of preventing fabrication of evidence and repetition of offences – compliance with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(3)(b), (e) POLICE – use of force – arrest – driving offences – pointing gun at offender – handcuffing offender – conveying to police station – whether force used reasonably necessary – compliance with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230, 231 DAMAGES – assessment – intentional torts – compensatory damages – aggravated damages – psychological injury – causal connection with arrest – vindication of claimant’s right to liberty and bodily integrity – Civil Liability Act 2002 (NSW) not applied

Catchwords:

COSTS – application to vary costs order – distinct applications for leave to appeal against security for costs and third party costs order – application granted

Catchwords:

APPEAL – administrative decision under Administrative Decisions Review Act – no issue of principle

Catchwords:

CRIMINAL LAW – evidence – Crown witness did not attend to give evidence – Crown’s application under s 65 of Evidence Act 1995 (NSW) to adduce content of witness’ police statement – exception to hearsay rule – whether witness was ‘not available’ – whether all reasonable steps were taken to locate the witness and procure his attendance

Catchwords:

EQUITY – Interlocutory relief – where plaintiff seeks to restrain defendants from operating a gym facility – where plaintiff established a serious question to be tried – whether balance of convenience favours the grant of an injunction – whether damages an adequate remedy – where gym would close and cause hardship to third party gym members, employees and contractors if injunction granted – where risk to plaintiff’s reputation and potential loss of gym’s membership base if injunction refused – where case will proceed to final hearing on liability in four weeks – interlocutory relief as sought refused – interlocutory relief granted for plaintiff to appoint a manager of the gym facility

Catchwords:

Employment and industrial law - enterprise agreement approval

Catchwords:

CRIME – sentencing – CCTV footage – tender of CCTV footage allowed even though where agreed facts

Catchwords:

CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters — Damage not suffered at time of entry into original agreement but when future matter fails to come to pass CONTRACTS — Breach of contract — Consequences of breach — Right to damages — Construction of obligation to “do all things necessary and sign all appropriate documentation to” bring about specified result — Promise to achieve that result and not limited to best or reasonable endeavours

Catchwords:

CIVIL PROCEDURE – professional negligence – where all parties seeking to amend earlier orders made – replacement timetable sought – new orders made – hearing date confirmed

Catchwords:

BUILDING AND CONSTRUCTION – payment claim served by subcontractor on builder under Building and Construction Industry Security of Payment Act 1999 (NSW) – no payment schedule served by builder – alleged agreement between sub-contractor and builder that builder pay amount less than the amount claimed in payment claim in satisfaction of payment claim – where builder then paid agreed amount – whether that agreement void by reason of s 34 of the Act BUILDING AND CONSTRUCTION – whether subcontractor entitled to summary judgment for difference between amount claimed in payment claim and amount paid pursuant to the agreement

Catchwords:

PRACTICE AND PROCEDURE – Application for summary dismissal – Uniform Civil Procedure Rules 2005 (NSW) r 14.28 – Whether to strike out paragraphs of defence and cross claim Application for separate determination of questions – r 28.4

Catchwords:

REAL PROPERTY – Conveyancing Act 1919 (NSW) s 37A – where real property was sold by the second defendant to the third defendant at an undervalue and proceeds distributed immediately – where transactions were completed soon after the second defendant became aware that the plaintiff was contemplating litigation against it for alleged building defects – whether alienations were made with intent to defraud creditors – HELD – the alienations were made with intent to defraud the plaintiff as a creditor.

Catchwords:

CORPORATIONS — Voluntary administration — Deed of company arrangement — Leave pursuant to s 444E to proceed with proceedings against company

Catchwords:

PROSECUTION – sentencing – plea of guilty to breach of National Parks and Wildlife Act 1974 for seed collection in national park – application of s 10 of Crimes Sentencing Procedure Act 1999

Catchwords:

ANIMALS – plaintiff attacked and wounded by two dogs owned by the defendant – whether strict liability applies pursuant to s 25(1) of the Companion Animals Act 1998 (NSW); DAMAGES – assessment of claimed heads of damage

Catchwords:

CRIMINAL LAW - evidence - leave to cross-examine prosecution’s own witness - whether evidence unfavourable to the prosecution - whether prior inconsistent statement - relevant considerations - leave granted but limited to particular evidence and inconsistent statements

Catchwords:

DEVELOPMENT APPLICATION – residential flat buildings – amenity – height standard non-compliance – cl 4.6 written variation request – conciliation conference – agreement between the parties – orders

Catchwords:

CRIMINAL LAW – sentence appeal – aggregate sentence – offenders charged with different crimes – whether parity principle applies to indicative sentences for large commercial quantity supply offence – understandable sense of grievance – whether co-offender’s indicative sentence manifestly inadequate – whether applicant had a legitimate sense of grievance

Catchwords:

TRADES AND PROFESSIONS – reinstatement of health practitioner under the Health Practitioner Regulation National Law COSTS- applicable principles where Tribunal is conducting an inquiry into an application for review of a cancellation order under s 163B of the Health Practitioner Regulation National Law

Catchwords:

PRACTICE AND PROCEDURE – late application to vacate hearing date – late application to amend Statement of Claim – inability to articulate the proposed amendment – failure to give reasons for late application – Notice of Motion to vacate hearing date dismissed.

Catchwords:

COSTS – damages of $0 awarded in assessment hearing following a claim for personal injury – costs awards in nominal claims – whether plaintiff should be ordered to pay defendant’s costs – whether plaintiff should have “commenced and continued” proceedings in the District Court (Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 42.35(2)) – order for each party to pay their own costs of the proceedings

Catchwords:

CRIMINAL LAW - evidence - unfavourable witness - whether leave should be granted to cross-examine - whether prior inconsistent statement - where earlier application granted on limited basis - whether leave should be granted to allow Prosecutor to put motive to witness - alleged motive to assist the accused - application granted

Catchwords:

COSTS – gross sum costs order – s.98(4)(c) Civil Procedure Act 2005 – plaintiff seeks order following attempts to enforce judgment and garnishee orders – legal fees and disbursements reasonable and proportionate – discounted to reflect costs order in principal judgment made on a party and party basis

Catchwords:

COSTS – derivative action – liquidators appointed to company – plaintiff seeks dismissal with no order as to costs on basis of Lai Qin – defendant expects liquidators may pursue same cause of action, potentially funded by plaintiff – r 42.20 UCPR applies.

Catchwords:

SUCCESSION — Family provision — Approval of release

Catchwords:

CORPORATIONS – parents lend $800,000 to son to buy ice cream business in Australia – parents live overseas – company formed – parents are shareholders and son is director – son runs business – son repays half of loan – son allotted 1,800 shares and becomes majority shareholder – son repays loan – son dies leaving shares to de facto husband – parents seek to correct register 14 years after shares allotted. SHARE ISSUE – power to allot shares – principles at [115]-[126] – allotment with knowledge and consent of parents. DIRECTORS – power to appoint director – whether director had power to appoint replacement director by a Will – cannot ‘hand down’ a directorship – power to appoint director ceased on death, at [154]-[159] – s201F Corporations Act 2001 at [170]-[171]. PROBATE – whether executor can exercise power to take appointment as director prior to grant of probate, considering Lockrey v Barnard James Fussell [2019] NSWCA 299 at [163]-[167] – appointment ineffective in any event – section 44 Probate and Administration Act does not cure invalid acts. CORPORATIONS – s 1322 Corporations Act – “just and equitable” at [176] – “substantial injustice” at [178]. EVIDENCE – events 16 to 20 years ago – reliance on what deceased said at [7] – forgery – onus and standard of proof at [8]-[9] – comparison of handwriting at [82] – Jones v Dunkel inference from failure to produce documents at [138] EQUITY – laches at [181]-[194] – estoppel at [195]-[199] – plaintiffs’ silence did not amount to a representation as no duty to inform the defacto husband

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and agreements – application for approval of contract agreement – agreement approved

Catchwords:

EQUITY – Interlocutory relief – where defendant seeks interlocutory injunction that the plaintiffs pay 40% of certain tax rebates received by the first plaintiff into a controlled monies account – where defendant established a serious question to be tried – whether balance of convenience favours the grant of an injunction – whether damages an adequate remedy –where the first plaintiff provided an undertaking not to reduce its cash levels beyond the amount claimed by the defendant, excepting payments incurred in the ordinary course of business – interlocutory injunction refused on basis of undertaking

Catchwords:

CORPORATIONS – Winding up – Orders and directions in respect of past and future conduct of liquidations – Companies in liquidation did not carry on activities other than as trustees – Companies disqualified as trustees due to insolvency – Directions that all company assets and liabilities are trust assets and liabilities. CORPORATIONS – Winding up – Orders and directions in respect of past and future conduct of liquidations – Liquidators exceeded powers as bare trustee in selling trust property – Whether liquidators acted honestly and reasonably and should be excused for past breach of trust – Whether to grant direction permitting liquidators as bare trustees to sell assets – Liquidators permitted to sell trust assets in future where no present likelihood of new trustee being appointed – Priority of distribution of trust assets – Whether trust assets in trustee’s liquidation to be distributed in accordance with priorities set out in s 556 of Corporations Act 2001 (Cth). CORPORATIONS – Winding up – Liquidators’ costs and remuneration – Where all the companies’ assets were trust assets – Liquidators’ reasonable costs and remuneration may be met through trust assets .

Catchwords:

SENTENCING – infliction of grievous bodily harm - relevant factors on sentence – totality with existing sentences - moral culpability – objective seriousness – aggravating factors – breach of conditional liberty – where plea of guilty entered at first opportunity – penalties – imprisonment

Catchwords:

ABORIGINAL LAND RIGHTS – claim of Crown land – whether Helensburgh police station paddock lawfully used and/or occupied at date of claim in 2010 ABORIGINAL LAND RIGHTS – claim of Crown land – whether Helensburgh police station paddock lawfully used and/or occupied at date of claim in 2016 ABORIGINAL LAND RIGHTS – claim of Crown land – whether Helensburgh police station residence lawfully occupied at date of claim in 2016

Catchwords:

SUCCESSION — Family provision — Claim by adult child for provision from deceased father’s estate

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Proceedings dismissed without hearing on merits

Catchwords:

LAND LAW – residential tenancy – whether the Tribunal erred in its consideration of the discretionary provisions of s 91 and s 154E of the Residential Tenancies Act 2010 – whether the Tribunal erred in concluding that there are no exceptional circumstances before the Tribunal justifying a period of suspension beyond the maximum 28 day period pursuant to s 154G of the Residential Tenancies Act 2010 – whether the application to terminate the tenancy was made out of time and whether the Tribunal was required to consider whether the application was within time but had failed to do so – whether the Tribunal unreasonably concluded that the appellant would not suffer “unfair hardship” if the tenancy was terminated – alternatively whether that finding was against the weight of the evidence APPEAL – whether the Tribunal failed to afford the appellant procedural fairness

Catchwords:

CONTRACTS — Formation — Agreement — Intention to make concluded bargain — Where business partners (joint directors of company) splitting business — Where post contractual conduct demonstrates parties intended to enter legal relations CONTRACTS — Term — Where parties did not discuss any term as to duration — Contract for an indefinite period CONTRACTS — Termination — Repudiation or abandonment of contract — Where contract still being performed but with breaches by both parties COMMERCE — Restraint of trade — Validity and reasonableness — Legitimate interests — Where restraint intended to make business look different — Found to be anti-competitive — Restraint unreasonable to protect goodwill — Lack of evidence regarding goodwill — Refusal to grant injunctive relief

Catchwords:

ADMINISTRATIVE LAW – privacy – review of conduct of a public sector agency in collecting personal information from the applicants for the purpose of assessing whether a prospective overseas student will meet the Genuine Temporary Entrant (GTE) and financial requirements specified by the Australian Government for the issue of a student visa – whether the collection of this information for this purpose is a lawful purpose that is directly related to a function or activity of the University and the collection of that information is reasonably necessary for that purpose (s 8 of the Privacy and Personal Information Protection Act 1998) – whether the conduct of the public sector agency contravened the information protection principles in s 9, 10 and 11 of Privacy and Personal Information Protection Act 1998.

Catchwords:

CRIME – SENTENCE APPEAL – importation of commercial quantity of cocaine – characterisation of offender’s role in syndicate – manifest excess – offender was principal in Australia – “middle manager” – no error in characterisation – no manifest excess – if “crushing” sentence, then due to seriousness of offence at offender’s age – appeal dismissed

Catchwords:

CRIME – SENTENCE APPEAL – serious domestic violence – choking of victim occasioning actual bodily harm – permissible and appropriate for sentencing judge to take account of acts leading up to choking – taken into account to show three offences part of one course of conduct for totality purposes – no De Simoni issue – no error in characterisation of objective seriousness – appeal dismissed

Catchwords:

CRIMINAL LAW – application for permanent stay of indictment on individual and composite grounds – applicant charged with the murder of his wife in 1982 – ODPP’s decision to prosecute in 2018 reversing earlier decisions not to prosecute – extensive pre-trial publicity and commentary, including a podcast series in 2018 in which the applicant’s solicitor and Deputy State Coroner were interviewed – whether podcast caused irremediable prejudice justifying permanent stay of proceedings – whether apprehended unfair consequences of pre-trial publicity / commentary are capable of being relieved against by directions to jury and other orders – whether applicant is irremediably prejudiced by an unreasonable delay in initiating the prosecution – whether police misconduct has caused incurable prejudice – whether decision to prosecute was influenced by pre-trial publicity and commentary, including by NSW Commissioner of Police – whether that amounted to an abuse of process justifying a permanent stay of proceedings

Catchwords:

DEVELOPMENT APPLICATION – residential flat building - conciliation conference – agreement between the parties – orders

Catchwords:

COMPULSORY ACQUISITION – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to existing dwelling – heritage conservation – amenity – conciliation conference – agreement between the parties – orders

Catchwords:

CIVIL PROCEDURE – vexatious litigants – Vexatious Proceedings Act 2008 (NSW) – leave to institute proceedings – where defendant to possession proceedings issued summonses to amend defences in upcoming motions for summary judgment seeking possession against him – whether applications to amend are vexatious – where previous applications to amend refused - where applicant impliedly seeking to withdraw admissions he made at first instance – where amendments amount to challenges to judgment on earlier amendment applications – where leave refused to appeal against earlier judgment - where applications an abuse of process, instituted without reasonable ground and for a wrongful purpose – leave refused

Catchwords:

CIVIL PROCEDURE – vexatious litigants – Vexatious Proceedings Act 2008 (NSW) – leave to institute proceedings – where applicant has issued two summonses for leave to file notices of motion in proceedings seeking summary judgment for possession against him – applicant seeks leave to cross-examine witnesses and to issue a Notice to Produce – where notice under r 35.2 UCPR does not require leave under the Vexatious Proceedings Act – whether there is a prima facie ground for Notice to Produce – whether documents sought to be produced are relevant to any issue on the summary judgment application – where no basis for claim – leave refused

Catchwords:

CRIMINAL LAW – appeal against sentence – distortion well beyond statutory ratio by pre-existing sentence structure – strong subjective case – intellectual disability – appeal allowed – applicant re-sentenced

Catchwords:

PROFESSIONAL DISCIPLINE- LEGAL PRACTITIONERS- Solicitor- alleged professional misconduct- breach of Legal Profession Act 2004, s260 (intermixing of money), improper use of trust money, causing trust account deficiency. Admission of statutory breaches and most asserted facts- assertion of innocent mistake, reliance upon bookkeeper and external auditors. Finding of unsatisfactory professional conduct but not of professional misconduct. Penalty orders- purpose of reprimand, fine. Respondent’s standing, acceptance, insight, contrition and undertaking to Tribunal and Law Society. Reprimand, without a fine, constituted sufficient public ‘marking-out’ of expected professional standards, sufficient public protection and sufficient disapprobation. Reprimand and costs orders made.

Catchwords:

CRIMINAL LAW – appeal against conviction and sentence – appellant found guilty of murder – whether verdict unreasonable – whether evidence capable of supporting verdict – sentence of 21 years with non-parole period of 15 years and 9 months – whether error in assessing objective criminality of offence – whether issue of delay properly considered – whether sentence manifestly excessive – appeal dismissed

Catchwords:

SENTENCE – sexual intercourse with child under the age of 10 – groom child for unlawful sexual activity – position of authority- first offence- in the home of the child – in the presence of another child

Catchwords:

PRACTICE AND PROCEDURE – Application for further security for costs – No point of principle Application for discovery – Where the documents are not relevant to a fact in issue – No point of principle

Catchwords:

TORT – defamation – assessment of damages

Catchwords:

CIVIL PROCEDURE — Parties — Joinder — Of defendants – proposed joinder of two further named defendants CIVIL PROCEDURE — Pleadings — Amendment - Form and content of pleading – whether the proposed Amended Statement of Claim properly pleads the causes of action alleged – whether the amended Statement of Claim articulates the risk of harm - leave to file amended Statement of Claim refused

Catchwords:

COSTS – List Response claiming privilege against self-incrimination - motion to strike out Response on basis that claim for privilege inadequately articulated – resolved on basis defendants circulate Amended Response – proposed Amended Response resolved shortcomings in original response – leave granted to file Amended Response

Catchwords:

HIGH RISK OFFENDERS — Continuing detention orders — Application – whether a continuing detention order or an extended supervision order is appropriate in the circumstances – serious sexual offender – whether the offender poses an unacceptable risk of committing another serious offence if not kept in detention - s5C(d) Crimes (High Risk Offenders) Act 2006

Catchwords:

PROCEDURE – Parties – Commencement of proceedings by beneficiary of deceased estate without a grant of probate or administration – Proceedings a nullity – Availability of remedial orders in case management of proceedings. PROCEDURE – Parties – Claim on behalf of a deceased estate – Proper plaintiff is legal personal representative with grant of probate or administration – Availability of representative proceedings brought by beneficiary, with joinder of legal personal representative as a defendant. AGENCY – Enduring power of attorney – Donee possessed of actual authority to benefit self – Whether donee accountable, as a fiduciary, to donor for self dealing transactions – Conveyancing Act 1919 NSW, Part 16

Catchwords:

APPEALS – leave – applicant injured thumb when opening overhead compartment on international airflight – whether occurrence of injury was an “accident” within meaning of Art 17, Montréal Convention 1999 – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 9E – no question of principle – proposed appeal wholly concerned with factual findings – whether findings glaringly improbable – leave to appeal refused

Catchwords:

CIVIL – Slip rule – Correction of sum in respect of rectification works COSTS – Indemnity Costs – Calderbank offer

Catchwords:

EVIDENCE - evidence of admission in WeChat exchange - evidence admissible against one of six accused - application to refresh memory from statement - where statement made 27 months after “chat” - impressionistic recall of conversation - relevant considerations - leave to put document in hands of witness refused EVIDENCE - words and phrases - “fresh in the memory” - statutory construction - whether phrase should be construed wherever it appears in statute - where one section amended to define phrase - where section under consideration not amended

Catchwords:

CRIME – bail – release application – show cause – unable to prepare for trial in prison – unacceptable risk – stringent bail conditions – conditional bail granted

Catchwords:

CIVIL PROCEDURE — Pleadings — Where leave granted to defendant in related proceedings in this Court to withdraw claim for redundancy — Where defendant commenced proceedings in Federal Circuit Court seeking redundancy payment — Anti-suit injunction — Whether new claim has no merit — Whether vexatious and oppressive or with purpose of frustrating or obstructing proceedings in this Court — Nature of claim

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Contract — Termination without notice — Whether original written contract applied or had been varied or discharged in ongoing relationship of employment — Objective assessment of parties' mutual intention — Necessity for implied term as to reasonable notice in new contract — Determination of reasonable notice period EMPLOYMENT AND INDUSTRIAL LAW — Contract — Remuneration — Discretionary bonuses — Employee's eligibility for payment of benefits under short and long term incentive plans — Nature and extent of employer's discretion to assess and pay bonuses — Limits on the exercise of a discretion CONTRACTS — Remedies — Damages — Loss of chance — Loss of opportunity to obtain commercial benefit — Effect of reasonable notice period on employee's entitlement to payment of benefits under incentive plans EMPLOYMENT AND INDUSTRIAL LAW — Contract — Repudiation — Acceptance of repudiation — Impracticality for employee to do other than accept repudiation — Party cannot benefit from its own wrong

Catchwords:

APPEALS – residential tenancy- water charges paid by tenant when not required to pay – claim for refund - quantum to be repaid – adequacy of reasons – redetermination required

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Catchwords:

APPEAL – development application – dual occupancy – conciliation conference – breach of minimum site frontage development standard - agreement reached

Catchwords:

DEVELOPMENT APPLICATION –subdivision – dual occupancy dwellings – compatibility with character and streetscape – non-compliance with FSR seeking variation to development standard – acid sulfate soil investigation

Catchwords:

APPEAL – Conciliation Conference – modification application – works on council land – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – site amalgamation / isolated site

Catchwords:

PROFESSIONS AND TRADES – health and professionals – dental practitioners – stage 2 disciplinary proceedings – inappropriate prescription of Schedule 8 and Schedule 4D drugs – failure to make clinical notes – failure to secure drugs- finding of professional misconduct warranted cancellation of registration – costs order made.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision – essential services – insufficient information in order to assess development application – flood risk

Catchwords:

CORPORATIONS – rights issues from 1962 to 1997 – dilution of shareholding – general equitable jurisdiction invoked – unclear how relief sought arises from pleaded facts between these parties.

Catchwords:

COSTS – determination of a separately identifiable matter or a discrete aspect of the case COSTS – costs payable forthwith

Catchwords:

COSTS — Party/Party — Court’s discretion — Factors relevant to exercise of discretion — Costs in Local Court proceedings and subsequent appeal to Supreme Court — Multiple Calderbank offers made by active parties in both proceedings — Conduct which prolonged proceedings

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – bias – apprehended bias on the ground of prejudgment – where members of the Court sat on previous unsuccessful applications by the applicant

Catchwords:

CORPORATIONS — Winding up — Application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – Whether company is and will be solvent in future – Whether to terminate winding up.

Catchwords:

CIVIL PROCEDURE — Separate determination of questions — final decision — whether powers of attorney forged — mortgages and loan agreements executed pursuant to forged powers of attorney LAND LAW — Torrens title — Indefeasibility of title — Effects of indefeasibility — Construction of third party mortgages — Whether indefeasibility extends to covenants contained in the mortgages and loan agreements — Identification of debt secured by mortgage representing charge on the land — Where no sum advanced to or at request of mortgagors — Whether acknowledgement of receipt or indebtedness — Meaning of "Secured Money" and "Collateral Documents" in mortgages GUARANTEE AND INDEMNITY — Factors affecting validity of guarantee — Forgery LAND LAW — Torrens title — The register — Correction of the register

Catchwords:

STATUTORY INTERPRETATION — jurisdiction – Mental Health Review Tribunal – Mental Health Act 2007 (NSW), s 38(4) – statutory construction – whether Mental Health Review Tribunal has power to order the transfer of an involuntary patient from one mental health facility to another mental health facility, either generally or so as to effect a transfer from one level of security facility to a lesser level of security facility

Catchwords:

COSTS – administrative review proceedings – whether special circumstances established – fixed sum costs order

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – refusal to deal with application – whether substantial and unreasonable diversion of agency’s resources – consideration of s 60(3A) and (3B) factors – meaning of “general public interest” in s 60(3B) – nature of balancing task to be undertaken by decision-maker in determining whether dealing with an application would require an unreasonable and substantial diversion of the agency’s resources

Catchwords:

JUDGMENTS AND ORDERS — amendment, variation or setting aside judgment or order — correction under slip rule – Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(1), 37.17 JUDGMENTS AND ORDERS — interest — pre-judgment interest — where difficulties in determining the period over which the plaintiff’s loss accrued – determination of applicable rate of interest over several years

Catchwords:

CRIME – sentencing – offence committed while offender on parole for previous federal offence – automatic revocation of parole order – operation of provisions of Subdivision B of Division 5 of Part 1B of the Crimes Act 1914 (Cth) addressing revocation of federal parole – impossibility for sentencing judges of imposing a sentence that does not involve some distortion of the common law and statutory principles that govern the sentencing task

Catchwords:

SUCCESSION – Administration of estates – Persons entitled on intestacy – Distribution order – Multiple spouses – Where the deceased died intestate – The Plaintiff asserts that she was a “spouse” of the deceased upon the basis that she was in a de facto relationship with him that had been in existence for a continuous period of two years (or more) – Dispute about the nature of the relationship – Competing claim by the Defendant who was a de jure wife of the deceased although they had been separated for some years before his death – If more than one spouse, then question arises as to how the estate of the intestate should be distributed as no distribution agreement entered into between the spouses – Order sought that the property of the intestate should be distributed between the spouses in a way that the Court considers just and equitable pursuant to s 126 of the Succession Act 2006 (NSW) – Meaning of “just and equitable” – Further question arises, if more than one spouse, to whom should grant of administration on intestacy be made – Parties agree to appoint an independent person to be the administrator of the estate of the deceased, but before the appointment is made, they wish to consider whether grant should be made to one, or other, of them. WORDS AND PHRASES – “Just and equitable” – Succession Act 2006 (NSW), s 126(3)

Catchwords:

CONSTITUTIONAL LAW — Judicial power — Whether decision of the NSW Civil and Administrative Tribunal as to its jurisdiction was an exercise of the judicial power of the Commonwealth – Nature of the anterior jurisdiction of the Tribunal to consider its authority to decide CONSTITUTIONAL LAW — Judicial power — Whether the Tribunal has power to order costs consequential on a dismissal or transfer of proceedings for want of Federal jurisdiction – Whether power to make such an order outside of the State’s legislative competence to confer on the Tribunal– Whether making such an order would occasion the Tribunal impermissibly exercising the judicial power of the Commonwealth

Catchwords:

EQUITY — Equitable remedies — Equitable compensation — where there is a dispute as to the final orders that should be made, including with respect to land and capital gains tax — where, in the circumstances, the Court will make final orders including some amendments to the proposed orders

Catchwords:

PRACTICE AND PROCEDURE – plaintiffs’ claim for rescission of contract for purchase of property ‘off the plan’ – claim depends upon proof that special condition enlivened – condition is whether a party to the contract was mentally ill under Mental Health Act 2007 (NSW) – allegation that first plaintiff was mentally ill in requisite sense – first plaintiff outside jurisdiction at date the proceeding commenced – second plaintiff unable to prosecute claim in absence of first plaintiff – unlikely prospect first plaintiff will return to jurisdiction within next 2 years – second plaintiff in default of direction to serve evidence – whether proceeding should be dismissed for want of despatch – degree of injustice if order for dismissal made – consideration of prospects of success of action

Catchwords:

EXPEDITION – Summons under s 32 of Evidence on Commission Act 1995 – Application for expedition – Whether factors warranting expedition – Whether disentitling delay or oppression – Hearing of summons expedited in the circumstances

Catchwords:

CONTRACTS – building and construction – plaintiff supplied carpentry and joinery services to customer at three separate commercial premises – dispute about payment terms – whether customer liable to pay more than estimated costs previously agreed to – whether agreement to final payment terms can be inferred – whether construction works were defective – whether rectification works necessary or reasonable to be undertaken – relevance of any lack of intention to carry out rectification works EVIDENCE – business records admitted – no testimonial evidence to support inferences said to be drawn from records – approach to considering weight to be given to records

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW - victimisation – extension of time granted – Respondent raised objection to out of time on first day of hearing - failure of the Respondent to call decision maker – reverse onus not discharged – compensation awarded

Catchwords:

COSTS – Indemnity Costs – Calderbank offers – whether it was reasonable for the cross-claimants to reject the Calderbank offers made by the cross-defendants – whether awarding a lump sum assessment of costs is appropriate

Catchwords:

DISABILITY DISCRIMINATION – “on the grounds of” -victimisation – vilification - aiding and abetting.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – residential development – demolition – strata subdivision – agreement between the parties

Catchwords:

PROCEDURE – Notice of Motion – leave sought for amended plans and to amend the development application – objected to by the Respondent – Leave refused

Catchwords:

TORT – defamation – plaintiff brings two actions for defamation against the same defendants – defendants’ application for the hearings to be heard together – order for proceedings to listed together for hearing before the same trial judge, with the proviso that the sequence of the hearing is to be a matter for the trial judge

Catchwords:

Service – statutory demands – express post – Google Maps pin – GPS coordinates – whether delivered to correct house – whether delivered at all – whether delivered the day before Coronavirus Economic Response Package Omnibus Act commenced

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By person against whom an interlocutory order is made with leave on a question of law alone — whether leave should be granted

Catchwords:

CIVIL ENFORCEMENT - failure to comply with clean-up orders made pursuant to s 124 of the Local Government Act 1993 - premises in an unhealthy and unsafe condition - owner of premises ordered to clean them up within 60 days - substitute performance order appropriate if premises not cleaned up as ordered COSTS - Council seeks gross sum costs order - appropriate that gross sum costs order be made - property owner ordered to pay Council’s costs in the gross sum of $8,500 within 28 days

Catchwords:

COSTS – application for indemnity offer – offer made prior to commencement of proceeding – whether offeree’s rejection of offer was unreasonable – offer of compromise – whether offer amounted to a real and genuine compromise

Catchwords:

APPEAL - District Court -appeal against conviction- heavy transport loading requirements - remittal from Court of Criminal Appeal – unrepresented appellant – costs

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Health Care Complaints Act 1993 (NSW) s 90B – Whether NCAT had jurisdiction to hear disciplinary proceedings against the plaintiff – Whether NCAT is a “disciplinary body” under s 4 – Application dismissed

Catchwords:

COSTS – Bases of quantification – Where defendant did not consent to appointment of liquidator or provisional liquidator – Whether indemnity costs are appropriate.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Catchwords:

JUDICIAL REVIEW – application for judicial review of orders that the applicant pay costs on an indemnity basis – appeal to the District Court against decision of Costs Review Panel – application for relief refused on discretionary grounds – proceedings extraordinarily protracted, amount in question not large and other discretionary reasons given for refusing relief CIVIL PROCEDURE – directions by primary judge concerning non-parties to notice of motion including legal representatives – directions required their conduct to be brought to attention of regulatory, prosecutorial and disciplinary authorities – relevant persons not given an opportunity to be heard – denial of procedural fairness – declaration made as to invalidity of the subject directions

Catchwords:

STRATA TITLE – appeal from order of Tribunal ordering repayment of contributions for cost of heating water not used by some lot owners - held s 232 and other provisions of the Strata Schemes Management Act 2015 did not empower order - appeal allowed.

Catchwords:

APPEAL - government information – access application – whether information “excluded information” – whether consent to disclosure

Catchwords:

LEASES AND TENANCIES – Retail lease – covenant by landlord to maintain building in a sound structural condition – whether landlord’s obligation to maintain building in a sound structural condition includes an obligation to rectify any deficiencies in the fire sprinkler system – whether implied term in lease of non-derogation of grant – whether these terms are conditions or intermediate or innominate terms breach of which might entitle the tenant to terminate the lease – tenant requiring the landlord to rectify deficiencies in fire sprinkler system prior to conducting its fit out – non-compliance of sprinkler system with Australian Standards and Building Code of Australia– landlord refusing to upgrade base building pumps – availability of a fire engineered solution as an alternative to upgrading the building’s sprinkler pumps – whether landlord’s refusal to carry out work to the building’s sprinkler pumps constitutes a repudiation of the lease – validity of termination notice issued by tenant.

Catchwords:

ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – disqualifying offences – enabling order – circumstances of offence – conduct of applicant in period since offences occurred– discharge of onus

Catchwords:

ADMINISTRATIVE REVIEW - personal information – review of conduct of agency - contravention of Privacy and Personal Information Protection Act 1998

Catchwords:

DEVELOPMENT APPLICATION – concept development application – residential apartment development – conciliation conference – agreement between the parties – orders

Catchwords:

EQUITY — Equitable interest in property – Family arrangement — Transferee pays off mortgage on property — Equity in property exceeds amount owing — Transferor permitted to remain in property – licence agreement not signed — Relationship breakdown – Baumgartner v Baumgartner equity — Equitable compensation granted. EQUITY — Equitable remedies — Specific performance — Estoppel — Determination of existence and content of underlying contractual terms. EQUITY — Equitable remedies — Equitable compensation — Assessment — Valuation of property for purposes of assessment.

Catchwords:

DEVELOPMENT APPLICATION – subdivision – conciliation conference – agreement between the parties – orders

Catchwords:

PRACTICE AND PROCEDURE – non-publication or pseudonym orders – where Administrative Decisions Tribunal (ADT) published reasons for decision including the applicant’s name on the Caselaw website – whether, 7 years later, the Civil and Administrative Tribunal (NCAT) has jurisdiction to make a non-publication or pseudonym order – whether such an order should be made