Browse decisions Displaying 1 - 200 out of 121275 results

Catchwords:

CIVIL PROCEDURE – summary judgment – whether summary judgment should be ordered in plaintiff’s favour – where plaintiff claims priority over sale proceeds of two properties – where the sale proceeds have been paid into Court – where 11th to 28th defendants claim their interest in the Kelly Street property should prevail – where plaintiff’s equitable claim is based on an unregistered mortgage provided as security under a loan agreement – where 11th to 28th defendants purchased lots in an unregistered plan of subdivision – where contracts were subsequently rescinded and subdivision never occurred – whether 11th to 28th defendants each acquired an equitable interest in the form of a purchaser’s lien – whether 11th to 28th defendants’ rights were mere equities – where allegations of postponing conduct – not an appropriate matter for summary judgment in relation to matters in contest

Catchwords:

CORPORATIONS — Director’s duties — Where sole director of first company sells company to second company, being alter ego of the director, for minimal consideration — Whether sole director has breached duties under Corporations Act 2001 (Cth), ss 180, 181, 182 CORPORATIONS — Constitution and replaceable rules — Construction of company’s constitution — Whether company’s constitution operated to retrospectively ratify breach of fiduciary duty CORPORATIONS — Director’s duties — Whether director should be relieved of liability under s 1318 of the Corporations Act 2001 (Cth) EQUITY — Fiduciary duties — Rule in Barnes v Addy — Whether second company liable for knowing receipt — Whether remedy of constructive trust is in the circumstances appropriate

Catchwords:

STATUTORY INTERPRETATION – Companion Animals Act 1998 (NSW) – whether bodily injury within the meaning of s 25(1)(a) includes psychological injury caused by trauma of witnessing attack on the plaintiff’s dog at the time of the attack on the plaintiff – damages for psychological injuries limited to the sequelae of physical injuries suffered by the plaintiff and the trauma of the attack on her ASSESSMENT OF DAMAGES – approach to be applied to an interrelated but not compensable causal factor – evidentiary onus to disentangle contributing causes – unrealistic on the evidence to dissect components of a psychiatric injury suffered in one event – quantification of buffer for economic loss

Catchwords:

APPEAL- application to adjourn hearing refused-appeal against interlocutory decision-whether leave to appeal should be granted-whether appellant was denied procedural fairness or whether appellant had a reasonable opportunity to apply to amend the timetable for service of its evidence and/or apply to adjourn the hearing.

Catchwords:

TAX AND REVENUE – Whether “eligible transaction” for a duty exemption – existing house and shed on land when purchased - existing house rented to tenants – existing shed converted so owner could live there while building a new home on the land – no occupation certificates or approvals for existing house or shed as converted

Catchwords:

EVIDENCE – Admissibility – where a patient of a chiropractor has given evidence and been cross-examined – where Supreme Court has set aside Tribunal’s orders and remitted the matter for rehearing according to law – whether transcript and audio recording of Patient A’s evidence is admissible on the rehearing

Catchwords:

ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — refusal by Children’s Guardian in relation to a disqualified person — applicant found guilty of sexual touching without consent — enabling order application under section 28 — whether a real and appreciable risk is posed by the applicant to the safety of children

Catchwords:

CONSUMER LAW – failure to provide transcript or written reasons – uncertainty whether jurisdictional facts the subject of findings – error of law requiring remitter

Catchwords:

REAL PROPERTY – HOME BUILDING – measure of damages for breach of contract – overheads and general operating expenses – whether required to be included – gross profit or net profit - obligation to identify components in issue – issue sought to be raised on appeal but not at primary hearing – Civil and Administrative Tribunal Act 2013 (NSW) ss 36, 38

Catchwords:

ADMINISTRATIVE LAW - administrative review - privacy - information protection principles - breach - alteration of personal information - accuracy of personal information before use - health privacy principles - alteration of health information - accuracy of health information before use - lawful purpose ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Catchwords:

APPEAL – development application – dwelling house – conciliation conference – agreement reached – orders made

Catchwords:

DEVELOPMENT CONTROL ORDER APPEAL – order to be revoked – invalid order - conciliation conference – agreement between the parties - orders

Catchwords:

ADMINISTRATIVE REVIEW, firearms – refusal of licence - public interest

Catchwords:

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

Catchwords:

CRIME – Sentence – basis of liability “constructive murder” – attempted armed robbery as the foundational offence – discharge of firearm causing fatal wound – multiple disputes of fact – admissibility of voice recognition evidence – ad hoc expertise – repeated listening to telephone intercept product and CCTV footage – confirmation bias – whether reliability a relevant factor to admissibility under s 79 – significantly lesser role than the co-accused –background of deprivation and disadvantage – youth – mental health conditions – interrelatedness of deprived background, mental health conditions and substance abuse – reduced moral culpability – finding of special circumstances

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers – Motion to dismiss or permanently stay proceedings in light of alleged in-principle settlement – proceedings stayed pending further Order of the Commission.

Catchwords:

COSTS — Application for an order for costs on an indemnity basis where an allegation that documents were forged was not made out

Catchwords:

CRIME – appeals and reviews – appeal against refusal to annul convictions entered in Local Court – accused person is deliberately disruptive in proceeding – the judicial officer determined that he was not ‘present’ and proceeded to hear the matter in his absence CRIME – interpretation – whether accused person ‘present’ – Criminal Procedure Act 1986, s 196

Catchwords:

CIVIL PROCEDURE – application for expedition of summons seeking leave to appeal – where first respondent has limited life expectancy – loss of claim for future economic loss – expedition granted

Catchwords:

CRIME – Sentence – murder – violent assault – offence committed in the home of the deceased – plea of guilty at the first opportunity – childhood deprivation and disadvantage – childhood exposure to extensive drug use in extended family – reduction in moral culpability – genuine remorse – difficulty in predicting prospects of rehabilitation and likelihood of reoffending – progress in custody – special circumstances

Catchwords:

Administrative Law – firearms – firearms prohibition order – whether person ‘not fit, in the public interest’ – association with others who have serious criminal histories and involvement in organised crime

Catchwords:

COSTS – whether special circumstances established – no question of principle APPEALS —appeals in respect of matters of practice and procedure — no question of principle

Catchwords:

CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – where a proposed ground of appeal raises a constitutional issue so as to attract the operation of s 78B of the Judiciary Act 1903 (Cth) – prior to leave being granted to make appeal or application for leave to appeal no “cause pending” – whether appropriate to deal with application for extension of time for appeal before hearing the substantive appeal where s 78B notices would be required – appropriate to hear application for leave to make the appeal out of time before hearing the appeal CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – release application under s 49 of the Bail Act 2013 (NSW) – proposed conviction and sentence appeal – no “proceedings…pending” before the Court – no jurisdiction to hear application before leave to appeal out of time granted – appropriate to hear application for leave to make the appeal out of time before hearing the release application CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – where there is satisfactory explanation for delay – where proposed grounds of appeal sufficiently arguable – no relevant prejudice to proposed respondent if leave to appeal granted – where leave to appeal is in the interests of justice – application to make appeal and leave for appeal out of time granted

Catchwords:

ADMINISTRATIVE REVIEW – request for information – draft Reports withheld by Council – whether overriding public interest considerations against disclosure

Catchwords:

CRIME – Notice of Motion – application to remit the matter to the Local Court for further committal hearing – where technological difficulties with the audio visual link hampered the proceedings – whether the magistrate ascertained whether or not the accused pleads guilty to the offence – whether the magistrate accepted the plea of guilty in committal proceedings for the offence – application dismissed

Catchwords:

CIVIL LAW – interstate freezing notice – criminal assets – where order registered in New South Wales – leave to re-open – cancellation of registration of order – no question of principle

Catchwords:

APPEALS — Procedure — Stay pending appeal — No issue of principle

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – agreement approved – s 36A determination made – employees not parties to the agreement

Catchwords:

PROCEDURE – application to vacate hearing date – revisiting informal ruling made five weeks earlier – no material change in circumstances – no demonstrated incapacity to prepare for trial – prejudice to other parties because applicant an undischarged bankrupt – application dismissed

Catchwords:

CIVIL – motor accident – liability disputed

Catchwords:

CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs

Catchwords:

CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs

Catchwords:

WANT OF DUE DISPATCH – lack of steps appropriately taken in accordance with the Dust Diseases Tribunal Regulation 2019 and UCPR 6.2

Catchwords:

CRIME – bail – release application – second application for bail – s 74 Bail Act 2013 – whether there are grounds for a further release application –show cause – whether the applicant has shown cause – where the applicant’s access to the brief of evidence is severely constrained by custodial conditions and computer access – where the applicant’s legal representative has been unable to gain any form of meaningful access to him – where applicant will be denied a chance adequately to prepare for his trial – where the Crown case is not straightforward or uncomplicated – where unacceptable risks are capable of amelioration by the imposition of conditions

Catchwords:

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Whether defendant’s motion to vary orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.16(3A) should be granted — Where defendant seeks additional declarations and an order under UCPR r 42.25(1) COSTS — Party/Party — General rule that costs follow the event — Where principal judgment was generally in favour of the defendant — Where plaintiffs submit they had a measure of success — Whether parties should pay their own costs

Catchwords:

PRACTICE — security for costs — review of decisions of Judge of Appeal to order security for costs — applicant located in British Virgin Islands — no evidence of Australian assets against which a costs order could readily be executed — applications dismissed PRACTICE — adjournment — applicant seeks to adjourn hearing of application to review orders for security for costs — whether decision of English court likely to alter outcome of review — consideration of ss 56 and 60 of Civil Procedure Act 2005 (NSW) — applications dismissed OCCUPATIONS — legal practitioners — solicitor for applicant maintained ground of review that judge should have recused himself — transcript not provided — transcript provided by Court to parties — transcript established that after disclosure by judge, solicitor had not advanced any application — applicant’s further submission confirmed ground of review, without addressing the transcript or decision not to advance application — other unsatisfactory aspects of conduct and presentation of case by solicitor — opportunity to show cause why judgment should not be referred to Legal Services Commissioner

Catchwords:

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – excessive rent increase application – s 44(1)(a) Residential Tenancies Act 2010 (NSW) – provision of written residential tenancy agreement – conduct of agent of landlord – no error on a question of law established – no grounds for leave to appeal established

Catchwords:

APPEALS – procedure – time limits – application to extend time to lodge an appeal – exercise of discretion – reason for delay – prospects of success on appeal – extension of time refused APPEALS — right of appeal — scope of right — question of law – No error on a question of law established — leave to appeal — principles governing – no prospect of success

Catchwords:

APPEALS – interlocutory decision on a question of practice and procedure – not to order separate questions – no error of principle CIVIL PROCEDURE – separate determination of questions – application for separate questions under UCPR r 28.2 – where plaintiff applied under Part 1C of the Civil Liability Act 2002 (NSW) to set aside settlement agreements for historical child abuse as part of a claim for damages for personal injury – whether set aside application must be heard separately before hearing of underlying claim STATUTORY INTERPRETATION – Part 1C of the Civil Liability Act 2002 (NSW) – whether application for setting aside “affected agreement” required to be determined by separate determination prior to final hearing TORTS – liability for historical child sexual abuse – two prior proceedings involving substantially the same allegations – both settled by payment of money by the State of NSW – Part 1C of the Civil Liability Act 2002 (NSW) – new proceedings commenced including applications to have prior settlement agreements set aside – application under UCPR r 28.2 to have set aside applications determined as separate questions – separate questions not ordered

Catchwords:

CRIME – Appeal – unreasonable verdict – applicant convicted on two counts of detaining and occasioning actual bodily harm – where two complainants – when second complainant was herself involved in detention and assault of first complainant – whether any inconsistency between evidence of complainants incapable of resolution by a properly instructed jury – jury’s advantage when both complainants cross-examined at length – whether any material inconsistency between evidence of complainants – whether verdicts in respect of both complaints were open to the jury.

Catchwords:

CONTRACT – contract – summary dismissal – allegations of sexual harassment and workplace bullying – whether Appellant engaged in a “haka” or a pelvic thrust – where conduct relied upon to found summary dismissal held not be established COSTS – Calderbank offer – where successful party did not “better” financial terms of offer by unsuccessful defendant made shortly prior to trial – relevance of issues going to public vindication in assessing reasonableness of rejection of offer – where argument going to this issue inadvertently overlooked – nature of judgment awarding of costs – even if matter dealt with summarily, key arguments need to be addressed DAMAGES – contract of employment – where conduct relied upon to found summary dismissal held not to be established – whether employer would have terminated employment following expiry of fixed term of employment on three months’ notice under termination without cause provisions in circumstances where employee had elected to continue employment following expiry of fixed term – proper basis for assessment of damages in such circumstances – loss of a chance or balance of probabilities EMPLOYMENT LAW – contract of employment – summary dismissal – allegations of sexual harassment and workplace bullying – whether Appellant engaged in a “haka” or a pelvic thrust – where conduct relied upon to found summary dismissal held not be established

Catchwords:

COSTS – gross sum costs order – assessment of gross sum – no issue of principle – order made

Catchwords:

CRIME — complicity — accessory before the fact — joint indictment — two persons to stand trial on one count of attempt to possess unlawfully imported border controlled drug — Crown alleged both accused persons were liable as principals — alternative Crown case that one accused procured the conduct of the other in attempting collect package at post office and that her conduct was attributed to the first accused as a proxy under s 11.3 of Commonwealth Criminal Code — whether s 11.3 applied to proxy who was charged as a principal — whether Crown could advance alternative cases — whether alternative case required amendment to indictment or further particulars — whether Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1 should be followed — whether s 11.3 confined to proxies who lack sufficient knowledge

Catchwords:

CRIME – appeals – appeal against conviction – historical sexual offending – six complainants – where offender was a teacher and swimming coach – admission of evidence at trial – whether warrants authorising the recording of the conversations containing admissions were defective – whether there is a miscarriage of justice occasioned by the Crown not calling witnesses – whether emotional outbursts and unresponsive answers caused a substantial miscarriage of justice – whether documents relied on by Applicant amount to “fresh evidence” – whether the jury verdict was unreasonable – special advantage enjoyed by the jury of seeing and hearing witnesses – where there are discrepancies in accounts between or among witnesses CRIME – appeals – appeal against conviction – forensic disadvantage – whether delay in prosecution caused offender to suffer an irreparable forensic disadvantage – whether offender received a fair trial – application for permanent stay of proceedings at trial – where direction was issued by trial judge about delay – competing considerations in exercise of judicial discretion – public interest – presumptive prejudice caused by delay – where forensic disadvantage did not significantly or adversely affect conduct of the defence CRIME – appeals – appeal against sentence – whether the COVID-19 pandemic was a matter which the sentencing judge was required to deal with in sentencing – where offender was sentenced before commencement of the pandemic

Catchwords:

GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability – Guarantor’s awareness of charges due under the contract the subject of the Guarantee and Indemnity

Catchwords:

CORPORATIONS — voluntary administration — Deed of company arrangement — application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to DOCA — whether residual equity in company — whether shareholders unfairly prejudiced

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation

Catchwords:

EVIDENCE – course of evidence – reopening case – whether the interests of justice are better served by allowing or rejecting the application – where significant shift in plaintiff’s financial resources and financial needs following reservation of judgment SUCCESSION – family provision – claim by adult daughter for provision from mother’s estate under Succession Act 2006 (NSW), Ch 3 – proceedings not commenced within time – whether sufficient cause shown to extend time – where claim for provision brought by amended statement of claim 19 days out of time SUCCESSION – family provision – claim by adult daughter from mother’s estate – where nominal provision made for plaintiff in mother’s will – where estate left to plaintiff’s brother – where brother caring for mother – where plaintiff and mother had complete breakdown of their relationship – where plaintiff had minimal contact with mother for two years before her death amidst fiercely contested legal proceedings – where needs of brother exceed those of the plaintiff – whether adequate provision made for the proper maintenance, education or advancement in life of the plaintiff – nature and quantum of provision to be made having regard to the facts known to the court at the time the order is made COSTS – family provision – collective costs outrageously disproportionate to the value of the deceased estate

Catchwords:

LOCAL GOVERNMENT — Councillors — misconduct — breach of Code of Conduct — validity of decision — appropriate orders

Catchwords:

CRIME – bail – release application – further release application – change of circumstances – where trial date was vacated – conspiracy to import a commercial quantity of a border controlled drug – AN0M devices – admissibility of AN0M evidence – strength of prosecution case – very strong Crown case – where substantial delay – lengthy period of time in custody – stringent bail conditions – where substantial security offered – combination of circumstances – cause shown – unacceptable risk test – bail concerns – where risk of flight – strong evidence of association with international criminal syndicates – where applicant committed present offence whilst on parole – non-compliance with parole – unacceptable risks of failure to appear and committing further serious offence – bail refused

Catchwords:

DEVELOPMENT APPLICATION – change of use from 32 room boarding house to 4 dwellings – the proposed change of use would result in the unacceptable loss of affordable rental boarding house accommodation in the local area – the existing boarding house could be viable and able to achieve a reasonable return following the renovation works

Catchwords:

APPEAL – development application – detached dwelling house with swimming pool – integrated development – conciliation conference – agreement reached – orders made

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence - parity COSTS – prosecution costs OTHER – fall from height – roofing work – worker fell through roof soffit – no fall prevention system – worker had no qualification or experience working at height – inadequate training, instruction and supervision

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – fall through void – failure to undertake adequate risk assessment – failure to enforce defendant’s control to use scissor lift – inadequate information, training and instruction to workers about hazards and controls – failure to provide adequate supervision to ensure compliance with SWMS – failure to prohibit work near voids and penetrations through which a person could fall

Catchwords:

PROCEDURAL – Motion to dismiss because the proceedings were brought out of time – past alleged offences were observed outside limitation period – new, distinct and different alleged offences were observed within limitation period – defendants are not immunised from risks and breaches of duty because they are guilty of an earlier alleged offence – object of the WHS Act would be defeated – present proceedings brought within limitation period

Catchwords:

DEVELOPMENT APPLICATION — demolition of existing structures and construction of a mixed use development — conciliation conference — amended plans and materials — agreement between the parties — orders made

Catchwords:

MODIFICATION APPLICATION — s 4.55(8) application to the Court to modify a development consent granted by the Court — conciliation conference — agreement between the parties — orders

Catchwords:

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

Catchwords:

CONTEMPT — Civil contempt — Enforcement of local council and court orders — Failure to comply — Contempt proven — Contempt wilful — Fine imposed — Costs awarded

Catchwords:

CIVIL LAW – habeas corpus – urgent call to Duty Judge – where no formal application made – where Judge exercised supervisory role by calling police station – no evidence of unlawful detention – putative application for orders refused

Catchwords:

COSTS — party/party — where multiple issues in proceedings — where plaintiff substantially successful in result but not on all bases of claims.

Catchwords:

CIVIL PROCEDURE — Notice of Motion — Application for joinder granted — s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) — Public interest and interests of justice — Whether issues raised by intervenor would be sufficiently addressed absent a contradiction

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Notices and enforcement — Aged care facility issued with Improvement Notice requiring fit testing of P2/N95 masks used by staff — Whether inspector held requisite reasonable belief that a provision of the Work Health and Safety Act 2011 (NSW) was being contravened before issuing Improvement Notice — Whether reg 44 of the Work Health and Safety Regulation applied to the PCBU — Application of Part 3.1 of the WHS Regulation to the PCBU — Whether inspector’s belief that reg 44 was being contravened was reasonable despite error of law — Whether inspector turned his mind to facts required to establish a breach of s19 of the WHS Act

Catchwords:

CONTRACTS – Breach of contract – Remedies – Damages – Expectation damages – Quantification of expectation loss – Whether evidence adduced by plaintiff sufficient to establish extent of expectation loss occasioned by repudiation – Whether plaintiff expected to adduce further evidence to establish expectation loss – Plaintiff’s evidence insufficient – No damages awarded on head as claimed CONTRACTS – Breach of contract – Remedies – Damages – Limits on recovery – Remoteness – Where plaintiff claims loss in form of wages paid to carpenters retained on construction of defendants’ residence – Where plaintiff’s employment of carpenters not brought to defendants’ attention prior to retention – Whether loss natural result of defendants’ repudiation of contract – Whether second defendant assumed responsibility for loss – Loss too remote – No damages awarded on head as claimed CONTRACTS – Recovery on quantum meruit – Nature of claim in quantum meruit – Free acceptance – Where plaintiff effected further construction works at defendants’ request – Whether plaintiff entitled to restitution for construction work outlaid – Contract in favour of plaintiff inferred from defendants’ request for further construction works

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – cl 4.6 written request – height of buildings – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPEAL – residential development – Torrens title subdivision – conciliation conference – agreement between the parties – orders

Catchwords:

COSTS — Discontinuance — Tree dispute — Whether order for costs fair and reasonable — No order as to costs

Catchwords:

LEASES AND TENANCIES – possession of commercial property – where property leased by mother to son for many years – dispute over terms of undocumented lease and payment of rent – notices to quit served – declaratory relief in respect of lease sought – refused – order for possession made LOANS – where money loaned by mother to son – dispute about interest and repayment of loans – payment of unpaid interest and repayment of loans ordered PROCEEDS OF THE SALE OF LAND – son and his parents previously registered proprietors of a farming property – proceeds of sale split between parents – claim for share of proceeds pursued against mother – Pallant v Morgan equity – son not entitled to share of proceeds

Catchwords:

COSTS — application for a gross sum costs order — where plaintiff an incorporated legal practice acting for itself — where evidence before the Court insufficient to support extent of costs claimed — exercise of discretion to award discounted costs

Catchwords:

SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 SUCCESSION — Construction — General principles — Structure and scheme of will SUCCESSION — Construction — Gifts

Catchwords:

COMMERCE – Restraint of trade – Interlocutory relief – Whether orders should be made for an interlocutory injunction – Whether there is a serious question to be tried – Whether the balance of convenience favours the granting of interlocutory relief

Catchwords:

CIVIL PROCEDURE – Service – Informal service – Where plaintiff’s agents personally served originating documents on defendant’s ex-father-in-law – Whether such service sufficient steps taken for purpose of bringing originating documents to notice of defendant – Application for confirmation of informal service dismissed CIVIL PROCEDURE – Service – Substituted service – Where defendant ordinarily resident in People’s Republic of China – Where defendant prohibited by Consumption Restriction Orders from departing from People’s Republic of China – Where plaintiff attempted personal service on two occasions – Whether originating documents unable practicably to be served on defendant – Application for order for substituted service dismissed

Catchwords:

APPEAL — whether leave to appeal ought be granted from decision of primary judge dismissing appeal from NSW Civil and Administrative Tribunal — no issue of principle, question of public importance or serious injustice demonstrated GUARDIANSHIP — Public Guardian appointed to VY — decision reviewable in October 2025 — grant of leave not warranted

Catchwords:

DEVELOPMENT APPEAL – conciliation conference - agreement between the parties – cl 4.6 variation - orders

Catchwords:

MODIFICATION APPLICATION – alterations and additions – residential apartment development – agreement between the parties – orders

Catchwords:

APPEALS — application for extension of time to lodge an appeal — whether decision of NSW Civil and Administrative Tribunal under Residential Tenancies Act 2010 (NSW) precluded by res judicata or issue estoppel

Catchwords:

DEVELOPMENT APPEAL – amended application lodgement date – alterations and additions – garage – heritage significance - visual bulk – streetscape impacts

Catchwords:

DEVELOPMENT APPLICATION — alterations and additions to an existing terrace house — amended plans — conciliation — agreement between the parties — orders made

Catchwords:

BUILDING INFORMATION CERTIFICATE – conciliation conference – agreement between the parties – orders

Catchwords:

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

Catchwords:

COSTS – costs recoverable by litigant in person – where litigant in person successful in District Court in appealing conviction from Local Court – where District Court ordered Director of Public Prosecutions (DPP) pay litigant in person’s costs – whether costs for printing, travel and accommodation recoverable by litigant in person – meaning of “professional costs” in s 211 of the Criminal Procedure Act 1986 (NSW) ADMINISTRATIVE LAW – judicial review – jurisdictional error – where now impugned costs were conceded as payable by DPP in District Court – where small quantum of costs in dispute – where no evidence of the costs incurred are before this Court – where matter would have to be remitted to District Court if applicant successful – discretion to refuse claim exercised – summons dismissed

Catchwords:

CRIMINAL LAW – appeals and reviews – appeal against conviction – sexual offences – carrying out sexual act without consent – domestic violence offences – stalking or intimidation offence – whether the accused knew that the complainant was likely to suffer physical or mental harm

Catchwords:

EMPLOYMENT AND INDUSTIRAL LAW - Application to vary the Crown Employees (Public Sector – Salaries 2024) Award by consent – variations provide a further increase to salaries and salary related allowances whilst negotiations for a new award for psychologists employed by the Crown continue – no issue of principle

Catchwords:

CORPORATIONS – insolvency – winding up – application for leave under s 459S of the Corporations Act – where applicant failed to serve the s 459G application within the statutory period – where applicant seeks to rely on the ground that the debt claimed in the statutory demand is disputed – whether requirements for leave under s 459S are satisfied – application dismissed

Catchwords:

CRIME — murder — plea of not guilty — elements of murder — causation — circumstantial evidence — inferences — where medical mechanism of death is not straightforward — where experts disagree on cause of death — whether assault by accused caused death — cause of death versus mechanism of death — methadone overdose — commotio medullaris — positional asphyxiation — axonal injury — domestic violence — requisite intention not found — verdict of not guilty to murder but guilty of manslaughter CRIME — manslaughter — alternative to murder — unlawful killing — plea of not guilty — elements of manslaughter — verdict of guilty CRIME — violent offences — assault occasioning actual bodily harm — guilty plea CRIMINAL PROCEDURE — trial — judge alone — Criminal Procedure Act 1986 (NSW) s 133

Catchwords:

APPLICATION — encroachment — application under the Encroachment of Buildings Act 1922 concerning multiple structures — whether structures are encroachments — discretion as to whether orders should be made

Catchwords:

DEVELOPMENT APPLICATION — demolition and construction of a residential flat building — amended plans and documents — conciliation conference — agreement between the parties — orders made

Catchwords:

REVENUE LAW - State taxes - payroll tax - assessment - objection - appeal REVENUE LAW - penalties - reasonable care -whether tax default due to matters beyond control of taxpayer - remission - Revenue Ruling PTA 036 - Practice Note CPN 024 ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — termination — statutory rights — unfair dismissal —decision must be read as a whole and considered fairly — reasons were adequate — not every matter raised before a decision-maker needs to be discussed at length or even at all if it is not a mandatory consideration — Commission is not bound by the rules of evidence — leave to appeal refused APPEALS — leave to appeal — principles governing — no issues of principle

Catchwords:

CIVIL PROCEDURE — Application by plaintiff for vacation of hearing dates of a family provision claim — Illness of counsel — Plaintiff’s counsel contracted RSV less than two business days before two-day hearing scheduled to commence — Counsel’s discussion with doctor indicates he would be quite unwell for at least 3-4 days — Counsel has been involved from the beginning of the matter for a period of two years and is acting on a conditional fee basis — Subject matter not overly complex but strongly contested — One of the defendants is the deceased’s elderly widow with significant health issues — Experienced counsel for the plaintiff confirmed the day before the scheduled hearing that the position regarding his health and asserted inability to discharge his duties has not changed — Hearing dates vacated — Defendants’ counsel’s submission that plaintiff’s counsel should simply “soldier on” rejected LEGAL PRACTITIONERS — Discretion of judge in urgent circumstances to act upon representations from the bar table

Catchwords:

CHILD WELFARE — Adoption — Order — No issue of principle — Public interest in encouraging fostering and adoption of children where restoration to birth parents or family not possible

Catchwords:

Notice of Motion to set aside summons for production.

Catchwords:

COSTS – party/party – where defendant made an offer of compromise pursuant to UCPR r 20.26 – where plaintiff rejected this offer – where plaintiff obtained judgment for nominal damages – where UCPR r 42.15 is enlivened – whether the Court should order otherwise under r 42.15 – where there is no reason the Court can only otherwise order if it is in favour of the offeree – where plaintiff was substantively the unsuccessful party – where the policy underpinning the regime is to encourage the proper compromise of litigation – plaintiff is to pay defendant’s costs up to the date of the offer of compromise on the ordinary basis and on the indemnity basis thereafter

Catchwords:

SUCCESSION — Family provision — Notional estate — Whether Court has jurisdiction to grant interlocutory injunction restraining dealing in property liable to be designated as notional estate — Succession Act 2006 (NSW), s 62(3) SUCCESSION — Family provision — Practice — Application to amend to introduce substantive equitable claim after Court-annexed mediation — Where no explanation for lateness and not based on facts not previously discoverable with reasonable diligence

Catchwords:

CONTRACTS – Oral contract – Proof – Alleged advance of $340,000 cash – No documents

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Application for variation of Contract Determination – Variations proposed to rates in accordance with agreed method of adjustment – Variation made by consent

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation by consent

Catchwords:

CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Whether leave required under the Felons (Civil Proceedings) Act 1981 (NSW) –Whether the Felons (Civil Proceedings) Act 1981 (NSW) applies exclusively to persons in custody in NSW who have been convicted of or found to have committed a serious indictable offence in New South Wales STATUTORY INTERPRETATION – Legal presumptions – Jurisdiction – Extraterritorial application – General law rule of construction – References to New South Wales implied under the Interpretation Act 1987 (NSW)

Catchwords:

MENTAL HEALTH – forensic patient – extension of status as forensic patient – cognitive impairment – unacceptable risk of causing harm – no alternate (less restrictive) means of adequately managing the risk – interim orders neither consented to or opposed – consideration of statutory criteria

Catchwords:

ENVIRONMENT AND PLANNING – Consent – Construction – Whether certain conditions of development consent required compliance prior to undertaking work comprising part of the approved development – Whether work related to the approved development prevented its lapse – s 95 of the Environmental Planning and Assessment Act 1979 (NSW) — Whether work could be said to have physically commenced – Conditions required compliance prior to the work undertaken – Modification, revocation or review — s 4.55(3) of the Environmental Planning and Assessment Act 1979 (NSW) – Forming state of satisfaction that development was substantially the same — Whether decision to approve modification was manifestly unreasonable – Discretion

Catchwords:

APPEALS — leave to appeal — whether leave required — summary dismissal — whether summary dismissal interlocutory in nature — whether appeal otherwise by right

Catchwords:

PROBATE – informal will – whether handwritten document signed by testator and witnessed by two witnesses was intended to form her will and to revoke earlier will – whether necessary to show continuing intention thereafter – significance of absence of revocation clause – handwritten document admitted to probate

Catchwords:

ADMINISTRATIVE LAW – application for judicial review of decisions of Delegate of President of the Personal Injury Commission and of Appeal Panel – whether Delegate obliged to give reasons for decision to refer to Appeal Panel – whether Appeal Panel gave adequate reasons and exposed its actual path of reasoning – application dismissed

Catchwords:

CIVIL PROCEDURE – application to extend time for compliance with orders requiring vacation of property and demolition of unlawful works – orders not made irregularly because children residing at property not joined as parties – general power to extend time for compliance with orders not exercised

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information — Ground for refusing access raised by third party objector and opposed by respondent agency CIVIL PROCEDURE — Parties — Application for joinder

Catchwords:

ADMINISTRATIVE LAW – NDIS worker check clearance – cancellation of a clearance - risk assessment - risk of harm to persons with disability – whether desirable to make a non-publication order

Catchwords:

CRIME – evidence – murder – application to release evidence given before the Crime Commission – Crime Commission Act 2012 (NSW) s 45(5) – where material relevant to murder trial – whether disclosure ‘may’ be desirable in the interests of justice – where witness is protected – where Crown given a summary of coerced evidence given before Crime Commission – procedural fairness in pre-trial disclosure

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards — State Decision — Whether the Commission should set a model superannuation clause for public sector awards in New South Wales — Federal award terms — Entitlement to superannuation contributions should be enforceable by employee or union — Appropriate wording for standard clause — Employer’s obligations in clause — Superannuation contributions when employee is absent from work

Catchwords:

APPEALS — orders on appeal — whether proceedings should be remitted to Court below — where Court ought determine quantum finally CONSUMER LAW — misleading or deceptive conduct — supply and assembly of prefabricated home — reliance on misleading conduct caused the appellants to agree to a contractual variation — measure of loss or damage suffered as a result of variation CONSUMER LAW — enforcement and remedies — action for damages — measure of damages — loss of bargain — whether cost of rectification is unreasonable — Australian Consumer Law, ss 236, 237 CONTRACTS — breach of contract — breach of express terms — contractual variation based on misleading or deceptive conduct

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – serious violence offender – application for Interim Supervision Order (ISO) – where making of order and some conditions contested by defendant – whether there is high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order – orders for expert assessment and ISO imposed

Catchwords:

CIVIL PROCEDURE — stay of proceedings — potential for concurrent civil and criminal proceedings — same subject matter — prejudice to applicant.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation by consent

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, to agree to proposed scheme of arrangement — Whether requirements to order scheme meeting are satisfied

Catchwords:

APPEALS — Procedure — Further evidence on appeal - Appellant made application for the issue of a summons for a named person to give evidence and produce documents – Application dismissed

Catchwords:

HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) --- where applicant has required the President of the Anti-Discrimination Board to refer a declined complaint to the Tribunal – whether Tribunal should exercise discretion to grant leave for the complaint to be the subject of proceedings under s 96(1) of the Anti-Discrimination Act

Catchwords:

APPEAL – Jurisdiction of Appeal Panel – Appeal from decision refusing leave under s 96(1) of the Anti-Discrimination Act 1977 (NSW) – Whether internally appealable decision.

Catchwords:

CIVIL PROCEDURE — Interlocutory applications — Freezing orders – Ex parte — Duty of disclosure — Whether plaintiffs failed to put before the Court all material facts and arguments within their knowledge which the defendants, if present, could be expected to have brought to the Court’s attention — Held: Material non-disclosure, which was deliberate on the part of the plaintiffs and inadvertent on the part of counsel appearing at the ex parte hearing — Held: Freezing orders discharged — Held: Plaintiffs not permitted to treat the hearing of the defendants’ application to discharge the freezing orders as a de novo application for the freezing orders or equivalent orders under r 25.3 of the Uniform Civil Procedure Rules

Catchwords:

APPEAL – costs – appeal from costs order and substantive decision – relevant principles

Catchwords:

APPEAL - Residential Tenancies Act 2010 (NSW) – submission of party not considered

Catchwords:

COSTS

Catchwords:

DEVELOPMENT APPEAL – alterations and additions to boarding house - existing use rights – justification of contravention of floor space ratio development standard - conciliation conference – agreement between the parties - orders

Catchwords:

DEVELOPMENT CONTROL ORDER APPEAL – demolish works order – restore works order – self represented litigants – compliance with BCA – works adjacent sensitive water way – conciliation conference – agreement between the parties to modify the development control order – orders

Catchwords:

HEALTH - professional registration and discipline - nurse - where practitioner is otherwise not a suitable person to hold registration as a nurse and has an impairment - what protective action should be taken -

Catchwords:

COSTS – Security for costs – where second and third defendants and plaintiff both claim interests in first defendant’s property and there is a priority dispute between them – where parties made agreement and orders were made by consent facilitating the registration of the second and third defendants’ mortgage, the sale of the property and the preservation of the sale proceeds, on the basis that priority between plaintiff’s claimed interest and the second and third defendants’ mortgage would be determined in these proceedings as at the date of those orders immediately before the registration of the second and third defendants’ mortgage – where second defendant now seeks an order requiring the impecunious plaintiff to provide security for its costs within 14 days, and orders dismissing the proceedings, releasing the second and third defendants from their obligations under the agreement, and discharging the order requiring the sale proceeds of the property to be preserved, if such security is not provided – whether an order for security would work an injustice

Catchwords:

CIVIL PROCEDURE – application to adjourn proceedings – where cross claim dismissed and part of defence struck out – where defendants failed to comply with court orders and still have not served all the evidence – where still no explanation given – adjournment refused CONTRACTS – contract for acquisition of land for joint venture development – where defendant did not appear – where plaintiffs evidence about the proper construction of the contract was not challenged – judgment for the plaintiff

Catchwords:

COSTS — Party/Party — bases of quantification —— whether plaintiff entitled to special costs order because of non-acceptance of offer of compromise — offer only capable of acceptance by both defendants COSTS — Party/Party — exceptions to general rule that costs follow the event — consideration of “rule of thumb” approach to the apportionment of costs where a plaintiff succeeds against one jointly represented defendant but not another

Catchwords:

CORPORATIONS — application by special purpose receiver for directions — where applicant was appointed by the Court as special purpose receiver under s 283HB of the Corporations Act — whether Court has jurisdiction under s 283HB of the Corporations Act to give such directions — whether the directions sought are within the class of questions on which the special purpose receiver may properly seek directions — whether directions sought by the special purpose receiver should be given

Catchwords:

CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — Whether plaintiffs unable to obtain sufficient information to make decision about whether to commence proceedings — Whether inspection of documents sought would assist plaintiff to make decision — Preliminary discovery ordered

Catchwords:

PROCEDURE: application to amend statement of facts and contentions – Aboriginal land rights claim –legal principles – Minister agreed to further amend to remove ambiguity caused by proposed amendments – adequacy of explanation for delay by Minister –hearing date not jeopardised – no irredeemable prejudice to non-amending party – whether appropriate to order another s 34 conciliation conference upon the amendments being made – leave to amend granted – further s 34 conciliation conference not ordered. COSTS: whether Minister liable for costs thrown away occasioned by the amendments – whether costs thrown away include the costs of preparing for and attending the s 34 conciliation conference prior to the amendments – Minister ordered to pay the costs thrown away, including those associated with the s 34 conciliation conference.

Catchwords:

CRIMINAL PROCEDURE – Discharge of jury – Application for Suitors’ Fund Certificate – Where the NSW Police disclosed a substantial volume of documents on the sixteenth day of the trial – Trial adjourned through no fault of accused or his lawyers – Certificate granted

Catchwords:

CRIMINAL PROCEDURE – Trial – Adjournment – Vacating of hearing date – Where NSW Police first disclosed to the DPP and the accused, 37.3 gigabytes of data by way of a Cellebrite download two weeks before trial - A misleading affidavit erroneously identifying that all documents had been disclosed – Where counsel failed to allocate sufficient time for trial preparation – Where the DPP continued to serve material which necessitated consideration and contextualisation before agreements on proposed edits could occur

Catchwords:

COSTS – Offer of Compromise – offer not accepted – no reason to depart from prima facie entitlement to indemnity costs

Catchwords:

Chiropractor, professional misconduct established, late amendments, failure to establish each complaint alleged.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – co-living housing – Cl 4.6 variations - orders

Catchwords:

CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy CRIME – appeals – appeal against sentence – where applicant diagnosed with PTSD – whether sentencing judge failed to engage with contention that there was a link between diagnosis and the offending – where primary judge rejected this contention SENTENCING – appeal against sentence – co-offenders – where co-offenders received the same sentence – where there was comparable criminality between co-offenders – no basis for interference with sentences

Catchwords:

CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy

Catchwords:

BUILDING WORK RECTIFICATION ORDER – conciliation conference – agreement between the parties – orders

Catchwords:

MODIFICATION APPLICATION: application to modify development consent — conciliation conference — agreement between the parties — orders made.

Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal – interlocutory decision – decision to grant freezing orders – whether primary judge erred in determining that the Court had jurisdiction to grant freezing orders against the appellant – whether ‘ordinary course of business’ transactions can ground the requisite danger for the purpose of Uniform Civil Procedure Rules 2011 r 25.14 – whether application raised a point of general principle

Catchwords:

CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Gate overrunning its supports and falling — No adequate end stop — Faulty design and installation of gate — Low to mid-range of objective seriousness

Catchwords:

CRIMINAL LAW – murder – application by accused for trial by judge alone – pre-trial publicity – whether in the interests of justice to make order for judge alone trial – application refused

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Motor Accidents Compensation Act 1999 (NSW) – Decisions of medical assessor and delegate of President of Personal Injury Commission on review applications – Failure of Review Panel to exercise jurisdiction as required – Where Review Panel issued medical assessment certificate determining plaintiff’s whole person impairment at 8% - Where Review Panel failed to determine the extent of whole person impairment as it existed at the time of assessment – Where Review Panel failed to determine whole person impairment relating to subsequent injury and conduct appropriate calculation as required – Errors established – Medical assessment and review determination set aside – Matter remitted for re-determination

Catchwords:

LEGAL PRACTITIONERS - contested litigation concerning the admission to probate of wills of the deceased made in 2015, 2019 and 2021 – solicitor acted for the deceased in relation to the preparation of the 2019 will and now acts for the plaintiff (the executor of that will) in seeking admission of the 2019 will to probate, alleging that the deceased lacked testamentary capacity at the time of making the 2021 will – deceased uplifted the 2019 will from the solicitor before making the 2021 will – other parties contend that the deceased’s 2021 will is valid and that he destroyed the 2019 will – solicitor is a witness in the contest in relation to contentious factual circumstances of the deceased’s making of the 2019 will and his later uplifting of the 2019 will from the solicitor’s office before the will’s alleged destruction – whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires that the solicitor be prevented from acting for the plaintiff in the proceedings.

Catchwords:

DEVELOPMENT APPEAL – centre-based child care centre – conciliation conference – agreement between the parties – orders

Catchwords:

APPEAL – development application – dual occupancy – conciliation conference – agreement reached – orders made

Catchwords:

DEVELOPMENT APPEAL – alterations and additions – heritage conservation area - conciliation conference – agreement between the parties - orders

Catchwords:

HEALTH — professional registration and discipline — registered nurse — practitioner pleaded guilty and convicted of criminal offence - whether circumstances of the offence render the practitioner unfit in the public interest to practise – appropriate protective orders – cancellation of registration – 12 month bar on reapplication COSTS – discretion – fairness of recovery of some costs

Catchwords:

OCCUPATIONS – reinstatement application – whether Applicant has discharged onus of proof

Catchwords:

LAND LAW – easements – protracted dispute between neighbours – where primary judge ordered applicants to disable audio recording on CCTV camera which pointed at easement – where primary judge made orders curtailing applicants’ rights under easement for four year period APPEALS – leave to appeal – no issue of principle, question of public importance or reasonably clear injustice – leave refused

Catchwords:

PRELIMINARY DISCOVERY — Mass departure of personnel from the Australian professional services partnership conducted by the plaintiffs (EY) including D2-6 (ex-partners), with all being employed by the D1, a global competitor of EY — Remaining partners contend that the ex-partners may have engaged in wrongful conduct and they may be entitled to make claims for relief against D1 and D2-6 — EY seeks preliminary discovery PRELIMINARY DISCOVERY — Purported ‘Goldilocks’ dilemma — Plaintiffs know enough to be concerned but not enough to make a sensible and informed decision about whether or not to commence substantive proceedings against the defendants PRELIMINARY DISCOVERY — Elements for enlivening the discretion to order preliminary discovery — The correct test is the “appears to the Court” test — Submissions regarding “reasonable cause to believe” test rejected EVIDENCE — Inferences — Drawing such inferences where the relationship is between a given fact and a human act WORDS & PHRASES — Garden Leave PRELIMINARY DISCOVERY — Costs and expenses — Distinction between the cost of the litigation per se and the costs of actually providing discovery

Catchwords:

CORPORATIONS — directors and officers — appointment, removal and retirement of directors — where director resigned by written notice to company chairman — where company did not provide notice of director’s resignation to the Australian Securities and Investment Commission within 28-day period — where relief sought under s 203AA of the Corporations Act 2001 (Cth) — where orders made fixing director’s resignation date at the time that notice of resignation was provided to company’s chairman

Catchwords:

CIVIL PROCEDURE — Cross-claims — Connection with subject-matter of claim — Whether cross-summons should be dismissed or in the alternative stayed COSTS — Security for costs JUDGMENTS AND ORDERS — Enforcement — Charging orders

Catchwords:

BUILDING AND CONSTRUCTION – claim by subcontractor against principal in relation to debt certificates issued under Contractors Debts Act 1997 (NSW) – subcontractor’s right of recovery under s 11(4) subject to any defence the principal would have had against recovery of the debt by the contractor – whether principal entitled to raise matters of set-off defending debt claim

Catchwords:

Administrative Law – Dismissal - Res Judicata– Jurisdiction of Tribunal – whether applicant has standing to bring review – merits of decision

Catchwords:

ADMINISTRATIVE LAW — Firearms licence — public safety — whether imposition of Special Condition on Firearms licence is necessary and proportionate to address an appreciable risk to public safety

Catchwords:

APPEAL – Home Building Act – whether questions of law raised – adequacy of reasons – whether the owner validly terminated the contract and breached the contract by failing to pay a progress payment – competing evidence about defective work – the weighing of evidence

Catchwords:

COSTS – application to vary costs order by the respondent – application dismissed

Catchwords:

TAXATION – surcharge land tax – Trust not intended to include foreign beneficiaries – attempt to amend the terms of the Trust - whether deemed to be a foreign person for the purposes of s 5D of the Land Tax Act 1956 (NSW) – no discretion to relieve liability arising under the statutory provisions

Catchwords:

SUCCESSION — Family provision — Limitation period — Where claim brought almost two years after the expiry of limitation period — Whether sufficient cause shown to ‘otherwise order’ SUCCESSION — Family provision — Claim by alleged de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether eligible person — Whether in a de facto relationship pursuant to s 21C of the Interpretation Act 1987 (NSW) — Whether couple ‘living together’ SUCCESSION — Family provision — Notional estate — Restrictions on out of time or additional applications — Where estate already fully distributed — Whether ‘special circumstances’

Catchwords:

COSTS — Party/Party — Bases of quantification —Indemnity basis — Offer under the rules — Whether to ‘otherwise order’ — Where defendant claims they were surprised by case run at final hearing

Catchwords:

HIGH RISK OFFENDER – interim supervision order – where no issue is taken with the making of the order – the Court is required to be independently satisfied of the statutory preconditions – dispute as to appropriate conditions – balancing the intrusion on a defendant’s liberty and privacy with the safety of the community, which must be given primacy – order made – conditions amended

Catchwords:

ADMINISTRATIVE LAW — home building — administrative review of refusal of individual contractor licence under Home Building Act 1989 (NSW) — whether NSW Civil and Administrative Tribunal has jurisdiction to review decision made after remittal under s 63(3)(d) of Administrative Decisions Review Act 1997 (NSW) PRACTICE AND PROCEDURE — legal basis for power to dismiss proceedings for want of jurisdiction

Catchwords:

ADMINISTRATIVE LAW – review of decision by external decision-maker, decision to cancel strata management agent’s licence – fine – company and individual licences and disqualify licence holder under the Property and Stock Agents Act 2002

Catchwords:

APPEAL – appeal against Commissioner’s decision on question of law – grant of development consent to dwelling houses in foreshore area – contravention of foreshore building line – whether development standard – dwelling houses not rebuilding of existing dwelling house – whether considered by Commissioner – cl 4.6 request justifying contravention of development standard – whether adequately addressed cl 4.6(3) matters – existing dwelling house encroaching on adjoining land – demolition of existing dwelling house but not encroaching wall – whether consent of owner of adjoining land required – restrictive covenant preventing new dwelling houses beyond foreshore building line – utility in granting development consent – whether covenant considered by Commissioner

Catchwords:

HUMAN RIGHTS – discrimination – on the ground of disability – direct discrimination – indirect discrimination - education – denying or limiting access to a benefit – subjecting to a detriment

Catchwords:

ORDER UNDER LOCAL GOVERNMENT ACT 1993 — remove object from public place — conciliation conference — agreement between the parties — orders

Catchwords:

DEVELOPMENT APPEAL – modification of consent – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – low density residential subdivision – agreement between the parties – orders

Catchwords:

COSTS — Security for costs — Relevant factors — Place of incorporation or residence out of jurisdiction — Where plaintiff domiciled in People’s Republic of China and has significant assets — Whether cross-claim is in substance defensive — Whether security for costs should be limited to costs of enforcing judgment — Security for costs granted

Catchwords:

CRIME – Sentence – Judge alone trial – not guilty of murder but guilty of manslaughter – fatal stab wound to the chest – cousins – where the offender and the deceased were slapboxing and “mucking around” minutes before the fatal stabbing – where the offender’s anger escalated quickly “zero from a hundred” – no planning – youth – sexual assault as a child – Bugmy Bar Book “Childhood Sexual Abuse” – mental health condition of PTSD – reduced moral culpability – guarded prospects of rehabilitation – little acceptance of responsibility – offer to plead guilty to manslaughter rejected

Catchwords:

CRIME – aggravated break and enter and specially aggravated break and enter. CRIME - Judge Alone hearing - verdicts “act proven but not criminally responsible” - consequential orders MENTAL HEALTH - Criminal proceedings — Special hearing – defence of cognitive impairment established – orders finding conditional release appropriate in light of current medical evidence – referral to the Mental Health Review Tribunal.

Catchwords:

CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving creditors’ scheme of arrangement — where formal requirements satisfied — whether scheme of arrangement should be approved.

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.

Catchwords:

PROCEDURE — advance ruling under s 192A Evidence Act — whether defect reports prepared by quantity surveyor are business records — whether prepared for purpose of proceedings — s 69(3)(a), Evidence Act 1995 (NSW) — whether opinions expressed in business record admissible — limitation made under s 136 Evidence Act (NSW).

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse

Catchwords:

CIVIL PROCEDURE – Interim preservation – preservation of property – where plaintiff obtained orders to enter real property to obtain personal goods but has failed to comply with a Court order as to retrieving the goods – where the Court has provided further opportunity for the plaintiff to obtain personal goods FAMILY LAW — Property — Property of relationship — Injunctions and restraints – Where Husband has obtained orders to enter real property to obtain personal goods but has failed to comply with Court orders as to retrieving goods – where trustees have been appointed to dispose of family property – where Husband has been restrained from entering property

Catchwords:

COSTS – Gross sum costs order – Where costs assessment likely to involve further expense and delay – Where assessment would disadvantage party seeking order because of other party’s inability to discharge costs liability – Whether sufficient evidence for Court to undertake fair and just quantification

Catchwords:

APPEAL – development control order – orders made to modify development control order – agreement between parties

Catchwords:

CORPORATIONS – winding up – insolvency – statutory presumption of insolvency – plaintiff’s application to wind up defendant on the ground of insolvency pursuant to s 459A – where plaintiff relies on a debt that was not the debt that was the subject of the statutory demand - defendant’s application for leave under s 459S to oppose the winding up application on the ground that there is a genuine dispute - whether plaintiff has standing as a creditor under s 459P(1)(b) to bring winding up application – whether there is a genuine dispute about the alleged debt forming the basis of the winding up application – where the plaintiff does not have standing as a creditor – where the pursuit of these proceedings would have been an abuse of process if the plaintiff had standing – originating process and amended interlocutory process dismissed

Catchwords:

CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether change of name should be approved

Catchwords:

ADMINISTRATIVE REVIEW – firearms licence – revocation of licence – offence of affray – Applicant subject to conditional release order – factors relevant to exercise of Tribunal’s discretion – public interest – real and appreciable risk

Catchwords:

Administrative Law – home building — application for contractor licence — general building work — application of instrument — experience requirements — “wide range of building construction work”

Catchwords:

APPEAL – development application – retail premises – conciliation conference – agreement between the parties – orders

Catchwords:

CIVIL PROCEDURE — Default judgment — Motion to set aside – where defendant is vendor and plaintiff is purchaser under a contract for sale of land – where default judgment for specific performance of the contract was entered against the defendant on 14 June 2024 – where defendant’s first motion to set aside default judgment dismissed on 6 December 2024 in the absence of any appearance by the defendant – where defendant continued to deal with the property despite being on notice of the Court’s orders requiring specific performance of the sale contract and took other steps to interfere with completion of the sale contract in accordance with those orders – whether defendant asserts a bona fide defence and cross-claim – whether there is an adequate explanation for defendant’s default and delay – prejudice to plaintiff caused by delay – whether an order setting aside default judgment is in interests of justice and consistent with the overriding purpose and objects contained in ss 56-60 of the Civil Procedure Act 2005 (NSW)

Catchwords:

APPEAL - Home Building Act 1989 (NSW) – refunds of provisional sums - compensation - loss of rent - decision not fair and equitable - decision against the weight of evidence - significant new evidence available

Catchwords:

ADMINISTRATIVE LAW - working with children check clearance – assessment of risk – likelihood of any repetition of the conduct

Catchwords:

APPEAL – residential development application – conciliation conference – agreement between the parties – orders

Catchwords:

CIVIL PROCEDURE – interim preservation – freezing orders – freezing orders discharged

Catchwords:

PRACTICE AND PROCEDURE – notice of motion – dismissal of appeal – state significant development – inherent power to control Court processes – s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) – whether the second applicant can continue the appeal without the originating party – application dismissed

Catchwords:

MODIFICATION APPLICATION – alterations and additions – residential apartment development – agreement between the parties – orders

Catchwords:

LAND LAW – Strata title – Appointment by Tribunal of strata managing agent pursuant to s 237 Strata Schemes Management Act – Relevant considerations APPEAL – Civil and Administrative Tribunal – Questions of law – Procedural fairness – Obligations of Tribunal to unrepresented litigant – Receipt of oral evidence not the subject of written evidence filed in accordance with directions APPEAL – Civil and Administrative Tribunal – Questions of law – Adequacy of reasons

Catchwords:

DEVELOPMENT APPLICATION: dwelling house development in C4 Environmental Living zone — conciliation conference — agreement between parties — orders

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – whether jury’s verdicts in relation to specific counts on the indictment were unreasonable and inconsistent – whether unreasonableness of verdicts for those specific counts renders the verdict for a separate count unreasonable

Catchwords:

EVIDENCE — Privileges — Client legal privilege — Litigation — inadvertent disclosure of email communication — where privileged communication accessed via Dropbox link with specialist IT assistance — whether privilege waived — whether there was knowing and voluntary disclosure — whether there was deliberate abuse of power — no waiver established APPEAL — costs — costs assessment — appeal from Review Panel — s 89(1) Legal Profession Uniform Law Application Act 2014 (NSW) — whether Review Panel erred in fact or law in determining the amount payable by the plaintiffs — where proceedings conducted without reference to the email communication — no error of fact or law established CIVIL PROCEDURE — Jurisdiction — Monetary limits — leave required under s 89(1)(b) Legal Profession Uniform Law Application Act 2014 (NSW) — leave refused CIVIL PROCEDURE — Time — Extension of time — Leave required under r 50.3 UCPR — approximately three months out of time — leave refused

Catchwords:

COSTS – no question of principle.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – residential flat building – centre-based childcare facility – mixed us development in R4 high density residential development – conciliation conference – agreement between parties - orders

Catchwords:

EXTENSION OF TIME – whether r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) applies – whether valid reason for delay – whether prejudice to respondents COSTS – respondents seek each party pay their own costs – whether proceedings defended in public interest – whether need for contradictor – whether “something more” – costs follow the event

Catchwords:

VALUATION OF LAND — correct information and methodology to apply as at valuation date

Catchwords:

CRIME – Drug offences – Manufacture prohibited drug – Large commercial quantity – Alleged non-exculpatory duress – Weight to be given to untested assertions by offender on contested matters of fact to third parties and by letter to the Court – Objective seriousness of offender coming to Australia for sole purpose of manufacturing large quantity of methamphetamine – Subjective case – Deprived childhood in Iran – Bugmy principles – Payment of gambling debt motivated offending – Opinion of psychologist as to clinical diagnosis of C-PTSD – Drug and gambling addictions

Catchwords:

CRIME – Appeal and review – Appeal from Local Court to District Court – By person convicted against conviction – Conviction by Local Court Magistrate – From finding of fact – Credibility of witnesses – Failure to give appropriate directions of law – Weight to be given to medical opinions tendered by the Crown without objection – Onus of proof – Undesirability of rhetorical questions as to why a witness may give false evidence