Browse decisions Displaying 1 - 200 out of 126564 results

Catchwords:

DEFAMATION — Facebook posts — whether published by defendant — first and second plaintiffs operate real estate business (through the corporate vehicle of the third plaintiff) DEFAMATION — serious harm element — where a plaintiff is an excluded corporation — consideration of what is ‘serious financial loss’ DAMAGES — differentiation between individual plaintiffs and a corporate plaintiff CIVIL PROCEDURE — consequences for proof of plaintiff’s claim when defence struck out for want of due dispatch

Catchwords:

TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Signs and road markings — Speed limits offence — Mistaken belief as to applicable speed limit is a mistake of law not fact — Defence of honest and reasonable belief as to speed limit is not available — No realistic prospect of authorities to the effect of being overturned by Court of Criminal Appeal or High Court of Australia — Camera recorded offences — Certificate of evidence prima facie proof of matters certified CRIME — Appeal and review — Stated case — Application to state a case refused

Catchwords:

TORTS — intentional torts — institutional sexual abuse — whether child sexual abuse occurred by school teacher — causation — whether intervening acts severed causal connection EVIDENCE — certificate of conviction — whether facts sustaining essential elements of criminal offences rebutted — whether defendant in subsequent civil proceeding discharged evidential onus to prove convictions erroneous DAMAGES — aggravated damages — availability of exemplary damages when defendant has received a sentence of imprisonment NEGLIGENCE — cross-claims — institutional sex abuse — first defendant (State) claims indemnity or contribution from second defendant (teacher) who allegedly perpetrated abuse against the plaintiff — significance of settlement of plaintiff’s claim against the State — whether State is a tortfeasor liable — whether teacher is a tortfeasor who if sued by the plaintiff would have been liable to her for the same damage — reasonableness of settlement of plaintiff’s claim against the State — apportionment of liability as between tortfeasors DAMAGES — whether State’s claim against teacher for contribution apportionable under Civil Liability Act 2002 (NSW) — whether claim against teacher for damages for breach of contract apportionable CONTRACT — contract of employment — implied terms — damages — whether costs incurred in defending suit by third party recoverable in contract against a contract breaker

Catchwords:

OCCUPATIONS — Medical practitioners — Misconduct and discipline — Disciplinary tribunal — Stage 1 and Stage 2 hearings combined — Self-prescribing — False prescribing — Impairment — Unsatisfactory professional conduct — Professional misconduct — Found fit to practise — Protection of the health and safety of the public — Reprimand — Conditions imposed — Costs

Catchwords:

CIVIL PROCEDURE — representative proceedings — application of plaintiff for approval of Court to discontinue proceedings — where defendants consent to discontinuance — whether the proposed discontinuance would be fair and reasonable and in the interests of group members

Catchwords:

ADMINISTRATIVE LAW - administrative review - review by Civil and Administrative Tribunal GAMING - gaming machines - connectivity to CMS system - cash withdrawal facilities on ATMs - credit card accounts - breaches - penalties - proportionality of penalty

Catchwords:

MENTAL HEALTH – Treatment – Electroconvulsive therapy – involuntary inpatient diagnosed with treatment resistant schizophrenia – ECT determination sought by medical team without patient’s consent – ECT treatment authorised by Tribunal and Supreme Court on appeal – construction and application of s 96(3) of the Mental Health Act 2007 (NSW) – treatment reasonable and proper and at least desirable for the safety or welfare of the patient CIVIL PROCEDURE – Hearings – Procedural fairness – primary judge refused leave for self-represented plaintiff to issue subpoenas and adjourn final hearing – nature of procedural fairness issue in such circumstances – no breach of procedural fairness established APPEALS – Further evidence – applicant sought leave to adduce further medical records – no special grounds established and leave refused – respondent sought leave to adduce fresh evidence of patient’s current clinical status – evidence allowed in part

Catchwords:

ADMINISTRATIVE LAW – administrative review – government information – whether Tribunal can make a determination or decision about the information identified as responsive to the access request – whether excluded information – whether further is held

Catchwords:

CORPORATIONS — winding up — voidable transactions — uncommercial transactions — unfair preference payments — unreasonable director-related transactions — where sole director of insolvent company used company account to hold personal funds — whether such funds beneficially belong to the company — whether sole director’s transfer of such funds to his wife diminished company assets available to creditors on a winding up

Catchwords:

DEVELOPMENT APPEAL – garage use – unauthorised works – conciliation conference – agreement between the parties – orders

Catchwords:

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

Catchwords:

OCCUPATIONS – medical practitioner – unsatisfactory professional conduct – professional misconduct – protective orders

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – application under UCPR r 36.15 to set aside previous judgment for irregularity – whether provision of central documents necessary for procedural fairness on a summary judgment motion

Catchwords:

CIVIL – Compensation Jurisdiction – Special Statutory Compensation List – Application for costs

Catchwords:

LEASES AND TENANCIES – termination of social housing tenancy agreement for breach by the tenant in failing to pay rent. APPEALS –Tribunal misunderstood that it was obliged to order termination - question of law raised.

Catchwords:

EQUITY — Equitable remedies — Injunctions — Interlocutory injunction — Plaintiff alleges in proceedings there is binding contract between plaintiff and defendant — Claim of binding contract principally based on a letter sent by defendant to plaintiff in October 2024 appointing plaintiff as exclusive distributor of certain products of defendant in Australia and New Zealand until 31 December 2027 — Defendant emailed plaintiff in January 2025 to say it is withdrawing exclusivity — Defendant appears to otherwise deny binding contract — Plaintiff has been sole distributor of relevant products for defendant in Australia and New Zealand from 2012 to 2025, including for a period after defendant purported to unilaterally withdraw exclusivity — Where defendant has taken steps to enter into market itself with Australian subsidiary — Defendant concedes serious question to be tried — Whether balance of convenience favours interlocutory injunction until certain claims are determined — Where certain claims to be determined in Expedition List — Where defendant has proffered various undertakings in alternative to injunctive relief — Where plaintiff and defendant have hitherto had long standing arrangements in relation to distribution of defendant’s products

Catchwords:

LAND LAW — Torrens title — injunction to restrain registration of dealings — where contract of sale completed in exercise of mortgagee power of sale — where validity of mortgage and power of sale challenged — where priority conflict between unregistered purchasers

Catchwords:

PRIVATE INTERNATIONAL LAW — Foreign judgments and orders — recognition and enforcement of judgment issued by Fourth Intermediate People's Court of Beijing at common law — no participation by defendant — no issue of principle

Catchwords:

CRIMINAL PROCEDURE – suppression and non-publication orders – whether order “necessary” to prevent prejudice to administration of justice or in the public interest – whether applicant’s rehabilitation and reintegration into the community would be compromised – applicant failed to establish necessity – notice of motion dismissed

Catchwords:

CIVIL PROCEDURE — Interim preservation — Freezing orders — where owners’ corporation sought to restrain developer from selling its only substantial assets without notice — where developer sought to use proceeds of sale of assets to repay debt incurred from related parties to fund development — where developer granted security over assets to related parties while litigation pending — whether debts incurred in the ordinary course of business — whether sale of assets in order to pay debts as they fell due should have been carved out of freezing order — whether danger that prospective judgment debt would not be paid caused by apprehended payment of existing debts or the financial position of the prospective judgment debtor

Catchwords:

ANTI-DISCRIMINATION – Vilification – on grounds of homosexuality – Victimisation

Catchwords:

COSTS – application for miscellaneous matters – ancillary proceedings – costs – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – s 60 Civil and Administrative Tribunal Act 2013 (NSW) – amount in dispute in appeal proceedings – costs in favour of successful party in the ancillary proceedings

Catchwords:

CIVIL PROCEDURE — application for joinder — s 25(2) of the Land and Environment Court Act 1979 (NSW) — statutory construction — whether exercise of s 25(2) was discretionary or mandatory — Court’s discretion not exercised — application for joinder dismissed — costs of motion reserved

Catchwords:

CIVIL PROCEDURE – Application for proceedings to be dismissed because no reasonable cause of action is disclosed – where plaintiff alleged the defendant breached a duty of care owed to her when her child was removed from her care – safety, welfare and well-being of the child is paramount – interests of children and parents are diverse and irreconcilable – defendant had no duty of care to the plaintiff when carrying out its functions in relation to the care and protection of the plaintiff’s child – proceedings dismissed

Catchwords:

ESTOPPEL — Proprietary estoppel — Encouragement — Where plaintiff is a farmer — Where the farm is made up of three parcels of farmland — Where the first parcel of farmland (First Parcel) was owned by plaintiff’s mother (the deceased) prior to her death — Where plaintiff alleges that the deceased made representations that he would inherit all of the First Parcel if he stayed and worked on the farm — Where plaintiff will inherit 70% of the residue of the deceased’s estate, which includes the First Parcel, and has already received the second parcel of farmland (Second Parcel) as an inter vivos gift — Whether the deceased made the representations as alleged — Whether plaintiff has detrimentally relied on the representations EQUITY — Trusts and trustees — Constructive trusts — Where third defendant is the plaintiff’s younger brother and a son of the deceased — Where a company (Trustee Company) conducts a farming business as trustee of a unit trust (Unit Trust) — Where plaintiff and third defendant each held units in the Unit Trust — Where Trustee Company owns the third parcel of farmland (Third Parcel) and plant, stock and equipment — Where third defendant declined to give a guarantee for the refinancing of Trustee Company’s debts — Where plaintiff alleges that this conduct of the third defendant resulted in failure of joint venture between them — Whether the Unit Trust’s assets are held subject to a constructive trust in plaintiff’s favour due to failure of joint venture — Whether plaintiff or Trustee Company paid the purchase price for the Third Parcel — Whether plaintiff or Trustee Company owns plant, stock and equipment RESTITUTION — Nature of restitutionary liability — Unjust enrichment — Where plaintiff claims reasonable remuneration on a quantum meruit basis from Trustee Company — Where plaintiff has worked for farming business without deriving any wage — Where there was no contract governing plaintiff’s work — Whether unjust for Trustee Company to retain the benefit of plaintiff’s work — Whether there was an express or implied request by Trustee Company to plaintiff to perform work — Whether Trustee Company accepted plaintiff’s services knowing he expected to be paid — Whether change of position defence applies EQUITY — Trusts and trustees — Breaches of trust — Breaches of fiduciary duty — Rule in Barnes v Addy — Where plaintiff is a director of Trustee Company — Where plaintiff caused Trustee Company to transfer its assets to his own family trust — Where plaintiff caused Trustee Company to distribute income to himself and his wife but not the other unitholders — Whether Trustee Company has breached its duties as trustee to third defendant — Whether plaintiff has breached his fiduciary duties to Trustee Company — Whether recipient of trust property is liable under first limb of Barnes v Addy CORPORATIONS — Members’ rights and remedies — Oppression — Where conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory against minority — Where third defendant is a member of Trustee Company — Whether conduct of plaintiff and Trustee Company are oppressive to the interests of third defendant in his capacity as a unitholder in the Unit Trust pursuant to Corporations Act 2001 (Cth), s 232 — Whether a buy-out order is the appropriate remedy SUCCESSION — Family provision — Claims by five adult daughters of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Where each daughter received no provision under the deceased’s will — Where the deceased had purported to make provision for her daughters under her will but gifts failed — Where all except the youngest daughter have lived independent lives from the deceased with their spouses and children — Where youngest daughter lived with the deceased and was the deceased’s carer until her death — Whether adequate and proper provision was made by the deceased to each daughter and if not, what the nature and amount of further provision should be — Whether and how burden of additional provision should be adjusted

Catchwords:

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

Catchwords:

CIVIL PROCEDURE — subpoena — objection to access of documents on basis of privilege — application of common law principles — documents prepared by third party — whether prepared for dominant purpose of obtaining legal services — whether obligation of confidentiality — Respondent to pay Applicants’ costs of notices of motion

Catchwords:

ADMINISTRATIVE LAW – joinder of parties – whether applicants for joinder may be proper parties – whether objectors and commercial competitors should be joined – whether competitors represent community views

Catchwords:

CIVIL PROCEDURE – Application for separate determination of questions – whether defendant is indemnified by insurance policy – parties agree that resolution of their dispute before the primary proceedings is in the interests of justice but disagree about the form of the separate questions – separate questions to be answered involve questions of law, no contested evidence, and involve the construction of terms in the insurance policy – separate questions will facilitate the just, quick and cheap resolution of the real issues in the proceedings

Catchwords:

TORTS — misfeasance in public office — elements — public power and meaning of public duty — not necessary to establish tort that there be duty to exercise power, although presence of such duty important in cases involving conduct by omission — not necessary to establish that public officer owed a duty not to commit particular abuse complained of to claimant individually or as member of class — duty in s 15A of Director of Public Prosecutions Act 1986 (NSW) applied to exercise of public power in investigating robbery — investigating officer failed to comply with public duty — officer did not act maliciously CRIMINAL PROCEDURE — prosecution disclosure requirements — disclosures in indictment — statutory and common law obligations of legal practitioners acting as prosecutors — statutory framework intended to be capable of consideration and indirect enforcement by judiciary — framework pursues public interest in fair trial and efficient conduct of criminal proceedings COURTS AND JUDGES — adequacy of reasons — complaint about inadequacy of reasons often inutile in appeal by way of rehearing where correctness of decision also challenged — reasons should in general consider and address core matters of law, fact or discretion in dispute — replication of party’s submissions unwise but does not necessarily render reasons inadequate — no distinct and sufficient criterion of inadequacy of reasons that justice has not been seen to have been done — primary judge brought own mind to bear on issues before him

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – view obstruction – whether the view obstruction is severe – whether the obstruction must be present on the day of the hearing – sunlight obstruction – whether sunlight obstruction is severe – whether the sunlight obstruction existed before the current hedge

Catchwords:

EVIDENCE — witness evidence — compellability — spouses, parents and children — where witness is not a biological child of the Accused — whether witness is a ‘child’ of the Accused within the extended definition of the term — balancing exercise between likely harm and desirability of having evidence given

Catchwords:

JUDGMENTS AND ORDERS — application to amend judgment — no relevant error identified — power to amend judgment is not a substitute for appeal CIVIL PROCEDURE — application for suppression and non-publication order after publication of judgment — no grounds to make such an order

Catchwords:

LAND LAW — Conveyancing — Contract for sale — Off-the-plan purchase of strata lot including car parking space — Whether removal of car parking space in registered strata plan a breach by vendor — Whether lodgment of caveat by purchaser a breach or repudiation entitling vendor to terminate — Specific performance where restrictive use condition on utility lot — Relief against forfeiture

Catchwords:

COSTS – indemnity costs – where plaintiffs’ conduct was unreasonable or delinquent – where plaintiffs’ claims doomed to fail PRACTICE AND PROCEDURE – where evidence suggests possible commission of several criminal offences in connection with proceedings – where court under duty to refer matter for investigation – show cause hearing – no satisfactory explanation given

Catchwords:

APPEALS — Application for leave to appeal — application filed out of time — claims for trespass to land and goods — application to stay first instance proceedings refused — claim for trespass to land established — nominal damages awarded — claims otherwise refused — indemnity costs ordered on gross sum basis — monetary threshold for appeal not met — no question of general principle — extension of time to file application granted — leave refused

Catchwords:

CRIME – appeal against sentence – guilty pleas to two counts of armed robbery – applicant aged 18 years at the time of the offending – whether there was error in failing to consider principles applicable to sentencing young offenders – where limited submissions advanced before sentencing judge on the principles – whether general and specific deterrence should be moderated by reason of reduced moral culpability due to youth, immaturity and other features of the applicant’s background – significance of rehabilitation due to youth – applicant resentenced – aggregate term of imprisonment of 4 years imposed

Catchwords:

BUILDING AND CONSTRUCTION — Adjudication Review Application under the Building and Construction Industry (Security of Payment) Act 2021 (WA) — requirement under s 42(3) of that Act for an applicant making an adjudication review application to give a copy of that application to the other party within one business day after the application is made — statutory construction — whether s 42(3) is a jurisdictional precondition — whether the review adjudicator fell into jurisdictional error BUILDING AND CONSTRUCTION — Statutory Construction — interpretation of s 113 of the Building and Construction Industry (Security of Payment) Act 2021 (WA) requiring the giving of a document in the manner provided for in the contract or in s 113(3) of that Act — whether the primary judge erred in finding that the respondent did not comply with the time requirement in s 42(3) by sending an email with an attached email providing a Mimecast link to the application documents

Catchwords:

BAIL — where applicant is accused of take/detain in company with intent to obtain advantage and assault occasioning actual bodily harm — Crown claims applicant is president or member of Hells Angels which is denied — where applicant poses unacceptable risks — application refused

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW)- whether s 43 of the Residential Tenancies Act 2010 applies to a failure to maintain after commencement of a tenancy – assessment of compensation for breach of duty under s 63 of the Residential Tenancies Act 2010

Catchwords:

DEVELOPMENT APPLICATION — residential apartment building development — low and mid rise housing — cl 4.6 written request — number of storeys — agreement between the parties — orders

Catchwords:

DEVELOPMENT APPEAL – modification application – residential development – substantially the same development - conciliation conference – agreement between the parties - orders

Catchwords:

HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) --- race discrimination in the provision of goods and services – where President of Anti-Discrimination Board declined a complaint of race discrimination in the provision of goods and services –where applicant has required the President of the Anti-Discrimination Board to refer a declined complaints 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:

CONSUMER LAW — misleading and deceptive conduct to induce the making of an investment in cryptocurrency DEED POLL – dealing with trust property by trustee in a manner inconsistent to undertakings by the trustee in a deed poll

Catchwords:

CRIME — appeals — appeal against sentence — whether sentencing judge made a De Simoni error taking into account a circumstance of aggravation such that the applicant was sentenced on basis of a more severe offence — whether sentencing judge mistook facts — whether sentencing judge erred in failing to bring into effect his Honour’s finding concerning backdating the term of imprisonment to a specific period into a revoked period of parole where no De Simoni error — where sentencing judge’s factual error in remarks on sentence did not have capacity to influence sentence — where sentencing judge was not indicating precise period of backdating — where sentencing judge made an arithmetical error in commencement date — where arithmetical error went to mechanics of implementing discretionary judgment — where Court not required to re-exercise sentencing discretion

Catchwords:

CRIME — Appeals — Appeal against sentence — Application of Bugmy principles — Age when disadvantage occurs — Environment where disadvantage occurs — Appeal dismissed — No new issue of principle

Catchwords:

CIVIL PROCEDURE — pleadings — amendment — where amendment and joinder of parties late in hearing — where alternative relief claimed in circumstances that other forms of relief may not be possible or desirable — where existing and new parties can be afforded the opportunity to lead evidence and make submissions as to alternative relief

Catchwords:

COSTS — whether costs should be awarded on the indemnity basis — no issue of principle

Catchwords:

WORKERS COMPENSATION – COAL MINING –Injury arising in the course of employment working in or about a coal mine – Injury to cervical spine – Contributory negligence – Assessment of damages

Catchwords:

CIVIL PROCEDURE — Interim preservation — Search orders — Grounds on which ordered —Plaintiff and builder entered into cost plus construction contract — Defendant employee of builder and apparently provided services to plaintiff through builder — Where evidence suggests defendant has charged for “excessive and implausible” hours — Where evidence of potential concealment of conduct by defendant when questioned about hours charged — Where publicly available information and information obtained by plaintiff concerning other construction projects also adds to plaintiff’s suspicion as to defendant’s conduct — Search order granted

Catchwords:

TRUSTS AND TRUSTEES — order appointing trustee for sale provides for remuneration at firm’s standard rate at the time — later application to increase rates retrospectively — power to increase rates retrospectively — functus officio — UCPR r 36.16(2)(b) — inherent power in equity — whether discretion should be exercised in trustee’s favour — application refused COSTS — application by court-appointed trustee for sale for increased remuneration — objection taken by beneficiary — whether proceedings adversarial — costs follow the event — lump sump costs order — order refused — whether inter partes costs should be made in favour of beneficiary — indemnity of estate — trustee’s prima facie entitlement to indemnity displaced where acting in substance in own interests — indemnity confined to costs incurred before contest became adversarial — whether beneficiary’s solicitor-client costs payable out of fund where objection produced saving estate — additional order refused

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:

CONTRACTS — appeal from Local Court — share purchase agreement — where disputed term ambiguous — whether term should have been implied — parties’ commercial purpose — no error established — appeal dismissed

Catchwords:

ADMINISTRATIVE LAW — judicial review of Medical Appeal Panel decision — where Panel overturned medical assessment certificate determining whole person impairment of 15% — whether Panel correctly applied s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Catchwords:

TORTS – Trespass to the person – Assault – Battery – False imprisonment – child sexual abuse – where plaintiff alleged that sexual abuse took place between about 1980 and 1985 – where defendant denied abuse – credibility – abuse established TORTS – Damages – general, aggravated and exemplary damages

Catchwords:

APPEALS – costs - access to information - appeal dismissed – special circumstances warranting an award of costs – fixed amount of costs awarded

Catchwords:

ADMINISTRATIVE LAW – Revenue – land tax – whether principal place of residence exemption applied at taxing date – construction of the exemption and the phrase “separate buildings erected on separate lots” – whether dwelling capable of being used for separate occupation

Catchwords:

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

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ADMINISTRATIVE LAW – freedom of information – government information public access – public interest considerations – whether public interest considerations against disclosure outweigh the public interest considerations favouring disclosure – whether disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions – whether disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions - whether disclosure could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence - whether disclosure could reasonably be expected to reveal an individual’s personal information or contravene an information protection principle - whether disclosure could reasonably be expected to prejudice the supply to an agency of confidential information- whether no further government information is held.

Catchwords:

Administrative Law – firearms – firearms prohibition order – whether person ‘not fit, in the public interest’ –association with known criminals

Catchwords:

CONTRACT — construction of oral contract — identification of parties to loan contract — whether post-contractual documents constituted admissions as to the identity of the borrower — whether the primary judge mischaracterised reconciliation document — whether the Court was better placed to assess the identity of the borrower

Catchwords:

APPEAL – Development application - conciliation conference – agreement between the parties - orders

Catchwords:

DEVELOPMENT APPEAL – characterisation of development – construction of dwellings – whether prohibited development – whether each dwelling is on its own lot of land – strata subdivision – orders

Catchwords:

COSTS – apportionment – representative proceedings – two representative plaintiffs successful, two unsuccessful – costs incurred in relation to successful and unsuccessful claims – whether partial costs order appropriate – whether departure from principle in ordering partial costs order – whether evidentiary basis for partial costs order

Catchwords:

DEVELOPMENT APPEAL – alterations to a place of public worship – conciliation conference – agreement between the parties – orders

Catchwords:

APPEALS — Materiality of error LEASES AND TENANCIES – Residential tenancies – question of principle – meaning of s 51(3) of the Residential Tenancies Act 2010 (NSW)

Catchwords:

COSTS — no question of principle

Catchwords:

EVIDENCE – privileges – legal professional privilege at common law – respondent the subject of ongoing murder investigations by NSW Police – whether handwritten notes prepared by respondent subject to legal professional privilege – where respondent’s purpose in preparing the notes sought to be proved by inference EVIDENCE – declaratory and injunctive relief on the basis of legal professional privilege – legal professional privilege not an actionable right – consideration of juridical basis of respondent’s claim – respondent’s claim properly characterised as one for breach of confidence CIVIL PROCEDURE – hearings – suppression and non-publication – principles applicable to making suppression orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) – no sound justification offered for the suppression orders made in the proceedings – any justificatory purpose for the suppression orders could be achieved through the use of pseudonyms

Catchwords:

CIVIL PROCEDURE — case management — plaintiff is a self-represented prisoner — application of plaintiff to vacate hearing date

Catchwords:

CORPORATIONS – schemes of arrangement or compromise – at first Court hearing, application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of creditors and members to consider scheme of arrangement – at second Court hearing, orders approving scheme of arrangement and ancillary orders

Catchwords:

PRACTICE AND PROCEDURE – variation of freezing orders – no issue of principle – motion dismissed

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EVIDENCE – legal professional privilege – waiver – material contained in affidavit – material communicated to third party – whether documents privileged – whether implied waiver – whether common interest COSTS – where producing party substantially successful – where material provided on day of hearing – whether costs should follow the event – costs in the cause

Catchwords:

CRIMINAL PROCEDURE – subpoena – application for bench warrant – where subpoena to attend and give evidence not personally served – whether witness has actual knowledge of the subpoena and its requirements – whether witness will probably be able to give relevant evidence

Catchwords:

Administrative Law - licencing - licence cancelled – disqualification - improper conduct – breached statutory warranties - fit and proper person.

Catchwords:

TAXES AND DUTIES – Administration – Assessment – Objection to assessment – agreement liability date – meaning of date in s 161 of the Duties Act 1997 – interest – market rate component, remission of premium interest component

Catchwords:

HIGH RISK OFFENDERS — extended supervision orders (ESO) — serious sex offender — sexual offences committed against young girls — ESO not opposed — dispute as to conditions — dispute as to duration — conditions to be imposed as part of the ESO — no point of principle — ESO made

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Application for recovery of money and orders for civil penalties — Underpayment of wages — Failure to pay accrued annual leave and long service leave — Breaches of the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth) — Owner involved in contraventions — Orders made

Catchwords:

CRIME — appeals — appeal against sentence — manifest excess — where applicant challenged aggregate sentence by reference to individual indicative sentences — aggregate sentence not manifestly excessive

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Termination — Unfair dismissal

Catchwords:

CRIME — Restraining order — orders sought pursuant to Criminal Assets Recovery Act 1990 in respect of property outside New South Wales in connection with suspected ‘external serious crime related activity’ — whether evidence establishes defendant to be domiciled in New South Wales

Catchwords:

COURTS AND JUDGES — Bias — Apprehended bias — Recusal — Animus — Statements unrelated to the proceedings — Role of the Director — Role of the Solicitor — Role of Crown Prosecutors — Ordinary judicial practice — Attack on judicial independence — Ex parte communications — Accumulated factors — Need for logical connection

Catchwords:

COURTS AND JUDGES — Bias — Apprehended bias — Recusal — Animus — Statements unrelated to the proceedings — Role of the Director — Role of the Solicitor — Role of Crown Prosecutors — Ordinary judicial practice — Attack on judicial independence — Ex parte communications — Accumulated factors — Need for logical connection

Catchwords:

COURTS AND JUDGES — Bias — Apprehended bias — Recusal — Animus — Statements unrelated to the proceedings — Role of the Director — Role of the Solicitor — Role of Crown Prosecutors — Ordinary judicial practice — Attack on judicial independence — Ex parte communications — Accumulated factors — Need for logical connection

Catchwords:

COURTS AND JUDGES — Bias — Apprehended bias — Recusal — Animus — Statements unrelated to the proceedings — Role of the Director — Role of the Solicitor — Role of Crown Prosecutors — Ordinary judicial practice — Attack on judicial independence — Ex parte communications — Accumulated factors — Need for logical connection

Catchwords:

DEFAMATION — request for further and better particulars of defence CIVIL PROCEDURE — overriding purposes of case management — request for further and better particulars rolled up with request for documents — other party initially refuses to provide access to documents — importance of removing satellite disputes

Catchwords:

CRIME — Sentencing — Firearm offences — Supply unregistered firearm — Two counts of possess unauthorised pistol — Form One matters — Consideration of backdating for partially referable time incarcerated and quasi-custody in rehabilitation centre — Adjustment of non-parole period/head sentence ratio — Aggregate sentence of incarceration imposed

Catchwords:

PRACTICE AND PROCEDURE – application for payment out of funds held in court from sale of property over which there was a priority dispute – where the parties involved in the priority dispute have proprietary interests and agreed to the payment out of court to each of them – where parties with purported competing interests have been served and were on notice of the hearing but failed to appear or contest the proceedings – HELD – no competing proprietary interests in funds held in court, funds to be paid out of court as agreed and proceedings otherwise dismissed

Catchwords:

SENTENCING – organise or facilitate entry of or receipt of person under 18 intending they would be used to provide sexual services or otherwise be exploited after entry or receipt into Australia – engage in conduct causing another person under 18 to enter into or remain in forced labour – facilitate transport of person under 18 intending person be used to provide sexual services – plea of guilty – parity – imprisonment

Catchwords:

OPPRESSION — members’ rights and remedies — whether oppression established — whether buy-out order should be made — whether receiver should be appointed to sell shares in company — whether company should be wound up on the just and equitable ground

Catchwords:

TORTS – Malicious prosecution – Collateral abuse – criminal proceedings – Vicarious liability – where plaintiff worked at a childcare centre – where three employees allege witnessing plaintiff bind the hands of a disabled child on two separate occasions – where witnesses make allegations three years after alleged incidents – where no documentary record of incidents occurring – where witnesses provide statements to Second Defendant – where Second Defendant provides the statements to police – where witnesses give sworn police statements – where police relied on evidence of witnesses to charge and prosecute plaintiff – where criminal proceedings terminated in plaintiff’s favour – where plaintiff does not bring a claim against prosecuting authorities but against a company and two individuals TORTS – Malicious Prosecution – absence of reasonable and probable cause not established – Malice not established – Defendants did not commence or maintain prosecution EVIDENCE – Onus of proof – Standard of Proof – where part of the plaintiff’s case involved an allegation that three witnesses fabricated the allegations against her DAMAGES – Contingent assessment – Non-economic loss – Economic loss

Catchwords:

CORPORATIONS – arrangements and reconstructions – scheme of arrangement – where requisite majorities for scheme achieved – where scheme is fair and reasonable – where time between scheme meetings and second Court hearing did not render scheme resolutions stale – orders made approving scheme of arrangement

Catchwords:

COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed

Catchwords:

ADMINISTRATIVE LAW – judicial review – notice issued under s 127(2) of the Home Building Act 1989 (NSW) – whether notice invalid – where notice required production of documents and information – where notice issued in the context of an investigation – requirements of a notice – whether “entitlement disclosure condition” applies to the notice – whether notice discloses the basis on which the Secretary entitled to require the information or documents sought – whether notice identified a “matter” – whether severance of the notice possible – where invalid portions not inextricably mixed STATUTORY INTERPRETATION – whether “entitlement disclosure condition” implied in a notice issued under s 127(2) of the Home Building Act 1989 (NSW) – where consideration of text, context and purpose of s 127 – entitlement disclosure condition implied

Catchwords:

CORPORATIONS – Insolvency – Co-operative registered in New South Wales under Co-operatives National Law (NSW) – Where administrators were appointed to the co-operative – Application by administrators for winding up in insolvency – Whether insolvency was established in fact –Whether there are viable alternatives to winding up – Relevance of administrators’ conduct in holding a ballot to the residual discretion CORPORATIONS – Identity of the liquidators to be appointed on the winding up – Where current administrators seek to be appointed as liquidators – Where defendants oppose that appointment – Where administrators are currently largest creditor of the co-operative by reason of their claim for remuneration as administrators ASSOCIATIONS AND CLUBS – Rules – Proper construction of Co-operatives National Law (NSW) in respect of the voting rights of members of a co-operative – Utility of declaratory and other relief sought by five members of the co-operative

Catchwords:

CONTRACTS — undue influence — whether defendant subjected to excessive pressure — where agreement improvident and plaintiff received a substantial commercial benefit, while defendant obtained none — where terms not negotiated with defendant who executed agreement late at night — where plaintiff aware defendant’s interests were not protected — where plaintiff relies on claimed independent legal advice — facility agreement and mortgage set aside CONTRACTS — unjust contracts — Contracts Review Act 1980 (NSW), s 7 — whether terms of agreement were also unconscionable, harsh and oppressive EQUITY — unconscionable conduct — special disability or disadvantage — where plaintiff had actual knowledge of defendant’s special disadvantage CONSUMER LAW — unconscionable conduct —Australian Securities and Investments Commission Act 2001 (Cth) and Australian Consumer Law — where plaintiff exploited defendant’s known financial vulnerability and lack of commercial sophistication CONSUMER LAW — misleading or deceptive conduct — representations as to future matters — where plaintiff’s misleading and deceptive statements induced defendant’s entry into the agreement EVIDENCE — witness credibility — defendant’s evidence preferred in the event of conflict

Catchwords:

APPEAL – appeal against Commissioner’s decision on question of law – refusal of development consent for digital sign – amendment of development application – substitution of new visual impact assessment report for former visual impact assessment report – Commissioner’s consideration of superseded report not new report – failure to consider and determine amended development application – provisions of environmental planning instrument and development control plan regulating permissibility and location of digital sign – whether inconsistency or incompatibility – no misinterpretation or misapplication of development control plan provision

Catchwords:

WILLS PROBATE AND ADMINISTRATION – disclaimer of testamentary gift and any interest on intestacy of the deceased – where disclaimer made under misapprehension about its consequences – whether permissible for the disclaiming party to revoke the disclaimer

Catchwords:

ENVIRONMENT AND PLANNING — consent — appeal — s 34 agreement — cl 4.6 variation —conditions of consent

Catchwords:

CRIME — appeals — appeal against conviction —unreasonable verdict — offences under s 61M(2) of the Crimes Act 1900 (NSW) — element of offence that complainant be under the age of 16 years — whether evidence on count 2 established beyond reasonable doubt that complainant was under the age of 16 years at the time of the offence — whether complainant’s evidence on count 3 established beyond reasonable doubt acts alleged to constitute offence — verdicts on counts 2 and 3 unreasonable — verdicts quashed — resentence on remaining counts CRIME — appeals — appeal against conviction — miscarriage of justice — directions to jury — tendency evidence — whether tendency directions considered as part of the summing up as a whole deflected the jury from its ultimate task — directions sufficient CRIME — appeals — appeal against sentence — unnecessary to determine given resentence

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 3 – Where both a corporation and its director prosecuted – Where worker exposed to crystalline silica and was not wearing appropriate personal protective equipment – Where defendants failed to maintain systems to ensure that dust generated from fabricating engineered stone was not circulated in the workplace – Assessment of relative culpability of each Defendant

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where an unsupervised young and inexperienced worker’s leg became entangled in a mill auger

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where the defendant breached duty to take care that his or her actions or omissions did not adversely affect the health and safety of other persons EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where the defendant was responsible for providing directions and instructions to the injured worker and failed to direct the injured worker to not approach the rotating components of a drilling development rig in a mine EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where the defendant exited the cabin of a development rig in the course of mine development drilling without disengaging the rotation control lever – Where the immobiliser switches were not activated EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Penalty – Capacity to pay – Where the defendant is of modest means and any pecuniary penalty will be difficult for the defendant

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where a construction worker fell through void in circumstances of inadequate fall control measures and supervision EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where a construction worker suffered serious injuries to his lower limbs including multiple spiral fractures, comminated intra-articular fractures, disruptions of the ankle mortise, and avulsion fracture of the dorsal navicular bone PRACTICE AND PROCEDURE – Obligation upon legal practitioners to give proper consideration to the nature and extent of documentary evidence to be tendered to the Court

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 3 – Where a worker was unknowingly exposed to chlorine gas poisoning – Lack of training and signage – Defendant otherwise a safety-conscious company with a strong subjective case

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where the defendant knew of the risk and the remedial steps which could have minimised that risk EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Worker demolishing garage, standing on a plank which is resting across the roof, falls 2.5-3.5m into skip bin with debris and suffers spinal and arm fractures

Catchwords:

ADMINISTRATIVE LAW – Land tax – Surcharge land tax – Foreign person

Catchwords:

DEVELOPMENT APPEAL – residential development - rural land – contravention of minimum Lot size for dwelling in rural landscape development standard – achieving the objective of minimising unplanned development - orders

Catchwords:

ADMINISTRATIVE LAW – administrative review – real estate agent – fit and proper person to hold a licence

Catchwords:

CONSUMER LAW – unconscionable conduct – breach of contract – identity of correct respondent. APPEAL – failure to afford procedural fairness.

Catchwords:

OCCUPATION – health practitioner –Stage 2 Judgment – practitioner guilty of unsatisfactory professional conduct (s 139B(1)(b) National Law) – practitioner made the subject of a criminal finding (s 144(a) National Law) – Reprimand 149A(1) ordered – Costs order.

Catchwords:

EVIDENCE — witness evidence — compellability — spouses, parents and children — where witness is not a biological child of the Accused — whether witness is a ‘child’ of the Accused within the extended definition of the term — relevance of Indigenous identity of the witness and the Accused as to nature of the relationship between them — balancing exercise between likely harm and desirability of having evidence given

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether the tree has caused damage — whether the tree is likely to cause damage — mould and property maintenance — orders for tree pruning

Catchwords:

CIVIL PROCEDURE — application for substituted service — dispute between former tenant and property owner concerning payment of rent — where evidence suggests first defendant lives overseas and conducts his affairs in Australia via an agent — whether originating process cannot practicably be served on the first defendant in the manner provided by law

Catchwords:

CIVIL PROCEDURE — Separate determination of questions — application by defendants to determine liability in a separate hearing — Uniform Civil Procedure Rules 2005 (NSW) r 28.2 — whether separate hearing would facilitate the just, quick and cheap resolution of the real issues — premature application — evidence not finalised and scope of issues in dispute unknown

Catchwords:

EVIDENCE — exclusion of prejudicial evidence in criminal proceedings — unfair prejudice said to arise from late disclosure and inherent unreliability of hearsay

Catchwords:

COSTS — determination of separate questions — application of ordinary rule that costs should follow the event

Catchwords:

COSTS – application for a special costs order – whether a provision for “costs as agreed or assessed” is compliant with r 20.26(2)(c) of the Uniform Civil Procedure Rules 2005 (NSW) – whether the Court should order otherwise – indemnity costs ordered JUDGMENTS AND ORDERS – application for stay of execution or enforcement – whether to order a stay on a monetary judgment – notice of intention to appeal filed – risk of dissipation of assets if stay granted

Catchwords:

CRIME – judge alone trial – murder – where prosecutor and defence agree that defence of mental health impairment available – where accused diagnosed with schizophrenia – Court satisfied that defence is established – act proven but not criminally responsible

Catchwords:

LAND LAW — Strata title — Strata renewal plan CIVIL PROCEDURE — Separate determination of question — Where appropriate — Class 3 application — Characterisation of strata renewal plan

Catchwords:

WORKERS COMPENSATION — Medical assessment — alleged apprehended bias on part of medical assessor — judicial review of Appeal Panel decision on legal question which has only one right answer — appropriate and sufficient to focus on whether or not assessor’s decision was infected by bias — assessor’s use of word “risible” in certificate said to give rise to apprehended bias — decision-makers expressing disagreement with law — the lay observer would understand that administrators are not required to agree with legal or administrative standards — apprehended bias not established thus Appeal Panel’s decision correct

Catchwords:

COMMERCIAL – unconscionable conduct – agreement for lease – where plaintiff is a special purpose vehicle without substantial assets – where defendant is a State-owned corporation – where plaintiff asserts it was unconscionable within the meaning of s 21 of the Australian Consumer Law for defendant to negotiate terms into the agreement for lease that were not reasonably necessary to protect its legitimate interests and to subsequently terminate the agreement for lease on the non-satisfaction of the conditions precedent – where plaintiff asserts it was not possible to satisfy conditions precedent – no allegations of dishonesty made – where defendant acted reasonably and responsibility – no unconscionable conduct COMMERCIAL – where alleged lost opportunity –causation and quantum – where plaintiff’s causation case advanced in multiple and inconsistent ways – where counterfactual analysis required plaintiff to prove on balance of probabilities that facility would be constructed and lease granted – where shifting and inadequately pleaded counterfactual – whether agreement would have been lawfully terminated in any event – where expert evidence considered on counterfactual – where failure to establish causal connection between alleged conduct and loss of opportunity – whether lost opportunity had non‑negligible value – no compensable lost opportunity – causation not established COMMERCIAL – evidence – expert evidence – global objections to expert evidence – where multiple experts retained by same party communicated directly and exchanged draft reports contrary to retainer directions – whether expert evidence opinion evidence under s 79 of the Evidence Act 1995 (NSW) – whether probative value of expert evidence outweighed by unfair prejudice and should be excluded under s 135 of the Evidence Act 1995 (NSW) – where danger of unfair prejudice did not substantially outweigh probative value and was capable of amelioration by disclosure and cross‑examination – discretion to exclude not exercised – legal professional privilege – where solicitor-expert communications privileged – where privilege waived by inconsistency through distribution of privileged communications among experts and election to rely on their evidence – where waiver confined to expert communications – disclosure ordered

Catchwords:

VICTIMS Support – Administrative law – Limitation period –– whether discretion to extend time – whether evidence establishes intent to commit sexual assault – whether such intent constitutes an act of violence in the nature of sexual assault.

Catchwords:

OCCUPATIONS — Legal practitioners — application to the Supreme Court to review Law Society’s refusal to renew practising certificate — Legal Profession Uniform Law s 100 — whether plaintiff is a fit and proper person to hold an Australian practising certificate — onus on plaintiff — hearing de novo on the merits — review of Law Society’s decision does not extend to reviewing the decisions of the Migration Agents Registration Authority and Administrative Appeals Tribunal which were relied on — no real acknowledgment of wrongdoing — lack of insight

Catchwords:

VICTIMS SUPPORT – Administrative law – act of violence – whether acts of violence related – sufficiency of medical evidence – child sexual assaults

Catchwords:

DEVELOPMENT APPLICATION – dwelling house development in R1 General Residential zone – item of heritage significance – conciliation conference – agreement between parties – orders

Catchwords:

APPEAL – application to reinstate proceedings – evidence of party not considered – substantial miscarriage of justice PRACTICE AND PROCEDURE – reinstatement application – whether order refusing reinstatement is final or interlocutory

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — former and current tree property owners are respondents — whether trees have caused damage — whether trees are likely to cause damage or injury — whether compensation for property damage should be paid — whether tree works should be ordered — who should pay for tree works — orders for tree pruning and tree removal

Catchwords:

DEVELOPMENT APPEAL – dual occupancy – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPEAL — dual occupancy — conciliation conference — agreement between the parties — orders

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2A application — neighbouring hedge — obstruction of sunlight — whether the obstruction is severe — privacy — balancing of interests — orders for pruning trees

Catchwords:

CIVIL PROCEDURE — Interim preservation — Freezing orders — Where plaintiff has obtained judgment against defendant for a debt under s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) — Where plaintiff obtained ex parte freezing order against defendant — Where freezing order was later varied to permit defendant to settle certain contracts for sale of strata lots in a residential development that were due for completion — Whether freezing order should be continued and, if so, on what terms

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Threatened dismissal — Application for interlocutory order restraining dismissal — Power to make interlocutory restraining order — Consideration of procedure if restraining order not make and employee subsequently dismissed — Whether Applicant has prima facie case — Balance of convenience — Interlocutory restraining order made EMPLOYMENT AND INDUSTRIAL LAW — Victimisation — Statutory Rights — Power to make interlocutory order in victimisation proceeding

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 – No issue of principle.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers

Catchwords:

ADMINISTRATIVE LAW – administrative review – application seeking review of Registrar’s decision to refuse access to public access documents – decision made under r 42(2) of procedural rules - no review power – whether Tribunal can exercise function afresh

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Notices and enforcement — External review – Commission’s power to award compensation

Catchwords:

CRIME – judge alone trial – murder – manslaughter – whether accused a party to, and participated in, a joint criminal enterprise to, at least, assault the deceased over four days – not guilty verdicts entered

Catchwords:

DEVELOPMENT APPLICATION – shop top housing development – in-fill affordable housing – cl 4.6 written request – height of buildings – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – industrial development – stormwater management – whether the impact on water flow in a natural waterbody will be minimised – orders

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Award — Making of a Consent Award — No issue of principle

Catchwords:

CRIME — Appeals — Appeal against conviction — whether tendency notice properly formulated — whether tendency evidence of ‘significant probative value’ by reference to any of the facts making up the elements of the offence — whether probative value outweighed the danger of unfair prejudice — whether appropriate directions were given to the jury regarding the use of tendency evidence — appeal dismissed CRIME — Appeals — Appeals against sentence — whether sentencing judge relied on findings of fact proved beyond reasonable doubt — whether findings were consistent with the jury verdict — appeal dismissed

Catchwords:

BUILDING AND CONSTRUCTION — excavation contractor engaged to undertake shoring, excavation and foundation piles for underground carpark —subcontract with piling subcontractor — subcontract not signed until works largely complete — head contract never finalised — inconsistencies in scope of works in subcontract and head contract — messy contractual regime – principles as to if and when a contract is formed at [7]-[9] — subcontractor arranges for contractor and head contractor to supply materials for its works — subcontractor fails to complete works — head contractor takes work out of subcontractor’s hands — subcontractor’s final payment claim provokes back-charges by head contractor for materials and cost of attending to subcontractor’s scope of works — contractor and head contractor agree informally to simply ‘walk away’ — subcontractor receives payment of final payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) — whether subcontractor has back-to-back liability with contractor for back-charges — whether contractor entitled to restitution. LIQUIDATED DAMAGES — liquidated damages clause provides $1,000 payable per day “until the Subcontractor achieves Substantial Completion of the Works … or the date that the Agreement is terminated” — subcontractor never achieves Substantial Completion — nor has subcontract been terminated — whether contractor entitled to liquidated damages where neither ‘end point’ in the clause has occurred — case law review at [271]-[276] — application of contra proferentem rule to liquidated damages clauses, principles at [278]-[280] — accrued right to liquidated damages not dissolved if neither ‘end point’ occurs — Triple Point Technology Inc v PTT Public Company Ltd [2021] UKSC 29 followed. INDEMNITY –head contractor has yet to enforce back charges – whether declaratory relief should be made that subcontractor obliged to indemnify contractor if such a claim is made – nature of indemnity at [185] – proper construction of indemnities - necessary to establish that claim arises from subcontractor’s breach, negligence, act or omission — direct connection between breach and claim not required — “arising out of or in connection with” and “arising out of, whether directly, or indirectly, in connection with” discussed at [192] – some back charges within scope of indemnity but not others. PAYMENT SCHEDULE – assessment of contractor’s payment claim results in amount payable to head contractor – whether such payments are ‘on account’ – principles at [171]-[172]. MITIGATION — whether contractor failed to mitigate loss by not signing deed of release proposed by head contractor — principles at [158] — contractor could not give warranty required by deed — commercial assessment — insufficient evidence that decision was unreasonable or improvident.

Catchwords:

CONTEMPT – where second defendant seeks to restrain the first defendant from publishing material or communicating with third parties – where second defendant alleges that the conduct of the first defendant has deterred him from actively participating in the proceedings – whether the alleged conduct has the tendency to interfere with the administration of justice – whether complaints established on balance of probabilities – whether the balance of convenience favours granting the injunction sought

Catchwords:

CONTRACTS – Construction – calculation of damages pursuant to Court’s earlier determination of liability – calculation of pre and post judgment interest CIVIL PROCEDURE – Court of Appeal – submissions did not comply with page limit and used impermissibly small font CIVIL PROCEDURE – Court of Appeal – Costs orders – costs awarded in court below – appeal successful in part – purported offer of compromise in evidence – offer dependent upon parties negotiating deed of release – inconsistent with meaning of offer of compromise under UCPR – offer did not encompass successful component of claim – refusal of offer not unreasonable – proportion of appellant’s first instance costs liability reduced CIVIL PROCEDURE – Court of Appeal – Costs orders – indemnity costs awarded in favour of second defendant at first instance – second defendant not party to appeal – not open to challenge first instance costs order CIVIL PROCEDURE – Court of Appeal – Costs orders – Bullock order sought by appellant – utility of second defendant’s inclusion in first instance proceedings unclear – no uncertainty as to appropriate defendant – no question of insolvency of first defendant – no Bullock order warranted

Catchwords:

DEVELOPMENT APPLICATION — residential apartment building development — in-fill affordable housing — cl 4.6 written request — number of storeys — agreement between the parties — orders

Catchwords:

DEVELOPMENT APPEAL — conciliation conference — agreement between the parties — orders

Catchwords:

CRIME — appeals — severity appeal — whether sentence imposed was manifestly excessive — applicant sentenced for wounding with intent to murder her child — where it was accepted that applicant experienced acute psychosis at time of offending — appeal allowed

Catchwords:

EVIDENCE – Hearsay – Exceptions – whether affidavit evidence is admissible under s 63(2) of the Evidence Act pursuant to a direction under s 67(4) of the Evidence Act – HELD – requirement to provide notice dispensed with and direction made pursuant to s 67(4) of the Evidence Act for hearsay exception to apply

Catchwords:

REVENUE LAW - State taxes - land tax - assessment - objection - appeal REVENUE LAW - tax default - interest - Chief Commissioner’s Guidelines - remission ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Catchwords:

CRIMINAL PROCEDURE – subpoena – application for bench warrant – where subpoena to attend and give evidence not personally served – whether witness has actual knowledge of the subpoena and its requirements – whether witness will probably be able to give relevant evidence

Catchwords:

APPEALS — Procedure — Whether two appeals should be heard together — Relevant matters — Where first appeal listed for hearing very shortly and second appeal, brought by respondent to first appeal, filed six months out of time and only shortly before hearing fixed for first appeal — Where First Respondent to second appeal was removed as a party to the first appeal by consent of other parties — Where orders made in first appeal could not affect the First Respondent to the second appeal — Where listing appeals together would require adjournment of the first appeal — Not necessary or appropriate for appeals to be listed together

Catchwords:

HIGH RISK OFFENDER — preliminary hearing — application for interim supervision order

Catchwords:

APPEALS – Time period to lodge appeal – r 25 Civil and Administrative Tribunal Rules 2014 (NSW) – extension of time required – s 41 Civil and Administrative Tribunal Act 2013 (NSW) – whether extension of time should be granted LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – social housing – consent orders terminating tenancy – whether consent vitiated

Catchwords:

REVENUE LAW - State taxes - duties - first home buyer - exemption - residence requirement - time and pattern of occupation - discretion to change REVENUE LAW - assessment - objection - appeal ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Catchwords:

DEVELOPMENT APPEAL – s34AA – modification application – modification to reinstate roof top screening structure – orders

Catchwords:

CRIMINAL PROCEDURE — Alleged offences committed by two accused persons arising out of the same circumstances — Whether there should be separate trials or a joint trial — Not in the interests of justice for trials to be heard and determined together — Motion dismissed

Catchwords:

APPEAL – Costs ordered in strata management case based on special circumstances – no error on question of law – leave to appeal refused

Catchwords:

OCCUPATIONS – Registered nurse – findings that practitioner guilty of unsatisfactory professional conduct and professional misconduct – application to admit tendency evidence – self-represented practitioner – use of AI to prepare evidence and submission – appointment of questioner for cross-examination of complainants – HCCC granted leave to proceed on its Application and Complaint document filed 9 May 2025 pursuant to Rule 23(3)(b) of the Civil and Administrative Tribunal Rules 2014.

Catchwords:

DEVELOPMENT APPEAL – biodiversity values – critically endangered species – Genoplesium insigne – translocation plan – living dead – adequacy of assumed presence approach to surveys – inadequate information – surveys required

Catchwords:

GUARDIANSHIP — financial management — appointment of a person as manager of a protected estate — whether in evaluating whether the manager was a “suitable person” the Tribunal failed to consider the manager’s criminal history and apply the principles in M v M [2013] NSWSC 1495 at [50] GUARDIANSHIP — appointment of a guardian — whether the Tribunal misapplied s 17(1)(b) of the Guardianship Act 1987 (NSW) — whether proposed guardian’s criminal history gave rise to an undue conflict between their interests and those of the person the subject of the guardianship order DOCTRINE OF PRECEDENT — application to NCAT — whether principles stated in M v M [2013] NSWSC 1495 at [50] constituted seriously considered dicta — whether Tribunal was required to consider each of the principles stated in M v M

Catchwords:

APPEAL – development control order – stop work order – conciliation conference – agreement reached – orders made

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2A application — neighbouring hedge — whether the Trees Act applies to the trees — obstruction of views — whether the obstruction is severe

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether trees have caused damage — whether trees are likely to cause damage or injury

Catchwords:

PROCEDURE: late application to amend pleadings – applicable legal principles – inadequacy of explanation for delay in filing application – whether any genuine prejudice to the non-amending party – leave to amend granted

Catchwords:

COSTS – Offer of Compromise – reasons to “otherwise order” per UCPR r 42.15A – defendant succeeded on only one of the separable issues – majority of documentary and oral evidence was evidence on two of the three issues litigated at trial, upon which the plaintiff succeeded and the defendant failed – requirement of a “broad brush” approach involving impression and evaluation

Catchwords:

CRIME – Appeals – appeal against sentence – drug supply and proceeds of crime offences contravening Drug Misuse and Trafficking Act, s 25(1) and Crimes Act, s 193BA(a) – Form 1 offence – aggregate sentence of 2 years 3 months with non-parole period of 18 months – sentencing principles – Bugmy principles – De La Rosa principles – mental illness (PTSD and ADHD) – causal connection between mental health and offending – reduction in moral culpability – impulsivity submission rejected – limited findings as to motivation – adequacy of reasons as to causal connection - no error established CRIME – Appeals – appeal against sentence – mental illness – onerousness of custody – special circumstances – adequacy of reasons – consideration of relevant sentencing factors – no error established CRIME – Appeals – appeal against sentence – procedural fairness – alleged adverse finding without notice – nexus between mental illness and offending – adequacy of reasons – failure to consider relevant matters – no denial of procedural fairness

Catchwords:

HUMAN RIGHTS - Discrimination - Factors relevant to power to award costs in favour of a successful respondent

Catchwords:

CRIME – Appeals – appeal against conviction – unreasonable verdict – aggravated sexual assault in company – joint criminal enterprise – where Crown alleged applicant participated in joint criminal enterprise by being present, intentionally assisting and encouraging co-accused to commit the crime – whether proof of “directorial acts” was necessary to prove the existence of a joint criminal enterprise or the in company element CRIME – Appeals – appeal against conviction – unreasonable verdict – aggravated sexual assault in company – whether open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt – inconsistencies in complainant’s evidence – where jury acquitted applicant of other counts involving offending against same complainant – whether open to jury to accept the complainant’s evidence – where advantages of the jury were significant – verdicts not unreasonable

Catchwords:

CIVIL PROCEDRE — Subpoena — objection to the refinement of a subpoena by the primary judge — power of the Court to reformulate the terms of a subpoena — legitimate forensic purpose — whether there is a reasonable basis beyond speculation that the requested documentation will shed light on the key issue for the applicant’s stay application CIVIL PROCEDURE — Subpoena — objection to the scope of production of material — public interest immunity claim — client legal privilege — whether there is an onus on a party claiming PII to negative the use of less restrictive measures — inspection by the Court of documents

Catchwords:

CRIME — Appeal against conviction — child sex offences — inconsistent verdicts — applicant charged with 11 sexual offences and one offence occasioning actual bodily harm against his younger sister over three years — convicted of four counts, acquitted of remaining eight counts — unreasonable verdict appeal

Catchwords:

CIVIL PROCEDURE – amendment – where appellant sought leave at conclusion of trial to add a claim not previously pleaded – where request made on the day after trial for consent orders giving leave to amend – where request to make the consent orders was refused by primary judge without hearing further from the parties – where proposed amended pleading extremely late, internally inconsistent and without clear prospects of success – no material denial of procedural fairness BUILDING AND CONSTRUCTION – appeal against refusal of appellant builder’s claim for lost profits following termination of fixed-price residential building contract – where appellant asserted it would have achieved a profit margin of 15% on the balance of the contract price – no evidence adduced of appellant’s actual likely costs of completing the works – claim not established

Catchwords:

CIVIL PROCEDURE — Interlocutory applications — claim for urgent relief in respect of asserted subtenancy following surrender of lease and vacation of premises by head tenant — where plaintiff unsuccessfully sought orders granting access to premises before the NSW Civil and Administrative Tribunal — where Tribunal proceedings continuing — where plaintiff now approaches Supreme Court seeking the same or similar relief in its original jurisdiction — whether evidence discloses a prima facie case against the owners or the agent that plaintiff has right to possession of or access to property — whether plaintiff’s claim constitutes an abuse of process — whether damages may be an adequate remedy — whether balance of convenience favours grant of interlocutory relief CIVIL PROCEDURE — Interlocutory applications — where plaintiff unsuccessfully sought orders for return of chattels and associated interlocutory relief before the NSW Civil and Administrative Tribunal — where total value of plaintiff’s claim is less than limit of Local Court’s Small Claims Decision — where plaintiff did not pursue rights to similar relief in Tribunal, Local Court or District Court — whether plaintiff’s claim constitutes an abuse of process — whether interlocutory relief should be granted — whether any prima facie case of threatened breach of confidence in respect of data on electronic devices — whether damages may be an adequate remedy — whether balance of convenience favours grant of interlocutory relief

Catchwords:

CRIME — Confiscations — Restraining order — orders made pursuant to Criminal Assets Recovery Act 1990 — where defendant does not appear to be domiciled in NSW — whether restraining order in respect of property outside NSW is warranted where suspected activity is serious crime related activity but not ‘external serious crime related activity’ CRIME — Confiscations — Restraining order — orders made pursuant to Criminal Assets Recovery Act 1990 — where plaintiff sought ancillary orders ex parte for the examination of the defendant and for defendant to provide information on verified statement — where previous decisions of the Supreme Court have expressly declined to make such orders — where plaintiff did not provide in its evidence an explanation for why the circumstances of the case warranted the making of the ancillary orders ex parte CIVIL PROCEDURE — Interlocutory applications — Ex parte — Duty of disclosure — obligation of parties in ex parte applications to draw the Court’s attention to relevant authorities which may nevertheless be adverse to their claim

Catchwords:

CRIME — Confiscations — Restraining order — orders made pursuant to Criminal Assets Recovery Act 1990 — where order is sought ex parte over all of the defendants’ assets anywhere in the world — where second defendant is living in community on bail — where Court has discretion under s 10B(3)(a) to allow for reasonable living expenses when making ex parte orders — where plaintiff has failed to establish any reason for the making of an order over all of the second defendant’s assets anywhere in the world without provision for living expenses CRIME — Confiscations — Restraining order — orders made pursuant to Criminal Assets Recovery Act 1990 — where plaintiff sought ancillary orders ex parte for the examination of the defendants and for defendants to provide information on verified statement — where previous decisions of the Supreme Court have expressly declined to make such orders — where plaintiff did not provide in its evidence an explanation for why the circumstances of the case warranted the making of the ancillary orders ex parte CIVIL PROCEDURE — Interlocutory applications — Ex parte — Duty of disclosure — obligation of parties in ex parte applications to draw the Court’s attention to relevant authorities which may nevertheless be adverse to their claim

Catchwords:

SUCCESSION — probate and administration — appointment of independent administrator — where named executor failed to administer estate

Catchwords:

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – where schemes of arrangement proposed – whether order restraining further proceedings should be made under s 411(16) of the Corporations Act

Catchwords:

EQUITY — equitable remedies — interlocutory injunctions — principles – application for injunction restraining the defendant from taking steps to terminate the plaintiff’s licence to operate out of school hours care centre – where the plaintiff is the longstanding operator of the centre – where the defendant alleges the plaintiff has breached the licence agreement by committing events of default – where the defendant has purported to terminate the licence agreement based on the events of default – apparent failure by the defendant to inform the plaintiff of the alleged events of default and provide a proper opportunity to remedy them – whether there is a serious question to be tried that the defendant has acted in breach of express and implied terms of the licence agreement — HELD — serious question to be tried satisfied and balance of convenience favours granting the interlocutory injunction CONTRACTS — construction — good faith – express term of good faith – restriction on the power to terminate a contract based on events of default where there is a proposed procedure for dealing with events of default expressed in the contract CONTRACTS — implied terms — terms implied in law – duty to cooperate

Catchwords:

COSTS – Confidentiality

Catchwords:

APPEAL — Question of law –– Leave to appeal –– Leave to extend time to rely on additional grounds of appeal –– Leave to rely on material served late FREEDOM OF INFORMATION — Government Information (Public Access) Act 2009 — Administrative power — Meaning of “judicial functions” — Meaning of “relate to” — Excluded information — Restriction of disclosure under s 64 of the Civil and Administrative Tribunal Act 2013 where overriding public interest against disclosure

Catchwords:

LEASES AND TENANCIES — construction of a registered lease — market rent review — whether “premises” included building and improvements constructed by tenant — whether lease was a ground lease — distinction between “land” and “premises” — effect of definition of premises — whether rent to be assessed by reference to land only or land, building and improvements — review of expert determination — Retail Leases Act 1994 (NSW) REAL PROPERTY — fixtures — building constructed by tenant on leased land — whether building formed part of land — object and degree of annexation — whether building was a tenant’s fixture — whether tenant had right to sever and remove building — effect of lease provisions requiring lessor notice on expiry or determination CONTRACTS — construction of commercial lease — objective intention of parties — entire agreement clauses — whether antecedent agreement for lease incorporated into lease as varied — surrounding circumstances of registered lease CONSUMER LAW — statutory unconscionability — allegation that landlord sought rent in respect of building constructed by tenant — enforcement of lease as properly construed — absence of special disadvantage — no conduct outside accepted standards of commercial behaviour — Australian Consumer Law, s 21

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CRIME — Appeals — Appeal against conviction — Extension of time in which to appeal — application brought over 18 months after conviction — where no satisfactory explanation for delay advanced — public interest in adhering to time limit on appeals or applications for leave — whether extension of time should be refused CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where applicant charged on three different counts — where jury returned verdicts of guilty in relation to counts 1 and 3 and verdict of not guilty in relation to count 2 — whether acquittal in respect of count 2 necessarily involved a reasonable doubt as to the credibility of a witness — whether reasonable doubt as to that witness’ credibility required a conclusion that there was reasonable doubt in respect of counts 1 and 3 — whether jury, acting rationally and in accordance with directions, had a proper basis for finding counts 1 and 3 proven beyond reasonable doubt while acquitting the applicant in respect of count 2

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CORPORATIONS — conduct of liquidation — disclaimer — where a Royalty Deed contains certain consent and financial obligations affecting a sale process — whether the Royalty Deed is an “unprofitable contract” under s 568(1A) of the Corporations Act 2001 (Cth) — alternatively, whether the liquidators should be granted leave to disclaim the Royalty Deed under s 568(1A) of the Act — further and alternatively, whether the Court ought make a direction as to exercise of the liquidators’ powers under s 90-15 of the Insolvency Practice Schedule (Corporations) EQUITY — equitable remedies — injunctions — whether an injunction should be ordered to enforce a negative covenant

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DEVELOPMENT APPEAL – modification application – residential development – minimal environmental impact – substantially the same development – conciliation conference – agreement between the parties – orders

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ESTOPPEL — proprietary estoppel — where defendant relies on proprietary estoppel to resist order for possession of property in favour of plaintiff — where defendant contends plaintiff promised that the defendant and defendant’s spouse and children could reside in the property for the term of plaintiff’s life and would be bequeathed the property thereafter — defendant seeks orders that plaintiff holds property on trust for the defendant and must transfer title — whether defendant has established plaintiff gave to the defendant a clear and unequivocal promise — whether defendant has established reliance and detriment — whether relief sought by the defendant would be disproportionate in all the circumstances

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DEVELOPMENT APPLICATION – demolition of decommissioned substation building – storage premises - conciliation conference – agreement between the parties – orders made

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ADMINISTRATIVE LAW – application for summary dismissal - decision by designated agency to remove from authorised carer the responsibility for the daily care and control of children and suspend the applicant’s authorisation as an authorised carer – proceedings for children before the Children’s Court – preparation of permanency plan for the children – whether the Tribunal has jurisdiction to review the removal decision – revocation of appointment of Separate Representative - removal of a party to proceedings

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DEVELOPMENT APPLICATION – demolition of existing structures – Nineteen lot Torrens title subdivision – acoustic barriers – vegetation management plan – conciliation conference – agreement between the parties – orders made

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CONTRACTS — formation — sale of land — whether binding contract formed by exchange of counterparts — counterparts not identical — whether parties were ad idem as to terms — whether omission of special condition from one counterpart prevented formation — whether agent authorised to effect exchange — exchange effected by agent holding executed counterparts for each party — whether vendor ready, willing and able to complete — failure by purchaser to complete CONVEYANCING — cooling-off rights — whether purchaser provided certificate under s 66W of the Conveyancing Act 1919 (NSW) — whether purchaser intended to waive cooling-off rights — certificate signed and left with selling agents for use if agreement reached — whether certificate formed part of contract — whether contract should be rectified to remove s 66W certificate — purported rescission out of time EVIDENCE — assessment of credit and reliability — conflicting oral accounts of purchaser, vendor and selling agent — reliance on contemporaneous documents DAMAGES — sale of land — measure of damages — damages for loss of bargain and loss on resale — difference between contract price and value or resale price — mitigation — rejection of subsequent offers — whether vendor acted reasonably

Catchwords:

CRIME — appeals — appeal against conviction —summing up of trial judge — whether summing up unbalanced and unfair — where applicant relied on co-accused’s evidence that he was dropped off prior to the offending — where trial judge expressed a number of views in the course of the summing up which were critical of the co-accused’s evidence — where trial judge made comments on evidence that went beyond arguments advanced by the parties — summing up amounted to an exercise in persuading the jury of the applicant’s guilt — appeal allowed and new trial ordered CRIME — appeals — appeal against conviction — summing up of trial judge — Liberato direction — whether Liberato direction as to co-accused had to be “calibrated” to the applicant’s case — where trial judge gave all three limbs of the Liberato direction about co-accused’s evidence and immediately directed the jury that the applicant relied on this evidence — where defence counsel did not seek a re-direction — no miscarriage of justice

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Sentencing – appeal against sentence – sexual offending against two victims – whether aggregate sentence failed to reflect the totality principle and produced a sentence that was manifestly excessive

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MODIFICATION APPLICATION – substantially the same development – s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW) – hotel and motel building use – ‘essence’ of the development

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DEVELOPMENT APPLICATION — demolition — dual occupancy — strata subdivision — conciliation conference — agreement between the parties — orders

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EQUITY — Trusts and trustees — Constructive trusts — Family and domestic relationships — No question of principle

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ADMINISTRATIVE LAW — application of plaintiff for interim and final relief in relation to decisions to vary and then revoke firearms licence — where plaintiff seeks interim relief in form of stay of revocation of licence until final hearing — whether plaintiff has established a prima facie case for final relief — whether the balance of convenience favours granting interim relief

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COSTS — Party/Party — whether there is a basis for departing from the usual position that costs follow the event on the ordinary basis — no issue of principle.

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EMPLOYMENT AND INDUSTRIAL LAW — Victimisation — Extension of time — Sufficient reason — Application accepted

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EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Award variations

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COURTS AND JUDGES — recusal application — suggested “cross-over” in subject matter for another proceeding and this proceeding — complaint of judicial ‘interventions’

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CRIMINAL LAW — Appeal and Review — application to Supreme Court for inquiry into conviction under Part 7 of the Crimes (Appeal and Review) Act 2001 —knowingly contravening a restriction in an Apprehended Domestic Violence Order (ADVO) —three convictions — sentenced to a Conditional Release Order — whether it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case

Catchwords:

CIVIL PROCEDURE – subpoenas – to produce documents or things – leave to issue subpoena – self-represented litigant – legitimate forensic purpose – proposed subpoena seeking documents concerning alleged transcript amendment and correction history – application for leave to appeal – whether documents relevant to issues to be determined on appeal – subpoena not directed to the issues before the Court – fishing expedition - leave refused