CIVIL PROCEDURE — stay of judgment — stay pending application for special leave to appeal to the High Court — stay pending application for review — where no application has been made — prospects for grant of special leave not substantial — limited risk of enforcement in near term
CORPORATIONS – Directors – Indemnity for liabilities incurred as a director – where plaintiff is former director of defendant - where leave granted to shareholder of defendant to bring claim against plaintiff for breach of duties as director – where ancillary proceedings brought in Italy to protect prospective judgment in Australia – where plaintiff and defendant were parties to a deed – whether indemnity clause in deed applies to costs incurred by plaintiff in defending proceedings – whether defendant is obliged, pursuant to deed, to advance reasonable costs expected to be incurred in defending the proceedings
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — where appellant has not filed critical documents and not appeared at hearing
COSTS — gross sum costs orders — whether gross sum costs order ought be made that Director of Public Prosecutions pay plaintiff’s costs of and incidental to proceedings to date — where plaintiff self-represented and not entitled to recompense for value of time spent in litigation — where costs entitlement limited to disbursements — where no evidence filed as to costs incurred by way of disbursements
WORKERS COMPENSATION — Compensation for medical, hospital and rehabilitation expenses — Limits on employer liability — s 62(1A) of the Workers Compensation Act 1987 (NSW) — whether Workers Compensation (Private Hospital Maximum Rates) Order 2024 (NSW) made pursuant to s 62(1A) fixes maximum amount of employer’s liability for hospital treatment not specified in Order
Judgment of
Adamson JA at [1]
McHugh JA at [2]
Free JA at [61]
APPEAL – development application – depot – existing character – desired future character - heavy industrial zone adjoining low density residential zone – height, bulk and scale –excessive building footprint - side setbacks – visual impact – orders
DEVELOPMENT APPLICATION: housing for seniors and people with a disability in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders
ADMINISTRATIVE LAW – decision to refuse individual contractor licence under Home Building Act 1989 (NSW) – builder – offences involving dishonesty – whether to ignore offences – passage of time since offences – triviality
WORKERS COMPENSATION — judicial review of Personal Injury Commission Appeal Panel decision — s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — cl 11 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment — whether s 323 was misapplied — deduction for a pre-existing condition — whether Panel’s reasons were inadequate — matter remitted to Personal Injury Commission
CIVIL PROCEDURE — Pleadings — Amendment – application to file a further amended defence to plead that the claim is an apportionable claim and that there are concurrent wrongdoers – whether claim for breach of contract is a claim arising from a failure to take reasonable care under s 34(1)(a) Civil Liability Act 2002 (NSW) CIVIL PROCEDURE — Subpoenas — Application to set aside
APPEAL – development control order – unauthorised structures – weight of evidence – authority to enter the site – consent needed to enter residential premises – no consent to enter – other evidence supports development control order – DCO issued
CONTRACT — lease — tenant’s obligation at end of lease to remediate to standard suitable for on-going commercial/industrial use — Land occupied for many years by Department of Defence — asbestos known to be present on land — whether provision of site audit statement certifying land suitable for commercial/industrial use subject to compliance with environmental management plan discharged tenant’s obligation even though asbestos continued to be present in topsoil — whether primary judge erred in finding asbestos continued to be present in topsoil — tenant’s obligation to return premises clean and in good repair and condition — whether that obligation added to obligation to remediate — significance of statutory regime concerning planning permission and remediation of land — whether appropriate to determine non-dispositive issues concerning release in deed of surrender
Judgment of
Leeming JA at [1]
Free JA at [163]
Griffiths AJA at [164]
ADMINISTRATIVE LAW — Whether reviewable error of law — Jurisdictional fact — Non-statutory executive power — Whether unlawful for defendant to maintain a final Service Check Register entry in relation to the plaintiff because the terms of a deed of settlement undermined the “jurisdictional fact” upon which the entry depended — Where reliance on notion of “jurisdictional fact” misplaced — No reviewable error established
CORPORATIONS – application for rectification of trust deed – whether relevant intention was that of the settlor or the trustee – content of relevant intention – where by mistake the trustee could not benefit from the trust – rectification of trust deed – undertaking to provide reasons to Commissioner of State Revenue
EMPLOYMENT AND INDUSTRIAL LAW –Victimisation – Application for Leave to Amend –Whether necessary in the interests of justice to allow amendments – Whether sufficient reason to allow claims made out of time – No evidence led as to reason why claims made out of time – Consideration of obligations of litigant-in-person CIVIL PROCEDURE – Powers of Court or Tribunal to require production of documents protected under the Public Interest Disclosure Act 2022 (NSW)
ESTOPPEL — Proprietary estoppel — Equitable estoppel — Whether representations made out in fact — Representations predating alleged promise purely contextual — Detrimental reliance predating alleged promise — Whether detrimental reliance objectively reasonable — Estrangement from promisor inconsistent with continued reliance CIVIL PROCEDURE — Leave to amend statement of claim — Repleaded proprietary estoppel claim — Whether proposed amended claim discloses arguable cause of action — Material facts of detrimental reliance pleaded as particulars rather than in body of pleading — Overuse of declaratory relief — Leave to amend refused
VICTIMS RIGHTS AND SUPPORT – Administrative law – act of violence –- whether applicant primary victim of act of violence – sufficiency of evidence – whether act of violence established on the balance of probabilities.
SENTENCING — appeal against sentence — material error of fact — whether sentencing judge mistook the number of firearms supplied — where sentencing judge only mistook the dates on which the supply of firearms occurred and not the total number supplied — no miscarriage of the sentencing discretion SENTENCING — appeal against sentence — mitigating factors of lack of prior criminal record and good character — where the sentencing Crown accepted that the absence of previous convictions was a mitigating factor but contested good character — where the sentencing judge made no finding as to good character — error found and applicant re-sentenced
Judgment of
N Adams CJ at CL at [1];
Hamill J at [151];
Muston J at [152].
HUMAN RIGHTS – discrimination – equal opportunity – leave required for complaint to proceed – principles applying to grant of leave – age discrimination in employment – disability discrimination in employment – causation
HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — principles applying to grant of leave –disability discrimination – provision of goods and services - inferences - causation
APPEALS — Appeal on question of law — Principles governing APPEALS — Leave to appeal — Principles governing — Leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Where the owners repudiated the building contract – Whether the builder has established an entitled to damages for loss of profits
Judgment of
G Blake AM SC, Principal Member
D Robertson, Principal Member
SENTENCING — appeal against sentence — use of comparable cases and sentencing statistics — whether sentencing judge failed to properly consider or give adequate reasons as to comparable cases — where the sentencing judge did make reference to the comparative material — no obligation on sentencing judges to compare similarities and differences with other cases in sentencing reasons — no error SENTENCING — appeal against sentence — finding of special circumstances — whether sentencing judge failed to take into account relevant considerations when varying the statutory ratio — where non-parole period must reflect objective gravity of offending and need for general deterrence — no error in slight variation of statutory ratio — sentence not manifestly excessive — appeal dismissed
Judgment of
N Adams CJ at CL at [1];
Hamill J at [133];
Yehia J at [140].
APPEAL – Australian Consumer Law – consumer guarantees – delay in installing towbar – not a major failure – no error on question of law or miscarriage of justice – findings of fact open on the evidence – leave to appeal refused
Judgment of
J Redfern PSM, Senior Member
N Kennedy, Senior Member
CONTRACTS – Construction – appellant ceased employment as real estate agent – deed of release executed with respondent – deed established right to payment of commissions – construction of commission entitlements – employee commission policy reaffirmed in deed subject to express exceptions – commissions payable when policy preconditions satisfied EVIDENCE – Burden of proof – no evidence of invoice to establish commission payable to appellant – argument that evidence within capacity of respondent to produce with reference to Blatch v Archer – principles of judicial reasoning – Blatch v Archer does not shift burden of proof – open to appellant to obtain discovery of invoice – notice to produce was issued by appellant – adequacy of production not subject of challenge – absence of evidence was evidence of absence – burden not discharged by appellant CONTRACT – Remedies – Damages – damages sought for consequential loss – inadequate evidence of loss of opportunity
Appeal – appeal from decision giving leave for Respondent to have legal representation and adjourning proceedings – leave from an interlocutory decision – whether criteria for grant of leave is established – utility of appeal insofar as the Tribunal at first instance adjourned the proceedings – costs of the appeal – whether special circumstances exist warranting an award for costs
Judgment of
S Westgarth, Deputy President
K Merrick, Senior Member
CIVIL PROCEDURE – summary disposal – whether the proceedings should be dismissed on the basis that no cause of action is disclosed – whether damage allegedly suffered has been properly or adequately pleaded
CIVIL PROCEDURE – parties – interveners – application by Commonwealth to intervene – where plaintiffs challenge decisions of High Court Registrars – whether Commonwealth should be granted leave to intervene as proper contradictor pursuant to the Hardiman principle
ADMINISTRATIVE LAW — judicial review — motor vehicle accident — decision under Motor Accident Injuries Act 2017 (NSW), s 7.20 not to refer a claim for assessment — claimed psychological or psychiatric injury — dispute as to whether claimant suffered a threshold injury — application unaccompanied by evidence of claimed injury — whether obligation to refer dispute to assessment — whether existence of medical dispute a jurisdictional fact — whether procedural rules inconsistent with s 7.20
Judgment of
Leeming JA at [1]
Kirk JA at [66]
Griffiths AJA at [67]
CORPORATIONS – schemes of arrangement – application for orders approving schemes of arrangement – where statutory majorities for each scheme have been achieved – where each scheme is fair and reasonable – orders made approving schemes of arrangement
CRIME — appeals — appeal against conviction — judge alone trial — unreasonable verdict — high risk violent offender — breach of extended supervision order — whether the applicant associated with a child — meaning of associate — whether the verdict of guilty was reasonable
Judgment of
Stern JA at [1];
Huggett J at [2];
Boulten J at [3]
LEGAL PRACTITIONERS – disciplinary proceedings – respondent convicted of offences involving solicitation and transmission of child abuse material – application for removal of the respondent’s name from the Roll of Australian Lawyers – orders not opposed COSTS – application for removal of respondent’s name from the Roll of Australian Lawyers – whether costs should follow the event where the respondent did not oppose the relief sought – whether the respondent ought to be permitted to pay costs in instalments
COSTS — security for costs — payment out of court — where moneys paid into court as security for costs of appeal — no order made as to costs of appeal — whether to release amount of security in partial satisfaction of costs at first instance — not the purpose of security ordered — purpose of security spent — order for payment out made
CHILD WELFARE – adoption – whether adoption order is clearly preferable in best interests of the child – whether change of name should be approved – whether consent dispensation orders should be made against the birth parents – where birth mother does not oppose adoption – where birth father cannot be identified after reasonable inquiry – where child has lived with proposed adoptive parent since birth – where it is appropriate to dispense with the requirement for the birth parents’ consent – change of name to be approved – adoption orders to be made
SUCCESSION – Wills, Probate and Administration – Application to revoke grant of probate and to appoint an independent administrator – where consent orders previously made regarding sale of real property and distribution of proceeds – where property found to be contaminated with asbestos – where disputes between executors regarding steps to be taken as a result of contamination – where delay and lack of co-operation between executors – where administration of estate has effectively stalled – held: relief granted
DUST DISEASES — Dust Diseases Tribunal — Jurisdiction and functions — consideration of Dust Diseases Tribunal Act 1989 s 11(4) — ancillary or related matter — whether a professional negligence claim is related to a s 11(1) claim for damages for dust diseases NEGLIGENCE — breach of statutory duty — Australian Solicitors Conduct Rules impose ethical duties on solicitors but do not give a private right of action to a client COSTS — where original Notice of Motion is doomed to fail but is amended to an appropriate form — indemnity costs to the date of amendment
SUCCESSION – Rights of burial or cremation – Nature and purpose of Court’s inherent jurisdiction – Determination of claim by daughter of deceased to have carriage of the cremation of the body of the deceased, who passed away more than a year ago, over the objection of the deceased’s wife who wishes for the State Coroner to investigate the death of the deceased – Where State Coroner declined to exercise coronial jurisdiction in relation to the death of the deceased in July 2025 and no application has been made to the Court for an order under Chapter 7 of the Coroners Act 2009 (NSW) that an inquest be held concerning the death of the deceased
APPEALS — appeal from a decision of the Local Court — where summons filed in the wrong court but within time — whether leave should be granted to appeal out of time APPEALS — appeal from decision to summarily dismiss amended statement of claim — where primary Judge ruled that proceedings were statute-barred — whether plaintiff was given adequate chance to consider defendant’s Limitation Act 1969 (NSW) argument APPEALS — appropriate relief — where amended statement of claim fails to properly identify cause of action — whether inadequacy a standalone reason for summary dismissal — whether plaintiff should be given further opportunity to plead the claim
APPEALS — rectification suit — whether common intention contended for on appeal differed from common intention contended for at trial — whether evidence could have been led at trial to rebut common intention contended for on appeal CONTRACTS — rectification — intention — common intention — proof of common intention — where party to deed knew of concern of other party in relation to a risk — where evidence of communications between solicitors of parties to deed in relation to risk — whether clear and convincing proof of common intention — significance of solicitors being closely involved in drafting of the clause sought to be rectified — significance of failure to call plaintiff’s solicitor
Judgment of
Bell CJ at [1]
Mitchelmore JA at [61]
McHugh JA at [62]
APPEAL –– construct and/or use a water supply work approval - amendment of approval – regulated application - conciliation conference – agreement between the parties – orders APPEAL – construct and/or use a water supply work and/or use water approval – amendment of approval – unregulated application - conciliation conference – agreement between the parties - orders
APPEAL – Modification application – modification of condition imposed on the grant of consent – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 – damage to dwelling roof, car, and lights due to falling deadwood – apprehension of further damage and risk of injury – failure of respondent to exercise duty of care – pruning and compensation ordered
ADMINISTRATIVE LAW – occupational licensing – security licence – refusal to grant licence – whether applicant fit and proper person – whether contrary to public interest for applicant to hold a security licence
DEVELOPMENT APPLICATION: semi-detached dwelling development in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders
PROFESSIONS AND TRADES – health care professional – nurse – whether unsatisfactory professional conduct established – whether professional misconduct established
Judgment of
R C Titterton OAM, Senior Member at [1];
Dr L Hunt, Senior Member at [1];
H Wong, Senior Member [1];
B Seth, General Member at [142]
TORTS — Private nuisance — damage to property caused by tree roots — tree situated on nature strip next to property — tallowwood tree TORTS — Private nuisance — whether nuisance was created or adopted — whether defendant had knowledge of nuisance before being notified of it — whether nuisance was foreseeable — where there is no evidence that damage to property had worsened between notification and abatement of a nuisance
DEVELOPMENT APPLICATION — application for subdivision and associated works — impact on scenic and landscape qualities of Mulgoa Valley — consideration of building envelopes — appeal upheld
COSTS – party/party – general rule that costs follow the event – application of the rule where no determination on the merits – no order as to costs of hearing
CORPORATIONS – applicability of set-off provisions – how set-off provisions under s 553C of the Corporations Act 2001 (Cth) operate when an insolvent company is trustee – whether mutuality exists between partnerships and trustee company – where trustee company held debts on trust for benefit of unitholders – where partnerships could have had right of subrogation regarding trust assets – where claims do not sufficiently engage beneficiary unitholders – no mutuality – s 553C not engaged – orders to be made
EMPLOYMENT AND INDUSTRIAL LAW — Application for variation of Contract Determination – Variations proposed to rates in accordance with agreed method of adjustment – Variation made
LAND LAW — Strata title — Common property — Strata Schemes Management Act 2015 s 149 — Whether owners corporation had unreasonably refused to make a common property rights by-law LAND LAW — Strata title — Common property — Strata Schemes Management Act 2015 s 126 —Approval of alterations to common property — Submission of a by-law to a general meeting constitutes a sufficient request for approval
Judgment of
D Robertson, Principal Member
D Goldstein, Senior Member
ADMINISTRATIVE LAW – administrative review - assessment – objection – review by Civil and Administrative Tribunal STATE TAXES – duties – exemption – deceased estate – transfer to beneficiary – valuation – life estate – personal right of residence
APPEALS – PRACTICE AND PROCEDURE – whether appellant should be granted leave to appeal from Tribunal’s decision to dismiss appellant’s application to set aside summons – whether appellant has identified an issue of principle – whether relevance of categories of documents is to be determined in merits review proceedings by reference only to facts currently in dispute or whether relevance is to be assessed by reference to broader issues between the parties - whether appellant would suffer a substantial injustice if leave to appeal were refused
CIVIL PROCEDURE – Court of Appeal – notice of motion seeking review of order of a single judge of appeal – whether appellants have identified an error of principle or how the decision is plainly wrong
Judgment of
Payne JA at [1]
Free JA at [2]
Harrison AJA at [3]
COSTS — appeal from review panel — where review panel rejected grounds of review by reference to costs assessor’s determination — whether review panel misapprehended the nature and function of review — whether review panel approached review on the basis that it needed to find error with the costs assessor’s determination COSTS — appeal from review panel — whether fair and reasonable — duplication of billed work — relevance of solicitors’ professional obligations on reasonableness of costs
CIVIL PROCEDURE — Interim preservation — Freezing orders — Against third parties — No question of principle EQUITY — Trusts and trustees — Powers, duties, rights and liabilities — Whether trustee may limit its otherwise unlimited liability under a deed of indemnity to only the assets of the trust — Helvetic Investment Corporation Pty Ltd v Knight (1984) 9 ACLR 773, applied COSTS — Gross sum costs orders — No question of principle
CRIMINAL LAW – trial by judge alone – whether in the ‘interests of justice’ for there to be trial by judge alone – consideration of relevant factors – apprehension of prejudice – legal and factual complexity EVIDENCE – offence of alleged fraud – alleged dishonest obtaining of property by any deception – first accused was former solicitor – first accused subject of subsisting disciplinary investigation – application to exclude evidence referring to or suggestive of professional misconduct – Crown case posits liability of co-accused on joint enterprise principles – relevance of conduct of solicitor before the ‘agreement’ was allegedly entered into – relevance of expert opinion evidence to practices and principles of a solicitor when acting for a deceased Estate – objection to impugned evidence on the ground that their probative value was outweighed by the danger of unfair prejudice
CHILD WELFARE — Change of name — s 28 Births, Deaths and Marriages Registration Act 1995 (NSW) — Application by a mother to change the surnames of three children to her own name – Principles to be applied – Proper construction of s 28(4) of the Births, Deaths and Marriages Registration Act 1995 (NSW)
CHILD WELFARE — Change of name — s 28 Births, Deaths and Marriages Registration Act 1995 (NSW) — Application by a mother to change the surnames of two children to her own name – Principles to be applied – Proper construction of s 28(4) of the Births, Deaths and Marriages Registration Act 1995 (NSW)
CORPORATIONS – voluntary administration – whether Corporations Act 2001 (Cth) s 440B applies – whether notice under s 260‑5 of Schedule 1 to the Taxation Administration Act 1953 (Cth) creates security interest – whether passive receipt constitutes enforcement – statutory charge – no enforcement – power under s 447A to modify operation of Pt 5.3A – relief to be granted under s 447A
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Applications for new awards for nurses, midwives, and assistants in nursing — Finalisation of awards — Awards made
Judgment of
Taylor J, President
Chin J, Vice President
Commissioner Webster
CIVIL PROCEDURE — Application to take evidence by video link — whether permissible under Chinese law — Held permissible to take evidence by video link from Hong Kong PRIVATE INTERNATIONAL LAW — Enforcement of judgment at common law — Judgment on loan agreement — Defence of fraud — Alleged sham document — Defence of fraud fails PRIVATE INTERNATIONAL LAW — Enforcement of judgment at common law — Judgment on loan agreement — Natural justice — Whether defendant had actual notice or due notice of foreign proceedings — Service effected through public service announcement under Chinese law — Authority cautioning against foreign modes of service not involving personal notification being sufficient notice — Defendant failed to prove absence of actual notice
CRIMINAL LAW — work health and safety — offences — category 3 — mobile scaffolds blown from rooftop by high winds and fell onto glass roof of neighbouring building — failure to manage hazards and/or risks associated with scaffolds — director’s failure to exercise due diligence — failure to make enquires, provide supervision or conduct site inspections — mid-range of objective seriousness SENTENCING — relevant factors on sentence — objective seriousness — no aggravating factors — mitigating factors — remorse — plea of guilty — general deterrence — lack of capacity to pay a fine — s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) — offender’s character — offender’s health — other matters proper to consider — offender’s ability to travel overseas
OCCUPATIONS — Legal practitioners — Solicitors — Professional negligence — Where solicitor acted for client in special leave application and ultimately appeal to the High Court — Whether solicitor negligent in failing to advise client that appeal bound to fail — No question of principle OCCUPATIONS — Legal practitioners — Retainer — Whether solicitor should have acted for the client in matters outside the retainer agreement — No question of principle ESTOPPEL — Res judicata — Merger — Finality NEGLIGENCE — Damages — Exemplary, punitive and aggravated damages JUDGMENTS AND ORDERS — Declaratory relief — Where client seeks declarations that solicitor has breached various provisions of the Legal Profession Uniform Law (NSW) — Whether client has made out the basis for seeking declaratory relief — Whether any utility in making such declaration — No question of principle
WORKERS COMPENSATION — damages for personal injury — Workers Compensation Act 1987 (NSW) ss 151A and 151Z — past medical expenses excluded from damages against third party tortfeasor as no loss suffered by plaintiff — whether damages should be adjusted in accordance with the formula from Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 — whether employer tortfeasor able to recover from third party tortfeasor under s 151Z WORKERS COMPENSATION — interest on damages against first defendant under Civil Liability Act 2002 (NSW) s 18 — whether plaintiff entitled to interest on damages against second defendant under Workers Compensation Act 1987 (NSW) s 151M — where plaintiff’s dishonesty prevented assessment of a reasonable offer TORTS — contribution between joint tortfeasors — must relate to the “same damage” COSTS — Uniform Civil Procedure Rules 2005 (NSW) r 42.34 — where plaintiff has obtained judgment less than $500,000
EQUITY – Where plaintiff sought interim injunction prohibiting defendant from acting on its letter to the plaintiff terminating or purporting to terminate a Sub-Aggregator Agreement between the plaintiff (as Sub-Aggregator) and the defendant (as Aggregator) – Where plaintiff established serious questions to be tried – Consideration of balance of convenience – Interim injunction granted.
HIGH RISK OFFENDER – final hearing – application for extended supervision order (ESO) – application for ESO is not opposed by the defendant – where the defendant had been subject to a previous ESO – where the defendant has a history of non-compliance with supervision – where there is a relationship between drug use and the risk posed by the defendant – where the court is satisfied that the defendant poses an unacceptable risk of committing a serious violence offence if not supervised – ESO granted
HIGH RISK OFFENDER – revocation of extended supervision order – variation of extended supervision order – where risk profile remains unchanged – where defendant has spent significant time in custody due to breaches of extended supervision order – lack of stability in the community – conditions interfering with rehabilitation
OCCUPATIONS — Heath practitioners — Health Practitioner Regulation National Law (NSW) — application for re-instatement of registration — registration cancelled by NCAT — whether appropriate now for practitioner to be registered
Judgment of
Hennessy ADCJ, Deputy President
Dr C Newberry, Senior Member
Dr D King, Senior Member
R Wellington, General Member
CRIME – Sentence – murder – wound with intent to cause grievous bodily harm – offences committed with the use of a knife – unplanned impulsive conduct – intention to inflict grievous bodily harm – where a plea of guilty to manslaughter was rejected – facilitation of the administration of justice – young Aboriginal offender – significant reduction in moral culpability
CRIME — appeals — appeal against sentence — murder and wounding with intent to cause grievous bodily harm — whether the primary judge erred in the application of a 15% utilitarian discount instead of the statutory 25% discount
Judgment of
Harrison AJA at [1]
Sweeney J at [2]
Muston J at [89]
SUCCESSION – Family Provision – Claims by adult children – Estrangement not absolute bar to the making of a family provision order – Respect nevertheless due to testamentary intentions of the deceased
CONTRACTS – Construction – Master Franchise Agreement – Renewal clause of Master Franchise Agreement – Directors’ decision not to renew – Whether the requirements under agreement were satisfied CONTRACTS – Interpretation – Whether each of the directors formed an “honest and reasonable” opinion that renewal of the Master Franchise Agreement would not be in the best interests of sub-franchisees – Appropriate interpretation of “honest and reasonable” – Whether that opinion was the “substantial grounds” for deciding non-renewal – Where the contemporaneous record of meeting did not detail the reasons or decision-making process – Where report prepared by COO for the board meeting was considered by the directors – Where conduct of the master franchisee was in breach of the Master Franchpise Agreement CONTRACTS – Remedies – Damages – Calculation of damages for breach of contract – Relevant principles for determining damages for loss of a valuable commercial opportunity – Appropriate calculation of damages based on the parties’ competing expert evidence CIVIL PROCEDURE – Inappropriate provision of unrequested supplementary submissions
CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where leave required under the Felons (Civil Proceedings) Act 1981 (NSW) – no issue of principle
CIVIL PROCEDURE – summary disposal – judgment for plaintiff – where plaintiff seeks order for possession on an urgent basis pending settlement of contract for the sale of land – where defendants assert equitable interest – no issue of principle
CIVIL PROCEDURE – hearings – adjournment – where defendant seeks adjournment of summary judgment application seeking possession of land – where land is subject to a contract for sale – looming settlement date – potential prejudice to rights of third parties if adjournment was granted
TORTS – Negligence – Motor accident – Whether collision between pallet loading machines caused injury – Whether concession of permanent impairment greater than 10% for the purposes of s 4.11 Motor Accident Injuries Act 2017 (NSW) gives rise to issue estoppels – Assessment of damages – Determining nature and extent of injuries caused by collision in light of competing factual and medical evidence – Appropriate reduction of future economic loss having regard to pre-existing degenerative changes
LOANS – whether single or multiple loans – where evidence goes beyond documents – Manzi v Smith distinguished – whether agreed contractual interest – whether payments appropriated to principal or interest EVIDENCE – credibility and reliability – whether signature authentic LIMITATION OF ACTIONS – whether payment confirmed cause of action – confirmed
ADMINISTRATIVE LAW — Personal information — Accuracy of information — Request for amendment PROCEDURE — whether entitled to call Respondent for cross examination
CRIMINAL PROCEDURE – application for leave to appeal from decision refusing to vacate trial – where applicant unrepresented due to his dismissal of three sets of counsel and solicitors before trial – where neither submitted nor shown that conduct of legal team was incompetent or otherwise warranted termination of services
APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing – Leave to appeal refused APPEALS — Procedural fairness — Failure to give reasons - Reasons satisfy applicable standard APPEALS — Procedural fairness — Hearing rule – No failure LEASES AND TENANCIES — Retail leases — NSW Civil and Administrative Tribunal — Jurisdiction and power - Permitted use of the premises is “massage and beauty” - Whether the use of the premises is a prescribed business under the Retail Leases Act 1994 (NSW) – What is the predominant use of the premises
Judgment of
G Sarginson, Deputy President
G Blake AM SC, Principal Member
CONTEMPT – consent orders agreed between neighbours for construction of new brick boundary fence not complied with by applicant – whether multiple non-compliances established to be contempt of court orders – whether orders pursuant to r 40.8 UCPR should be made – costs
Appeals – Whether there was authority to commence legal proceedings – strata approval of works to an individual lot – different legal approval regimes – denial of procedural fairness – no error of law or other appellable error established.
CIVIL LAW – costs – high risk offender – where application for interim supervision order dismissed – where summons not dismissed and experts appointed – mixed outcome on preliminary hearing – identifying the “event” for the purpose of applying general rule as to costs – whether costs of preliminary hearing should be paid “forthwith”
APPEALS — Appeal on question of law — Principles governing APPEALS — Leave to appeal — Principles governing — Leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Claims by owner against builder — Whether owner is entitled to remedy against each builder who breached statutory warranties — Whether terms implied in building contract — Whether owner is entitled to damages for increased costs due to delay — Whether owner is entitled to damages for loss of rent due to delay
Judgment of
G Blake AM SC, Principal Member
Dr D Goldman, Senior Member
CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where leave required under the Felons (Civil Proceedings) Act 1981 (NSW) – expectation that affidavit will explain need to file statement of claim without accompanying application for leave
CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where leave required under the Felons (Civil Proceedings) Act 1981 (NSW) – no issue of principle
CIVIL PROCEDURE — Evidence by audio visual link — Where plaintiff applied for direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to give evidence by audio visual link (AVL) from the Russian Federation — Applications dismissed by Local Court Magistrate on the basis of “no power” to do so — Parties agreed that Local Court erred in finding “no power” to permit plaintiff to appear via AVL — Local Court decisions set aside
JUDGMENTS AND ORDERS – slip rule – whether earlier judgment should be varied to continue stay of order dismissing proceedings by way of enforcement of settlement agreement pending determination of new proceeding proposed to be commenced by plaintiff to set aside settlement agreement – whether limitation period expired in respect of causes of action in existing proceedings LEGAL PRACTITIONERS – solicitor’s lien over settlement funds – no question of principle COSTS – applications for gross sum costs orders – where costs assessment would be protracted and expensive - whether evidence provides a sufficient basis for the court to determine an appropriate sum fairly between the parties COSTS – application for indemnity costs – construction of indemnity clause in Deed of Release and Indemnity – whether court should exercise costs discretion in a manner that reflects successful party’s contractual right of indemnity FREEZING ORDERS – no question of principle
COSTS – interlocutory appeal from Local Court to Supreme Court – appeal allowed – whether proper basis to depart from usual rule – significance of respondent to motion offering additional security in this Court – significance of inflated costs asserted by application on motion
CRIMINAL LAW — work health and safety — offences — category 2 — worker positioned forward of the Jumbo’s jacks — designated high-risk task — worker’s left arm entangled on the rotating drill steel — worker sustained serious injuries — common practice for workers not to use the boom immobilisation switches — poor implementation of safety procedures — deficiencies in training — no adequate supervision of work SENTENCING — relevant factors on sentence — objective seriousness — foreseeability of risk — safety systems and procedures were entirely dependent on worker compliance — systems routinely ignored by workers — aggravating factors — life-changing injury — mitigating factors — eight years since prior conviction — change in management resulted in overview of safety systems and processes — good character — remorse — acceptance of responsibility — plea of guilty — general deterrence
COSTS – whether costs of unsuccessful application for leave to appeal from interlocutory decision of District Court should be ordered to be paid forthwith – where application for leave to appeal was misconceived and related to a discrete issue – order made
APPEALS – competency – appeal from summary dismissal of claim – leave required APPEAL – leave to appeal – summary dismissal of claim – primary judge found proceedings to be abuse of process – application for leave to appeal – no issue of principle – no issue of public importance – no reasonably clear injustice – leave refused
COSTS – security for costs – where appeal has reasonable prospects of success and raises an issue of public importance – excessive estimate of costs of appeal – where undertaking provided by director of appellant – no question of principle
CRIME - appeals - appeal against conviction - jury returned guilty verdict on one count of sexual intercourse without consent - applicant and complainant gave evidence - contemporaneous complaint evidence - contemporaneous text messages between applicant and complainant - conceded incorrect statements by applicant in police interview - whether misconduct by police - whether misconduct by barrister appearing for applicant at trial - significance of failing to call flatmate present during some of the time complainant was in the flat - whether misconduct by prosecutor - significance of inconsistencies in complainant’s evidence - whether trial judge had directed jury correctly as to consent - whether jury’s verdict unreasonable - allowance given to unrepresented litigant concerning submissions after judgment reserved and allegations unsubstantiated in evidence - appeal dismissed
NEGLIGENCE – breach – where respondent distributed refrigerators manufactured by parent company in South Korea – where model of refrigerator purchased by appellants was the subject of a voluntary recall after two instances of refrigerators catching fire – where refrigerator purchased by appellants caught fire – serial number of appellants’ refrigerator not included in list of affected refrigerators provided by parent company to the respondent – whether the respondent ought to have made inquiries of parent company concerning affected refrigerators – whether the primary judge erred in concluding that the respondent did not breach its duty of care and that factual causation was not established EVIDENCE – onus of proof – where respondent did not call evidence from parent company about how the parent would have responded to the inquiries contended for by appellants – whether evidence adduced by appellants sufficient to discharge their onus of proof
CRIMINAL LAW – Procedure - Ruling – Conviction Appeal – Severity Appeal – Application to adduce fresh evidence – Administration of justice - Intentional deception to obtain a financial benefit – Appellants represented in the Local Court - Production of fraudulent documents
APPEAL – District Court – severity of sentence – intentionally/ recklessly damage or destroy property – accessory before the fact – knowingly participate in criminal group, by directing activities of the group, knowing or being reckless as to whether the participation contributes to the occurrence of criminal activity – parity
CORPORATIONS – winding up – insolvency – time limit of six months for determination of proceedings – whether the Court should extend period within which winding up application must be determined nunc pro tunc – whether slip rule applies
SENTENCING – offences and penalties – failure to comply with court order – order to cause removal and disposal of asbestos waste – plea of guilty – non-compliance with court order due to impecuniosity – not intentional – no additional environmental harm proven – no practical measures to prevent harm beyond compliance with court order – no control to comply with court order due to impecuniosity – low objective seriousness – mitigating subjective factors – plea of guilty – limited means to pay fine – no order as to costs
CIVIL PROCEDURE – variation of interlocutory orders – where previous hearing dealt with “liability issues” – where issue has arisen regarding scope of referral to a referee – whether scope issues are “liability issues”
CONTRACTS – variation – the assessment of evidence where a party to the alleged varied contract is deceased – onus of demonstrating variation upon the defendant – whether an oral variation of a contract was effective − whether fulfilling an existing obligation is sufficient consideration
ADMINISTRATIVE LAW — Government Information (Public Access) — administrative review — reasonable searches — secrecy provision in other legislation — balancing competing public interest factors for and against disclosure — form of access — provision of alternative form of access
COSTS – whether costs thrown away should be ordered payable after decision to allow vacation of hearing dates has been determined – each party to pay own costs
CONTRACTS — sham — arrangement for the payment by the plaintiffs of Australian dollars to the second defendant in return for an equivalent payment by the second defendant to a nominee of the first plaintiff in China of Chinese Yuan — creation of facility, security and guarantee deed and an unregistered mortgage in Australia — creation of a loan contract, mortgage contract and mortgages in China — where those documents a sham — where common intention of parties to the sham documents to deceive third parties — identifying the true transaction — relief giving effect to the true transaction CONTRACTS — illegality — whether the true transaction made in furtherance of purpose frustrating the operation of the Proceeds of Crime Act 2002 (Cth) MORTGAGES AND SECURITIES — mortgages — equitable mortgage
PRACTICE AND PROCEDURE – separate determination of questions – plaintiff’s application that questions of liability and damage be heard and determined separately and prior to questions of quantum – whether separate determination appropriate – where plaintiff makes claims under the Copyright Act 1968 (Cth) for alleged infringement of copyright, alleged misleading or deceptive conduct in contravention of the Australian Consumer Law and alleged passing off – where significant overlap of issues between the proposed first hearing and the proposed second hearing – where at least one witness would be likely to give evidence twice – where efficiencies of time and cost contended for by the plaintiff are likely illusory – application refused
APPEAL – residential tenancy – whether time to file notice of appeal should be extended – whether appellant demonstrated error on a question of law or on any other ground
Judgment of
Dr K George, Senior Member
J Sullivan, Senior Member
ADMINISTRATIVE LAW – child protection – working with children check clearance – enabling order – applicant a disqualified person by reason of his conviction of a disqualifying offence – whether the applicant has discharged his onus to rebut the presumption that he poses a real and appreciable risk to the safety of children
Judgment of
Dr L Kirk, Senior Member
Emeritus Professor PJ Foreman, General Member
APPEALS – Appeal from a termination and possession order for non-payment of rent - apprehended bias – failure to recuse – denial of procedural fairness – failure to consider evidence and mandatory provisions – failure to give adequate reasons – no error on a question of law established - costs
Judgment of
K Robinson Principal Member
S Hennings Senior Member
CONTRACTS — commercial lease — where fire originating on leased premises destroyed structures on leased and adjacent premises — proper construction of indemnity clause — whether causation in indemnity clause satisfied — whether reinstatement provision includes rebuilding not just repair — whether lease provisions imposing liability negatived implied covenant under s 84 of the Conveyancing Act 1919 (NSW)
Judgment of
Leeming JA at [1];
Payne JA at [2];
Mitchelmore JA at [89]
DEVELOPMENT APPLICATION- demolition of existing dwelling and construction of a co-living development – conciliation conference – amended plans and documents – agreement between the parties – orders made.
CORPORATIONS – arrangements and reconstructions – scheme of arrangement – where demerger and scheme are inter-conditional – where demerger will not be implemented unless the scheme becomes effective – application under s 411 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 satisfied – orders convening scheme meeting and ancillary orders made
CRIME — bail —psychologist’s report — sch 7 to the Uniform Civil Procedure Rules 2005 (NSW) —conflict of interest — lack of independence — not treating psychologist — financial gain — report given limited weight
JUDGMENTS AND ORDERS — application to set aside default judgment pursuant to Uniform Civil Procedure Rules 2005 (NSW) rr 36.15 or 36.16 — whether judgment was entered irregularly or against good faith — admissions made by defendant — exercise of discretion would be futile — not satisfied of a defence on the merits
CIVIL PROCEDURE — Parties — Vexatious litigants — Leave to institute proceedings — Proceedings commenced in contravention of order and injunction of Supreme Court of NSW — Plaintiff experienced litigant in person — Proceedings dismissed
COSTS — security for costs — third application for security — whether material change in circumstances since earlier applications — where no new material that could not reasonably been advanced earlier — relevance of arbitral award registered as judgment but stayed pending challenge — alleged concession on inability to pay judgment debt — increased costs assessment not separated between defence and cross-claim — security refused
CRIMINAL LAW – trial procedure – application to discharge individual juror – where juror interacted with detective in charge of the case sitting in public gallery – conduct immediately after ballot to reduce jury numbers and as “verdict jury” invited to retire – interaction observed by counsel – counsel’s observation confirmed by in-court CCTV – a nod and a smile – where action required juror to turn 180 degrees to catch detective’s attention – reasonable apprehension of bias – application of might/might test – consideration of earlier authorities – decision to continue trial with reduced number of jurors – no risk of substantial miscarriage of justice
COSTS — gross sum costs order — interlocutory cost orders — whether material enabled fair assessment of gross sum — requirement for logical, fair and reasonable basis for quantification — generic invoice narrations — insufficient explanation of allocation of costs to orders — motion dismissed
DEFAMATION – practice and procedure – application for early determination of separate harm – where defendant seeks early determination of serious harm in relation to some, but not all, publications – permissibility of aggregation in establishing serious harm – considerations in granting or refusing such applications
COSTS – cost application by Applicant following findings of Respondent breaching information privacy principles – whether there are special circumstances warranting the making of a costs order
ADMINISTRATIVE REVIEW – government information (public access) – conclusive presumption against disclosure – public interest considerations against disclosure - balancing the public interest
APPEALS – question of law – denial of procedural fairness – failure of the Tribunal to inform an unrepresented litigant of their right to cross-examine the other parties’ expert
Judgment of
R C Titterton OAM, Senior Member
A R Boxall, Senior Member
Practice and procedure – Security for costs – Application for security for costs – whether third defendant’s conduct was causative of plaintiff’s impecuniosity – whether an order for security for costs would stultify the proceedings – approach to quantum where proceedings at an early stage and role of the third defendant in proceedings unclear
CRIMINAL PROCEDURE — suppression and non-publication orders — whether satisfied that non-disclosure orders are in the interests of justice — non-disclosure orders made
CORPORATIONS – receivership – application for judicial advice by receiver – receiver justified in proceeding on basis that financial reports truly and fairly record the financial position
CORPORATIONS – Winding up – Liquidators – Application by liquidators to determine remuneration – Whether work performed by liquidators was necessary and was properly performed – Whether the cost of the work performed is proportional to the value of the services provided
EQUITY — Trusts and trustees — Trust instruments — Trust powers — Plaintiff is trustee of a charitable trust and operator of a maritime museum — Principal property of the trust is collection of historically significant scientific instruments, navigational objects and other memorabilia related to maritime history — Trust deed prohibits loans of trust property — Plaintiff applies under s 81(1) Trustee Act 1925 (NSW) for order conferring power upon it to loan trust property to other museums — Trust deed prohibits removal of trust property from specified museum premises — Plaintiff applies under s 81(1) Trustee Act 1925 (NSW) for order conferring power upon it to relocate trust property within other parts of the building in which the trust property is housed — Whether proposed actions are transactions in the management and administration of trust fund — Whether proposed actions are expedient in relation to the management and administration of trust fund — Whether proposed actions cannot be effected by reason of absence of any power for that purpose — Consideration of whether express denial of power in trust deed constitutes an absence of power under s 81(1) Trustee Act 1925 (NSW)
NEGLIGENCE – causation – medical negligence – where plaintiff alleges delayed diagnosis of syphilis – whether evidence sufficient to establish causation between breach of duty and harm suffered EVIDENCE – where defendants apply for judgment at close of plaintiff’s case – UCPR r 29.10 – “jury test” to be applied – whether plaintiff’s evidence taken at its highest could support a judgment
CIVIL PROCEDURE — Discontinuance — Leave to discontinue proceedings under UCPR r 12.1(2) — long-running proceedings involving interlocutory injunctions — whether leave should be conditioned on compensation for loss caused by interlocutory orders — no undertaking as to damages originally given — compensation confined to proven loss referable to interlocutory injunctions and recoverable only on separate application — rejection of claim for “equitable damages” absent recognised cause of action COSTS — UCPR r 42.19 — prima facie entitlement of defendants to costs on discontinuance — whether indemnity costs warranted by alleged misconduct of plaintiff — no order as to costs except to extent previously dealt with.
PROCEDURE – pleadings – application for leave to file amended statement of claim – self-represented plaintiff – proposed amended statement of claim not disclosing viable cause of action – whether leave to replead should be granted – held: leave refused – proceedings summarily dismissed CONSUMER LAW – misleading and deceptive conduct – unfair contract terms – contractual relationships between buyer, platform operator and payment processor – whether payment processor owed direct contractual or representational obligations to buyer – held: no viable cause of action against payment processor
APPEALS — appeal from Local Court — whether Court has power to set aside Local Court judgment or order under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) — ss 39 and 40 of the Local Court Act 2007 (NSW) — errors of law established, including denial of procedural fairness — appeal upheld — challenged judgments and orders set aside
CIVIL ENFORCEMENT — failure to comply with order given under the Local Government Act 1993 (NSW) to remove items on property — prohibited use of land — whether declarations should be made in the public interest in addition to enforcement orders — declarations and enforcement orders made
OCCUPATIONS — application for approval as lay associate under s 121 of the Legal Profession Uniform Law (NSW) — whether NSW Civil and Administrative Tribunal (NCAT) has jurisdiction to determine application — whether applicant is a person who has been convicted of a serious offence — whether applicant’s criminal conviction is spent for purposes of s 121 of the Uniform Law — approval granted by NCAT subject to conditions — continuing non-disclosure orders made
Judgment of
Armstrong J, President
S Westgarth, Deputy President
CIVIL ENFORCEMENT — interpretation of planning instruments — complying development — alleged inconsistency of planning instruments — telecommunications facility — heritage item — declaration of invalidity of complying development certificate
STATUTORY INTERPRETATION – Legislative purpose – Strata Schemes Management Act 2015 (NSW) – nature of the Secretary’s function under ss 209 and 209A STATUTORY INTERPRETATION – Internal review – Strata Schemes Management Act 2015 (NSW) – nature of the reviewer’s function under s 213 ADMINISTRATIVE LAW – Jurisdictional error – whether decision-maker erred on numerous overlapping grounds – whether Secretary or reviewer required to weigh up competing evidence or make findings with precision as to estimated costs – finding that reviewer erred only in narrow respects – declaratory relief granted – Secretary’s delegate’s decision quashed and remitted to reviewer for redetermination according to law
MEDICAL PRACTITIONERS – whether applicant should be granted extension of time to appeal decision of Medical Council – whether extending time to appeal would have any utility where applicant has pending appeal against later decision of Council – whether refusing to extend time to appeal could prejudice applicant
APPEAL – development application – amending application – change of use to residential flat building – conciliation conference – agreement reached – orders made
NEGLIGENCE – recreational activities – competitive sailing – whether competitive sailing is a recreational activity – whether plaintiff was engaged in a dangerous recreational activity – where obvious risk of collision between yachts racing eventuated NEGLIGENCE – recreational activities –– where SailPass temporary membership obtained for plaintiff via QR code accessed on plaintiff’s behalf – whether risk warning and disclaimer of liability incorporated into SailPass and other documentation – whether plaintiff became party to a contract between Cronulla Sailing Club and other race participants NEGLIGENCE – assessment of damages
ADMINISTRATIVE LAW — administrative review — access to information — whether legal professional privilege applies — dominant purpose — whether provision of information to Respondent by third parties waives privilege — whether information provided to Respondent by third parties in confidence — whether common interest privilege applies — whether considerations against disclosure apply — functions of the Respondent — considerations in favour of disclosure — passage of time — public interest test — whether document is in scope — whether scope is a reviewable decision
APPEALS — leave to appeal — principles governing — obligation under lease to rectify flood damage — question of construction — points of principle identified — no reasonably clear injustice going beyond something that is merely arguable — costs grossly disproportionate to amounts in issue — special interest in finality where small sums at stake — leave to appeal refused