Browse decisions Displaying 1 - 200 out of 124111 results

Catchwords:

ADMINISTRATIVE LAW – judicial review – denial of procedural fairness – whether consent orders should be made

Catchwords:

CIVIL PROCEDURE − non-compliance with case management orders designed to ensure readiness for hearing – failure to relist matter in a timely manner following significant non-compliance with Court’s orders – extensions of time ordered

Catchwords:

PRACTICE AND PROCEDURE – motion to dismiss proceedings or, in the alternative that various claims be struck out – whether enforcement of a deed of settlement and release between the applicant and the respondent falls within the Land and Environment Court jurisdiction as an ancillary matter pursuant to s 16(1A) of the Land and Environment Court Act 1979 (NSW) – whether proceedings relate to subject matter of proceedings settled by deed – whether deed repudiated – whether deed can operate as a bar to judicial review proceedings

Catchwords:

CIVIL PROCEDURE — notice to produce to the Court — claims for client legal and litigation privilege — waiver CIVIL PROCEDURE — subpoenas — claims for legal and professions privilege by third parties — waiver

Catchwords:

CIVIL PROCEDURE — notice of motion for joinder — s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) — whether issue that should be raised not raised — whether relevant issue not sufficiently addressed — application dismissed

Catchwords:

CRIME — appeal against conviction — offence of aggravated sexual assault in company — Crown case that the co-accused physically and sexually assaulted the complainant to obtain drugs secreted in her vagina in a correctional centre — principles of joint criminal enterprise — whether the applicant’s plea of guilty to an alternative count removed proof of an element as a real issue at trial — whether trial judge’s directions on reckless infliction of actual bodily harm and sexual intercourse erred — no second limb error — appeal dismissed

Catchwords:

Financial management order- whether decision at first instance based on material errors of fact- whether Tribunal at first instance failed to give proper, genuine and realistic consideration to mandatory relevant consideration- whether Tribunal erred by declining to appoint member of protected person’s family as her financial manager

Catchwords:

CRIME – Appeal against sentence – supply large commercial quantity of prohibited drugs – partly motivated by drug and gambling addictions – diagnoses of substance use disorder and gambling disorder – mental health found not to be “causally connected to the offences in the relevant sense” – infelicity – drug and gambling addictions might provide an explanation for offending but do not operate in a mitigatory sense

Catchwords:

MODIFICATION APPLICATION – Modification to a residential flat building to accommodate an increase in building height and the size of the roof top communal area – conciliation conference – amended plans and documents – agreement between the parties – orders made

Catchwords:

COSTS- costs of appeals-whether costs may be awarded in the absence of special circumstances- application of rules 38 and 38A- orders to adjust insurance premiums under s162(4) of the Strata Schemes Management Act 2015NSW

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of a co living development – conciliation conference- amended plans and documents – agreement between the parties – orders made.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – residential flat development – affordable housing – orders

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury verdict of guilty on one charge of sexual intercourse with a child under the age of 10 was unreasonable — where leave to appeal granted but appeal dismissed

Catchwords:

CIVIL PROCEDURE – Admissions – Withdrawal – unopposed amendment of Commercial List Statement during trial – whether amendment amounted to withdrawal of admission – construction of UCPR r 12.6(2) – rule does not apply to statements of claim – rule does not require provision of formal notice where court’s leave to amend a document is sought

Catchwords:

BUILDING AND CONSTRUCTION – casino refurbishment – architect specifies “non-combustible” cladding for external façade – procurement concerns – builder and façade installer suggest aluminium composite panels (ACPs) instead – ACPs are “combustible” – casino and architect approve product substitution – construction drawings not updated – certifier unaware of ACPs – government requires ACPs to be replaced – casino sues builder for $4M remediation costs – builder sues architect, façade installer and its insurers – partial damages awarded. BUILDING CODE OF AUSTRALIA – 2014 and 2015 editions – fire-resisting construction – cl 2.4 – attachments – cl 3.1 – whether “combustible” materials can be attached to a Type A building – consideration at [48]-[62]. CONTRACT – façade installer gave warranty that works would be fit for purpose – whether installation of non-compliant ACPs on building breached warranty – principles at [386]-[387] – not fit for purpose. AUSTRALIAN CONSUMER LAW – whether “supply” by architect to builder absent contract between them – s 4(1) – principles at [251]-[256] – no “supply” – whether casino a “consumer” – s 3(10) – presumption that a consumer “unless the contrary is established” – whether architect represented to builder that ACPs were suitable to install on external walls by approving sample and shop drawings – whether statement of fact or opinion – whether representation as to a future matter. CONTRACT – Construct Only contract excluded “Design Responsibility” – warranty that works would comply with BCA – proper construction – multiple documents in same transaction – presumption against surplusage – commerciality – principles at [207]-[216] – warranty did not extend to non-compliance with BCA referable to tasks within “Design Responsibility”. NEGLIGENCE – economic loss – whether architect owed duty to builder – principles at [235]-[239] – builder lacked “vulnerability” – builder protected itself by excluding Design Responsibility in contract with principal. INSURANCE – “property damage” – whether attaching non-compliant ACPs to casino was “property damage” – principles at [398]-[405] – removing non-compliant ACPs left holes, gaps and damaged adjacent building elements – exclusions – principles at [414]-[416] - whether insured’s agreement with builder to exclude operation of Civil Liability Act was an assumption of liability regardless of fault – not so – whether insurers entitled to nonetheless rely on apportionable claims – not so – s 4, Civil Liability (Third Party Claims Against Insurers) Act 2017. DAMAGES – whether casino entitled to estimated or actual cost of remediation – actual cost less given remediation works undertaken together with other works – principles at [435]-[437] –actual costs is a more accurate award of damages and does justice between the parties.

Catchwords:

GIFT of property – Elements of gift – Donor intention to make a gift – Donee intention to accept the gift – Delivery of the gift – Once an unconditional gift effectively made, freely and voluntarily, it cannot be recalled by donor

Catchwords:

CRIME – Appeals – appeal against sentence – where two co-offenders sentenced by the same judge 10 months apart – whether the absence of the co-offender’s subjective material before the sentencing judge caused the applicant’s sentence proceedings to miscarry – whether the sentencing judge erred in the consideration of objective seriousness – whether the sentence is manifestly excessive – leave to appeal granted – appeal dismissed

Catchwords:

SUCCESSION — Family provision — Nature of orders — Apportionment of burden of provision — Settlement of family provision claim in which there was agreement between parties and consent from residuary beneficiaries regarding a lump sum provision for the plaintiff but dispute regarding the incidence of burden of the provision from residuary estate — Beneficiaries of one half share of the deceased’s residuary estate (4 niblings of the deceased, now D2-D5) contended that the deceased’s brother (now D6) the sole beneficiary of the other half share of the deceased’s residuary estate should bear the entire amount of the burden of the plaintiff’s provision (or alternatively the majority of the burden) — Held submission that the deceased’s brother bear the entire burden rejected —Deceased’s brother (D6) ordered to bear 70% of the provision burden with the remaining residuary beneficiaries the balance in specified percentages (D2 9%, D3 9%, D4 7% and D5 5%) SUCCESSION — Family provision — Parties — Principles regarding joinder of parties discussed — Whether beneficiaries should be joined to address apportionment of burden of provision (on facts – Yes) SUCCESSION — Family provision — Historical development of incidence and apportionment of burden principles outlined — Burden principles under s 65(1)(c) Succession Act discussed SUCCESSION — Family provision — Apportionment of burden of provision — Burden allocation is an evaluative decision to be determined on the relevant material facts including s 60(2) Succession Act factors unique to each case — Features of burden allocation discussed — The burden jurisdiction is not to be exercised to produce, in light of the order for provision, a per stirpes distribution to attempt put the respective generational families in a position where each family unit receives overall an equal part or division of the deceased’s estate WORDS AND PHRASES — Distribution per stirpes, distribution per capita, ‘Carriage order’, ‘just and equitable’

Catchwords:

CRIME – appeal and review – application to Supreme Court under Part 7 Crimes (Appeal and Review) Act 2001 – where applicant convicted at trial of common assault and failure to leave a licensed premises – whether case should have been diverted under Mental Health and Cognitive Impairment Forensic Provisions Act 2020 – where application for diversion properly considered and rejected by Magistrate and on appeal at District Court – application dismissed.

Catchwords:

PROCEDURE: Class 1 appeal against deemed refusal of development application - application to amend development application to substitute applicant – development application lodged in the name of wrong applicant by mistake – named applicant subsequently went into liquidation – power of Court to amend development application – power of Court to substitute party in Class 1 appeal – development application amended to substitute new applicant – Class 1 application amended to substitute new applicant.

Catchwords:

EVIDENCE – whether evidence not served in accordance with Court orders would cause unfair prejudice − whether an order under s 136 of the Evidence Act 1995 (NSW) could overcome any prejudice or unfairness – s 136 order imposed limiting reports’ operation – tender of some evidence rejected due to unfairness and prejudice

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Conciliation and arbitration — Effect of a recommendation made in conciliation on a party’s obligation to preserve the status quo EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation — Whether award should be varied on employer’s application to allow re-assignment of a role to a higher classification pursuant to express provision in the Award — Matters to be considered where Union’s cross-application for re-assignment to higher classification than sought by the employer in circumstances where no express provision in the Award permitting such an application to be made

Catchwords:

COSTS — costs order against non-party — s98(1)(b), Civil Procedure Act 2005 — plaintiff goes into liquidation while judgment reserved — successful defendant seeks order that the plaintiff’s sole director and shareholder be jointly and severally liable for costs — principles at [2]-[6] — whether in the interests of justice to make non-party costs order— director had earlier given undertaking to the Court to meet any adverse costs order against the plaintiff, to avoid an order for security for costs — non-party costs order made.

Catchwords:

EVIDENCE – certificates of conviction tendered pursuant to s 178 of the Evidence Act 1995 (NSW) – where certificates of conviction provide prima facie evidence of the offences involved EVIDENCE – s 140 Evidence Act 1995 (NSW) – the standard of proof which is satisfied on the balance of probabilities is not altered by the nature of the misconduct alleged – the decision in Briginshaw v Briginshaw considered EVIDENCE – probative value of tendency and coincidence evidence TORTS – trespass to the person – assault – battery – sexual assault – where plaintiffs allege historical sexual abuse by the defendant – where defendant denies all allegations – where defendant alleges fabrication – consideration of credit issues and corroborating evidence

Catchwords:

HUMAN RIGHTS – discrimination – equal opportunity – racial discrimination – leave required for complaint to proceed – whether complaint lacking in substance.

Catchwords:

APPEAL – retail lease – whether appellant an impacted lessee for purposes of COVID-19 Regulations – whether Tribunal made factual errors – whether appellant was denied procedural fairness – whether Tribunal failed to consider evidence and submissions made by appellant

Catchwords:

PROCEDURAL ORDERS- whether application to discharge order staying suspension order pending further order should be expedited

Catchwords:

ADMINISTRATIVE LAW — access to government information — review of decision that no further information held — whether reasonable searches were undertaken

Catchwords:

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

Catchwords:

APPEAL — development application — town houses — Cumberland Plain Woodland — arboricultural impacts — residential amenity — overdevelopment of the site

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – awards and enterprise agreements – interpretation – application for overtime for attending training courses – intervening application for declarations pursuant to s 154 of the Industrial Relations Act 1996 (NSW) – applications dismissed

Catchwords:

PRACTICE AND PROCEDURE — Application for stay pending determination of proceedings in another jurisdiction.

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — leave required for a complaint to proceed — whether complaint lacking in substance

Catchwords:

OCCUPATIONS — legal practitioners — solicitor’s practising certificate — whether Council of the Law Society of New South Wales entitled to make findings of misconduct when making renewal decision under Ch 3 of Legal Profession Uniform Law (NSW) instead of proceeding under Ch 5 ADMINISTRATIVE LAW — application for judicial review — decision by Council of the Law Society of New South Wales not to renew solicitor’s practising certificate and to appoint manager of law practice for period of 2 years — where practitioner is found to not be a fit and proper person — whether jurisdictional error or error of law on the face of the record — whether judicial review relief should be denied having regard to statutory right of appeal CIVIL PROCEDURE — whether notices to admit facts should be set aside — whether non-publication and suppression order should be made in circumstances where defendants apprehended publication of materials relating to proceedings for extraneous purpose

Catchwords:

OCCUPATIONS — legal practitioners — solicitor’s practising certificate — whether Council of the Law Society of New South Wales entitled to make findings of misconduct when making renewal decision under Ch 3 of Legal Profession Uniform Law (NSW) instead of proceeding under Ch 5 ADMINISTRATIVE LAW — application for judicial review — decision by Council of the Law Society of New South Wales not to renew solicitor’s practising certificate — where practitioner is found to not be a fit and proper person — whether jurisdictional error or error of law on the face of the record — whether judicial review relief should be denied having regard to statutory right of appeal CIVIL PROCEDURE — whether notices to admit facts should be set aside — whether non-publication and suppression order should be made in circumstances where defendants apprehended publication of materials relating to proceedings for extraneous purpose

Catchwords:

CRIMINAL LAW — work health and safety — offences — category 2 — electrocution — no adequate review of the risk assessment and Safe Work Method Statement prepared by contractor — Safe Work Method Statement deficient and did not identify the risk of electrocution — offender should have known that workers did not have high risk work licences in relation to the work carried out at the site — no adequate supervision of work — moral culpability reduced by the failings of the contractor who the offender reasonably relied on, but must be viewed in light of the clear warning signs that the contractor’s operations at the site were unsafe — objective seriousness above the mid-range SENTENCING — relevant factors on sentence — mitigating factors — remorse — timing of guilty plea — deterrence — reduced need for specific deterrence

Catchwords:

Administrative Law – licensing – real estate agent - disqualification

Catchwords:

APPEALS – question of law – no question of principle – leave to appeal – no question of principle

Catchwords:

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

Catchwords:

APPEAL – extension of time in which to appeal – exercise of discretion – length of delay – adequacy of explanation for the delay – prejudice to respondent – non-compliance with Tribunal order - no error of law

Catchwords:

MODIFICATION APPLICATION — boarding house development in R3 Medium Density Residential zone — whether substantially the same

Catchwords:

SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow SUCCESSION — Family provision — Claim by spouse for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3

Catchwords:

CORPORATIONS — directors and officers — appointment, removal and retirement of directors — employment of director purportedly terminated by executive chairman of another company — whether executive chairman had actual express or implied authority APPEALS — parties — obligation to join all persons directly affected by orders sought — appellants co-owned company and sought orders that employment contract between company and director validly terminated but joined neither to the appeal — joinder ordered

Catchwords:

CIVIL LAW – high risk offender – urgent application for orders under the Terrorism (High Risk Offenders) Act – where defendant convicted of offences found to be motivated by hate and prejudice – anti-Israel graffiti – where area targeted suggests anti-Semitic attack – relevance of Magistrate’s findings – where Magistrate satisfied crimes motivated by hate and prejudice – assessment of risk – test to be applied on preliminary hearing – whether material if proved would justify the making of an extended supervision order CIVIL LAW – high risk offender – statutory construction – whether defendant’s current custody “will expire” before application determined – statutory pre-requisite to making an interim supervision order – meaning of “will” in statutory context – construction of statute to give effect to primary object of the legislation – whether words “appears to the Court” changes natural meaning of the phrase “will expire” – where Local Court sentence expires in many months – where appeal against severity pending in the District Court – where one possible result is that the sentence will be reduced to allow for defendant’s imminent release – whether “will” means “may possibly” – construction rejected – will expire amounts to a realistic inevitability

Catchwords:

SUCCESSION — Family provision — Costs — Prospective costs capping orders — Novel contested application for costs capping in small estate post-mediation and prior to completion of interlocutory steps before allocation of any hearing date — No precedents of contested family provision capping orders being made at an early interlocutory stages — Parties’ current actual costs total $62,416 incl GST being approximately 46% of net estate of $135,674 — Held cost capping order is appropriate (amount that any party may recover from any other party, or out of the estate in these proceedings limited to $22,500 incl GST) SUCCESSION — Family provision — Prospective costs capping —Examination of and guidance regarding costs capping in civil litigation— Examination of family provision costs by reference to nature and purpose of the jurisdiction legislative and practice provisions, differences between family provision costs and costs in other civil litigation SUCCESSION — Family provision — Examination of historical antecedents of costs capping following final hearing of family provision claims — Consideration of quantum of costs in “standard” family provision and ‘uplift’ referable to success in conditional cost agreements SUCCESSION — Family provision — Prospective costs capping — Consideration and discussion of costs capping at early interlocutory stage — Consideration of what is ‘proper’ and ‘proportionate’ — The basis for early interlocutory capping may be justified by various sources including r 42.4 UCPR, s 98(1)(b),(3) CPA and s 99 Succession Act — Evidentiary and other materials discussed SUCCESSION — Family provision — Prospective costs capping — Prospective capping must be legally principled and involves an evaluative determination of relevant matters including proportionality considerations rather than being determined by fixed percentages or rules of thumb — The capping power serves various objectives including ensuring that the purposes of family provision jurisdiction are not frustrated or thwarted —There needs to be a sufficiency of materials on which the Court is able to make the evaluative assessment in which having regard to the nature of the process precision or exactitude is not possible or warranted and there may be a range of appropriate capping outcomes based on the evaluative assessment. SUCCESSION — Family provision — Prospective costs capping — interlocutory costs capping orders under UCPR r 42.4 are subject to later variation where there are ‘special reasons, and it is in the interests of justice to do so’ — Comment (obiter) regarding ‘special reasons’ and ‘interests of justice’ SUCCESSION — Family provision — Discussion of party and practitioner obligations in light of legislative reform and cost concerns especially in small estates WORDS AND PHRASES — ‘Proportionality’, ‘Costs capping’ ‘Maximum costs’ ‘Protective costs order’

Catchwords:

COSTS – consideration of principles whether an offer of compromise was a genuine offer

Catchwords:

Administrative law – - Victims Support –requirement for documentary evidence- whether applicant primary victim – whether act of violence – whether medical evidence verifies injury

Catchwords:

CIVIL PROCEDURE — Parties — Misjoinder or non-joinder — Effect on proceedings – where NSW Civil and Administrative Tribunal is named as a respondent in application for leave to proceed under the Anti-Discrimination Act 1977 (NSW) – whether that entity is a proper and necessary party – whether any other person should be joined as a respondent – whether fair and just for complaint to go ahead

Catchwords:

ADMINISTRATIVE LAW - government information - whether government information held - reasonable searches - legal professional privilege - common interest

Catchwords:

COSTS — costs orders in interlocutory proceedings — general rule that costs follow the event — application of the rule and discretion CIVIL PROCEDURE — alternative dispute resolution — referral to mediation

Catchwords:

PROCEDURE – security for costs – application for leave to appeal – security ordered against company in earlier proceedings at first instance – no need for special circumstances – no ability to assess prospects of appeal – estimated amounts of costs excessive – security ordered, in much smaller amount than sought

Catchwords:

COSTS — Party/Party — Proceedings discontinued — whether there is reason to depart from the starting point as to costs in rule 42.19 of the Uniform Civil Procedure Rules 2005 (NSW)

Catchwords:

ADMINISTRATIVE LAW – decision to refuse individual contractor licence under Home Building Act 1989 (NSW) – whether applicant is a fit and proper person – lack of candour in provision of information about criminal history and work experience

Catchwords:

PROFESSIONS AND TRADES – health care professional – nursing – where the respondent has been convicted of an offence of assault occasioning actual bodily harm (domestic violence related) in company of others contrary to s 59(2) of the Crimes Act 1900 (NSW) – where the respondent contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being convicted of one offence of assault occasioning actual bodily harm (domestic violence related) in company of others contrary to s 59(2) of the Crimes Act 1900 (NSW) – appropriate protective order

Catchwords:

CIVIL LAW – contractual dispute – dispute over provision of internet routing services – consumer protection – application for urgent interlocutory relief – mandatory injunction requiring defendants to re-activate plaintiff’s routing service – whether plaintiff acted with due dispatch – where affidavit sworn on Thursday but application brought on Saturday – where defendant’s business located in Pennsylvania – discretionary considerations – whether plaintiff’s “usual undertaking” as to damages is enforceable – whether plaintiff’s loss cannot be compensated by monetary damages – lack of supporting evidence of plaintiff’s commitments to DFAT, ASIO and Australian Federal Police – Saturday AVL to Puerto Escondido – 🖕

Catchwords:

HUMAN RIGHTS – Anti-discrimination – sex discrimination in employment PRACTICE AND PROCEDURE – Amendment to complaint – whether leave should be granted

Catchwords:

BUILDING and CONSTRUCTION – HOME BUILDING – breaches of Home Building Act by builder – repudiation by homeowner – no error on question of law or miscarriage of justice – findings of fact open on the evidence

Catchwords:

COSTS- costs of the appeal-application of rules 38 and 38A-no basis not to award costs.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance – refusal of clearance – risk assessment – real and appreciable risk to the safety of children

Catchwords:

DEVELOPMENT APPLICATION – additions to an existing garage including a first floor studio – conciliation conference – amended plans and documents – agreement between the parties – orders made

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an approved residential flat building – conciliation conference – amended plans and documents – agreement between the parties -orders made.

Catchwords:

APPEAL – development application – land subdivision – urban release area – North Lismore Plateau – Lismore CBD flood planning response –adequacy of Aboriginal cultural heritage significance assessment – tangible and intangible Aboriginal cultural heritage – whether adequate assessment of Aboriginal cultural heritage impact – relationship of consultation to understanding cultural heritage significance and impact – relevance of Indigenous Land Use Agreement (ILUA) – balancing benefits and impacts

Catchwords:

ADMINISTRATIVE LAW – administrative review –Government information – exercise of police powers in respect of Firearms Prohibition Orders - conclusive presumption of an overriding public interest against disclosure – legal professional privilege – cabinet information - balancing competing public interest factors in favour of and against disclosure

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — zoning of land — whether the zone has the substantial character of a designated zone — whether the Trees Act applies — Pt 2 application — whether neighbouring trees have caused damage to property — whether a tree is likely to cause damage — dividing fence — whether the fence is a sufficient dividing fence — whether the entire dividing fence needs replacement — Pt 2A application — whether trees are severely obstructing sunlight — whether trees should be pruned or removed

Catchwords:

ADMINISTRATIVE LAW – child protection – application for enabling order and working with children check clearance – where applicant is a disqualified person due to disqualifying offence - whether presumption that applicant poses a risk to the safety of children has been proved to the contrary by the applicant.

Catchwords:

PROFESSIONS AND TRADES – health care professional - pharmacist – whether the practitioner was made the subject of criminal findings – whether unsatisfactory professional conduct established (Contravention of Health Practitioner Regulation National Law (NSW) or regulations) established – whether unsatisfactory professional conduct established (Contravention of conditions of registration or undertaking) established – (Other improper or unethical conduct) established whether professional misconduct established – has an impairment within the meaning of the meaning of s 5 of the National Law, being a mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of pharmacy – whether the is competent within the meaning of s 139B(a) of the Health Practitioner Regulation National Law (NSW) in that he lacks the mental or physical capacity to practise as a pharmacist – appropriate protective orders

Catchwords:

DEVELOPMENT APPLICATION — construction of jetty and slipway — alterations and additions to existing boatshed — impacts to seagrass — conciliation conference — agreement between the parties — orders.

Catchwords:

APPEALS – Failure to exercise jurisdiction – Section 48MA of the Home Building Act - Exercise of discretion

Catchwords:

APPEALS — Leave to appeal — Principles governing

Catchwords:

DEVELOPMENT APPEAL – time limited consent – appropriateness of time limited consent - shipping containers – new industrial precinct – desired character of new precinct – appeal of conditions

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government Information - access – correct and preferable decision - public interest considerations against disclosure – public interest considerations in favour of disclosure - balancing exercise – confidential information – remittal for reconsideration in accordance with recommendations of the Tribunal

Catchwords:

APPEAL — objector appeal against the Independent Planning Commission’s decision to approve a large-scale solar farm and associated infrastructure — the proposed development’s impacts on the scenic quality and landscape character of the surrounding land and the visual amenity of local landowners is acceptable — the use of the site for renewable energy development is not inconsistent with the Yass Valley Strategy 2036, including its proscription of large-scale development within 5km of the ACT-NSW border

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) high hedges — likely future severe obstruction of view from a dwelling — respondent’s reasonable desire for privacy — orders balance preferences of each party

Catchwords:

OFFENCES AND PENALTIES: appeal against the severity of a sentence imposed by the Local Court – convicted of unlawful transporting of waste offence and disposal of asbestos waste offence against ss 143(1)(a) and144AAA(1) of the Protection of the Environment Operations Act 1997 in the court below – nature of appeal against sentence – applicable sentencing principles on appeal – no reckless state of mind – actual and potential harm to the environment – practical measures to prevent harm – harm was reasonably foreseeable – complete control over cause of offences – previous conviction – no planned or organised criminal activity – good prospects of rehabilitation – remorse shown – guilty pleas – limited capacity to pay a fine – general and specific deterrence warranted – parity principle – totality principle – monetary penalty imposed – publication order made – appeal upheld – costs order made by the Local Court varied – each party to bear their own costs of the appeals.

Catchwords:

External appeal - Aboriginal Land Rights Act – local aboriginal land council – Board member – misconduct findings – decision by respondent to take disciplinary action against board member, including by disqualifying him from holding office for two years - application for a stay of decision to take disciplinary action

Catchwords:

COSTS — appeal against costs assessment — leave sought to adduce expert evidence available at the initial costs assessment and at the costs appeal — evidence deliberately not adduced below — leave to adduce refused APPEAL — appeal to Court from costs assessment — rehearing — nature of rehearing in statutory context

Catchwords:

APPEALS — Appeal on question of law – Scope of question of law APPEALS — Further evidence — Power to receive further evidence – Application dismissed APPEALS — Leave to appeal — Principles governing – Leave to appeal refused APPEALS — Procedural fairness — Bias - No bias APPEALS — Procedural fairness — Failure to give reasons - Reasons satisfy applicable standard APPEALS — Procedural fairness — Hearing rule – No failure EMPLOYMENT AND INDUSTRIAL LAW — Discrimination — Application to amend complaint – Application dismissed EMPLOYMENT AND INDUSTRIAL LAW — Discrimination — Grounds — Disability discrimination - Whether actions taken by management constituted disability discrimination

Catchwords:

APPEAL – whether Tribunal member was affected by actual or apprehended bias – whether there was a failure to afford procedural fairness – adequacy of reasons.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – future risk

Catchwords:

APPEAL – Strata Title-Strata Schemes Management Act -compensation pursuant to section 106 -whether significant new evidence has arisen COSTS- Costs may not be awarded in respect of amounts payable by a party to a non-lawyer which are not legal costs or disbursements and which do not involve the provision of legal services.

Catchwords:

MODIFICATION APPLICATION – 3 additional apartments - conciliation conference – agreement between the parties – orders

Catchwords:

HEALTH – registration of a suspended nurse –– criminal conviction – cancellation of registration – non-review period – costs

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Application for approval of enterprise agreement – Application approved – No issue of principle.

Catchwords:

PROCEDURE – release of funds paid into court – where trust monies held by the plaintiff’s solicitors were paid into court pending determination of entitlement – where consent orders now sought for distribution of those funds

Catchwords:

Contempt- whether applicant adduces admissible evidence capable of establishing contempt of Tribunal beyond reasonable doubt- whether, if referral application made out, discretion to refer to Supreme Court should be exercised in circumstances where applicant has not pursued other remedies to secure compliance with summons for production of documents

Catchwords:

ADMINISTRATIVE LAW — application for summary dismissal for want of jurisdiction — Privacy and Personal Information Protection Act 1998 — whether application for internal review was lodged within 6-months or an extension of time granted — whether Tribunal has jurisdiction to conduct administrative review

Catchwords:

ADMINISTRATIVE LAW – administrative review – privacy – information protection principles – health privacy principles - potential breaches – time limit for making application for internal review of decision

Catchwords:

LANDLORD and TENANT- residential tenancy -termination of periodic tenancy by notice - termination order required under s 85 of the Residential Tenancies Act 2010 (NSW) (RTA) subject to power under s115 of the RTA to refuse to make a termination order on grounds that the application for a termination order is retaliatory - earlier Tribunal decision that the notice for termination was not retaliatory - elapse of time between termination notice and application for a termination order - whether change in motivation for pursuing a termination order such that it was retaliatory - discretion in the exercise of powers under s 115 - breakdown of relationship between landlord and tenant - tenant evicted under warrant for possession lawfully issued by the landlord - even if a reason for pursuit of termination order was retaliatory whether the Tribunal would not refuse to order termination. APPEAL - decision of the Tribunal to make a termination order was affected by procedural unfairness - decision of the Appeal Panel to conduct a new hearing pursuant to s 80 (3) (b) of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords:

DEVELOPMENT APPLICATION — mixed use development including affordable housing and basement parking — conciliation conference — agreement between the parties — orders

Catchwords:

CORPORATIONS – Insolvency – Administration – Extension of time to convene second meeting of creditors CORPORATIONS – Insolvency – Administration – limitation of administrators' personal liability in respect of funding agreement – whether it is in the interests of the companies that the borrowing take place.

Catchwords:

NOTICE OF MOTION — criminal proceedings — defendant seeking to give evidence via audio visual link — unfairness to Prosecutor — more convenient for evidence to be given in court in Sydney — motion dismissed

Catchwords:

ADMINISTRATIVE LAW - Government information - access – jurisdiction

Catchwords:

HIGH RISK OFFENDER – preliminary hearing –serious violence offender – application for interim supervision order – where making of order and nature of some conditions contested by defendant –whether there is high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order – interim supervision order imposed

Catchwords:

INTERIM HERITAGE ORDER — dwelling house — likely heritage item — local heritage significance — orders

Catchwords:

Occupation-medical practitioner-applications for summary dismissal of separate proceedings-where the parts of the National Law relied upon by the practitioner do not provide the Tribunal with jurisdiction or power to grant the relief sought-where the practitioner’s applications are frivolous, vexatious, otherwise misconceived or lacking in substance and an abuse of process- where the application by the practitioner for leave to amend the basis of his applications is refused -where the application for summary dismissal is granted and costs ordered against the practitioner.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval of enterprise agreement

Catchwords:

COSTS – jurisdiction – application for costs misconceived

Catchwords:

APPEAL – development control order – stop work order – polytunnels relating to raspberry growing – statutory construction – whether polytunnels are a building – characterisation of polytunnels – whether a farm building – whether purpose of polytunnels is intensive agriculture a use not requiring the grant of consent – order revoked

Catchwords:

APPEAL — development application — Centre based child care facility — heritage significance

Catchwords:

OCCUPATION - medical practitioner - breach of conditions of registration - treatment of patients below standard reasonably expected of the Practitioner - treatment of family members, an employee and self-prescribing - Failure to maintain adequate records - Practitioner guilty of unsatisfactory professional conduct - Practitioner guilty of professional misconduct

Catchwords:

DEVELOPMENT APPLICATION — new dwelling — bulk and scale — two storey limit — visual impact — excavation — view loss.

Catchwords:

CIVIL LAW – stay of writ of execution – application on compassionate grounds – where level of indebtedness likely to exceed sale price – delay in bringing application – exercise of discretion – application refused

Catchwords:

NOTICE OF MOTION — abridged time for service of summons, notice of motion, and affidavit in support — order made for Council to carry out emergency order

Catchwords:

APPEAL – costs of appeal ─ counsel’s fees claimed by self-represented party ─ whether those costs should be allowed ─ costs claimed for transcript obtained for the proceedings appealed ─ exercise of discretion to order lump sum

Catchwords:

BUILDING AND CONSTRUCTION – Home Building – renewal of proceedings where work order previously made under Schedule 4, Clause 8 of the Civil and Administrative Tribunal Act 2013 (NSW) – claim for defective remediation works done pursuant to consent order.

Catchwords:

HUMAN RIGHTS – Anti-Discrimination Act 1977 (NSW) – complaint of discrimination in the provision of goods and services due to disability – complaint declined by Anti-Discrimination NSW on the ground of lacking in substance – applicant is a resident of another state – the exercise of federal jurisdiction by the Tribunal – exercise of discretion to grant or refuse leave pursuant to s 96 Anti-Discrimination Act 1977 (NSW)

Catchwords:

APPEAL – residential development application – s34AA – orders

Catchwords:

LEASES – Retail Leases Act 1994 (NSW) – Notice of termination of lease pursuant to s 36(1)(c) – compensation for breach under s34(1)(d) and abatement of rent under s 36(1)(b) – whether the Retail Leases Act is beneficial legislation.

Catchwords:

REAL PROPERTY – LANDLORD and TENANT – RETAIL TENANCY – COVENANTS - liability of original guarantor for obligations after transfer of lease - Conveyancing Act 1919 (NSW) ss 70, 70A, 116, 117 GUARANTEE and INDEMNITY - liability of original guarantor for obligations after transfer of lease – Conveyancing Act 1919 (NSW) ss 70, 70A, 116, 117 EQUITY – assignments at law – signature and notice requirements - Conveyancing Act 1919 (NSW) s 12

Catchwords:

DEVELOPMENT APPEAL — residential development — alterations and additions — rooftop addition — impacts on surrounding properties — streetscape impacts — justification of contravention of height of building development standard — orders

Catchwords:

PROFESSIONS AND TRADES – health care professional - nursing – whether unsatisfactory professional conduct established – (Other improper or unethical conduct) established – whether professional misconduct established

Catchwords:

DEVELOPMENT APPEAL — conciliation conference — cl 4.6 variation of height of building development standard — agreement between the parties — orders

Catchwords:

APPEALS — Leave to appeal — Principles governing

Catchwords:

NOTICE OF MOTION — seeking to vacate hearing and site view — motion dismissed

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Application for approval of enterprise agreement – Application approved – No issue of principle.

Catchwords:

CIVIL PROCEDURE – reopening of hearing after final decision – power to re-open – exercise of discretion – applicable principles

Catchwords:

COSTS – costs application by the respondent – principles – dismissal of the appeal because of the failure of the appellant to appear - no hearing on the merits – costs application granted

Catchwords:

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

Catchwords:

ADMINISTRATIVE LAW - administrative review - Home Building - roof plumbing work - cancellation of contractor licence - improper conduct - disciplinary action - mitigation

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – application for interim contract determination – Jurisdiction of Commission EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – application for interim contract determination – Exercise of Commission’s discretion

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Costs — Whether proceedings instituted vexatiously or without reasonable cause

Catchwords:

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

Catchwords:

VICTIMS SUPPORT – Administrative law – act of violence –whether same act of violence as act of violence in respect of which an application for compensation was dealt with under the Victim Support and Rehabilitation Act 1996– sufficiency of medical evidence.

Catchwords:

LEASES & TENANCIES – Residential Tenancies Act 2010 (NSW) - failure to determine tenant’s claims with the landlord’s termination application when no application fee had been paid and application not lodged on standard form

Catchwords:

VICTIMS SUPPORT – Administrative law – act of violence – whether a series of related acts – whether acts ought not be treated as a related acts – whether application with respect to alleged assault is out of time – limits of beneficial interpretation.

Catchwords:

DEVELOPMENT APPLICATIONS — alterations and additions to a marina — parking provision — appeal upheld

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government Information - access – correct and preferable decision - public interest considerations against disclosure – public interest considerations in favour of disclosure - balancing exercise – confidential information – secrecy provision -confidential hearing in the absence of the applicant and his legal representatives – legitimate business, commercial, professional or financial interests - consultation

Catchwords:

COSTS – costs follow the event – no question of principle

Catchwords:

APPEAL – development application – centre based childcare centre – flood liable land – suitability of the site having regard to overland flooding risk – shelter in place

Catchwords:

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

Catchwords:

OCCUPATIONS- medical practitioner- where practitioner admitted professional misconduct- whether practitioner’s registration should be suspended- whether practitioner should be reprimanded and fined- practitioner consented to order for payment of Commission’s costs

Catchwords:

LAND LAW — Co-ownership — Statutory trust for sale — Discretion of court — Whether the making of such order inconsistent with a term of the co-owners’ agreement which would prevent exercise of discretion — No question of principle

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – Remuneration – Equal remuneration – consent award – no issue of principle

Catchwords:

APPEAL – denial of procedural fairness – interventions from bench preventing party from presenting their case – requirement for materiality – adequacy of reasons FREEDOM OF INFORMATION – Government Information (Public Access) Act 2009 – information subject to a conclusive overriding public interest against disclosure because it is subject to non-disclosure order under s 64 of the Civil and Administrative Tribunal Act 2013 – legal professional privilege – meaning of “government information”

Catchwords:

ADMINISTRATIVE LAW — application for summary dismissal — whether Government Information (Public Access) Act 2009 (GIPA Act) application for review is misconceived or lacking in substance

Catchwords:

COSTS – special circumstances – dismissal of proceedings due to failure of Applicant to appear and abandoning proceedings without explanation – costs thrown away - fixed sum amount

Catchwords:

APPEAL — Development application — conciliation conference — agreement between the parties — orders

Catchwords:

CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement and ancillary orders

Catchwords:

DEVELOPMENT APPLICATION – new dwelling – foreshore location – amended plans – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPEAL – centre based child care facility – assessment of expert evidence on acoustic and air quality impacts – suitability of the site for the proposed development – orders

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — applicant makes two applications concerning trees on two adjoining properties — neighbouring properties owned by different members of one family — Pt 2 and Pt 2A applications — whether two neighbouring trees are likely to cause damage or injury — whether the applicant should bear the cost of any pruning works — whether trees are severely obstructing a view — orders for pruning two trees, one in each Pt 2 application — Pt 2A application refused

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION — access stairs to the waterfront — use — conciliation conference — agreement between the parties — orders

Catchwords:

CONTRACTS - Repudiation - What constitutes repudiation - Insistence on performance of contract on incorrect interpretation of terms - Purported price increase CONTRACTS - Repudiation - Acceptance of repudiation - What constitutes acceptance - Termination of contract RESTITUTION - Ineffective transactions - Total failure of consideration - Recovery of deposit paid under unenforceable building contract

Catchwords:

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – s 44(1)(b) of the Residential Tenancies Act 2010 (NSW) – constructive failure to exercise jurisdiction

Catchwords:

OCCUPATIONS – Medical Practitioners – Protective Orders – Cancellation – Review Period

Catchwords:

DEVELOPMENT APPEAL — residential flat building — conciliation conference — agreement between the parties — orders

Catchwords:

ADMINISTRATIVE LAW – child protection – out of home care – application for review of decision to refuse authorisation of authorised carer – children in out of home care – decision affirmed

Catchwords:

APPEALS — right of appeal — scope of right — error of law – Error on a question of law established

Catchwords:

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

Catchwords:

CONSUMER LAW – refund claim for supply and installation of pool heater – consumer guarantees of acceptable quality and of due care and skill – Australian Consumer Law (NSW) ss 54, 60

Catchwords:

VICTIMS SUPPORT – summary dismissal – whether Tribunal’s powers extend beyond administrative review of an administratively reviewable decision where no legislative intention

Catchwords:

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – habitability of premises – repair of premises – scope of duty – modification of premises to accommodate disabilities of tenant – scope of remedial orders – applicable principles

Catchwords:

LICENSING — Liquor licensing — Application to the Authority — Licence sought – packaged liquor licence APPEALS — Remitter from Appeal Panel after internal appeal to the Tribunal as previously constituted – extent of evidence to be received on remitter STATUTORY INTERPRETATION — Amendment and repeal – applicable provisions to be applied at hearing in remitter – effect of accrued rights

Catchwords:

CIVIL PROCEDURE - hearings – adjournments – grounds for adjournment – medical condition of representative of party – sufficiency of evidence – personal circumstances of representative of party – recent illness of mother - discretion to adjourn – applicable principles – whether refusal to adjourn a denial of procedural fairness

Catchwords:

ADMINISTRATIVE LAW — Working with children — Application for a working with children check clearance – Whether applicant poses a risk to the safety of children – Whether complainant a vulnerable person – Confidential hearing.

Catchwords:

ADMINISTRATIVE LAW – Privacy – Where two respondents to review application are not public sector agencies – Where one respondent is the Privacy Commissioner – Where no evidence that the applicant has applied for internal review of the alleged conduct – Whether the Privacy Commissioner and another respondent should be removed as parties - Whether Tribunal has jurisdiction to hear and determine application for review of conduct – Application dismissed

Catchwords:

CIVIL PROCEDURE - hearings – adjournments – grounds for adjournment – medical condition of representative of party – sufficiency of evidence – personal circumstances of representative of party – recent illness of mother - discretion to adjourn – applicable principles – whether refusal to adjourn a denial of procedural fairness

Catchwords:

DEVELOPMENT APPLICATION — shop top housing development — cl 4.6 written request — minimum site area — landscaped area — in-fill affordable housing — agreement between the parties — orders

Catchwords:

DEVELOPMENT APPLICATION — residential apartment building development — in-fill affordable housing — agreement between the parties — orders

Catchwords:

ADMINISTRATIVE LAW – Education and Care Services National Law – service approval – where respondent cancelled applicant’s service approval on two grounds, one of which was broadly that the operation of the service would constitute an unacceptable risk to child safety – construction of s 192(2) of the Children (Education and Care Services) National Law (NSW), modifying definition of “reviewable decision” in s 192(1) by removing decisions made on ground of unacceptable risk – whether effect of s 192(2) is that Tribunal does not have jurisdiction to review respondent’s decision

Catchwords:

COSTS – where the applicant abandoned claims during the hearing

Catchwords:

DEVELOPMENT APPLICATION — backpacker and hotel accommodation development — cl 4.6 written request — height of buildings — agreement between the parties — orders

Catchwords:

APPEALS — bias — application for recusal — principles – application dismissed

Catchwords:

Administrative Law – NDIS Worker Check – risk of harm to people with disability, whether risk is real and appreciable – risk of harm likely or significant – current risk

Catchwords:

DEVELOPMENT APPEAL – mixed use development – conciliation conference – agreement between the parties – orders

Catchwords:

MODIFICATION APPLICATION — modification of a development consent for shop top housing — conciliation conference — amended plans and documents — agreement between the parties — orders made.

Catchwords:

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – notice to terminate declared retaliatory – s 115 Residential Tenancies Act 2010 (NSW) – notice otherwise invalid – fresh notice issued and fresh Tribunal proceedings – whether appeal has any practical purpose

Catchwords:

ADMINISTRATIVE LAW – Access to information — GIPA –whether there is an overriding public interest consideration against disclosure – balancing the public interest

Catchwords:

DEVELOPMENT APPEAL – alterations and additions – use as restaurant - conciliation conference – agreement between the parties - orders

Catchwords:

DEVELOPMENT APPLICATION — shop top housing development — cl 4.6 written request — height of building — agreement between the parties — orders

Catchwords:

DEVELOPMENT APPLICATION co-living — building separation — adverse amenity impacts — appeal dismissed

Catchwords:

DEVELOPMENT APPLICATION – seniors living development – access to facilities – transport service – agreement between the parties – orders

Catchwords:

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

Catchwords:

PRACTICE AND PROCEDURE – stay of orders of Local Court pending appeal and/or application for leave to appeal – no question of principle

Catchwords:

PRACTICE AND PROCEDURE – Application for stay or summary dismissal of proceedings because a class action raising the same or similar issues has been commenced in the Federal Court – Opt out period yet to commence – Not an abuse of process to maintain separate proceedings before the end of the opt out period in the Federal Court proceedings – stay refused

Catchwords:

DEVELOPMENT APPEAL – centre based child care facility – development fronting classified road – all merit contentions resolved – satisfaction of jurisdictional prerequisites – statutory construction - meaning of the protean expression “adversely affects” - orders

Catchwords:

DEVELOPMENT APPEAL – alterations and additions and use of a dwelling – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPEAL — centre based childcare facility — conciliation conference — agreement between the parties — orders

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers – Appeal from Industrial Registrar – Not possible to file Application to have Commission to exercise Commission’s initiative

Catchwords:

CIVIL PROCEDURE – Interlocutory applications – application for interim orders staying a decision pending the determination of an administrative review – stay granted subject to conditions

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction — Changes to basis for ‘reverse onus’ case against victimisation claim — subjective and objective bases EMPLOYMENT AND INDUSTRIAL LAW — Discrimination — Victimisation — Consideration of the ‘reverse onus’ the IR Act in circumstances where decision maker did not give evidence

Catchwords:

NURSE – criminal offence, larceny, theft of prescribed restricted substance, common assault

Catchwords:

CONTRACT- identification of parties; identification of terms; company bound by conduct of director; Novation – no common intention; ESTOPPEL-whether representations made; No question of principle

Catchwords:

APPEAL – development application – hardstand parking space – conciliation conference – agreement reached – orders made

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – Remuneration – Equal remuneration – consent award – no issue of principle

Catchwords:

REAL PROPERTY – STRATA MANAGEMENT – owners corporation’s strict duty to maintain and repair common property and compensate for damage to lot property -– compulsory strata manager – lot owners’ consent to common property rights by-law - Strata Schemes Management Act 2015 (NSW) ss 106, 149, 232, 237

Catchwords:

COSTS — Party/Party — Payable out of a fund — Deceased estate – Where an executor sought indemnity costs out of the estate – Whether the executor acted unreasonably - UCPR r 42.20 – UCPR 42.25 – HELD the executor acted unreasonably and was therefore not entitled to indemnification out of the estate

Catchwords:

CIVIL PROCEDURE — Interim preservation — Freezing orders – adult daughter brings civil proceedings for sexual assaults that she alleges her father committed against her when she was a minor – prior criminal proceedings brought against the father in respect of alleged sexual assaults upon the daughter in New South Wales and father was acquitted – current criminal proceedings brought in Queensland against the father in respect of alleged sexual assaults upon the daughter in Queensland – allegations against father involve conduct over 8 years concealed from other family members - father lives in Queensland and owns real estate and holds superannuation in Queensland – father alters title to Queensland real estate at the time of the recent criminal proceedings to transfer a half share to his wife as a joint tenant - whether a freezing order should be granted against the father pending the outcome of these civil proceedings.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation — employees parties to the enterprise agreement — net detriment test – application of State awards — Principles for approval of enterprise agreements

Catchwords:

APPEALS — appeal from order dismissing application — withdrawal of application — Tribunal made error as to jurisdiction — breach of procedural fairness — utility of appeal

Catchwords:

PRACTICE AND PROVEDURE – application for adjournment – relevant principles

Catchwords:

COSTS – Whether to make a gross sum costs order – whether to make an order for costs against a solicitor acting for a party.

Catchwords:

APPEALS – whether a question of law stated with precision – no question of principle – whether leave to appeal should be granted – no question of principle

Catchwords:

EQUITY — Unconscionable conduct — Special disability or disadvantage — Independent advice – Whether a solicitor was improperly acting for both plaintiff and defendant – Whether solicitor provided adequate independent advice – HELD solicitor was not acting improperly – solicitor arranged and provided rational and independent advice EQUITY — Unconscionable conduct — Special disability or disadvantage — Whether unconscientious advantage taken – HELD no special disadvantage was taken advantage of

Catchwords:

CRIME – manslaughter – unlawful and dangerous act – appreciable risk of serious injury – throwing Molotov cocktail into backyard of residential premises – death of child – severe burns – Form 1 – maliciously inflict grievous bodily harm – biting of ears SENTENCING – victim impact statement – offender’s personal history – background of deprivation – significance of criminal record – passage of time – letter of apology – depth of remorse – conditions of custody – threats – objective seriousness – very serious case of manslaughter – plea of guilty – applicable discounts – sentence imposed

Catchwords:

DEFAMATION — summary dismissal — pleadings — failure to plead material facts — no pleading as to identity of publisher — no material facts as to alleged authorisation — three years of delay — summary dismissal granted

Catchwords:

CORPORATIONS – creditors’ meeting – appeal from decision of voluntary administrators – where plaintiff brought a proceeding against the first defendant for alleged building defects – where first defendant entered voluntary administration – where plaintiff and various unit owners in the building lodged proofs of debt for voting purposes at the second meeting of creditors – where administrator admitted the proofs of the plaintiff and of various unit owners for $1 for voting purposes, and rejected the claims of other unit owners in full – where administrator admitted the claims of four related creditors in full – whether administrator made a “just estimate” of the claims of the plaintiff, the unit owners and the related creditors CORPORATIONS – Voluntary administration – application to set aside deed of company arrangement – where creditors passed resolution for the first defendant to execute the deed – where resolution would have passed on value, but not on votes, if the related creditors were disregarded – whether resolution to enter deed should be set aside CORPORATIONS – Voluntary administration – Application to terminate Deed of Company Arrangement – whether material omissions from or misstatements in the information provided in the second report to creditors – whether the deed of company arrangement should be terminated for “some other reason” under s 445D(1)(g) or s 447A of the Corporations Act 2001 (Cth) — whether deed of company arrangement oppressive, unfairly prejudicial to, or unfairly discriminatory against one or more creditors – whether effect cannot be given to the deed without injustice

Catchwords:

ADMINISTRATIVE LAW – child protection – out-of-home care – application for review of decision to remove Aboriginal child from care of authorised carer – kinship carer placement.

Catchwords:

ENVIRONMENT AND PLANNING — offences — failure to comply with condition of environment protection licence — defendant charged under s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) — meaning of “proper and efficient condition”