Browse decisions Displaying 1 - 200 out of 124322 results

Catchwords:

VICTIMS Support – Administrative law – act of violence – whether medical evidence verifies injury-sufficiency of evidence – whether applicant suffered serious bodily injury as a result of the act of violence –whether grievous bodily harm present as a result of psychological injury – meaning of grievous bodily harm – limits on beneficial interpretation

Catchwords:

CORPORATIONS — share register — transmission of shares on death of shareholder — executor seeking registration as legal personal representative — absence of functioning board — whether formal transmission application required — power to order rectification of register — Corporations Act 2001 (Cth) ss 175, 1071F — equitable jurisdiction to rectify — executor entitled to registration — alleged capital gains tax risk arising from transmission of shares to executor — whether speculative — whether relevant hardship defeating rectification. EQUITY — estates — executor’s duties pending challenge to probate — scope of “management” of estate — whether undertaking limiting distributions precludes litigation to secure control of estate assets — securing control of shareholdings to enable governance of companies. INTERLOCUTORY PRACTICE — discretionary relief — whether to defer final relief pending related probate proceedings — alleged agreement to hold over proceedings — effect of interlocutory consensus. RECEIVERS — application for appointment of receiver and manager to family companies and trusts — whether necessary where executor capable of administering through share control — conflict considerations — appointment refused. PROCEDURE — expedition — estate assets unmanaged — tax compliance concerns — need for timely restoration of corporate control.

Catchwords:

CONSUMER LAW — Misleading or deceptive conduct — Whether conduct likely to mislead or deceive — Where plaintiff is a financial services company — Where defendants are the former directors (Directors) and Chief Financial Officer (CFO) of a pie manufacturing company (Company) — Where plaintiff granted the Company an unsecured revolving credit facility (Facility) to pay suppliers — Where the Company fell into financial distress and was seeking bidders for a recapitalisation or asset sale — Where the Company eventually undertook an asset sale and became unable to repay the Facility — Whether CFO engaged in misleading or deceptive conduct under s 18 of the Australian Consumer Law (ACL) by assuring plaintiff that the Facility would be repaid in full — Whether CFO engaged in misleading or deceptive conduct by promising plaintiff that the Facility would be repaid in exchange for continued use thereof AGENCY — Creation of agency — Express or implied agreement — Where Directors sought advice on ‘safe harbour’ provisions under s 588GA Corporations Act 2001 (Cth) to prevent liability for insolvent trading — Where Directors followed a plan that was devised to implement ‘safe harbour’ advice — Whether Directors personally appointed CFO, expressly or impliedly, to carry out the ‘safe harbour’ advice as their agent — Whether Directors are liable as principals for representations made by CFO to the plaintiff CONSUMER LAW — Misleading or deceptive conduct — Silence or non-disclosure — Where plaintiff was aware of possible recapitalisation but unaware of possible asset sale transaction occurring — Where CFO was the point of contact for plaintiff with the Company — Where CFO did not correct plaintiff’s understanding that a recapitalisation was taking place — Where CFO was under obligations of confidence in relation to the bids for recapitalisation and asset sale — Where plaintiff had internal systems for review of the Company’s credit-worthiness — Whether failure to correct plaintiff’s understanding was misleading or deceptive —Whether there was a reasonable expectation that the likelihood of an asset sale would be disclosed to plaintiff — Whether Directors are liable as accessories to misleading or deceptive conduct by being knowingly involved in CFO’s silence or non-disclosure CONSUMER LAW — Misleading or deceptive conduct — Causation or reliance — Where the Company was placed into liquidation following asset sale — Where plaintiff unable to recover any amounts in liquidation — Where plaintiff pleads loss of the whole outstanding balance on the Facility — Where plaintiff pleads alternative transaction case —Where plaintiff alleges that but for the misleading or deceptive conduct, it would have been able to negotiate with the Company’s secured creditor bank to obtain full repayment of the Facility — Whether misleading or deceptive conduct was causative of loss to plaintiff — Whether plaintiff’s counterfactual would have occurred — Whether plaintiff’s counterfactual would have resulted in transaction that was an unfair preference under s 588FA Corporations Act CONSUMER LAW — Misleading or deceptive conduct — Remedies — Damages — Whether damages under s 236 ACL should be reduced pursuant to s 137B Competition and Consumer Act 2010 (Cth) on account of contributory negligence of plaintiff — Whether liability should be apportioned between defendants and the Company under Pt VIA Competition and Consumer Act CONSUMER LAW — Unconscionable conduct — In connection with goods or services — Whether defendants’ conduct in the circumstances is unconscionable under s 21 ACL

Catchwords:

CIVIL PROCEDURE — unlawful clearing — whether land should be categorised as Category 1 – Exempt Land or Category 2 – Regulated Land — construction of Remediation Order — whether on proper construction the Remediation Order applied to whole of land or only unlawfully cleared portion — appeal dismissed

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government Information - Miscellaneous Application seeking correction of published decision – whether special circumstances warrant an award of costs.

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REVENUE LAW – State taxes – duties – declaration of trust – “to be vested” – acknowledgment of trust – statutory declaration – double duty – assessment – objection – appeal ADMINISTRATIVE LAW – reviewable decision – correct and preferable decision – Civil and Administrative Tribunal

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COSTS – Who is the successful party – Amount claimed or in dispute in the appeal - No question of principle

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Development Application – Alterations and addition to dwelling – use of building – conciliation conference – agreement between the parties — orders

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APPEALS – extension of time - application for extension of time to lodge appeal – no satisfactory explanation for delay – no fairly arguable error on a question of law or other error requiring leave to appeal – application for extension of time refused – appeal dismissed COSTS – special circumstances – indemnity costs

Catchwords:

CIVIL PROCEDURE — Interrogatories — Application for orders requiring New South Wales Police and several non-parties to answer interrogatories in the context of proceedings in malicious prosecution

Catchwords:

PRACTICE AND PROCEDURE — whether Class 1 appeal filed out of time — whether Council had power to determine review under Division 8.2 of the EPA Act — whether period in s 8.3(2)(a) of the EPA Act had expired — whether there was a changed determination within the meaning of s 8.4 of the EPA Act even though original refusal was upheld — whether review determination was a decision subject to appeal within the meaning of s 8.6 of the EPA Act COSTS — r 3.7 of the Land and Environment Court Rules 2007 (NSW) — whether fair and reasonable to make a costs order — central issue determinative of the proceedings and preliminary to an evaluation of the merits — conduct of the parties in circumstances leading up to the commencement of the proceedings

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APPEAL- whether timber decking on balconies and terraces is lot property or common property- consideration of provisions defining lot property and common property in the Strata Schemes (Freehold Development) Act 1973 NSW and regulations- whether a bylaw is void for uncertainty.

Catchwords:

APPEAL – whether decision against the weight of evidence or not fair and equitable - LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW)

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ADMINISTRATIVE LAW — Freedom of information — Access to information — public interest considerations in favour of disclosure — public interest considerations against disclosure — confidential information of witnesses sought by person who made a complaint — whether on balance the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure — searches — implied decision that no further information held

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ADMINISTRATIVE LAW – Victims Rights and Support – restitution order against person convicted of relevant offence – alleged lack of culpability and financial hardship.

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LOCAL GOVERNMENT - appeal against order suspending councillor from civic office - whether judicial review principles applicable in appeal by way of hearing de novo - relevance of grounds for judicial review to merits review of suspension decision - whether suspension decision should be confirmed or set aside and new decision made - whether misconduct resulting in prior suspension and conduct relied on in support of challenged suspension separate and discrete misconduct or part of single course of misconduct - determination of appropriate protective orders

Catchwords:

VICTIMS Support – Administrative law – act of violence –– whether medical evidence verifies injury-sufficiency of evidence – proximate cause of injury – not sole cause of injury - whether applicant suffered serious bodily injury as a result of the act of violence – - whether grievous bodily harm present as a result of psychological injury - meaning of grievous bodily harm - limits on beneficial interpretation

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COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers

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APPEALS – whether error on a question of law established – whether leave to appeal should be granted – no question of principle

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

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APPEALS — appeal from Local Court — summons styled grounds as questions of law and questions of fact — where substance of grounds did not reflect that distinction APPEALS — appeal from Local Court — questions of law — whether denials of procedural fairness — whether magistrate failed to consider issues pleaded — whether unreasonable — no error established APPEALS — appeal from Local Court — questions of mixed fact and law — whether requirements for leave established — requirements not established

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SUCCESSION — Familial disputes — matters involving: an elderly now deceased mother (M); 3 adult children: C (who predeceased M), AH (executor and one third beneficiary of M’s estate, the plaintiff) and AO (one third beneficiary of M’s estate); CA’s sole child G (defendant, executrix and sole beneficiary of C’s estate, and one third beneficiary of M’s estate) and T (applicant) — Debt and Will construction (D&WC) proceeding regarding M’s estate between AH and G — Family provision (FP) proceeding regarding C’s estate between T and G —T seeks joinder to D&WC proceeding on the basis that (inter alia) there is a common monetary fund and findings in the D&WC proceeding will impact allegedly directly his interests in the FP proceeding — Joinder opposed JOINDER — Parties to proceedings — Joinder sought pursuant to UCPR rr 6.19 and 6.24 — Joinder including those provisions and r 6.27 considered — Held joinder appropriate pursuant to residual discretion under r 6.19 JOINDER — Parties — Joinder pursuant to UCPR r 6.19 (common question and all relief same transaction limbs) — Same transaction limb not satisfied — Joinder pursuant to UCPR r 6.19 (residual discretion) discussed provisions including r 6.27 considered — Residual discretion expressed in unqualified terms — Considerations involve what is most conducive to a just resolution of the disputes between the parties, having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation — Consideration of matters in favour of and against exercise of discretion for joinder JOINDER — Parties — Joinder pursuant to UCPR r 6.24 (ought and necessary limbs) — Vexed issue as to whether applicant’s interests are directly affected in the D&WC proceeding — Arguably “yes” but residual discretion under r 6.19 preferred basis for determination JOINDER — Parties — Joinder pursuant to UCPR r 6.27 — UCPR r 6.27 has not generally been construed as independent or separate stand-alone unconstrained source of power to permit joinder, irrespective of there being some associated statutory provision in particular r 6.24 (or r 6.19) permitting joinder or some other general law requirement — A principal purpose of r 6.27 is facilitative, thus making it clear that non-party may invoke r 6.24 (or r 6.19) to seek joinder JOINDER — Parties — Joinder — Dispensation, conditions and alternatives — Consideration of power to dispense with requirements of rules and impose conditions on joinder — Consideration of alternatives to joinder — Proposed conditions on joinder rejected INTERVENTION — Difference between intervention and joinder

Catchwords:

APPEALS –– from decision of NSW Civil and Administrative Tribunal (NCAT) to affirm decision of NSW Trustee to sell protected person’s house –– principles governing decisions made under NSW Trustee and Guardian Act 2009 (NSW) –– no error on question of law –– no breach of procedural fairness –– no apprehended bias –– no misapplication of law –– leave to appeal refused –– no obvious factual error of unorthodox approach to fact-finding –– no other basis on which leave to appeal should be granted APPEALS –– interpreters –– no procedural unfairness where NCAT did not arrange for an interpreter for protected person in circumstances of case

Catchwords:

CIVIL PROCEDURE – notice of motion – notice to produce – damage to property claim – multiple fires – second plaintiff’s claim remains a mystery –requirement for specificity with respect to documents sought – requirement for relevance of documents sought to a fact in issue – where amended statement of claim remains on foot – majority of notice set aside – whether plaintiffs require leave before issuing further notices – leave not required – costs

Catchwords:

APPEALS — procedure — parties on appeal — interveners — whether Industrial Court has implied power to permit non-party intervention — whether prospect of the Court’s decision being applied in future litigation constitutes a sufficient interest — intervention refused CIVIL PROCEDURE — representation — amicus curiae — Industrial Court’s power to appoint an amicus curiae — whether non-party’s anticipated submissions assist the Court and are materially different from those advanced by the parties — leave granted

Catchwords:

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

Catchwords:

HEALTH - Professional registration and discipline –Summary dismissal of an application by practitioner seeking reasons for a decision of the Medical Tribunal made in December 2003 -Proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance – Practitioner’s application summarily dismissed -Practitioner to pay the Applicant’s costs.

Catchwords:

EQUITY – Equitable remedies – injunctions – where the plaintiffs seek leave to proceed pursuant to UCPR r 11.8AA – where plaintiffs seek injunctions by way of default judgment against persons whose identities are unknown, but who are defined in the statement of claim by reference to specified past conduct and/or communications with sufficient clarity that the injunctions do not operate against the world at large

Catchwords:

EQUITY – Equitable remedies – injunctions – where the plaintiffs seek leave to proceed pursuant to UCPR r 11.8AA – where plaintiffs seek injunctions by way of default judgment against persons whose identities are unknown, but who are defined in the statement of claim by reference to specified past conduct and/or communications with sufficient clarity that the injunctions do not operate against the world at large

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CRIME – bail – release application – unacceptable risk test – juvenile applicant proposed to be released to residential rehabilitation program – sentencing listed in 19 days’ time – sentence likely to be a control order – whether grant of bail to rehabilitation program would fetter discretion of sentencing magistrate

Catchwords:

COSTS — Security for costs — no question of principle

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CRIME – Appeal and review – Appeal from Local Court to Supreme Court – by plaintiff on a ground involving a question of law alone – Magistrate’s decision to reject plaintiff’s guilty pleas – where agreed facts suggested commission of more serious offence to the one charged – possible issues sentencing in accordance with The Queen v De Simoni (1981) 147 CLR 383 – whether Local Court had jurisdiction to sentence plaintiff in such circumstances – factual material disclosing De Simoni issues did not give rise to absence of jurisdiction to determine charges to which the plaintiff endeavoured to plead guilty – matter remitted to Local Court – observations about parties’ formulation of facts for sentence

Catchwords:

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – where failure to undertake work with due care and skill – damages CIVIL PROCEDURE – hearings – where defendants failed to comply with practice note directions – where defendants failed to appear at trial – whether trial to proceed in absence of defendants

Catchwords:

EVIDENCE — Standard of proof — Civil cases — whether primary judge failed properly to apply standard of proof and reached erroneous conclusion — where primary judge did not so err APPEALS — From finding of fact — Credibility and reliability of witnesses — whether primary judge erred in treatment of evidence of appellant and two witnesses — where the weight to be given to the evidence of each witness was a matter for his Honour — where primary judge’s findings were based on his Honour’s assessment of the evidence as a whole — where primary judge did not so err APPEALS — From finding of fact — Credibility of witnesses — whether primary judge erred in finding respondent had not deliberately sought to create a false impression and gave inadequate reasons for so finding — where primary judge did not so err

Catchwords:

APPEALS - Amendment

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CRIME — Appeals — Appeal against conviction —appeal by rehearing — appellant was found guilty of property offences after a trial before judge alone EVIDENCE — Identification evidence — Visual identification from CCTV footage — whether the criminal standard of proof was satisfied

Catchwords:

REAL PROPERTY — right of access — alleged obstruction of plaintiff’s access to land — construction of footpath adjacent to land — undeveloped land — where future development would require development consent — where land is situated on steep hill with cliff edge — where access by foot remains possible — proper construction as to s 6 of the Roads Act 1993 (NSW) — where statutory and common law rights subject to restrictions imposed by Roads Act 1993 (NSW) or other law TORTS — private nuisance — alleged nuisance by loss of access to public road — whether substantial and unreasonable interference with plaintiff’s enjoyment of land — alleged historic vehicular access — where land has been left vacant and used for occasional picnic or barbeque REMEDIES — where plaintiff sought declaration and mandamus — where plaintiff also sought restorative mandatory injunction

Catchwords:

CRIME — Appeals — Appeal against conviction — whether applicant prosecuted maliciously — whether applicant’s extradition from New Zealand unlawful — whether jury verdicts unreasonable — whether jury’s ability to access digital evidence impeded — whether intervention by trial judge excessive and undue — whether summing up unbalanced and unfair — whether undue pressure placed on jury by trial judge — whether consciousness of guilt reasoning inappropriately relied on by Crown — whether trial commenced at unjust time owing to applicant’s medical conditions — whether alleged errors and procedural unfairness cumulatively caused trial to miscarry

Catchwords:

VALUATION OF LAND – appeal – s 56A of the Land and Environment Court Act 1979 (NSW) – appeal against determination of land value by Commissioner – s 6A(1) of the Valuation of Land Act 1916 (NSW) – procedural fairness – comparable sales and adjustments – consideration of irrelevant material – failure to consider relevant material – estoppel – appeal dismissed

Catchwords:

STAY – Interlocutory application – Gaming Machines Act 2001 (NSW) –Application for a stay of decision to impose and recover penalty; –“appropriate to secure the effectiveness of the determination of the application”

Catchwords:

DEVELOPMENT APPLICATION — new dwelling — amended plans — conciliation conference — agreement between the parties — orders

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DEVELOPMENT APPLICATION – modification application – amended plans – conciliation conference – agreement between the parties – orders

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ADMINISTRATIVE LAW — Costs ADMINISTRATIVE LAW — Judicial Review — Jurisdictional error — Determination of the Manager, Costs Assessment to extend time for filing an application for review — Decision of the Manager, Costs Assessment to appoint a costs assessor — Jurisdictional error established COSTS — Costs assessment for a “commercial client” — Application of Legal Profession Uniform Law 2014 (NSW) s 170(1)(a) to a “commercial client” — First Defendant a public company — Second Defendant a wholly owned subsidiary of a public company — Defendants are “commercial clients” — Dispute between commercial client and law firm is beyond the jurisdiction of the costs assessment regime under Legal Profession Uniform Law 2014 (NSW) and associated regulations

Catchwords:

LEASES AND TENANCIES – proper construction of make good obligations under a commercial lease – whether extrinsic material can be used in construing a lease – whether lessor engaged in unconscionable conduct in asserting obligation to make good.

Catchwords:

CONTRACT – construction and interpretation of deed of release – where primary judge ruled that release clause did not operate as a bar to proceedings – whether release clause is confined to such claims as might have existed as at the date of the deed APPEALS – appeal from a decision of the Local Court – where issue is the proper construction of a contract – whether leave is required – whether appeal raises a question of law or mixed question of law and fact

Catchwords:

ADMINISTRATIVE LAW – administrative review – privacy – whether information collected – information unsolicited – no obligation for agency to proactively inform person that it holds personal information – request to amend must be specific – extent of obligation to ensure accuracy of information before use – no general discretion to make orders under s 52 of the Privacy and Personal Information Protection Act 1998 (NSW) absent a finding of a contravention of an IPP, privacy code of practice or disclosure of personal information held in a public register

Catchwords:

APPEALS – appeal from a discretionary decision to refuse set-aside application made under Clause 9 of the Civil and Administrative Tribunal Regulation 2014 (NSW) – no error of law or other appealable error established.

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MENTAL HEALTH – Forensic patient – Extension of status as forensic patient – whether defendant poses an unacceptable risk of serious harm – where defendant has demonstrated significant progress in community – where risk still present – where duration of extension order in dispute – orders made extending status as a forensic patient for 12 months

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ADMINISTRATIVE LAW – administrative review – home building – decision to suspend a contractor licence under s 42A Home Building Act 19189 – whether an administratively reviewable decision – no jurisdiction

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MODIFICATION APPLICATION — alterations and additions to an existing dwelling house — conciliation conference — agreement between the parties — orders

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CIVIL PROCEDURE — Originating process — application for the striking out of the amended statement of claim and the dismissal of the proceedings – failure to disclose a reasonable cause of action

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

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DEVELOPMENT APPLICATION – health service facilities – conciliation conference – agreement between the parties – orders

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

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CIVIL PROCEDURE — leave to rely on late evidence — ‘guillotine’ orders — suggested lack of candour by client’s solicitor – serious accusation not to be made lightly – principles at [5] to [19] — proceedings are 6 years old — builder sues client for unpaid bills — client cross-claims against builder and certifiers — three ‘guillotine’ orders made against client — four ‘guillotine’ orders made against builder and certifier — whether evidence in chief or reply — whether in interests of justice to allow application —no trial date had been set — where ample time to meet late-served evidence — where explanation for delay adequate — leave granted.

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APPEAL — Residential development application — conciliation conference — agreement between the parties — orders

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ADMINISTRATIVE LAW - review under section 245 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) – child protection – where respondent applied for summary dismissal of applicants’ applications for review of decisions to remove children from their care and to cancel their authorisations as carers –where one applicant is subject to an interim bar on his working with children check clearance – whether proceedings may be dismissed under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 on the basis that they do not disclose reasonable prospects of success – whether Tribunal must conclude that proceedings are doomed to fail before summarily dismissing them

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CRIME – bail – release application – show cause test – where applicant has complex psychological needs – availability of 24/7 NDIS support – unacceptable risk – whether proposed conditions sufficient to ameliorate risk

Catchwords:

CHILD WELFARE — Adoption — application by adult adopted child to discharge adoption order made when a newborn child — where allegations of sexual, physical and emotional abuse of applicant by adoptive parents — where applicant reported allegations of sexual abuse more than 30 years after the alleged acts — where irretrievable and complete breakdown of relationship between adoptive parents and applicant — whether an exceptional reason shown — whether discharge of adoption order in applicant’s best interests — whether applicant’s names should be changed — HELD — discharge of adoption order in applicant’s best interests CHILD WELFARE — Adoption — registration of details of overseas birth following discharge of adoption order — HELD — order to register details of overseas birth in New South Wales

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COSTS – where two applications considered at first instance – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW)

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APPEALS –– no error of law or other appealable error established.

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APPEALS – leave to appeal – whether utility where no practical consequences for the parties – principles – leave to appeal refused

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HIGH RISK OFFENDER — final hearing — serious sex offender — application for Extended Supervision Order — whether there is a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order — application dismissed

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VICTIMS 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.

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ADMINISTRATIVE LAW – Freedom of information – Access to information – Where respondent refused to deal with application – whether there are “no reasonable grounds for believing that the agency would make a different decision”

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TAXES AND DUTIES – surcharge land tax – whether amendment to the terms of the discretionary trust deed satisfied the requirements in s 5D of the Land Tax Act 1956 (NSW) – no discretion to relieve liability arising under statutory provisions

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APPEALS – whether error on a question of law established – whether leave to appeal should be granted – no question of principle

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ADMINISTRATIVE LAW – Victims Rights and Support – restitution order against person convicted of relevant offence – alleged lack of culpability and financial hardship.

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COSTS – final judgment on costs payable by unsuccessful applicant in judicial review proceedings

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SUCCESSION — Executors and administrators — Rights, powers and duties – Carrying on actions – deceased makes a will in 2022 before his death in 2023, in which he leaves his entire estate to a neighbour (the first defendant) and revokes 2005 will giving his whole estate to his three daughters (the plaintiff) – in 2022 the deceased had sold his residential real estate to the wife of the same neighbour (the second defendant) for what the plaintiffs allege was an undervalue – after the sale of the residential real estate and before the deceased’s death the proceeds of sale are dissipated on expenditure which the parties allege was not obviously for the benefit of the deceased – first plaintiff seeks appointment as an administrator of the deceased’s estate to set aside the sale of the testator’s residential real estate and to recover the expenditure of the proceeds of sale – whether the first plaintiff should be appointed as administrator ad litem or whether appointment of the first plaintiff to represent the estate under Uniform Civil Procedure Rules rule 7.10 would be sufficient – discussion of the purpose of the proposed appointment. CIVIL PROCEDURE – Probate and Administration of estates – Supervision of administration – contest between the plaintiffs, the daughters of the deceased, who propound the 2005 will for probate and the first defendant who propounds the 2023 will – issues as to the deceased’s testamentary capacity at the time of his execution of the 2023 will – plaintiffs bring a claim in the alternative for provision out of the deceased’s estate pursuant to Succession Act 2005 Part 3 and for designation as notional estate of the residential real estate sold allegedly at an undervalue before he died – what is the optimal way for the supervision of the administration of the estate to be supervised efficiently consistently with the just and efficient hearing of the proceedings – whether the conduct of actions for the recovery of assets on behalf of the estate should be heard at the same time as the contested probate issues.

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EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Orders sought by Applicant akin to “Notice to Admit” procedure prescribed in UCPR rr 17.3 and 17.4 — No basis for orders to be made

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CIVIL PROCEDURE — subpoenas — objection to production of documents or things — confidential police information — public interest immunity — immunity of material to be assessed as a contents claim not a class claim

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CRIME — Child sex offences — Sexual intercourse with child <10 years (DV) — Intentionally incite child <10 years sexually touch the person (DV)

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CRIME — murder — criminal proceedings — defence of mental health impairment — accused unfit to be tried — whether s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is available for matters where the accused is unfit — matter to proceed to special hearing

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CIVIL PROCEDURE – Default judgment – Default in filing Commercial List Response – Application of pt 16 of Uniform Civil Procedure Rules 2005 (NSW) by analogy to proceedings commenced by Summons and Commercial List Statement – Whether claim is for a “debt or liquidated claim” – Default judgment awarded – No issue of principle

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CRIME — murder — defence of mental health impairment — accused unfit to be tried — special hearing — physical acts not in dispute — special verdict entered

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CRIMINAL LAW — work health and safety — offences — category 2 — worker slipped between rollers of conveyor — working on or near an unguarded moving part — worker sustained serious injuries — mid-range of objective seriousness SENTENCING — relevant factors on sentence — objective seriousness — aggravating factors — serious injury — mitigating factors — remorse — response to the incident — plea of guilty — general deterrence — capacity to pay

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CRIMINAL LAW – sentencing – murder – relevant considerations – no intention to kill – vulnerable victim because of advanced age – extensive criminal history – complex psychiatric, neurological and cognitive difficulties – difficulty in isolating from long term drug problem – where primary cause of offending self-induced intoxication from drugs and alcohol – drug and alcohol consumption not a mitigating factor – whether moral culpability reduced – family and childhood dysfunction insufficient to establish reduction in culpability – complex mental health issues justify modest reduction in same – impact of homicide on family and community – application of sentencing principles – sanctity of human life

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

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TREES (DISPUTES BETWEEN NEIGHBOURS) — high hedges — severe obstruction of sunlight — Are the trees hedges for the purpose of the Trees Act? — the scope of the Trees Act is limited to cases where the applicant themselves has lost the light or view — limited pruning ordered

Catchwords:

CONSUMER LAW-supply of services-contract to rebuild boat engine-services supplied did not comply with statutory guarantee of due care and skill-non-compliance with the guarantee caused need to replace the engine- quantum of damages recoverable under s267 (4) of the ACL -question of betterment. APPEALS-error of law-Tribunal did not ask itself the right question-need to redetermine question of quantum of loss in respect of the cost to replace the engine.

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TREES (DISPUTES BETWEEN NEIGHBOURS) – Leyland Cypress – whether severely obstructs views – orders

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DEVELOPMENT APPEAL – co-living housing – contravention of height of building development standard – contravention of building setbacks and separation development standard - conciliation conference – agreement between the parties - orders

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LAND LAW — Strata title — Owners corporation — Accounts and records of owners corporation —Inspection—Whether, in the circumstances relating to the lot owner’s request to allow inspection of documents, and in the events that occurred, providing a link to the electronically stored books and records of the owners corporation satisfied the requirement under s 182 (3) of the Strata Schemes Management Act 2015 (NSW) that the owners corporation make available for inspection the documents requested. APPEALS – question of law raised, namely whether the Tribunal did not address an important aspect of the appellant’s case.

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DEVELOPMENT APPLICATION – demolition and new residential dwelling – conciliation conference – agreement between the parties – orders made

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DEVELOPMENT APPEAL – subdivision – lot size variation – urban heat - inadequate information – accuracy of information – objections to expert evidence

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APPEAL — Development application — multi dwelling housing — conciliation conference — agreement between the parties — orders

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DEVELOPMENT APPLICATION: shop top housing development in E1 Local Centre zone – conciliation conference – agreement between the parties - orders

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DEVELOPMENT APPEAL — residential development — dual occupancy — Torrens title subdivision — justification of contravention of the site area development standard — agreement between the parties — orders

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CONUMER LAW - agent’s fees and charges – differing versions of the management agency agreement – agent’s claims for disbursements and consumer’s claims for disbursements APPEALS – whether significant new evidence reasonably available at the time of the hearing – error on a question of law – no jurisdiction to make an order in favour of the supplier in the supplier’s proceedings – whether decision not fair and equitable – whether decision against the weight of evidence

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APPEAL – development application – seniors housing – built form and amenity – site re-zoning – bushfire protection – stormwater design – groundwater impacts – impacts on adjacent biobanking area – adequacy of management plans – impacts on aquatic ecology – flood impacts and flood evacuation – biodiversity conservation – impacts on biodiversity values – adequacy of BDAR – conditions of consent

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CONTRACTS — Debt owed under contract for the sale and purchase of a vehicle CONTRACTS — Ascertainment of parties to a loan – liability for repayment

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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

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

Catchwords:

BUILDING AND CONSTRUCTION – leave to appeal – decision of Appeal Panel of New South Wales Civil and Administrative Tribunal – residential building works – where not disputed plaintiff at fault for breach of contract and defendants entitled to terminate – where building works completed by new builder – where plaintiff’s quantum meruit claims agreed in part – admissions – whether clear and unambiguous admissions – whether Appeal Panel erred in rejecting balance of quantum meruit claims – questions of fact BUILDING AND CONSTRUCTION – assessment of damages – breach of contract – approach to calculation of damages in an action by homeowner against builder – application of Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 and Wabbits Pty Limited v Godfrey [2009] NSWSC 1299 – where actual cost is known of the work to make the building work conform to the contract – whether Appeal Panel erred in failing to adjust “prime cost” and “provisional sums” items – questions of fact APPEALS – costs orders – where Appeal Panel provided opportunity to make application to vary costs order – no application made – whether House v The King error – where point not raised below

Catchwords:

APPEAL – whether appeal against evaluative determination of Tribunal pursuant to Anti-Discrimination Act 1977 (NSW) should be allowed – whether leave to appeal should be granted – whether leave should be granted to adduce further evidence – where no identifiable question of law or material error – non-publication orders

Catchwords:

APPEALS – procedure – time limits – extension of time LAND LAW – Strata Schemes Management Act 2015 (NSW) – refusal to appoint compulsory manager on a limited basis – whether leave to appeal should be granted.

Catchwords:

COSTS – special circumstances – exercise of discretion to award costs

Catchwords:

DEVELOPMENT APPLICATION — ancillary development — service station site — conciliation conference — agreement between the parties — orders

Catchwords:

APPEAL- Where Tribunal affirmed decision of agency declining to deal with application to provide information pursuant to Government Information (public Access) Act 2009- whether Tribunal constructively failed to exercise jurisdiction- whether Tribunal erred on question of law- whether leave to appeal should be granted

Catchwords:

LAND LAW – strata title – strata renewal plan for redevelopment – s 182 of the Strata Schemes Development Act 2015 (NSW) – objections by dissenting owners – whether relationship existed between owner of lots and developer – strata renewal plan given effect – costs as agreed

Catchwords:

DEVELOPMENT APPLICATION — alterations and additions to an approved residential flat building — determination of applicable parking standard — statutory interpretation of non-discretionary standards for parking in SEPP Housing — development compliant with non-discretionary standards for parking — preconditions to consent met — development application acceptable on merit — appeal upheld

Catchwords:

CIVIL PROCEDURE – interim preservation – freezing orders – ex parte application by party against estranged wife – property sold and money withdrawn without plaintiff’s knowledge – money transferred through several accounts – no communication from defendant

Catchwords:

COSTS — application for costs on an indemnity basis — whether indemnity costs should be ordered COSTS — whether indemnity costs should be awarded against Plaintiff on basis of Calderbank principles — whether unreasonable not to accept settlement offer COSTS – whether costs should be determined on an issue by issue basis

Catchwords:

ADMINISTRATIVE LAW – judicial review of decision to make regulation and order under Major Events Act 2009 (NSW) – proper construction of “event” – whether making of regulation and order supported by the Act – whether regulation and order were unreasonable, uncertain or disproportionate – whether regulation and order made for an improper purpose – grounds of review rejected

Catchwords:

CRIMINAL PROCEDURE – interlocutory appeal – rejection of application for judge only trial – nature of appeal – requirement for leave as a threshold issue – no error or arguable error in the reasons of the trial judge – no basis for a grant of leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) – leave to appeal refused

Catchwords:

CONTEMPT — sentence — refusal to give evidence — refusal to attend court to give evidence — refusal to take oath or affirmation when called to give evidence — penalty — imprisonment — order for commitment to correctional centre for 10 months — No order as to costs. CIVIL LAW — punishment for contempt —assessment of seriousness — reasonably serious examples of contempt — early plea of guilty — not entitled to leniency on the basis of criminal history — no evidence of remorse nor explanation — nothing before the Court capable of reducing moral culpability for offending — no reliance on mental health issues — significance of deterrence and denunciation in contempt proceedings — principles stated in other cases — consideration of comparable cases — totality principle applied

Catchwords:

DUST DISEASES — Claims resolution process — Claims subject to claims resolution process DUST DISEASES — Dust Diseases Tribunal — Claims for damages – pending before the Tribunal — 12B Dust Diseases Tribunal Act 1989

Catchwords:

SECURITY FOR COSTS — early stage of proceedings — where plaintiff concedes that security should be ordered — dispute over quantum — no issue of principle

Catchwords:

CORPORATIONS – members’ rights and remedies – oppression – where company incorporated for purpose of pursuing joint venture to purchase and develop a residential property – where company was trustee of unit trust – where shares and units held 50/50 by joint venture participants – where breakdown in trust and confidence between participants in joint venture – where each of participants alleged oppressive conduct against the other – where each has made buy-out offers to the other – whether claims of oppression established – whether relief should be ordered on the basis of either of the buy-out offers – whether company should be wound up on the just and equitable ground EQUITY – fiduciary obligations – where one of the parties to the joint venture borrowed funds to refinance the property – where funds were on-lent to the joint venture company at a margin – where other party agreed to the on-lending arrangement – whether consent was fully informed consent – whether misrepresentations were made prior to the giving of consent

Catchwords:

APPEAL — application for leave to appeal — no issue of principle or question of public importance identified — where amount in issue substantially less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)

Catchwords:

CIVIL AND ADMINISTRATIVE TRIBUNAL – Aboriginal Land Rights Act 1983 (NSW) – Local Aboriginal Land Councils – Boards and board members – Vacancy in office – Board meetings – Procedure – Notice requirements – Quorum – Whether meetings occurred – Absence from meetings PRACTICE AND PROCEDURE – Time limits – Extension of time

Catchwords:

GUARANTEE AND INDEMNITY — school for international students — non-payment of rent — company responsible for school liquidated — enforcement of guarantee against appellant by lessor — appellant claimed not to be subject to personal guarantee — defence struck out — summary judgment for lessor APPEALS — leave to appeal — principles governing — enforceability of express term of lease — application of well settled principles of contractual construction — no issue of principle or question of public importance — no reasonable defence raised by reliance on subjective understanding of agreement based on heads of agreement — significance of signature on lease — significance of entire agreement clause — insufficient doubt warranting reconsideration on appeal — no reasonably clear injustice

Catchwords:

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – whether error on a question of law established – whether otherwise leave to appeal should be granted – no error on a question of law established – no basis for leave to appeal established

Catchwords:

CONTRACTS — Termination — Repudiation of contract — Wrongful termination – contract for distribution of in-house messaging and entertainment system – claim for damages and trailing commissions CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Breach of contract by wrongful termination

Catchwords:

CORPORATIONS — winding up — practice and procedure — application to adjourn winding up under ss 56–58 of the Civil Procedure Act 2005 (NSW) and s 459R of the Corporations Act 2001 (Cth) — shorter adjournment and longer adjournment sought for several purposes — whether adjournment in creditors’ interest. CORPORATIONS — winding up — practice and procedure — further application by voluntary administrators to adjourn winding up application under Corporations Act 2001 (Cth) s 440A(2) — where voluntary administrators appointed shortly before winding up proceedings were to be heard —short adjournment sought — whether short adjournment in creditors’ interest.

Catchwords:

PRACTICE AND PROCEDURE – stay of proceedings ordered to enable appeal of interlocutory judgment – consequential vacation of hearing dates PRACTICE AND PROCEDURE – production of documents by respondent required as have legitimate forensic purpose

Catchwords:

NEGLIGENCE – settlement of nervous shock claims and claims under the Compensation to Relatives Act 1897 (NSW) – potential dependant not identified in, or notified of, the dependency claim – whether settlement is beneficial to each plaintiff and in their interests – the effect of costs shortfalls on whether a settlement is beneficial – whether settlement monies should be managed by a private entity – monies ordered to be paid into Court

Catchwords:

COSTS — ordinary costs — where proceedings resolved without final hearing — where proceedings commenced to obtain landowner’s consent for development application under r 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) — easements — proposed extended width of driveway — alleged that the development application contained deficiencies — refusal of consent — proper exercise of discretion as to costs — whether defendants capitulated and acted unreasonably

Catchwords:

TORTS — Economic torts — Injurious falsehood — Injunctions — Where plaintiff is a bank — Where defendants commissioned various billboards displaying the words ‘JUDO A FRAUDULENT BANK’ or ‘JUDO BANK MISLEADING FRAUDULENT DISHONEST DECEPTIVE’ — Where plaintiff and defendants are engaged in ongoing legal proceedings in relation to the circumstances surrounding the issue of a loan by the plaintiff — Where plaintiff alleges that representations made in billboards are injurious falsehoods — Where billboards were taken down shortly after defendants’ media went live — Whether quia timet injunction to restrain future publication of certain representations should be granted TORTS — Economic torts — Injurious falsehood — Elements — Falsity — Malice — Whether statements displayed on billboards were statements of fact or opinion — Whether representations were false — Where first defendant emailed financial journalists, economists, regulators and senior public servants in relation to perceived serious irregularities with the plaintiff’s financial reporting — Whether defendants made representations with malice in the sense of having an improper, dishonest or indirect motive, or intent to injure without just cause

Catchwords:

CRIME — Application for inquiry into conviction pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

Catchwords:

HIGH RISK OFFENDERS — application for extended supervision order and interim supervision order — preliminary hearing — where index offences are two counts of murder — where history of failure to comply with current supervision conditions — whether, if proved, supporting material establishes unacceptable risk of further serious violence offence

Catchwords:

ASSOCIATIONS AND CLUBS — Domestic and private tribunals — Procedural fairness — Whether appeals committee required to give reasons —Whether member subject to disciplinary proceedings entitled to know identity of complainant or witnesses

Catchwords:

CONTRACTS — Testamentary contract — Finding of a testamentary contract for plaintiff to be given “half of my estate when I die” — Dispute as to whether plaintiff advanced the ‘estate’ claim as being the net residuary estate after administration or value of the estate as at the date of the deceased death Held plaintiff advanced claim on basis that she was entitled to the net residuary estate after administration WORDS AND PHRASES — ‘Residue’ SUCCESSION — Testamentary contract — Nature of interest that a promisee has pursuant to a testamentary contract — The ‘beneficiary theory’ and the ‘creditor theory’ discussed — Prevailing High Court authority favours or is consistent with the ‘beneficiary theory’ — Submissions that the plaintiff is entitled to judgment as a creditor of the estate rejected SUCCESSION — Testamentary contract — Claim to judgment sum and payment of pre-judgment interest to s 100 Civil Procedure Act 2005 (NSW) (“CPA”) on basis of a judgment debt entitlement rejected — However, interest permitted calculated at ‘legacy rates’ on the plaintiff’s quantified 50% share of net residue from the ‘distribution date’ of the estate COSTS — Offers of compromise — Whether offer valid — Meaning of “must not include an amount for costs” in r 20.26(2)(c) UCPR — Whether infringed by term that “the plaintiff is to pay her own costs of and incidental to the proceedings” (held no infringement) COSTS — Offers of compromise — UCPR r 42.14 — Principles discussed — Whether offers contained element of ‘real’ or ‘genuine’ compromise (Yes – as to the second offer) — Whether defendant acted reasonably in rejecting offers (No - as to the second offer) — Whether there are other factors beyond the defendant’s reasonableness capable of supporting an ‘otherwise’ order (No - as to the second offer) COSTS — Specified gross sum costs order — belated claim by plaintiff for specified gross sum costs order — Declined on facts SUCCESSION — Administration — Solvent estates — Ordinary order of application of assets to discharge of funeral testamentary and administrative expenses debts and liabilities SUCCESSION — Administration — Whether a residuary beneficiary is entitled to interest on a share of residue — Discussion regarding ss 84 and 84A Probate and Administration Act 1898 (NSW) (“PAA”) permit interest on residue SUCCESSION — Jurisdiction to make orders as to which part of the deceased’s estate bears the burden of costs orders — Interaction between the costs orders and statutory order under the Probate and Administration Act 1898 (NSW) (“PAA”) for payment of testamentary expenses — Court’s exercise of discretion under s 98 CPA permits allocation of costs burden to particular parts or shares of an estate and displaces (to the extent described in the costs order) the statutory order provisions of s 46C(2) PAA concerning how testamentary expenses are to be borne — The power to specify which shares or parts of the estate are to bear the burden of the legal costs of the proceedings is not dependent upon findings as to misconduct or unreasonableness on the part of an executor

Catchwords:

CIVIL PROCEDURE – interim preservation – preservation of property – trustees for sale appointed to sell certain former matrimonial property – plaintiff/husband seeks compensatory relief against defendant/wife in relation to the appointment of the trustees for sale – the plaintiff/husband also seeks relief against the trustees for sale in relation to the performance of their duties in completing their sale of certain real estate – the plaintiff/husband’s claims for relief are repetitive, relate to some matters which have already been determined against the plaintiff/husband and are frequently dismissed, occasioning substantial expense –discussion of reasonable measures that can be taken to control the unnecessary expenditure of costs so that the matrimonial property is not wasted. COSTS — Costs assessment – whether costs should be paid forthwith – whether a specified gross sum should be ordered instead of assessed costs pursuant to Civil Procedure Act 2005, s 98(4)(c) in respect of particular costs orders – parties’ shares of the proceeds of sale of property need to be determined expeditiously – numerous costs orders outstanding between parties due to multiple applications by the plaintiff/husband – need to quantify the parties’ respective liability for costs, so that the true net proceeds of sale can be calculated – suitable case for the fixing of a specified gross sum instead of assessed costs – specified gross sum fixed in respect of several costs orders.

Catchwords:

BUILDING AND CONSTRUCTION — payment claim — where parties engaged in two adjudicative processes — whether a decision by an adjudicator as to lack of jurisdiction to carry out the statutory functions of an adjudicator constitutes a “determination” — whether second adjudication determination is an abuse of process — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 22, 26

Catchwords:

ADMINISTRATIVE LAW — Privacy and Personal Information Protection Act 1998 — scope of Administrative Review limited by application for internal review reasonably construed — exemption in s 24 relating to investigative and complaint functions — whether disclosures reasonably necessary

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Victimisation claim — Whether parties entered into a binding agreement to settle the claims –Where Applicant contended that the Respondent’s acceptance was conditional — Evidence established the Respondent accepted the applicant’s offer and a binding agreement was formed

Catchwords:

CIVIL PROCEDURE — dismissal of proceedings — application for dismissal of proceedings on basis of non-payment of security for costs — where security for costs paid at the eleventh hour — whether the Court may still dismiss the proceedings on basis of late payment of security for costs CIVIL PROCEDURE — stay of proceedings — condition of payment — overturned where party benefitting from stay no longer seeks to rely on the order CIVIL PROCEDURE — adjournment — application to adjourn hearing of notice of motion COSTS — interim costs orders — application for costs orders to be paid forthwith — where the Court not persuaded to depart from usual practice LEGAL PRACTITIONERS — capacity to appear — where no record of solicitor on New South Wales Law Society website — where leave required to appear as a director of a corporation — where no leave sought

Catchwords:

ADMINISTRATIVE LAW – Government information – discretion to refuse to deal with application – whether substantial and unreasonable diversion of agency’s resources – consideration of s 60(3A) and (3B) factors – meaning of “general public interest” in s 60(3B) – nature of balancing task to be undertaken by decision-maker – weight applied to factors

Catchwords:

MODIFICATION APPLICATION – application made directly to Court - residential flat building – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION — s34 conciliation conference — service station — agreement reached — orders made

Catchwords:

APPEAL – development application – residential flat building containing infill affordable housing and neighbourhood shop – conciliation conference – agreement reached – orders made

Catchwords:

TORTS — trespass to person — intentional tort — battery — police — unreasonable use of force during arrest — where applicant slammed to ground and punched — where applicant was handcuffed and weighed 55kg — failure to apply the rule in Browne v Dunn — where respondent failed to call or ascertain unidentified police officers — where trial judge failed to draw a Jones v Dunkel inference against the respondent — lawful justification defence — whether a new trial ought be ordered — damages — aggravated damages — exemplary damages

Catchwords:

DEVELOPMENT APPLICATION — alterations and additions to dwelling house — heritage conservation area — conciliation conference — agreement between the parties — orders

Catchwords:

CIVIL PROCEDURE — interim preservation — freezing orders — whether there is a danger that a judgment against the first defendant will be unsatisfied because its assets may be disposed of — other relevant considerations including plaintiff’s capacity to meet usual undertaking as to damages

Catchwords:

APPEAL – development application – alterations and additions to dwelling house – conciliation conference – agreement reached – orders made

Catchwords:

TORTS — Private nuisance — Physical damage to property – interference with ordinary use of residential land - Damages TORTS — Trespass — General principles — Damages – Home building works undertaken with unauthorised use being made of the adjoining house to perform the works and unauthorised work being undertaken in the roof space of the adjoining house. Timber frame installed in the roof space of the adjoining house without permission. RESTITUTION — Mistake — Failure of consideration - Restitution of money paid

Catchwords:

CIVIL PROCEDURE — Application for leave under s 4 Felons (Civil Proceedings) Act 1981 (NSW)

Catchwords:

CRIME — Drug offences — Commonwealth offences CRIMINAL PROCEDURE — Trial — Case management — Pre-trial hearing

Catchwords:

BANKING AND FINANCE — Banks — Banker and customer relationship – where defendant bank reports to credit agencies as an adverse credit event a claimed shortfall by the plaintiff of $44.11 for one month in payment of her mortgage instalment after the bank informed her of a reduction in her monthly instalment and she paid the reduced amount early – where bank fails to take steps to have the record amended even after the shortfall is made up – where plaintiff moves the Court for final relief that the bank take such steps and shortly before a final hearing the bank takes them – HELD: order nevertheless made by the Court and reasons given

Catchwords:

PROCEDURE: the applicants seek to vacate part-heard encroachment proceedings to permit an application to be made to NSW Land Registry Services to determine a plan of delimitation – opposed by respondents – respondents not legally represented – expert surveying evidence relied upon by the parties is to the effect that there is no encroachment by the respondents on the applicants’ land – delay in lodging plan by applicants – no real prejudice to applicants if vacation not permitted – respondents seek to have the matter determined to finality – neither just, nor quick or cheap to grant the vacation – application denied – each party to pay their own costs of the motion.

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury – injury to worker SENTENCING – objective seriousness – deterrence – aggravating factors – mitigating factors – capacity to pay a fine – appropriate penalty SENTENCING PRINCIPLES – no record of previous convictions – good prospects of rehabilitation – remorse WORK HEALTH AND SAFETY – use of mobile plant - likelihood of risk occurring – whether defendant had knowledge of risk - whether risk reasonably foreseeable – workers not given adequate training

Catchwords:

CRIME – Murder – Three co-offenders – Armed robbery – Attempted forced entry into home of the deceased and his parents – Deceased shot in the chest CRIME – Murder – Discharge of a firearm with intent to cause grievous bodily harm – Where a co-offender called out ‘shoot him’ CRIME – Murder – Constructive murder – Where the two co-offenders are charged with constructive murder – Commission of a joint criminal enterprise of an armed robbery SENTENCING – Relevant factors on sentence – Objective seriousness SENTENCING – Aggravating factors – Home of victim or any other person– Substantial harm, injury, loss or damage – Where the deceased was killed in the immediate presence of his parents and pregnant partner – Applicable to all three offenders – In company – Financial gain – Applicable to primary offender SENTENCING – Sentence discounts – Guilty plea – Past assistance to the authorities – Future assistance to the authorities – Where discount applies for early plea of guilty for all three offenders – Where discount for assistance is applied for one offender SENTENCING – Moral culpability – Mental illness – Bugmy factors – Varied causal connections between each offender’s mental conditions and their offending – Where the offenders had deprived upbringings – Whether the moral culpability of each offender should be reduced

Catchwords:

CORPORATIONS — insolvent trading — claim against director under ss 558G and 588M of the Corporations Act 2001 (Cth) for insolvent trading — whether companies were insolvent or became insolvent by incurring the debts — whether there were reasonable grounds to suspect that company was insolvent or may become insolvent by incurring the debt — whether director was aware that there were reasonable grounds to suspect insolvency or a reasonable person would have been aware

Catchwords:

CONSUMER LAW — misleading or deceptive conduct — contractual interpretation — price-capped gas contract — whether gas supplier represented that it would obtain third-party insurance — pre-contractual negotiations — cover email — two phone calls — whether “calculated ambiguity” in terms of contract — whether any ambiguity was exploited — significance of silence or non-disclosure.

Catchwords:

Guardianship- whether appropriate to permit fresh evidence in appeal- whether leave to appeal should be granted - whether appeal should be allowed - whether some of the orders under appeal should be set aside and other orders substituted for them

Catchwords:

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

Catchwords:

NEGLIGENCE — Professional negligence — Solicitors — Breach of duty — Whether solicitor should have advised proceedings were hopeless and doomed to fail — Whether solicitor should have advised appeal lacked any arguable basis CIVIL PROCEDURE — Effect of grant of “liberty to apply” with respect to costs order — Uniform Civil Procedure Rules 2005 (NSW), r 36.16 — Time limit for application to vary final order — Procedural fairness — Whether primary judge ought to have reserved the question of costs

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information under GIPA Act — conclusive presumption against disclosure where legal professional privilege applies — whether imposition of charge reasonable — whether information sought is of special benefit entitling a reduction in processing charge

Catchwords:

HEALTH — negligence — surgery — medical procedure on eye — liability of hospital for negligence of medical practitioners — tap and inject treatment for endophthalmitis — appellant alleges treating ophthalmic registrar made excessive number of attempts to tap vitreous fluid from eye — alleged failure to document procedure — submissions on whether failure to make clinical notes of procedure amounts to breach of duty — claim fails on the facts — no error in reasoning of trial judge demonstrated — failure to establish causal connection with harm allegedly suffered

Catchwords:

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

Catchwords:

Administrative Law – licensing - real estate agent – disciplinary proceedings - failure to provide audit – conduct conceded – penalty only issue

Catchwords:

Administrative Law – summary dismissal– whether the act of violence that is the subject of the application is the same act of violence as an application for compensation under the Victim Support and Rehabilitation Act

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant’s authorship of pseudonymous messages was an intermediate essential fact — whether evidence was sufficient to find that applicant sent messages CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge erred in leaving to jury a basis for conviction that represented a change in Crown case from opening — whether denial of procedural fairness — whether Crown case changed between opening and closing

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

Catchwords:

ADMINISTRATIVE LAW - privacy - information protection principles - alteration of personal information - amendment - accuracy - legal professional privilege ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - jurisdiction - dismissal

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – serious sex offender – application for interim supervision order – where nature of one condition contested by defendant – interim supervision order imposed

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:

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:

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:

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:

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 — Whether sentencing judge’s characterisation of the applicant’s behaviour as methodical, calculated and systematic was unfounded on the evidence CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — Where applicant was diagnosed with Post Traumatic Stress Disorder and other mental health conditions — Whether sentencing judge failed to properly consider the applicant’s mental health conditions when assessing moral culpability and a causal connection with the offence CRIME — Appeals — Appeal against sentence — Manifest excess — Where sentencing judge found the objective seriousness of the offence was relatively high — Where comparative cases encompass a wide range of circumstances and severity of injury

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:

APPEAL – Development application for illuminated electronic variable content sign and associated roof solar panels – impact on the heritage item – design excellence provisions – public benefit condition – existing character of the area – desired amenity and visual character

Catchwords:

CIVIL PROCEDURE — Application for vexatious proceedings order — Whether plaintiff has frequently instituted or conducted vexatious proceedings in Australia CIVIL PROCEDURE — UCPR r 13.4 — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings — Proceedings dismissed with costs

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 — Victimisation — Jurisdiction — Establishing a detriment to invoke reverse onus — Reverse onus now objective EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Leave to amend application — Prejudice to respondent

Catchwords:

CIVIL PROCEDURE — Stay of proceedings — Inherent power — Abuse of process — No issue of principle

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:

ADMINISTRATIVE LAW – administrative review – Victims rights and support – act of violence – memory evidence - recognition payment – series of related acts – serious bodily injury