Browse decisions Displaying 1 - 200 out of 125839 results

Catchwords:

APPEALS – Time period to lodge appeal – r 25 Civil and Administrative Tribunal Rules 2014 (NSW) – extension of time required – s 41 Civil and Administrative Tribunal Act 2013 (NSW) – whether extension of time should be granted LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – compensation to landlord – rent and utilities arrears – credit of bond amount – constructive failure to exercise jurisdiction

Catchwords:

JUDICIAL REVIEW — Building and Construction Industry (Security of Payment) Act 1999 — Adjudicator's rejection of documents in adjudication response as not duly made under s 22(2)(d) — Documents post-dating payment schedule — Whether erroneous rejection of duly made submissions constitutes jurisdictional error — Held not jurisdictional JUDICIAL REVIEW — Natural justice — Adjudicator's decision to exclude documents on ground not raised by either party — Whether denial of procedural fairness — Held denial of procedural fairness — Whether material — Severance under s 32A

Catchwords:

CRIME – appeals – appeal against sentence – determination of objective seriousness of offences – whether sentencing judge erred in categorising offences into varying groups of objective seriousness – where diverse victim ages and durations of offending permitted the assessments of objective seriousness – no error found CRIME – appeals – manifest excess – whether individual sentences imposed were outside relevant discretionary range – where sentencing judge accepted applicant's subjective case – sentences imposed not sufficiently unjust or disproportionate to betray substantive error of law – no manifest excess found CRIME – appeals – principle of totality – whether individual sentences were accumulated in such a manner which made the effective total head sentence crushing – where applicant contends large factual overlap between offences and excessive gap in starting dates of offences – sentences imposed were not disproportionate to total offending – no error found

Catchwords:

CIVIL PROCEDURE — review of decision of Judge of Appeal — where primary judge dismissed notice of motion seeking document production and interrogatories — whether materials sought relevant to pleaded grounds — whether materials sought protected by legal professional privilege — whether requests amount to a “fishing expedition” — whether order for interrogatories necessary in interests of fair trial — where respondent confirmed it did not possess information sought by applicant CIVIL PROCEDURE — vacation of hearing — whether issues on notice of motion require oral hearing — whether to determine notice of motion on the papers — where applicant sought to adjourn hearing — where question on application is limited

Catchwords:

APPEALS – Time period to lodge appeal – r 25 Civil and Administrative Tribunal Rules 2014 (NSW) – extension of time required – s 41 Civil and Administrative Tribunal Act 2013 (NSW) – whether extension of time should be granted LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Boarding Houses Act 2012 (NSW) – whether agreement was to board or lodge – no jurisdiction under Residential Tenancies Act 2010 (NSW)

Catchwords:

HUMAN RIGHTS – Discrimination – disability discrimination – direct discrimination – indirect discrimination- alleged discrimination in the provision of accommodation

Catchwords:

APPEAL – appeal against decision of the Consumer and Commercial Division that the respondent did not breach occupancy agreement by issuing a vacate notice-no error of question of law – application of cl 12(1) of Sch 4 of the Civil and Administrative Tribunal Act- no error on question of law- no other basis for leave to appeal.

Catchwords:

HEALTH – professional registration and discipline – psychologist – professional boundaries – inappropriate conduct and communication – failure to refer patient – gravity of allegations – onus of proof – costs

Catchwords:

CRIME — appeals — appeal against conviction and sentence — notice of appeal filed out of time — self-represented applicant — large array of alleged errors on the part of trial judge and of defence counsel as well as general misfortune — no material error nor any matter potentially affecting the verdicts established — whether convictions unreasonable and sentence manifestly excessive — neither established — leave to appeal refused — no point of principle

Catchwords:

OCCUPATIONS – Medical Practitioner – Practitioner made subject of criminal finding – unfit to practise not found – reprimand

Catchwords:

SUCCESSION — executors and administrators — application for dismissal of proceedings for want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) and barring order pursuant to s 93(2) of the Probate and Administration Act 1898 (NSW) — where defendant is the executor of the estate of deceased and publishes a notice of intended distribution of the deceased’s estate under s 92 of the Probate and Administration Act — where plaintiff subsequently notifies defendant of intended claim against the deceased’s estate — where defendant serves plaintiff with notice under s 93(1) of the Probate and Administration Act — where plaintiff subsequently commences proceedings against the defendant in her capacity as executor — where plaintiff has repeatedly failed to comply with directions made after close of pleadings for the service of the plaintiff’s affidavit evidence in chief and these proceedings have not progressed for seven months as a result of that non-compliance — whether the proceedings should be dismissed for want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) — whether Court has jurisdiction under s 93(2) of the Probate and Administration Act to make an order barring the plaintiff’s claim as against the defendant executor on the ground that the plaintiff is not prosecuting the claim despite having commenced proceedings — whether barring order ought to be made and, if so, on what conditions

Catchwords:

SENTENCING — Sexual offence — Penalties — Offender with long history of child sexual offending — Determined to be a High Risk Offender by Supreme Court and under a ESO (ESO) — Repeated failure to comply with ESO — Five separate counts of breach of ESO — One count of use a child under 14 to make child abuse and material — Bugmy Factors —mental health diagnosis including paedophiliac disorder — Prospects of rehabilitation low — Prospects of reoffending high — Significant need for protection of vulnerable children — Totality

Catchwords:

CRIME — Serious child sex offences committed in the 1960s and 70s — Maintaining an unlawful sexual relationship with a child — s 66EA of the Crimes Act has retrospective operation — Father sexually abused daughter over period of 6 years from when she was about 10 years old — One count of sexually abusing sister in law then aged 15 years old SENTENCE – Maximum penalty life imprisonment —Relevant factors on sentence – father and daughter — abuse of position of authority over the victim — breach of trust — general deterrence — Limited remorse or contrition — Offender 88 years old — will suffer significantly in gaol due to age and ill health — likely Offender will die in gaol — Limited weight to specific deterrence and rehabilitation because of offender’s age — Impact on victims — Multiple victims — Different offending — Aggregate sentence need for some but not total accumulation CRIMINAL PROCEDURE — Registrable Persons Order

Catchwords:

CRIME — ss 61J and 61I Crimes Act 1900 (NSW) — Sexual offences — Aggravated sexual assault —objectively very serious violent examples of offending — multiple victims — offences committed in company SENTENCE — Bugmy factors — De La Rosa — lengthy history of substance use — planned sexual assault of multiple vulnerable victims — 3 separate victims — prospects of rehabilitation low — protection of the community and specific deterrence important

Catchwords:

CIVIL PROCEDURE – preliminary discovery – to identify potential cause of action – order for further and better preliminary discovery consequent upon cross-examination on affidavit verifying list of documents

Catchwords:

CIVIL PROCEDURE — Hearings — Adjournment — Application to vacate two-week final hearing in light of earlier ruling that second defendant’s affidavit may be used despite him not being present for cross-examination — Plaintiff filed Summons seeking leave to appeal — Where final hearing commences in two working days from the time of the motion being filed and heard and one working day from the date of this judgment — Whether the hearing should be vacated — No issue of principle

Catchwords:

CIVIL PROCEDURE — application pursuant to r 6.31 of the Uniform Civil Procedure Rules 2005 (NSW) to dismiss proceedings following death of plaintiff — order made — no issue of principle

Catchwords:

LEAVE TO APPEAL – whether right to appeal from an internally appealable decision abates upon the death of the person the subject of the decision GUARDIANSHIP – whether Tribunal failed to “have regard to” the views of the person – obligation to “have regard to” mandatory considerations, s 14 of Guardianship Act 1987 (NSW) GUARDIANSHIP – appointment of a guardian – whether Tribunal misapplied ss 15(3), 17(1) of the Guardianship Act PROCEDURAL FAIRNESS – whether failure to consider material lodged by party constitutes a denial procedural unfairness – whether failure was material to Tribunal’s ultimate decision.

Catchwords:

CONTEMPT: non-compliance with court order to dismantle attractions and rides on land – continued use of attractions and rides – admission by contemnor of continued disobedience with court order – applicable legal principles – guilty of contempt.

Catchwords:

COSTS – party/party costs – where the Plaintiff had substantial success in the proceeding – whether there should be apportionment of costs in respect of any issue on which the Plaintiff failed INTEREST – whether there should be an award of interest – whether the Plaintiff has been kept out of the money – whether the Plaintiff has incurred a liability for interest by reason of not receiving payments from the Defendant in respect of his incurred liabilities

Catchwords:

CIVIL PROCEDURE – proceedings commenced by next friend on behalf of person under legal incapacity – settlement application – best interests of person under legal incapacity – settlement approved – no issue of principle

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EVIDENCE – evidence on commission – application pursuant to s 32 of the Evidence on Commission Act 1995 (NSW) – request from the 14th Family Court of Izmir in the Republic of Turkiye for the examination of a witness – no question of principle

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Administrative Law – Constitutional Law – GIPA Act – whether NCAT has jurisdiction to hear review – whether review raises a matter under the Commonwealth Constitution – nature of administrative review

Catchwords:

CRIME — appeal and review — stated case — question of law — s 58(1) of Crimes (Sentencing Procedure) Act 1999 (NSW) — whether “existing sentence of imprisonment” means the non-parole period of that sentence — whether the imposition of a new sentence wholly concurrent with an existing sentence engages s 58(1) — whether new sentence of imprisonment has effect of extending non-parole period of existing sentence so as to make the new sentence consecutive or partially consecutive to an existing sentence

Catchwords:

SENTENCING — Sentence after re-trial — Constructive murder — Relevant factors on sentence — Victim impact statement — Hardship to family members — Delay — Quasi-custody — Where the offender has achieved substantial rehabilitation and maturation and is unlikely to reoffend — Whether the offender is at a “cross-roads” — Whether the ceiling principle applies — Parity with co-offender — Facilitation of the administration of justice

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 – consent orders proposed – damage caused by repeated branch failure and root incursion – apprehension of further damage and risk of injury to persons – tree removal ordered

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – residential flat development – affordable housing – cl 4.6 variation of height of buildings development standard – orders

Catchwords:

CONTRACT — Construction — Where a Business Sale Agreement contract provides for apportionment of a purchase price to equipment, goodwill and other assets less “Less Encumbrances” and all figures to be updated “upon receipt of payout figures for the Encumbrances for all financed equipment” and to be confirmed on Settlement Date — Where at the date of sale the Vendor is party as borrower/lessee to a number of finance agreements relating to cranes on which both principal and interest are payable — Where before Completion the finance agreements are novated to the Purchasers — Where financier provides payout figures before Completion which include principal and interest component — Where figures are not confirmed on Settlement Date but are not in dispute — Where Purchaser calculates purchase price and pays on the basis of the payout figures – Vendor contends that because of the novation the adjustment for Encumbrances should be principal only and no interest and brings proceedings for declaratory relief and payment to it of the interest component of the adjustment — HELD — The adjustment for Encumbrances includes both principal and interest component and absence of confirmation on Settlement Date is no bar to the Purchaser’s claim for adjustment including interest component — Proceedings dismissed

Catchwords:

Development Application — Torrens title subdivision — conciliation — agreement reached — orders made

Catchwords:

CONTRACTS — Construction — Shareholders’ Deed amongst shareholders in a company and with the company (Deed) contains an extended definition of shareholder — Deed provides that confidential information in relation to another party’s business must not be disclosed by a shareholder to any prospective purchaser of a share unless the purchaser has entered into a deed of confidentiality with the other shareholders in a form to their reasonable satisfaction and enforceable by any of them — Deed provides that a shareholder is in default if it commits a material Irremediable Breach in which event the directors may by special resolution confirm the default and may give the defaulting shareholder a Default Notice — if such notice is given, the shareholder is taken as wishing to dispose of all of its shares — the Plaintiffs hold or manage shares in the company totalling 27.32% — in the course of a process directed at selling some (but not all) of the shares the Plaintiffs disclosed to potential purchasers and their advisors information confidential to the company — whether in doing so it was acting as “Shareholder” in respect of all shares of its Affiliates — whether it committed a material Irremediable Breach of Deed — directors resolve to confirm the Default and issue a Default Notice — whether Default Notice complies with the requirements of the Deed — whether Default Notice is invalid because the directors were improperly motivated in resolving to give it — Plaintiffs bring proceedings for declaratory relief that they did not breach the Deed and that the Default Notice is otherwise invalid – various Defendants bring cross-claims for declarations that Plaintiffs breached provisions of Deed and on an indemnity for loss included in the Deed — HELD — the Plaintiffs committed a material Irremediable Breach of Deed — directors were not improperly motivated and Default Notice is otherwise valid — proceedings dismissed — cross-claims other than for indemnity dismissed — as relief of no utility — claims for indemnity stood over

Catchwords:

APPEAL — development control order — conciliation conference — agreement reached — order modified

Catchwords:

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

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TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether the tree has caused damage — whether the tree is likely to cause damage — consideration of the trees’ benefits — whether the tree should be removed

Catchwords:

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

Catchwords:

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

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OCCUPATIONS – Heath practitioners – Health Practitioner Regulation National Law (NSW) – application for re-instatement of registration – registration cancelled by NCAT – whether appropriate now for practitioner to be registered

Catchwords:

CRIME — appeal — four counts of sexual touching of a child CRIMINAL PROCEDURE — trial — self represented accused — whether the trial judge failed to ensure the applicant was accorded a fair trial — whether the trial judge failed to make appropriate directions to the jury or prevent the admission of allegedly objectionable material — no miscarriage of justice demonstrated CRIMINAL PROCEDURE — trial — definition of identification evidence in the Evidence Act 1995 (NSW) — responses given by complainant to propositions in defence case does not fall within the definition CRIMINAL PROCEDURE — circumstances in which it is in the interests of a self-represented accused person that the Crown be permitted to make a closing address — need for consideration of all relevant circumstances — allowing the Crown to make a closing address may assist a self-represented accused to make a more helpful closing address and preserve procedural fairness CRIMINAL PROCEDURE — leave to appeal — not opposed by the Crown except on the basis of merit — where notice of appeal filed out of time — where delay caused by solicitor briefing barristers, who retained the brief, in circumstances where their professional commitments did not allow for timely preparation of the appeal

Catchwords:

CRIME – Appeals – appeal against sentence – Commonwealth offence – whether sentencing judge failed to assess or take into account prospect of rehabilitation – where no submissions made in relation to matter at first instance – whether matter “relevant and known to the court” – consideration of Zreika principles – relevance and significance of assessing prospects of rehabilitation – error established – miscarriage of justice – no lesser sentence warranted in law – appeal dismissed

Catchwords:

CRIME – Appeals – appeal against conviction – admissibility of expert evidence – s 79 of the Evidence Act 1995 (NSW) – forensic medical specialist – opinion as to expected external injuries in non-fatal ligature strangulation – where expert opinion based on clinical experience – whether opinion substantially based on specialised knowledge – whether expert engaged in process of prediction – reliability of expert evidence – distinction between matters going to admissibility of expert evidence as opposed to weight CRIME – Appeals – appeal against conviction – whether probative value of expert evidence outweighed by risk of unfair prejudice – s 137 of Evidence Act 1995 (NSW) – whether risk of jury placing unfair weight on opinion proffered by expert – white coat effect – relevance of “cogency” of reasoning in assessing probative value of expert evidence under s 137 – whether sufficient evidence to enable the jury to assess the reliability of an expert’s evidence – where expert opinion based on clinical experience – whether requirement to adduce evidence of details of cases observed in clinical experience CRIME – Appeals – appeal against conviction – murder – unreasonable verdict – whether open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt – circumstantial case – whether evidence capable of eliminating alternate hypothesis inconsistent with guilt – where advantages of the jury were significant – verdict not unreasonable

Catchwords:

PRACTICE AND PROCEDURE – contempt – application to inspect respondent’s property pursuant to r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW) – whether s 169 of the Evidence Act 1995 (NSW) applies – relationship between UCPR r 23.8 and s 169 of the Evidence Act – whether inspection for the purpose of providing updating evidence demonstrating contempt is continuing

Catchwords:

APPEALS – Contract void ab initio – Mistake of fact – Australian Consumer Law - Damages – Need to establish suffering of loss and damage

Catchwords:

CIVIL PROCEDURE — where plaintiff delayed overseas and unable to attend in person — determination on the papers at suggestion of plaintiff and with consent of the parties CIVIL PROCEDURE — leave sought to amend statement of claim — unrepresented litigant –— importance of adhering to pleading requirements — where plaintiff already had attempted to fix pleading — where deficiencies in form and substance are not rectified by proposed pleading CIVIL PROCEDURE — application by defendant to strike out statement of claim

Catchwords:

CIVIL PROCEDURE – pre-conditions for commencement of court proceedings not complied with – plaintiff had no entitlement to commence claim MOTOR ACCIDENTS – whether bus doors closing on a person when boarding is a motor accident – whether the act of engaging the mechanism to close the bus doors while stationary at a bus stop is part of the driving of the motor vehicle – whether any injury suffered is a result of the driving of the motor vehicle

Catchwords:

SUCCESSION — construction — where will provided that rest and residue of deceased’s estate was to be given to her three children in equal shares following distribution of specified pecuniary legacies — where will further directed that a property which had been transferred by deceased and her late husband to the appellant and his wife be treated as an advancement to the appellant and be brought into account and taken in satisfaction to the extent of the gift in his favour — whether primary judge erred in construction of the will — whether primary judge required to decide whether transfer was a gift or advancement to appellant — whether primary judge erred in construing gift to appellant as being qualified by direction as regards property — whether primary judge erred in finding that transfer was a gift or an advancement — whether primary judge erred in approach to evidence

Catchwords:

DEVELOPMENT APPLICATION – interpretation of provisions of the Warringah Local Environmental Plan 2000 – cll 56 and 58 and the B2 Oxford Falls Valley Desired Future Character Statement – consideration of “enhancement” of the natural landscape

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CIVIL ENFORCEMENT — failure to comply with an order given under s 124 of the Local Government Act 1993 (NSW) — declaration and orders to remedy breach — further time for compliance

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DEVELOPMENT APPLICATION — s34 conciliation conference — self storage units — agreement reached — orders made

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DEVELOPMENT APPEAL – seniors living housing –conciliation conference – agreement between the parties – orders

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ENVIRONMENT AND PLANNING — consent — appeal — s34 agreement — conditions of consent

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APPEALS — right of appeal — scope of right — error of law – No error on a question of law established APPEALS — leave to appeal — principles governing – leave refused

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APPEAL – stop work order – conciliation conference – agreement reached – order revoked – undertaking accepted

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OCCUPATIONS – registration of health practitioners – suspended general medical practitioner – two appeals filed by pursuant to s 159 and s 159B of Health Practitioner Regulation National Law 2009 (NSW) - appeals against findings and orders by Medical Council pursuant to s 150 of that law suspending the applicant’s medical registration in the interest of the protection of the health and safety of the public – dismissal of post-hearing recusal application – dismissal of multirole miscellaneous applications – substantive appeals dismissed – costs to follow the event

Catchwords:

DEVELOPMENT APPEAL – centre based childcare facility – emergency evacuation plan – orders

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INSURANCE — insured manufactures health care products and infant formula — COVID-19 pandemic — insured decides to make hand sanitiser — insured also seeks industrial special risks (ISR) policy with $26.8 million limit of indemnity — insured imports bulk ethanol, exceeding capacity of dangerous good area — ethanol placed next to factory — fire — total loss — whether insured entitled to indemnity. BROKERS — broker arranges ISR policy — insured changes broker — former broker cancels policy — whether authority to cancel policy — principles at [202]-[205] — policy remained on foot. DUTY OF DISCLOSURE — agreement to vary the contract — s 11(9), Insurance Contracts Act 1984 (Cth) — policy schedule and wording completely replaced — scope of duty of disclosure — principles at [219]-[222] — duty applied to matters material to whole contract — whether duty of disclosure complied with — s 21(1)(b), Insurance Contracts Act — principles at [301]-[305] — duty not complied with. WAIVER — s 21(2)(d), Insurance Contracts Act — principles at [277]-[283] — no fair presentation of the risk — insurer not put on enquiry. ENDORSEMENT — unintended or inadvertent non-disclosure — proper construction at [236]-[239]. ENDORSEMENT — alteration in risk — whether alteration “neither known to nor made by an officer of the Insured who is responsible for Insurance” — proper construction at [249]-[257]. INSURANCE — remedies — whether insurer entitled to reduce liability to nil under s 28(3), Insurance Contracts Act — whether insurer entitled to refuse to pay insured’s claim under s 54(2), Insurance Contracts Act — principles at [323]-[325] —insurer entitled to relief sought. ADMISSIONS — ss 81, 87, Evidence Act 1995 (NSW) — principles at [25]-[32] — deponent not a party to proceedings nor employee of a party — plaintiffs part of corporate group which employed deponent — deponent did not thrust himself on the court to give evidence in the plaintiffs’ case but was chosen by them — “reasonably open to find” that he had authority to make admissions. JONES v DUNKEL — inference where onus of proof is not on you — principles at [14]-[18] — inference may still be drawn.

Catchwords:

HUMAN RIGHTS – discrimination – equal opportunity – leave required for complaint to proceed – principles applying to grant of leave – sex discrimination – provision of goods and services – whether complaint is about terms on which services provided

Catchwords:

CORPORATIONS – ratification of relationship of agency by a person who had ceased to be a director – whether ratification is possible – whether ratification genuine – whether ratification not effective because director a puppet for another person who could not be a director – s 206A Corporations Act 2001 (Cth) – ratification established – s 1322 relief unnecessary EQUITY – interlocutory injunction – restraint from dealing with disputed shares – balance of convenience – undertaking as to damages –injunction granted PRACTICE AND PROCEDURE – subpoenas – legitimate forensic purpose – subpoenas set aside in part EVIDENCE – privilege – client legal privilege – whether privilege established – whether privilege lost by reason of misconduct – inspection by court – privilege upheld in part

Catchwords:

ADMINISTRATIVE LAW — Ground of review other than procedural fairness — No evidence — Decision to refuse application to revoke appointment of guardian ad litem for plaintiff mother CIVIL PROCEDURE — Parties — Persons under legal incapacity — Neither Court nor litigant in person assisted by AI generated “script” and submissions

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PRACTICE AND PROCEDURE – Class 4 judicial review proceedings challenging proposed activity for social housing – request for adjournment

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CIVIL PROCEDURE — joint and several guarantees — where cross-claim brought against both guarantors — where claim not served on defendant and proceedings discontinued — whether pursuit of further proceedings against defendant an abuse of process — abuse established

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CRIMINAL PROCEDURE – application to amend Summons – limitation period – amendments clarify terms of Summons – amendments clarify scope of measures – amendments better expose the case defendant must meet – no unfair prejudice to defendant – fair trial – stage of proceedings – costs reserved

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CONTRACT – Costs agreement – claim for unpaid legal fees and interest – defendants claim deficiencies in expert report and negligent performance of services by solicitors –whether alleged negligent services entitled defendants to reduction in amount claimed

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HIGH RISK OFFENDERS — preliminary hearing — application for Interim Supervision Order — whether defendant poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under a supervision order

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ADMINISTRATIVE REVIEW – professional discipline – architect – special disability accommodation assessment services performed by architect – architectural services – full upfront payment and no refund where not all services provided – unsatisfactory professional conduct – breach of architect’s code – reprimand – decision affirmed

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MODIFICATION APPLICATION – Modification of a childcare centre – conciliation conference – agreement between the parties – amended plans and documents - orders made.

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PRACTICE AND PROCEDURE – Application for recusal – apprehended bias

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CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Gate overrunning its supports and falling — No adequate end stop — Faulty design and installation of gate — Director’s duty to exercise due diligence — Capacity to pay

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BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 – validity of payment claim – effect of contractual deeming provision – whether progress certificate a payment schedule – application for summary judgment

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CIVIL PROCEDURE — summary disposal — contract for design and construction of high physical support accommodation — recovery of unpaid payment claims — summary judgment for plaintiff below — whether triable issue as to valid service of payment claims — whether triable issue as to entitlement to claim progress payments where no insurance for residential construction — whether triable issue because of prospect of expert evidence informing statutory construction — no serious or substantial dispute of fact — no triable issue BUILDING AND CONSTRUCTION — payment claims — Building and Construction Industry Security of Payment Act 1999 (NSW), s 13 — requirements for service of a valid payment claim — whether claimant must establish as a matter of objective fact that construction work was carried out within the relevant time period — failure to serve payment schedule — statutory liability arises from lack of response — payment claims not served prematurely BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW), Sch 1, cl 3(3)(d) — residential building work — dwelling — accommodation specially designed for persons with a disability — meaning of “self-contained units” — no serious question of fact arising from speculative possibility of expert evidence on meaning of words — contextual indications of meaning of “self-contained units”

Catchwords:

APPEAL - claim against agent for failure to commence proceedings against former tenant for compensation - agent had terminated management agency agreement - failure by landlord to take action against tenant in light of termination of agency agreement - no error of law or other appeal ground – appellant bound by prior Tribunal decision which had not been appealed

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APPEALS — Employment and industrial law — Awards — Interpretation — Meaning of “temporary employees” in the Health Industry Status of Employment (State) Award 2023 — Whether doctors-in-training engaged on fixed term contracts are temporary employees — Whether preference given to fixed term employment contrary to award — Whether proviso in definitions section of award to not preference fixed term contracts an enforceable obligation or aspiration — Approach to determining whether fixed term contracts were given preference — Leave to Appeal — Whether issue has wider implications — Leave Granted — Appeal dismissed

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ADMINISTRATIVE LAW – administrative review – nature of decision under review – proper respondent – Tribunal has jurisdiction to review decision under the Government Information (Public Access) Act 2009

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PRACTICE AND PROCEDURE – pleadings – strike out – inadequate particularity of allegations of serious misconduct – defences – lack of clarity as to bases of denials – procedural fairness – s 56 Civil Procedure Act 2005 (NSW)

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CIVIL PROCEDURE – parties – person under legal incapacity – summary dismissal

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COSTS – Party/Party – order that each party bear their own costs – no issue of principle

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CIVIL PROCEDURE — application for interim payment under s 82 of the Civil Procedure Act 2005 (NSW) — whether the plaintiff would obtain judgment for substantial damages if the proceedings went to trial — where defendant consents to interim payment — approval of settlement under s 76 of the Civil Procedure Act 2005 (NSW)

Catchwords:

ENVIRONMENTAL OFFENCES: corporate defendants charged with the clearing of native vegetation across two properties – two corporate defendants charged as landholders – third corporate defendant is the entity that managed the farms – individual defendant is the director of the third corporate defendant and was charged with an executive liability offence. ENVIRONMENTAL OFFENCES: alleged clearing of native vegetation by the application of herbicide – subject land concerned two properties with a history of farming and cropping – whether prosecutor permitted to also rely on evidence of the mechanical clearing of native vegetation – elements of the offence – whether defendants cleared vegetation in the charge areas – whether the defendants cleared vegetation in the charge areas during the charge periods – whether defendants cleared native vegetation or whether the defendants cleared weeds or regrowth – whether corporate defendants caused or permitted the commission of an offence – prosecutor not able to prove beyond reasonable doubt that defendants cleared native vegetation in the charge areas during the charge period – defendants found not guilty – charges dismissed.

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Appeal against order for costs - whether appellant demonstrates error on question of law- whether Appeal Panel should re-exercise discretion of Tribunal - whether partial costs should be awarded

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ADMINISTRATIVE LAW – decision to cancel contractor licence under Home Building Act 1989 (NSW) and to temporarily disqualify the Applicant – improper conduct – fit and proper person

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

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HIGH RISK OFFENDER — serious sex offender — application for extended supervision order — preliminary hearing for interim relief

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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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DEVELOPMENT APPLICATION – residential apartment building development – in-fill affordable housing – cl 4.6 written request – minimum lot size – height of buildings – agreement between the parties – orders

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PROFESSIONS AND TRADES – health care professional – psychologist – whether unsatisfactory professional conduct (improper or unethical conduct) established – whether professional misconduct established – appropriate protective orders – appropriate protective orders in circumstances where the partis agree as to the protective order – role of the Tribunal

Catchwords:

REAL PROPERTY — leases — assignment of lease — landlord’s consent to assignment — whether consent unreasonably withheld — tenant seeking to transfer lease as part of sale of caravan park business — where landlord has failed to engage or provide consent — orders for execution of documents by registrar if defendant fails to exercise

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JUDICIAL REVIEW – development consent for dwelling house – compliance with maximum floor space ratio – provisions fixing different maximum floor space ratios – general and specific provisions – whether specific provision applied – application depending on identification of land in “Floor Space Ratio Map” – meaning of – whether filter layer applying specific provision a named map or part of Floor Space Ratio Map – specific provision applied – development complied with maximum floor space ratio fixed by specific provision – general provision displaced by specific provision

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation by consent — Lack of care and diligence in putting necessary evidence before the Commission — Variation made providing for registration and recognition of professional engineers

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CIVIL LAW – ex parte application to examine witness at request of Spanish Court – whether witness should have a right to be heard – where rules do not contemplate the witness be joined – where scope of questions limited to three questions – application granted

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PRACTICE AND PROCEDURE – Class 4 judicial review proceedings challenging proposed activity for social housing – admissibility of evidence – whether material before decision-maker – whether evidence otherwise relevant to ground of judicial review

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PRACTICE AND PROCEDURE – Class 4 judicial review proceedings challenging proposed activity for social housing – applications for order that in the event that applicant unsuccessful in the proceedings, the Court not make an order for costs against the applicant – whether proceedings are brought in the public interest – whether there is “something more” than the mere characterisation of the proceedings as being brought in the public interest – whether there are countervailing circumstances weighing against a departure from the ordinary costs rule in Class 4 proceedings – whether the applicant has a private interest in the proceedings – whether the claim appears arguable – notices of motion dismissed

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SENTENCING – possess control child abuse material using carriage service – use carriage service to access, transmit and solicit child abuse material – use carriage service to access child abuse material – use carriage service to transmit child abuse material to self – plea of guilty – full time imprisonment

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CRIME – murder – consciousness of guilt – lies – intractably neutral

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PRACTICE AND PROCEDURE – application for interim injunctions restraining alleged breaches of express and implied terms of licence agreement between physician and plaintiff which operated a cosmetic surgery clinic – application for interim injunctions restraining alleged breaches of express and implied terms of employment agreement between receptionist and plaintiff – application for interim injunctions restraining alleged misuse of confidential information in breach of contractual and equitable duties of confidence – whether serious question to be tried – balance of convenience.

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APPEALS — application for leave to appeal from dismissal of District Court proceedings for false imprisonment — value of claim assessed at $2,000 — primary judge’s conclusion supported by unchallenged findings — proposed grounds of appeal otherwise weak — no issue of principle, question of public importance or reasonably clear injustice identified — leave refused

Catchwords:

ADMINISTRATIVE LAW – firearms licensing – refusal of permit to possess or use a prohibited weapon (silencer) – whether genuine reason for business/employment purposes – meaning of “necessary” in the conduct of the applicant’s business or employment LICENSING – prohibited weapon permit – “silencer” – whether necessary for applicant’s business

Catchwords:

ADMINISTRATIVE LAW – review of decision of NSW Trustee and Guardian to sell the Protected Person’s house – s 62 NSW Trustee and Guardian Act 2009 (NSW) – interests and welfare of Protected Person – whether to sell a protected person’s property where extensive repairs required in order to rent

Catchwords:

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – tenant of a social housing complex – claim for loss of quiet enjoyment – actions of neighbouring tenant in common areas APPEALS – whether error established – s 50(3) of the Residential Tenancies Act 2010 (NSW)

Catchwords:

APPEAL - JURISDICTION- Whether claims are maritime claims under the Admiralty Act 1988 (Cth)

Catchwords:

Parking space levy, retrospective charging of levy by the respondent, fairness, remission of all market and premium interest rate components

Catchwords:

COSTS – party/party – orders when proceedings involve multiple parties – Bullock and Sanderson orders – where offers of compromise made and rejected – whether Bullock or Sanderson order should be made – whether unsuccessful defendant should be ordered to pay costs payable by plaintiff to the successful defendant – whether plaintiff should be ordered to pay costs of the successful defendant

Catchwords:

APPEAL – application for leave to appeal on costs only – underlying proceedings relate to a defamation claim that was statute barred – whether indemnity costs properly ordered – where it was communicated to the applicant in advance that the claim was hopeless and the applicant proceeded regardless – where advance notice given that indemnity costs would be sought – leave refused

Catchwords:

CIVIL PROCEDURE – Medical Examinations – order sought for examination of plaintiff by occupational therapist – where primary dispute concerns plaintiff’s claim for compensation for harms resulting from workplace injury and resulting chronic pain condition and PTSD – where defendant seeks leave to obtain and serve an occupational therapist report on plaintiff, and orders the plaintiff attend an examination by an occupational therapist arranged on the defendant’s behalf – weight to be accorded to evidence on behalf of plaintiff about possible impact of examination – whether balance of considerations favour ordering the examination

Catchwords:

CIVIL PROCEDURE – Hearings – Suppression and non-publication orders – where plaintiff seeks leave to file an unredacted statement of claim with orders that it be sealed and access limited – where plaintiff wishes to sue defendant for negligence but asserts that the unredacted statement of claim discloses privileged communications which may prejudice a third party claim – whether institution of proceedings against former solicitor waives client legal privilege – whether plaintiff’s communications or conduct have remained consistent with preservation of confidentiality – whether the plaintiff demonstrated that it is necessary to prevent prejudice to the administration of justice to make the orders sought by the plaintiff

Catchwords:

CIVIL PROCEDURE — Separate determination of questions — Application by first and second defendants for claims by plaintiff against them to be determined separately from all other issues — Evidence that second defendant is chronically ill and is experiencing severe physical and significant psychological symptoms — Suggestion that plaintiff’s claims against only two of the five defendants, third and fourth defendants, can be heard — Whether in the interests of justice to sever plaintiff’s claim against first and second defendants from the remainder of the proceedings — No issue of principle EVIDENCE — Affidavit evidence — Application by first and second defendants to use affidavit evidence without second defendant being present for cross-examination — Evidence that second defendant is chronically ill and is experiencing severe physical and significant psychological symptoms — Whether the first and second defendants should be permitted to use the second defendant’s affidavit evidence without being present for cross-examination — Consideration of scope of r 35.2 of the Uniform Civil Procedure Rules 2005 (NSW) and its interaction with the hearsay rule in the Evidence Act 1995 (NSW) CIVIL PROCEDURE — Hearings — Adjournment — Application to vacate two-week trial in light of the inability to cross-examine a defendant — Where that defendant’s evidence is important to the real issues in dispute — No issue of principle

Catchwords:

CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) — Crown case circumstantial — Stood or fell on single inferential finding — Finding that alternative inference rationally and reasonably open — Consideration as to proper construction of s 2 and 3 of Costs in Criminal Cases Act 1967 (NSW) — No reason in principle why it will necessarily be reasonable to commence proceedings because they rely on inferences drawn from proved primary facts — Crown case fatally flawed — Costs certificate ordered

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation — Finalisation of award — Award made

Catchwords:

CIVIL PROCEDURE – application for summary judgment – absence of defendant – Criminal Assets Recovery Act 1900 (NSW) – proceeds of crime – asset forfeiture orders made – costs ordered

Catchwords:

COSTS — Gross sum costs orders COSTS — Security for costs — Legal nature of the plaintiff — Plaintiff is a company COSTS — Security for costs — Relevant factors — Strength of claim – Timing – Impecuniosity COSTS — Security for costs — Quantum and form JUDGMENTS AND ORDERS — Enforcement —Stay of proceedings on judgment

Catchwords:

CONTEMPT — Civil contempt — Procedural requirements — Various procedural defects —Service — Personal service — Where personal service has not been effected — Where statement of charge not filed with notice of motion — Where plaintiff did not inform Court of procedural defaults — Whether personal service requirements should be dispensed with — Whether contemnor clearly informed of charge against him EQUITY — Equitable remedies — Injunctions — Whether a right is threatened or has already been infringed so as to show a threat of future infringement

Catchwords:

CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — Whether pleadings disclose a reasonable cause of action — No issue of principle CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Eighth and ninth defendants purchased residential property — Residential property was sold by first defendant, former trustee in bankruptcy of the plaintiff, in capacity as chargee — Plaintiff makes allegations against various defendants in relation to the circumstances of the sale of the property — Plaintiff alleges eighth and ninth defendants purchased the property in circumstances where they had knowledge or notice of the alleged conduct of other defendants — Whether plaintiff’s claim against eighth and ninth defendants should be summarily dismissed — No issue of principle

Catchwords:

SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances — Italian family — Claim by eldest daughter of the deceased — Where estate was left entirely to youngest daughter — Where will states “I wish to treat my two daughters equally” — Where deceased provided multiple properties to each daughter throughout his lifetime — Where defendant provided a lot of care and assistance to the deceased — Where statutory declaration two years after will executed affirms intentions — Whether terms of will are internally inconsistent — Whether terms of statutory declaration are internally inconsistent — Whether will is a substantial change from previous wills — Whether changing solicitors is a suspicious circumstance — Whether age of deceased without physical or mental frailty is a suspicious circumstance — Whether will being in English not Italian is a suspicious circumstance — Whether using anglicised legal name of daughter in will is a suspicious circumstance — Whether deceased knew and approved of will SUCCESSION — Family provision — Claim by eldest daughter of the deceased — Plaintiff received no provision in the will — Where plaintiff has significant property holdings, including investment properties and holiday homes — Where plaintiff received several properties from the deceased during his lifetime — Where defendant provided greater care and assistance to deceased — No issue of principle

Catchwords:

CRIMINAL PROCEDURE — Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 — application to reopen proceedings to seek registrable person order — where parties ought to have sought registrable person order during proceedings pursuant to Child Protection (Offenders Registration) Act 2000 (NSW), s 3C(1) — application granted

Catchwords:

CIVIL PROCEDURE — non-publication orders — high risk offender application — where extended supervision order not imposed — where notoriety of offending has caused significant media publicity — whether non-publication order with respect to applicant’s identity is necessary to protect his rehabilitation — no prejudice to administration of justice — public interest in open justice not significantly outweighed — motion dismissed

Catchwords:

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

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury CAPACITY TO PAY – s 6 of the Fines Act (NSW) – onus on the defendant to establish the appropriate need for the exercise of discretion COSTS – prosecutor’s costs

Catchwords:

COSTS – gross sum costs order – appropriate discount in particular circumstances.

Catchwords:

CIVIL – Compensation Jurisdiction – Special Statutory Compensation List – Notice of Motion of Defendant to dismiss claim – Reconsideration power of the District Court in its Compensation Jurisdiction – Police Officer alleged hurt on duty – Original claim decided in Compensation Court in 1993

Catchwords:

JUDGMENT – default judgment – judgment for possession

Catchwords:

ADMINISTRATIVE LAW – Children (Education and Care Services) National Law 2010 (NSW) – education and care services educator – prohibition notice – whether there may be an unacceptable risk of harm to children

Catchwords:

STATUTORY INTERPRETATION — consistency with international treaty — foreign state immunity — meaning of “service” — whether provision susceptible to construction consistent with international law — whether statutory method for service inoperative if inconsistent with treaty obligation PRIVATE INTERNATIONAL LAW — jurisdiction — service outside of jurisdiction — Hague Service Convention, Art 9 — meaning of “for the same purpose” — availability of diplomatic channels where receiving party a foreign State STATUTORY INTERPRETATION — literal meaning — Foreign States Immunities Act 1985 (Cth), s 40 — effect of certificate — whether conclusive of valid service

Catchwords:

CRIME – Appeal against sentence – possess unauthorised firearm – supply prohibited drugs in commercial quantity – cultivate prohibited plant in an indictable amount – aggregate sentence – indicative sentences – procedural fairness – where sentencing judge indicated firearms offences not of any particular impact – where indicative custodial sentence provided for firearms offence – Parkinson's disease as a shield against sentence – no opportunity for submissions against the finding – failure to address submissions in relation to an intensive correction order – manifest excess – totality – resentencing

Catchwords:

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where co-offenders sentenced in relation to attempt to possess unlawfully imported border-controlled drugs – where co-offender played less significant role in the offence than the applicant and had a stronger subjective case – applicant sentenced to substantial full-time imprisonment and co-offender released immediately on recognisance – whether disparity in sentences justified

Catchwords:

APPEALS — Guardianship and financial management — whether appellants should be granted leave to rely on new evidence — whether Tribunal erred on question of law in finding appellants lacked standing to apply for guardianship and financial management of person with whom their interests were engaged in strata plan proceedings — whether appellants should be granted leave to appeal

Catchwords:

NEGLIGENCE – workplace accident in coal mine – plaintiff travelling in front passenger seat of specialised mining vehicle – driver of vehicle a labour hire worker – plaintiff an employee of the mine operator – vicarious liability – pro hac vice employment – contributory negligence – assessment of damages – where plaintiff’s earning capacity disputed – assessment of residual earning capacity – assessment of claims for care – chance of future surgery

Catchwords:

TORTS — malicious prosecution — absence of reasonable and probable cause — non-disclosure of exculpatory evidence — where investigating officer pursued prosecution despite knowledge of such exculpatory evidence — general damages — exemplary damages. TORTS — trespass to the person — false imprisonment — wrongful arrest — where multiple charges followed arrest — where investigating officer had reasonable suspicion within meaning of s 99(1) of LEPRA — where arresting officer was directed within meaning of s 99(2) of LEPRA.

Catchwords:

ANTI-DISCRIMINATION – whether Applicant and Respondent are in a “contract worker” and “principal” relationship – carers responsibilities – direct discrimination – indirect discrimination – victimisation

Catchwords:

CIVIL PROCEDURE — application to strike out — where Plaintiff claims damages for loss of the value of a business owned by a company which he owned — HELD — he has no cause of action — any cause of action is in the hands of the Company — proceedings dismissed

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch No reasonable cause of action disclosed — No issue of principle

Catchwords:

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

Catchwords:

CIVIL PROCEDURE — stay of judgment — stay pending application for special leave to appeal to the High Court — stay pending application for review — where no application has been made — prospects for grant of special leave not substantial — limited risk of enforcement in near term

Catchwords:

CORPORATIONS – Directors – Indemnity for liabilities incurred as a director – where plaintiff is former director of defendant - where leave granted to shareholder of defendant to bring claim against plaintiff for breach of duties as director – where ancillary proceedings brought in Italy to protect prospective judgment in Australia – where plaintiff and defendant were parties to a deed – whether indemnity clause in deed applies to costs incurred by plaintiff in defending proceedings – whether defendant is obliged, pursuant to deed, to advance reasonable costs expected to be incurred in defending the proceedings

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — where appellant has not filed critical documents and not appeared at hearing

Catchwords:

COSTS — gross sum costs orders — whether gross sum costs order ought be made that Director of Public Prosecutions pay plaintiff’s costs of and incidental to proceedings to date — where plaintiff self-represented and not entitled to recompense for value of time spent in litigation — where costs entitlement limited to disbursements — where no evidence filed as to costs incurred by way of disbursements

Catchwords:

WORKERS COMPENSATION — Compensation for medical, hospital and rehabilitation expenses — Limits on employer liability — s 62(1A) of the Workers Compensation Act 1987 (NSW) — whether Workers Compensation (Private Hospital Maximum Rates) Order 2024 (NSW) made pursuant to s 62(1A) fixes maximum amount of employer’s liability for hospital treatment not specified in Order

Catchwords:

APPEAL – development application – depot – existing character – desired future character - heavy industrial zone adjoining low density residential zone – height, bulk and scale –excessive building footprint - side setbacks – visual impact – orders

Catchwords:

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

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION: housing for seniors and people with a disability in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders

Catchwords:

ADMINISTRATIVE LAW – decision to refuse individual contractor licence under Home Building Act 1989 (NSW) – builder – offences involving dishonesty – whether to ignore offences – passage of time since offences – triviality

Catchwords:

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

Catchwords:

WORKERS COMPENSATION — judicial review of Personal Injury Commission Appeal Panel decision — s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — cl 11 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment — whether s 323 was misapplied — deduction for a pre-existing condition — whether Panel’s reasons were inadequate — matter remitted to Personal Injury Commission

Catchwords:

CIVIL PROCEDURE — Pleadings — Amendment – application to file a further amended defence to plead that the claim is an apportionable claim and that there are concurrent wrongdoers – whether claim for breach of contract is a claim arising from a failure to take reasonable care under s 34(1)(a) Civil Liability Act 2002 (NSW) CIVIL PROCEDURE — Subpoenas — Application to set aside

Catchwords:

APPEAL – development control order – unauthorised structures – weight of evidence – authority to enter the site – consent needed to enter residential premises – no consent to enter – other evidence supports development control order – DCO issued

Catchwords:

CONTRACT — lease — tenant’s obligation at end of lease to remediate to standard suitable for on-going commercial/industrial use — Land occupied for many years by Department of Defence — asbestos known to be present on land — whether provision of site audit statement certifying land suitable for commercial/industrial use subject to compliance with environmental management plan discharged tenant’s obligation even though asbestos continued to be present in topsoil — whether primary judge erred in finding asbestos continued to be present in topsoil — tenant’s obligation to return premises clean and in good repair and condition — whether that obligation added to obligation to remediate — significance of statutory regime concerning planning permission and remediation of land — whether appropriate to determine non-dispositive issues concerning release in deed of surrender

Catchwords:

ADMINISTRATIVE LAW — Whether reviewable error of law — Jurisdictional fact — Non-statutory executive power — Whether unlawful for defendant to maintain a final Service Check Register entry in relation to the plaintiff because the terms of a deed of settlement undermined the “jurisdictional fact” upon which the entry depended — Where reliance on notion of “jurisdictional fact” misplaced — No reviewable error established

Catchwords:

SUCCESSION — Trusts and trustees — Judicial advice — No issue of principle — Trustee Act 1925 (NSW), s 6

Catchwords:

CORPORATIONS – application for rectification of trust deed – whether relevant intention was that of the settlor or the trustee – content of relevant intention – where by mistake the trustee could not benefit from the trust – rectification of trust deed – undertaking to provide reasons to Commissioner of State Revenue

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW –Victimisation – Application for Leave to Amend –Whether necessary in the interests of justice to allow amendments – Whether sufficient reason to allow claims made out of time – No evidence led as to reason why claims made out of time – Consideration of obligations of litigant-in-person CIVIL PROCEDURE – Powers of Court or Tribunal to require production of documents protected under the Public Interest Disclosure Act 2022 (NSW)

Catchwords:

ESTOPPEL — Proprietary estoppel — Equitable estoppel — Whether representations made out in fact — Representations predating alleged promise purely contextual — Detrimental reliance predating alleged promise — Whether detrimental reliance objectively reasonable — Estrangement from promisor inconsistent with continued reliance CIVIL PROCEDURE — Leave to amend statement of claim — Repleaded proprietary estoppel claim — Whether proposed amended claim discloses arguable cause of action — Material facts of detrimental reliance pleaded as particulars rather than in body of pleading — Overuse of declaratory relief — Leave to amend refused

Catchwords:

VICTIMS RIGHTS AND SUPPORT – Administrative law – act of violence –- whether applicant primary victim of act of violence – sufficiency of evidence – whether act of violence established on the balance of probabilities.

Catchwords:

Development Application — General Industrial — conciliation — agreement reached — orders made

Catchwords:

SENTENCING — appeal against sentence — material error of fact — whether sentencing judge mistook the number of firearms supplied — where sentencing judge only mistook the dates on which the supply of firearms occurred and not the total number supplied — no miscarriage of the sentencing discretion SENTENCING — appeal against sentence — mitigating factors of lack of prior criminal record and good character — where the sentencing Crown accepted that the absence of previous convictions was a mitigating factor but contested good character — where the sentencing judge made no finding as to good character — error found and applicant re-sentenced

Catchwords:

HUMAN RIGHTS – discrimination – equal opportunity – leave required for complaint to proceed – principles applying to grant of leave – age discrimination in employment – disability discrimination in employment – causation

Catchwords:

APPEAL- application to extend time for lodgement of the appeal- whether appeal fairly arguable.

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — principles applying to grant of leave –disability discrimination – provision of goods and services - inferences - causation

Catchwords:

APPEALS — Appeal on question of law — Principles governing APPEALS — Leave to appeal — Principles governing — Leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Where the owners repudiated the building contract – Whether the builder has established an entitled to damages for loss of profits

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Catchwords:

SENTENCING — appeal against sentence — use of comparable cases and sentencing statistics — whether sentencing judge failed to properly consider or give adequate reasons as to comparable cases — where the sentencing judge did make reference to the comparative material — no obligation on sentencing judges to compare similarities and differences with other cases in sentencing reasons — no error SENTENCING — appeal against sentence — finding of special circumstances — whether sentencing judge failed to take into account relevant considerations when varying the statutory ratio — where non-parole period must reflect objective gravity of offending and need for general deterrence — no error in slight variation of statutory ratio — sentence not manifestly excessive — appeal dismissed

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders

Catchwords:

APPEAL – Australian Consumer Law – consumer guarantees – delay in installing towbar – not a major failure – no error on question of law or miscarriage of justice – findings of fact open on the evidence – leave to appeal refused

Catchwords:

APPEAL — amendments to an approved residential flat building — conciliation conference — agreement reached — orders made

Catchwords:

CONTRACTS – Construction – appellant ceased employment as real estate agent – deed of release executed with respondent – deed established right to payment of commissions – construction of commission entitlements – employee commission policy reaffirmed in deed subject to express exceptions – commissions payable when policy preconditions satisfied EVIDENCE – Burden of proof – no evidence of invoice to establish commission payable to appellant – argument that evidence within capacity of respondent to produce with reference to Blatch v Archer – principles of judicial reasoning – Blatch v Archer does not shift burden of proof – open to appellant to obtain discovery of invoice – notice to produce was issued by appellant – adequacy of production not subject of challenge – absence of evidence was evidence of absence – burden not discharged by appellant CONTRACT – Remedies – Damages – damages sought for consequential loss – inadequate evidence of loss of opportunity

Catchwords:

Appeal – appeal from decision giving leave for Respondent to have legal representation and adjourning proceedings – leave from an interlocutory decision – whether criteria for grant of leave is established – utility of appeal insofar as the Tribunal at first instance adjourned the proceedings – costs of the appeal – whether special circumstances exist warranting an award for costs

Catchwords:

CIVIL PROCEDURE – summary disposal – whether the proceedings should be dismissed on the basis that no cause of action is disclosed – whether damage allegedly suffered has been properly or adequately pleaded

Catchwords:

COSTS – where costs sought on indemnity basis – offer of compromise – whether applicant/cross-respondent unreasonably rejected offer

Catchwords:

CIVIL PROCEDURE – parties – interveners – application by Commonwealth to intervene – where plaintiffs challenge decisions of High Court Registrars – whether Commonwealth should be granted leave to intervene as proper contradictor pursuant to the Hardiman principle

Catchwords:

ADMINISTRATIVE LAW — judicial review — motor vehicle accident — decision under Motor Accident Injuries Act 2017 (NSW), s 7.20 not to refer a claim for assessment — claimed psychological or psychiatric injury — dispute as to whether claimant suffered a threshold injury — application unaccompanied by evidence of claimed injury — whether obligation to refer dispute to assessment — whether existence of medical dispute a jurisdictional fact — whether procedural rules inconsistent with s 7.20

Catchwords:

CORPORATIONS – schemes of arrangement – application for orders approving schemes of arrangement – where statutory majorities for each scheme have been achieved – where each scheme is fair and reasonable – orders made approving schemes of arrangement

Catchwords:

CRIME — appeals — appeal against conviction — judge alone trial — unreasonable verdict — high risk violent offender — breach of extended supervision order — whether the applicant associated with a child — meaning of associate — whether the verdict of guilty was reasonable

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – respondent convicted of offences involving solicitation and transmission of child abuse material – application for removal of the respondent’s name from the Roll of Australian Lawyers – orders not opposed COSTS – application for removal of respondent’s name from the Roll of Australian Lawyers – whether costs should follow the event where the respondent did not oppose the relief sought – whether the respondent ought to be permitted to pay costs in instalments

Catchwords:

COSTS — security for costs — payment out of court — where moneys paid into court as security for costs of appeal — no order made as to costs of appeal — whether to release amount of security in partial satisfaction of costs at first instance — not the purpose of security ordered — purpose of security spent — order for payment out made

Catchwords:

CIVIL LAW – where proceedings not authorised by named plaintiff – where proceedings commenced by one time solicitor in attempt to review costs assessment – proceedings dismissed – whether conduct should be referred to Legal Services Commissioner – procedural fairness – no referral where parties can lodge complaint

Catchwords:

CIVIL LAW – urgent application – judicial review of the decision of District Court – notice of motion restraining Revenue NSW from suspending driver’s licence – where District Court dismissed appeal – where District Court refused to state a question of law to Court of Criminal Appeal – no jurisdiction in single Judge of the Court – matter removed to Court of Appeal

Catchwords:

DAMAGES – Assessment of damages for breach of contract pursuant to default judgment COSTS – Whether gross sum costs order appropriate

Catchwords:

CHILD WELFARE – adoption – whether adoption order is clearly preferable in best interests of the child – whether change of name should be approved – whether consent dispensation orders should be made against the birth parents – where birth mother does not oppose adoption – where birth father cannot be identified after reasonable inquiry – where child has lived with proposed adoptive parent since birth – where it is appropriate to dispense with the requirement for the birth parents’ consent – change of name to be approved – adoption orders to be made

Catchwords:

COSTS –special circumstances – prospect of success of appeal - no disentitling conduct

Catchwords:

SUCCESSION – Wills, Probate and Administration – Application to revoke grant of probate and to appoint an independent administrator – where consent orders previously made regarding sale of real property and distribution of proceeds – where property found to be contaminated with asbestos – where disputes between executors regarding steps to be taken as a result of contamination – where delay and lack of co-operation between executors – where administration of estate has effectively stalled – held: relief granted

Catchwords:

DUST DISEASES — Dust Diseases Tribunal — Jurisdiction and functions — consideration of Dust Diseases Tribunal Act 1989 s 11(4) — ancillary or related matter — whether a professional negligence claim is related to a s 11(1) claim for damages for dust diseases NEGLIGENCE — breach of statutory duty — Australian Solicitors Conduct Rules impose ethical duties on solicitors but do not give a private right of action to a client COSTS — where original Notice of Motion is doomed to fail but is amended to an appropriate form — indemnity costs to the date of amendment

Catchwords:

SUCCESSION – Rights of burial or cremation – Nature and purpose of Court’s inherent jurisdiction – Determination of claim by daughter of deceased to have carriage of the cremation of the body of the deceased, who passed away more than a year ago, over the objection of the deceased’s wife who wishes for the State Coroner to investigate the death of the deceased – Where State Coroner declined to exercise coronial jurisdiction in relation to the death of the deceased in July 2025 and no application has been made to the Court for an order under Chapter 7 of the Coroners Act 2009 (NSW) that an inquest be held concerning the death of the deceased

Catchwords:

APPEALS — appeal from a decision of the Local Court — where summons filed in the wrong court but within time — whether leave should be granted to appeal out of time APPEALS — appeal from decision to summarily dismiss amended statement of claim — where primary Judge ruled that proceedings were statute-barred — whether plaintiff was given adequate chance to consider defendant’s Limitation Act 1969 (NSW) argument APPEALS — appropriate relief — where amended statement of claim fails to properly identify cause of action — whether inadequacy a standalone reason for summary dismissal — whether plaintiff should be given further opportunity to plead the claim

Catchwords:

APPEALS — rectification suit — whether common intention contended for on appeal differed from common intention contended for at trial — whether evidence could have been led at trial to rebut common intention contended for on appeal CONTRACTS — rectification — intention — common intention — proof of common intention — where party to deed knew of concern of other party in relation to a risk — where evidence of communications between solicitors of parties to deed in relation to risk — whether clear and convincing proof of common intention — significance of solicitors being closely involved in drafting of the clause sought to be rectified — significance of failure to call plaintiff’s solicitor

Catchwords:

APPEAL –– construct and/or use a water supply work approval - amendment of approval – regulated application - conciliation conference – agreement between the parties – orders APPEAL – construct and/or use a water supply work and/or use water approval – amendment of approval – unregulated application - conciliation conference – agreement between the parties - orders

Catchwords:

APPEAL – Modification application – modification of condition imposed on the grant of consent – conciliation conference – agreement between the parties – orders

Catchwords:

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

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 – damage to dwelling roof, car, and lights due to falling deadwood – apprehension of further damage and risk of injury – failure of respondent to exercise duty of care – pruning and compensation ordered

Catchwords:

ADMINISTRATIVE LAW – occupational licensing – security licence – refusal to grant licence – whether applicant fit and proper person – whether contrary to public interest for applicant to hold a security licence

Catchwords:

DEVELOPMENT APPLICATION: semi-detached dwelling development in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders

Catchwords:

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

Catchwords:

Notice of Motion – vary orders

Catchwords:

PROFESSIONS AND TRADES – health care professional – nurse – whether unsatisfactory professional conduct established – whether professional misconduct established

Catchwords:

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

Catchwords:

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

Catchwords:

TORTS — Private nuisance — damage to property caused by tree roots — tree situated on nature strip next to property — tallowwood tree TORTS — Private nuisance — whether nuisance was created or adopted — whether defendant had knowledge of nuisance before being notified of it — whether nuisance was foreseeable — where there is no evidence that damage to property had worsened between notification and abatement of a nuisance

Catchwords:

DEVELOPMENT APPLICATION — application for subdivision and associated works — impact on scenic and landscape qualities of Mulgoa Valley — consideration of building envelopes — appeal upheld

Catchwords:

CIVIL PROCEDURE – Stay of proceedings – Pending Appeal – where informal application for a stay is made – where application is not opposed – stay granted on strict terms that require the matter to be brought promptly before the Court of Appeal COSTS – Party/Party – order that the first and second defendants bear 70% of the first plaintiff's costs assessed on the ordinary basis – no issue of principle

Catchwords:

CIVIL PROCEDURE – Money paid into Court after registered mortgagee paid – Competing claims – No issue of principle

Catchwords:

CRIME – Confiscations – Restraining order – orders made pursuant to Criminal Assets Recovery Act 1990 – where order is sought ex parte over all of a defendant’s assets anywhere in the world – where defendant is living in community on bail – whether Court should defer consideration of s 10B(3)(a) until the first return date – whether Court has power to make allowance for reasonable living expenses under s 10B(3)(a) in an ex parte application before receiving evidence from the defendant about what his living expenses are or the size of the total restrained asset pool – finding that Court’s discretion under s 10B(3)(a) allows for the Court to exercise its discretion to allow for reasonable living expenses when making ex parte orders – approach to be adopted to determine allowance for living expenses in absence of specific proposed expenses

Catchwords:

CIVIL PROCEDURE – persons under legal incapacity – application to remove tutor – whether the plaintiff remains a “person under legal incapacity”

Catchwords:

COSTS – party/party – general rule that costs follow the event – application of the rule where no determination on the merits – no order as to costs of hearing

Catchwords:

CORPORATIONS – applicability of set-off provisions – how set-off provisions under s 553C of the Corporations Act 2001 (Cth) operate when an insolvent company is trustee – whether mutuality exists between partnerships and trustee company – where trustee company held debts on trust for benefit of unitholders – where partnerships could have had right of subrogation regarding trust assets – where claims do not sufficiently engage beneficiary unitholders – no mutuality – s 553C not engaged – orders to be made

Catchwords:

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