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Catchwords:

COSTS – application for an order that the successful plaintiffs’ costs be paid by the four defendants jointly and severally – where plaintiffs succeeded on all claims at trial – where majority of the plaintiffs’ claims in number and value were made against the first and second defendants and plaintiffs made only one claim against each of the third and fourth defendants – where issues raised by plaintiffs’ claims against each of the third and fourth defendants were distinct from issues raised by the plaintiffs’ claims against the first and second defendants – where defendants represented by the same solicitors and counsel – where fourth defendant is a director of each of the first, second and third defendants – application for indemnity costs on the basis of the defendants’ failure to accept offers of compromise – where offers only capable of acceptance by all defendants jointly – whether offers of compromise involved a real and genuine element of compromise – held that plaintiffs’ costs payable on the ordinary basis – where parties agree that gross sum costs order should be made – where plaintiffs adduced evidence of total costs incurred which did not separately quantify costs of claims against first and second defendants and costs of distinct claims against each of the third and fourth defendants – first and second defendants (jointly) and third and fourth defendants each ordered to pay a specified percentage of the sum fixed for the plaintiffs’ total costs pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).

Catchwords:

VICTIMS RIGHTS AND SUPPORT – administrative review – act of violence – whether evidence satisfied elements of act of violence – whether evidence established on balance of probabilities as an act or series of related acts - convicted inmate - eligibility for victims support – special circumstances – whether the convicted innate is seriously and permanently injured as a result of the act of violence –whether special circumstances

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of Registrar of Local Court to issue arrest warrant – where warrant executed and spent – where criminal proceedings concluded – whether warrant issued invalid and unlawful – whether substantial reasons or in the interests of justice to issue arrest warrant – no jurisdictional error or error of law on the face of the record ADMINISTRATIVE LAW – remedies – where arrest warrant executed and spent – whether certiorari is available to quash warrant issued – whether declarations should be made that warrant invalid and unlawful – where plaintiff does not claim substantive remedies – whether lack of utility – where declaration would not result in the final determination of the issues between the parties – where declaration sought has no foreseeable consequences between the parties CIVIL PROCEDURE – whether extension of time should be grant under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) – whether plaintiff has a fairly arguable case – inutility

Catchwords:

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where aggregate sentences imposed – consideration of disparity between indicative sentences for common offences – where aggregate sentences accounted for offending not shared between co-offenders – whether disparity in aggregate sentences justified SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where co-offender sentenced in the Drug Court – consideration of principles to be applied when comparing a sentence imposed by the District Court and a sentence imposed by the Drug Court – comparison of approaches in Scicluna v R and Tobia v R SENTENCING – penalties – Drug Court – where Drug Court imposes an initial sentence – consideration of objects and structure of the Drug Court Act 1998 (NSW) – whether leniency warranted in an initial sentence imposed by the Drug Court – approach in Tobia v R reconsidered

Catchwords:

CRIME – appeals – appeal against sentence – severity – whether no penalty other than imprisonment would be appropriate – whether sentence manifestly excessive CRIME – appeals – extra-curial punishment – whether primary Judge open to consider loss of partner as extra-curial punishment – risk of an overly prescriptive approach to extra-curial punishment given fact-dependence CRIME – appeals – use of victim impact statements – whether inferences arose from sentencing remarks on victim impact statements

Catchwords:

ADMINISTRATIVE LAW – freedom of information – government information public access – public interest considerations – whether public interest considerations against disclosure outweigh the public interest considerations favouring disclosure – whether disclosure could reasonably be expected to reveal an individual's personal information or contravene an information protection principle – whether disclosure could reasonably be expected to prejudice the supply to an agency of confidential information – whether no further government information is held.

Catchwords:

DEVELOPMENT APPEAL — dwelling house — visual privacy — orders

Catchwords:

HEALTH — professional registration and discipline — unregistered nurse — criminal findings for offences — failure to notify of charges and criminal findings — falsified criminal history check — unsatisfactory professional — professional misconduct — scope of disciplinary powers

Catchwords:

CRIME – Appeals – appeal against sentence – backdating to account for pre-sentence custody and totality with pre-existing sentences – whether sentencing judge erred in setting commencement date of sentence – whether sentencing judge failed to provide adequate reasons for decision as to commencement date – whether lesser sentence warranted on resentence – appeal dismissed

Catchwords:

LAND LAW – strata title – common property – duty to repair – breach of duty – damages for breach of duty – causation – determination of cause of loss – action of lot owner altering or repairing common property – ss 106(5) and 232 Strata Schemes Management Act 2015 (NSW)

Catchwords:

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Application to remove tutor —Applicant found to be under a legal incapacity — Application refused EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Industrial Relations Act 1996 (NSW) — Whether single member can dispose of proceedings under s 190A APPEALS — Procedure — Time limits — Out-of-time appeal of previously appealed decisions — Leave to appeal refused

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –alleged damage and risk of injury from scale leaves and small sticks falling on dwelling roof and fence

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent APPEALS — Procedural fairness — Bias or apprehension of bias APPEALS — Procedure — Proof and evidence — Record of court or tribunal below

Catchwords:

MENTAL HEALTH – forensic patient – extension of status as forensic patient – index offences of child sexual assault and aggravated indecent assault – history of offences relating to sexual misconduct against children – cognitive features that may influence risk management in the community – capacity to manage emotionally charged or socially complex situation – increased vulnerability to impulsive or poorly considered behaviour – positive progress in the community – continued demonstration of a lack of insight into the inappropriateness of sexual activity with children

Catchwords:

APPEAL − residential tenancy – termination of long-standing social housing tenancy because of failure to comply with cleanliness obligations – persistent breaches alleged – new evidence about steps taken after the hearing – whether the appellant may suffer a substantial miscarriage of justice – whether significant new evidence

Catchwords:

ADMINISTRATIVE LAW – administrative review – victim’s rights and support – act of violence – whether there was violent conduct against one or more persons – injury resulted from loss or damage to property – no entitlement to victims support

Catchwords:

Appeal – appeal against the dismissal of a set aside application made under cl 9 of the Civil and Administrative Tribunal Regulation – no evidence that the Appellant’s absence resulted in his case not being adequately put – no error of law

Catchwords:

APPEALS — appeal from findings of fact — whether the primary judge erred in finding the Council had actual knowledge of the risk which caused the harm — whether knowledge of particular class of Council persons required – whether the primary judge erred in failing to find the liability arose from road works for the purpose of s 45 of the Civil Liability Act 2002 (NSW) — whether the primary judge erred in failing to find that the claim relied on the exercise of a special statutory power for the purposes of s 43A of the Civil Liability Act — no error in any findings of fact APPEALS — TORTS — negligence — personal injury — application of the Civil Liability Act 2002 (NSW) — whether s 45 Civil Liability Act is applicable — whether the address of the risk that caused harm was ‘carrying out road work’ for the purposes of s 45 — whether s 43A Civil Liability Act applicable — whether special statutory power was exercised for the purposes of s 43A

Catchwords:

DEVELOPMENT APPLICATION — residential apartment development — residential flat building in R3 Medium Density residential zone — Low and Mid Rise Housing — conciliation conference — agreement between parties — orders

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether trees have caused damage — whether trees are likely to cause damage or injury — apportionment of costs of works — orders for tree removal and fencing works

Catchwords:

DEVELOPMENT APPEAL — affordable housing — variation to non-discretionary development standard — written request required — adequacy of written request — principles of Housing SEPP not relevant - variation to floor space ratio — setbacks — is the area in transition

Catchwords:

DEVELOPMENT APPLICATION — Community titled subdivision — land stability — stormwater — flooding — ground water, surface water and impacts to the Endangered Ecological Community and coastal wetland

Catchwords:

CRIMINAL — Application to adjourn final oral address — interests of justice — public interest in finality of criminal proceedings

Catchwords:

Approval of proposed settlement of proceedings pursuant to Civil Procedure Act 2005 (NSW), s 76 where proceedings have been conducted on behalf of the plaintiff by a tutor since June 2023

Catchwords:

PLEADINGS – where existing statement of claim discloses no reasonable cause of action – where plaintiff has had opportunities to amend – where latest iteration of the proposed amended statement of claim is embarrassing in part and otherwise discloses no reasonable cause of action – where defendant seeks summary dismissal or striking out existing statement of claim – Held: leave to amend refused; proceedings summarily dismissed.

Catchwords:

CIVIL PROCEDURE – dismissal of defendant’s application for stay of enforcement of judgments entered pursuant to the Building & Construction Industry Security of Payments Act 1999 (NSW)

Catchwords:

TORTS – malicious prosecution – absence of reasonable and probable cause – defendant pursued case that plaintiff did in fact engage in criminal conduct – forensic and other evidence did not support original complaint – continuation of prosecution lacked reasonable and probable cause – improper purpose – malice inferred – aggravated and exemplary damages awarded TORTS – false imprisonment – wrongful arrest – whether actions of police in arresting plaintiff were lawful – where plaintiff alleges police did not have reasonable grounds to arrest and did not properly inform plaintiff of reasons for arrest – whether police actions were reasonable in the circumstances – information known to police at time of arrest warranted arrest in order to protect the safety of the community – plaintiff unsuccessful

Catchwords:

NOTICE OF MOTION – notice of motion seeking leave to modify building information certificate application – granted – application to amend a development application – whether amendments constitute a fresh application – scope of power to amend – change of specified purpose – dismissed – costs

Catchwords:

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

Catchwords:

Residential Tenancies

Catchwords:

ADMINISTRATIVE LAW - administrative review - assessment - objection - review by Civil and Administrative Tribunal STATE TAXES - land tax - surcharge land tax - interest - assessment - unfairness - act of grace payment

Catchwords:

LEASES AND TENANCIES – rights and obligations of landlords and tenants – excessive rent due to withdrawal or reduction in goods, services and facilities provided with residential premises – determination of excessive rent – reduction of rent on frustration of residential tenancy agreement APPEAL – question of law – whether reasons adequate

Catchwords:

APPEAL — development application for water storage facilities — conciliation conference — agreement reached — orders made APPEAL — development control order — agreement for works to be carried out — powers of the Court — appropriate orders

Catchwords:

LICENSING – security licence – whether conviction for assault – fit and proper person – public interest

Catchwords:

CIVIL PROCEDURE — parties — persons under legal incapacity — court must be positively satisfied as to legal incapacity — incapacity a task-specific matter — considerations relevant to capacity in context of conducting litigation — level of capacity required commonly greater where person self-represented

Catchwords:

ANTI-DISCRIMINATION – disability discrimination in work – direct discrimination – subjecting employee to a detriment - employee with disabilities not requesting reasonable adjustments – employer directed employee to attend workstation assessment and independent medical examination – employee offered a demotion – employee deemed unfit for duty and directed to take leave – whether exception of work, health and safety requirements applies – general damages and other remedies

Catchwords:

DUST DISEASES — Costs — Cross-claim — Where cross-claim was dismissed at request of cross-claimant— Where case was arguable — Where there was a supervening event which led to the application to dismiss the cross-claim – Where it was reasonable to continue the proceedings — Calderbank offers — Offers of Compromise

Catchwords:

APPEAL – motor vehicle repair – Australian Consumer Law claim – claim determined in the absence of a party – no opportunity to defend the claim – failure to give reasons for the exercise of discretion to proceed – denial of procedural fairness

Catchwords:

SENTENCING — appeal against sentence — whether sentencing judge erred in approach to applicant’s plea of guilty under s 16A(2)(g) — utilitarian value of a guilty plea — whether the prosecution can resile from written concessions made in sentence hearing — whether strength of the prosecution’s case is relevant to utilitarian value of a guilty plea — whether sentencing judge can take into account the subjective value of the applicant’s guilty plea — impermissible and irrelevant factors taken into consideration — error found — appeal allowed — resentence

Catchwords:

ADMINISTRATIVE LAW – review under Child Protection (Working With Children) Act 2012, cancellation of Working With Children Check Clearance – correct and preferable decision having regard to the material before the Tribunal – whether the applicant poses a risk to the safety of children – onus of proof in a review under s27 – no real and appreciable risk – set aside – Working With Children Clearance to be granted

Catchwords:

COSTS: costs in Class 2 tree dispute under the Trees (Disputes Between Neighbours) Act 2006 – whether fair and reasonable to order that the respondent pay the applicants’ costs – applicable legal principles – applicants claiming disbursements only – success in the proceeding insufficient to warrant a costs order – initial conduct of respondent in responding to applicants’ correspondence and requests to remove tree did not justify the imposition of costs – applicants failed on some issues in the proceedings – application dismissed.

Catchwords:

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court — Hearing in Supreme Court imminent — No issue of principle

Catchwords:

CRIMINAL PROCEDURE — suppression and non-publication orders — appeal against Local Court decision refusing to allow publication of accused’s name — submitting appearances on appeal — paramountcy of open justice

Catchwords:

CRIMINAL PROCEDURE — Summary proceedings — Voir dire — Admissibility of evidence — Record of interview under the Food Act 2003 (NSW) EVIDENCE — Discretions — Exclusion of evidence — Admissions — Application under s 90 of the Evidence Act 1995 (NSW) — Record of interview — Where the stated purpose of the interview was for investigations into a company — Where evidence given by a director on the company’s behalf is used in criminal proceedings against the director as an individual

Catchwords:

HIGH RISK OFFENDERS – Interim supervision orders – statutory pre-requisite to making an interim supervision order – meaning of “will” in statutory context – where Court unable to be satisfied that the defendant’s term of imprisonment “will” expire before the proceedings are determined – application for interim supervision order refused

Catchwords:

ABORIGINAL LAND RIGHTS – s 36 of Aboriginal Land Rights Act 1983 (NSW) – land occupied by golf club and used as golf course – whether land claimable Crown lands under s 36(1) of the Aboriginal Land Rights Act – whether land lawfully used or occupied – whether land included in reserve for public recreation – whether land included in lease – whether use or occupation of the land in furtherance of or incidental to reserve purpose of public recreation – lands vested in His Majesty at dates of claim

Catchwords:

ADMINISTRATIVE LAW — jurisdictional error — where PEXA requests Registrar General’s approval to pass through new charge to consumers — where statutory instrument confers power on the Registrar General to withhold approval for such a request — where the Registrar may not unreasonably withhold approval — decision withheld pending reviewing of pricing and charges by independent review body — proper construction of expression “which may not be unreasonably withheld” — whether Registrar General misconstrued the expression and consequently unreasonably withheld approval of increase to PEXA fee — no misconstruction by Registrar General — to the extent relevant, withholding of approval not unreasonable on the proper construction of the expression ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Consideration Registrar General bound to take into account — whether the Registrar General failed to consider a mandatory relevant consideration — where the National Law are intended to promote efficiency and minimise inconsistency — consideration adequately taken into account

Catchwords:

ENFORCEMENT – whether applicant demonstrates that Tribunal invested by enabling legislation with jurisdiction to hear and determine application – whether Tribunal has power to grant relief sought by applicant

Catchwords:

SECURITY OF COSTS — application for security of costs — principles relevant to determining applications for security for costs — security for costs ordered PRACTICE & PROCEDURE — where a substitution application has been made in the Representative Proceedings — where outcome of the substitution application impacts quantum of security to be provided

Catchwords:

APPEALS – access to information - questions of law - leave – administrative review - hearing dispensed with - procedural fairness – bias – discharge of onus – no requirement to call witness nor provide specified documents – no error as to jurisdiction – no exercise of judicial power - appeal dismissed

Catchwords:

CONSUMER LAW-remedies for non-compliance with guarantee of acceptable quality – whether notice of rejection given to supplier – whether notice of rejection given within rejection period – whether “damage” to caravan precluded rejection- whether Tribunal could make an order for repairs. APPEAL –appellant relied on alleged errors of law only – no material errors of law established.

Catchwords:

ADMINISTRATIVE LAW – registration of birth - correction of name of a child on the Register – registrable event – most reliable information available about a registrable event

Catchwords:

ADMINISTRATIVE LAW — leave sought to bring proceedings against the NSW Ombudsman pursuant to s 35A of the Ombudsman Act 1974 (NSW) — whether there is substantial ground for the contention that the Ombudsman or its officer acted in bad faith CIVIL PROCEDURE — application by self-represented plaintiff to file an amended statement of claim — application by defendants to dismiss or strike out the statement of claim — where judicial review proceedings have been incorrectly commenced by statement of claim — where it is impossible to identify the individual decisions in respect of which relief is sought including the grounds of relief and the specific relief sought — whether leave should be given to plaintiff to file a summons

Catchwords:

APPEAL − residential tenancy – ex parte hearing in the absence of a party – denial of procedural fairness claimed because the Tribunal did not consider material filed – no error on question of law

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) s 165 — Claims against the rental bond — Breach by landlord of s 165 of the Residential Tenancies Act through failure to provide documents supporting the landlord’s claim on the bond — Where bond paid to landlord, the landlord’s failure to comply with s 165 does not prevent the landlord relying upon claims in respect of unpaid rent, utilities charges or damage to the premises as a defence to a claim by the tenant for repayment of the bond

Catchwords:

VICTIMS Support – Administrative law – act of violence –– whether applicant eligible for victims support – whether applicant engaged in behaviour constituting an offence at time of act of violence

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION — demolition works — use of existing structure — boat shed — conciliation conference — agreement between the parties — orders made.

Catchwords:

APPEALS – reinstatement application – principles – application dismissed CIVIL PROCEDURE – Suppression and non-publication – application by appellant to have publication of decision restricted or her name and any identifying details anonymised –application dismissed

Catchwords:

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

Catchwords:

LAND LAW – RESIDENTIAL TENANCY – claims for alleged breaches of landlord maintenance obligations and loss of quiet enjoyment – limitation period for money claims – extension of time - construction of tenancy agreement, advertisement and incoming condition report - Residential Tenancies Act 2010 (NSW) s 190, Residential Tenancies Regulation 2019 (NSW) reg 39(9), Civil and Administrative Tribunal Act 2010 (NSW) s 41

Catchwords:

CRIME — appeals — interlocutory appeal — doubts as to desirability of determining limitation questions in advance of trial CRIME — continuing offences — amorphous nature of term “continuing offence” — categories of continuing offence — relevance of issues of duplicity, double jeopardy, and limitation periods — nature of offence is an issue of legislative intention and facts of case — broad statements as to correct approach of limited utility — considerations relevant to characterisation exercise EMPLOYMENT AND INDUSTRIAL LAW — work health and safety — offences — characterisation of offence against ss 19(1) and 33 of Work Health and Safety Act 2011 (NSW) — distinct offence may be committed whenever duty not complied with at any time “while the workers are at work in the business or undertaking”

Catchwords:

PRACTICE AND PROCEDURE — application to join a community association to a Class 2 proceeding under Trees (Disputes between Neighbours) Act 2006 - whether orders against the respondents can be enforced without the consent of the community association

Catchwords:

DEVELOPMENT APPLICATION — demolition of the existing dwelling and site structures and construction of a new dwelling — amended plans and documents — whether it is acceptable to undertake demolition of existing dwelling in a heritage conservation area — whether the demolition has a detrimental impact on heritage significance of the conservation area — experts agreed on the acceptability of the proposed dwelling — remaining contentions resolved — appeal upheld — development consent granted

Catchwords:

COSTS — indemnity costs orders sought by reason of rejection of Calderbank offer — whether offer contained genuine compromise — whether dismissing proceedings with no order as to costs constitutes a genuine compromise — whether failure to accept was reasonable — indemnity costs order granted COSTS — whether protective/defensive cross-claim should be awarded costs — costs order granted COSTS — whether a defendant’s recoverable costs should be reduced on the basis that their interests were aligned with co-defendants — whether coordinated defences mean unreasonable duplicative work was undertaken

Catchwords:

APPEAL – external appeal – assessment of notional carrying capacity of land – land laid out to irrigation – no evidence assessment in error

Catchwords:

Administrative Law – home building - qualified supervisor certificate - company in liquidation – whether fit and proper - whether to grant certificate.

Catchwords:

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

Catchwords:

HUMAN RIGHTS –race discrimination in the provision of goods and services – where President of Anti-Discrimination Board declined a complaint of race discrimination in the provision of goods and services – whether Tribunal should give leave for complaints to be the subject of proceedings STATUTORY INTERPRETATION – meaning of “goods and services” in s 19 of Anti-Discrimination Act – whether the provision of sound recordings and transcripts of proceedings to litigants is the provision of “goods and services”

Catchwords:

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

Catchwords:

APPEAL – development application – conciliation conference – agreement reached – orders made

Catchwords:

PROCEDURAL – Extension of time – Whether power to extend under s 41 of the Civil and Administrative Tribunal Act – Whether reasonable excuse – request for leave to rely on late filed submissions

Catchwords:

COSTS — party/party — self represented litigant — usual rule that costs follow the event — application for departure from the rule where proceedings misconceived and additional costs incurred as the result of the use of AI — no just basis for departure from usual costs order

Catchwords:

NEGLIGENCE — personal injury — where plaintiff worked at a factory as a contractor — plaintiff injured when a metal plate slipped and fell — whether factory owner owed plaintiff a duty of care — whether duty owed to plaintiff breached — whether plaintiff was contributorily negligent — nature of injuries caused by the accident — whether plaintiff entitled to claimed damages EVIDENCE — witness evidence — reliability and credibility of witness testimony — inconsistent and contradictory oral evidence — difficulties with interpretation of evidence — conflicting expert evidence about the diagnosis of PTSD

Catchwords:

NEGLIGENCE — slip and fall in undercover carpark on speed hump —speed hump not painted — other hazards and irregularities in carpark painted yellow — whether primary judge erred in finding movement-sensitive lighting had not come on when plaintiff fell — whether unpainted speed hump an obvious risk — whether primary judge erred in finding breach and causation — whether primary judge erred in not finding contributory negligence — whether primary judge erred in assessment of future economic loss and future domestic assistance — appeal allowed in part and judgment in lesser amount substituted

Catchwords:

APPEAL — Review under Taxation Administration Act 1996 (NSW) — Land tax — Primary production exemption — Dominant purpose — Where multiple purposes of land APPEALS — Materiality of error APPEALS — Procedure — Parties on appeal — Unrepresented litigants STATUTORY INTERPRETATION — Principle of legality — Onus of proof — Power to issue retrospective assessment

Catchwords:

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — assessment of damages following default judgment RESTITUTION — Mistake — Restitution of money paid – assessment of amount payable

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Recovery of remuneration — Statutory rights — Termination — Redundancy — Order made

Catchwords:

CIVIL PROCEDURE — Application to adduce further evidence — Whether application is in the interests of justice — Application refused

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders — Public interest — Other factors

Catchwords:

COSTS — Party/Party — Whether plaintiff liable to pay indemnity costs due to unreasonable rejection of Calderbank offers or delinquency — Whether there should be apportionment of costs — Whether gross sum costs order should be made — Whether interest on costs should be awarded JUDGMENTS AND ORDERS — Whether judgment amount should include GST — Whether judgment to be entered against third defendant — Whether stay of orders pending appeal should be granted

Catchwords:

CIVIL PROCEDURE — Non-disclosure orders — Whether in the interests of justice — Inadequate evidence of risk of harm to Appellant — Non-disclosure orders not made — Application for stay of proceedings — Pending proceedings in other court — Proceedings in other court not commenced — No crossover with any extant proceedings — Stay not granted — Summary disposal — Dismissal of proceedings — Want of due despatch — Evidence of medical incapacity not sufficient to explain delay in prosecution — Poor prospects in substantive case — Prejudice to Respondent outweighs prejudice to Appellant — Proceedings dismissed

Catchwords:

HIGH RISK OFFENDER — serious sex offender — application for extended supervision order — preliminary hearing for interim relief — sexual offences committed against young girls — dispute as to conditions — requirement that conditions be appropriate — interim supervision order made

Catchwords:

PROBATE — informal will — whether handwritten document signed by deceased was intended to form his will and to revoke earlier will — whether necessary to show continuing intention — revocation of earlier will — HELD — letters of administration for informal will granted to the plaintiff SUCCESSION — family provision — claim by cross-claimant adult daughter of former de facto partner of the deceased for provision from deceased’s estate under Succession Act 2006 (NSW), Ch 3 — proceedings not commenced within time — whether sufficient cause shown to extend time — where claim for provision brought by amended cross-claim 10 weeks out of time — HELD — extension of time to make provision claim granted SUCCESSION — family provision — claim by cross-claimant adult daughter of former de facto partner of the deceased for provision from deceased’s estate — where no provision made for cross-claimant in informal will — where whole estate left to long term friend of the deceased — where deceased and cross-claimant had close and loving relationship — factors warranting — small estate — whether adequate provision made for the proper maintenance, education or advancement in life of the cross-claimant — nature and quantum of provision to be made — cross-claimant welfare dependent and in desperate financial position — HELD — family provision order made

Catchwords:

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

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of officers – risk of death or serious injury – disputed facts OTHER – gate fell on worker – worker opened gate manually – end stop had recently broken – gate ran beyond the vertical guideposts – informal and undocumented system for manual gate operation – no system to ensure gates were regularly inspected by a competent person

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – other persons OTHER – person struck by moving plant – person walking on walkway struck by a reversing reach stacker – failure to conduct adequate risk assessment – failure to develop, implement, and enforce a traffic management plan – whether the defendant’s failures were a significant and substantial cause of exposing the person to the risk – no novus actus interveniens OTHER – whether person is a worker or other person – whether an alternative charge must be considered – if primary charge succeeds the court need not consider alternative charge

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – where there are concurrent duty holders – whether contractors were agents of the defendant under s 244 of WHS Act OTHER – bucket elevator conveyor maintenance – conveyor went into an uncontrolled free run – fluid coupling failed – explosion of metal debris struck worker on head – failure to stop work and conduct an updated risk assessment when a change in work process was identified

Catchwords:

CIVIL PROCEDURE — Pleadings — Striking out — Tendency to cause prejudice, embarrassment or delay — DDT requires a Statement of Particulars to be filed in addition to a Statement of Claim — Defendant knew the case they had to meet from Statement of Particulars — Motion to strike out is dismissed CIVIL PROCEDURE — Discovery — documents sought are related to facts in issue — discovery is necessary to ensure the outstanding issues in dispute are properly tried COSTS — Party/Party — Bases of quantification — Ordinary basis

Catchwords:

CRIME — Appeal against sentence — application for leave to appeal — where applicant contended sentence manifestly excessive — where none of the matters relied upon by applicant demonstrate manifest excess — where application does not go beyond merely arguable — where no issue of principle raised — where leave to appeal against sentence refused

Catchwords:

PROCEDURE – contempt, attachment and sequestration – contempt of Court – whether a custodial sentence until the defendant purges his contempt or the order is discharged is appropriate

Catchwords:

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

Catchwords:

BUILDING AND CONSTRUCTION – where contract for residential building work not in writing pursuant to Home Building Act 1989 (NSW) – where Tribunal upheld builders claim in quantum meruit – where Tribunal upheld homeowners cross-application for damages for defective building work – whether decision of Tribunal on cross-application based on material errors of fact – whether Tribunal failed to adequately expose the process of reasoning leading to its decision – whether Appeal Panel should re-exercise original jurisdiction or remit proceedings for re-hearing by Tribunal – whether ambit of re-hearing should be limited to determination of builders liability for alleged defective work

Catchwords:

SENTENCING — appeal against sentence — child sexual offences — expert evidence of applicant’s neurodevelopmental disorders — whether sentencing judge erred in failing to address whether moral culpability and the need for general deterrence was reduced — error established but no lesser sentence warranted on re-sentence — appeal dismissed

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – interim preservation – freezing order – on their motion for interlocutory relief the plaintiffs seek to extend freezing orders against the seventh and eighth defendants and other respondents associated with them – in the principal proceedings the plaintiffs allege the seventh and eighth defendants, as directors of a trustee company, as part of a dishonest scheme caused the trustee company to make preferential payments to its creditors related to the seventh and eighth defendants, rather than paying the plaintiff, another creditor – on the motion the plaintiffs also allege the seventh and eighth defendants entered into transactions to dispose of their assets shortly after the statement of claim was served in these proceedings in November 2025 – whether the plaintiff has made out a basis for the extension of the freezing orders – no question of principle involved.

Catchwords:

COSTS — application for costs where Amended Statement of Claim was struck out and the proceedings dismissed

Catchwords:

COSTS — party/party — where statutory demands set aside by consent – whether unreasonable for Defendants to issue and refuse to withdraw statutory demands – where Plaintiff claims costs on a gross sum basis– where no determination of proceedings on the merits

Catchwords:

CORPORATIONS LAW – receivers – validity of appointment – declaratory relief under Corporations Act 2001 (Cth), s 418A – nature of relief under section – distinction between positive and negative declaratory relief – receivers purportedly appointed by third party note-holders, pursuant to power conferred on them in circumstances where dispute as to indemnity to charge/appointor – whether other clauses in transaction documents detracted from exercise of the power – declaratory relief issued

Catchwords:

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:

CORPORATIONS – interlocutory application – where fifth and sixth defendants seek orders for proceedings to be dismissed with indemnity costs – where first plaintiff disqualified by ASIC from managing any corporation – where first plaintiff and his solicitor contend misapprehension as to the effect of disqualification order – where first plaintiff gave instructions on behalf of second plaintiff without authority – where second plaintiff was reinstated on instructions from first plaintiff – where second plaintiff proffered an undertaking as to damages – no effective ratification – proceedings stayed – freezing order improperly obtained – freezing order discharged

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information — public interest considerations in favour of disclosure — public interest considerations against disclosure — onus on third party objector — whether on balance the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure

Catchwords:

ADMINISTRATIVE LAW – privacy – request for alteration of personal information held by the respondent about the applicant – whether the conduct (amendments made) of the respondent in response to that request was appropriate or whether it was conduct that amounted to a contravention of the ‘alteration of personal information’ information protection principle in section 15 of the Privacy and Personal Information Protection Act 1998 (NSW) – the amendments made by the respondent was appropriate

Catchwords:

COSTS – Civil and Administrative Tribunal Act 2013, s 60 – whether there are special circumstances warranting an award of costs –– no special circumstances – no costs awarded

Catchwords:

APPEAL — modification application — deferred commencement consent — voluntary planning agreement — affordable housing — conciliation conference — agreement reached — orders made

Catchwords:

APPEAL – remediation order – conciliation conference – agreement to vary the order – orders made

Catchwords:

CORPORATIONS — receivers and managers — appeal — standing of receiver to seek declaratory relief in respect of ownership of shares — whether shares formed part of secured property — where bases of grounds of appeal not raised in the Court below APPEAL — where appellant seeks to run a point not taken in the Court below — parties generally bound by the way they conducted themselves at first instance

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims rights and support – sexual touching – attempted sexual assault – alleged kidnapping - recognition payment – Serious bodily injury or grievous bodily harm

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION — centre-based childcare facility, basement carparking and landscape works — conciliation conference — agreement between the parties — orders

Catchwords:

Application for final non-publication and suppression orders pursuant to s 7 Court Suppression and Non-Publication Orders Act – whether orders are necessary to protect the safety of the applicant’s mother, brother and sister – case with unprecedented publicity on social media and local and international news media – whether the proposed order will have utility and be effective in the unique circumstances of the case

Catchwords:

JUDGMENTS AND ORDERS – Amending, varying and setting aside – whether District Court orders effective from time they are pronounced – whether District Court judge revisited or withdrew orders after they had been pronounced. HIGH RISK OFFENDERS – Interim supervision orders – whether defendant “eligible offender” under Terrorism (High Risk Offenders) Act 2017 (NSW) after District Court quashed sentence of imprisonment.

Catchwords:

CRIMINAL LAW – application for costs certificate – sexual offences alleged committed against 13 year old girl – whether complainant, as witness, was ‘very substantially lacking in credit’

Catchwords:

COMPULSORY ACQUISITION – market value of land compulsorily acquired by local council for public purpose – claim for market value by first mortgagor – whether claim capped by statutory offer due to deemed acceptance by landowner – existing detention basin should not be disregarded as part of public purpose – land flood prone – assumptions about physical state of land at date of acquisition – extent of cut and fill to render land flood free – extent of residential zoned land assumed by hypothetical parties – application of comparable sales to derive residential zoned land rate – application of comparable sales to derive constrained land rate – rent incurred by freehold owner not able to be set off against mortgagor’s compensation

Catchwords:

CORPORATIONS – winding up – costs in the winding up – application to fix amount of costs – priority of costs – whether costs of substitution application and post‑winding up steps are “costs in respect of the application for the order” – interaction of s 466 and s 556 of the Corporations Act 2001 (Cth) – gross sum costs – broad‑brush assessment – reasonableness of itemised bill – gross sum fixed

Catchwords:

NOTICE OF MOTION — seeking to set aside or vary Registrar’s case management orders — seeking to set aside or vary a judgment or order of another judge of the same court pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005

Catchwords:

CIVIL PROCEDURE — Judgments and orders — Amending, varying and setting aside — Correction under slip rule — Uniform Civil Procedure Rules 2005 (NSW) — Rule 36.16 — Stay pending appeal COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Termination – Unfair dismissal – 34 allegations of misconduct – Reinstatement impracticable – Application under s 84 of the Act dismissed VICTIMISATION – Victimisation application – Application under s 213 of the Act dismissed

Catchwords:

TRUSTS — Family discretionary trusts — Family trust settled by patriarch (G) — G also appointor of the trust with power to appoint a new trustee and additional trustees and to remove any trustees — Certain trust provisions impacted by G’s death— Specifically (a) whilst G’s family grew generationally the range of beneficial objects to whom income could be appointed was reduced on G’s death as appointor (b) no mechanism was provided for a new appointor and (c) the power of variation was limited by reference to G’s lifespan as appointor — Trust operated for approximately 14 years post G’s death without an appointor — Trustee sought orders principally pursuant to Trustee Act 1925 (NSW), s 86A to alter the power to vary the trust, to appoint a new appointor, to give the majority of ‘beneficiaries’ power to remove and substitute the appointor and to effectively reinstate the greater breadth of beneficial objects to whom income could be appointed to the position prior to the death of G — Held partial relief given – Appointor to be appointed (under inherent power) and approval of variation (under s 86A) for beneficial class to whom income could be appointed to be revised to the position pre G’s death - Plaintiff to reflect upon reasons with opportunity to approach the Court for further relief if need be EQUITY — Trusts — Approval of arrangements (proposals) for variation of trusts — Trustee Act 1925 NSW (Trustee Act), s 86A — Remedial nature of the legislation invites beneficial construction — Standing discussed — Trustees may apply (inter alia) on behalf of persons incapable of assenting or with no present entitlement — ‘Arrangement’ is terminology in the widest possible sense to cover any proposal which a person with standing may put forward for varying or revoking trusts EQUITY — Trusts — Approval of variation proposals — Trustee Act s 86A — Extent of jurisdiction — Appointors and varying trusts generally — Differing views in other jurisdictions under cognate legislation regarding whether the variation approval power permits the appointment of appointors and variation of trusts generally EQUITY — Trusts — Approval of variation proposals — Trustee Act s 86A — Relevance of Settlor’s purposes APPOINTORS — Discussion of extent of role and sources of appointment — Discussion regarding nature of character of role of appointor and power of appointment of trustees — Characterisation of role of appointor as fiduciary or otherwise depends on the terms of the trust and circumstances in each particular case EQUITY — Trusts — Court’s inherent jurisdiction —Equity preserves trusts, rather than destroying them and acts to perform or execute trusts, not to alter them TRUSTS — Appointors — Inherent jurisdiction — Court’s inherent power to appoint an appointor discussed TRUSTS — Advantageous dealings Trustee Act s 81 — Conferral of specific powers is by reference to management and administration of trust property TRUSTS —Rights of beneficiaries — ‘Rule’ in Saunders v Vautier — Nature of power WORDS & PHRASES – ‘appointor’

Catchwords:

PRACTICE AND PROCEDURE — Vexatious proceedings order — whether plaintiff brought proceedings “acting in concert” with person subject to a vexatious proceedings order and without the leave of the court contrary to s 13(1)(b) of the Vexatious Proceedings Act 2008 (NSW) — HELD — plaintiff brought proceedings acting in concert with person subject to vexatious proceedings order — proceedings taken to have been automatically stayed when instituted and dismissed 28 days after they were instituted in accordance with ss 13(2) and 13(3) of the Vexatious Proceedings Act 2008 (NSW) CIVIL PROCEDURE — stay — application by the defendant to have the proceedings stayed pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 12.4 — whether the making of an order for costs as agreed or assessed gives rise to a liability for costs prior to its quantification — HELD — an order for costs may not take effect until it is quantified but gives rise to a liability to pay costs upon the date the order is made — the proceedings are substantially the same as discontinued proceedings — the proceedings would have been stayed until the costs of discontinued proceedings paid if not dismissed pursuant to the Vexatious Proceedings Act 2008 (NSW) CIVIL PROCEDURE — stay — application by defendant to have the proceedings stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) — relitigation of claims made in prior proceedings — HELD — proceedings are an abuse of process — the proceedings would have been stayed as an abuse of process if not dismissed pursuant to the Vexatious Proceedings Act 2008 (NSW) CIVIL PROCEDURE — summary dismissal and strike out — application by defendant to have the proceedings dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4 or alternatively statement of claim struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 14.28 — HELD — proceedings are an abuse of process and no reasonable cause of action disclosed — the proceedings would have been dismissed or statement of claim entirely struck out if not dismissed pursuant to the Vexatious Proceedings Act 2008 (NSW)

Catchwords:

CONSUMER LAW – False or misleading representations – where first plaintiff and first defendant parties to a joint venture – alleged representations by first defendant as to contributions to the lease of a commercial premises in Sydney entered into by the first plaintiff – alleged representations by first defendant as to provision of an interest in another commercial premises in Victoria to first plaintiff in return for contribution to purchase price and to costs of fit-out works – whether pleaded representations were made –whether first plaintiff relied on the alleged representations – claims dismissed CIVIL PROCEDURE – application for adjournment – where first plaintiff made application on morning of hearing – application refused

Catchwords:

COSTS – amount in dispute on appeal less than $30,000 – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) applied.

Catchwords:

NEGLIGENCE — motor vehicle accident — appeal — dispute as to factual matters relating to liability — alleged errors with respect to factual matters relating to the circumstances of the collision APPEAL — from findings of fact — assessment of witnesses by primary judge

Catchwords:

DEVELOPMENT APPLICATION: change of use – residential apartment development – conciliation conference – agreement between parties - orders

Catchwords:

PRACTICE AND PROCEDURE – application to set aside summons – relevance – legitimate forensic purpose – nature of administrative review proceedings

Catchwords:

NCAT — Internal Appeals — constructive failure to exercise jurisdiction — whether in appointing NSW Public Guardian Tribunal failed to consider whether “an order can be made appointing some other person as the guardian of the person”, Guardianship Act 1987(NSW), s 15(3) STATUTORY INTERPRETATION — Guardianship Act 1987(NSW) — operation of ss 15(3) and 17(1)

Catchwords:

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

Catchwords:

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

Catchwords:

MODIFICATION APPLICATION — dwelling house development in R1 General Residential zone — heritage conservation area — conciliation conference — agreement between parties — orders

Catchwords:

LEASES AND TENANCIES — Retail leases — Assignment – extend to which assignor is bound by provisions of lease and other agreements – failure to pay rent and other charges under the lease and other agreements – make good costs after termination – allegations of disturbance under the Retail Leases Act 1994 (NSW) – whether Covid-19 rent relief claimed – eligibility to claim – tenant’s claim for ‘equitable set-off’ GUARANTEE AND INDEMNITY — Actions to enforce guarantee — claim that guarantee is unenforceable LAND LAW — claim of fraud under the Real Property Act 1900 (NSW)

Catchwords:

DEVELOPMENT APPLICATION — demolition of existing structures and construction of a five-storey mixed use development — conciliation conference — amended development application — agreement between the parties — orders made

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interpretation — Dispute resolution — Whether refusal of request made by Technical Officer to be converted to the classification of Hospital Scientist was fair and reasonable in all the circumstances — Variation of Award pursuant to mechanism contained in the Award

Catchwords:

CIVIL PROCEDURE – Interim preservation – Freezing orders – no issue of principle. COSTS – where plaintiff did not bring application until evening prior to proposed sale of property – order that the plaintiffs pay the defendants’ costs of the application.

Catchwords:

CRIME – Appeal and review – Appeal from Local Court to Supreme Court – Procedure – stay of execution of sentence pending determination of appeal – Local Court sentence not yet delivered – application of s 63 of Crimes (Appeal and Review) Act 2001 – whether s 63(1) is confined to appeals against sentence – whether appeal against conviction is an appeal ‘in respect of’ a sentence after sentence is imposed.

Catchwords:

EVIDENCE – commercial arbitration – documents produced on subpoena – client legal privilege – whether Court should examine the documents – privilege claims upheld in part and rejected in part

Catchwords:

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Calderbank offers — Defendants offer to give plaintiff substance of relief sought but for costs — Plaintiff does not accept offer — Defendants succeed at trial and proceedings are dismissed — Whether defendants should have special costs order in their favour — No issue of principle

Catchwords:

LAND LAW — Co-ownership — Rights between co-owners — Allowance for improvements to land by way of equitable accounting — Appropriate form of account to be ordered COSTS — Application for appointment of trustees for sale pursuant to s 66G Conveyancing Act 1919 (NSW) — Where ‘usual order’ for costs in such proceedings to be defrayed out of proceeds of sale — No question of principle

Catchwords:

COSTS — Costs assessment — appeal from determinations made by Review Panel — where court referred claim to a costs assessment pursuant to Pt 4.3 of the Legal Profession Uniform Law 2014 (NSW) — whether s 172(4) required compliance with disclosure obligations — whether Review Panel made an error in voiding the costs agreement between the law firm and the receiver due to failure to comply with disclosure obligations and then assessing costs on a quantum meruit basis

Catchwords:

COSTS – As between defaulting executors – Where Court found they were not suing on behalf of estates

Catchwords:

COSTS — application for costs when the question of liability has been tried and the question of quantum is pending – costs of third party cross-defendants where cross- claim unsuccessful

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty – parity COSTS – prosecution costs – reserved costs of interlocutory application OTHER – fall from height – slip while climbing down the outside of scaffold – unprotected edges – no site-specific SWMS – unsafe entry to roof – access to roof without appropriate safety measures in place – failure to assess safety of scaffold

Catchwords:

APPEAL – Leave to appeal – Application for leave to appeal NCAT Appeal Panel decision under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – Whether question of fact or question of law – Whether finding of the Appeal Panel that strata application filed out of time concerned question of fact or question of law – Leave to appeal refused

Catchwords:

ENVIRONMENT AND PLANNING – Land and Environment Court – Jurisdiction and powers – Class 1 – conciliation conferences – whether decision to give effect to development consent was one which the Court could make in the proper exercise of its functions – where common ground that cl 6.7(2) of the Kiama Local Environmental Plan 2011 is a jurisdictional constraint – whether Commissioner formed the requisite state of satisfaction so as to satisfy jurisdictional constraint – where Jurisdictional Note provided by the parties ENVIRONMENT AND PLANNING – Land and Environment Court – Jurisdiction and powers – Class 1 – conciliation conferences – whether Commissioner had power to grant development consent to amended development application – whether third respondent’s role as consent authority was functus officio upon refusing the development application so as to preclude the Commissioner from giving effect to grant of consent – where amendments to development application diminished the impact on neighbouring properties

Catchwords:

LOCAL GOVERNMENT — Councillors — misconduct — stay

Catchwords:

ADMINISTRATIVE LAW – administrative review - privacy – communication restriction – whether the conduct subject of review occurred – dismissal of proceedings – lacking in substance

Catchwords:

COSTS — costs at first instance — whether first instance costs order should be reversed following a successful appeal

Catchwords:

ADMINISTRATIVE LAW — administrative review of refusal to grant silencer permit under Weapons Prohibition Act 1998 (NSW) — whether genuine reason for business/employment purposes — meaning of “necessary in the conduct of the applicant’s business or employment”

Catchwords:

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

Catchwords:

APPEAL – Tax and duties – Payroll tax – Employment agency contract – Application of Chief Commissioner of State Revenue v Integrated Trolley Management Pty Ltd [2023] NSWCA 302 – Whether the Tribunal erred on a question of law in its approach to the statutory question under s 37 of the Payroll Tax Act 2007 (NSW)

Catchwords:

CRIME – appeals – appeal against sentence – sexual intercourse without consent – objective seriousness – moral culpability – whether sentencing judge erred in failing to take into account the applicant’s motive and intention in committing offences – whether applicant’s motive of love and sexual attraction toward victim mitigated objective seriousness – appeal dismissed CRIME – appeals – appeal against sentence – aggregate sentence – whether sentence manifestly excessive – appeal dismissed

Catchwords:

OCCUPATION – optometrist - misconduct and discipline – whether unfit in the public interests to practice – convicted of a criminal offence – unsatisfactory professional conduct – protective not punitive – cancellation – non-review period – costs order

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether the tree has caused damage — whether the tree is likely to cause damage — evidence and submissions disproportionate to the circumstances — orders for tree removal and replacement planting

Catchwords:

Administrative Review - Principal place of residence at Taxing date

Catchwords:

CIVIL PROCEDURE – notices to produce – where plaintiffs seek to set aside notices to produce financial records – pending application for security for costs – whether notices ambiguous and/or unduly onerous

Catchwords:

DEVELOPMENT APPLICATION —- demolition, tree removal and construction of a new residential dwelling with pool and associated works —– conciliation conference —– amended plans and documents —– agreement between the parties —– orders made.

Catchwords:

CRIME – appeals – appeal against conviction – Liberato direction – where Crown conceded that the trial judge’s direction on the second limb of Liberato was erroneous in a material respect – whether the guilty verdict was nevertheless inevitable – whether the proviso in s 6(1) of Criminal Appeal Act 1912 (NSW) should apply

Catchwords:

TORRENS TITLE SUBDIVISION — two lots into three lots

Catchwords:

EQUITY — equitable compensation — wealthy Chinese uncle provides funds for company to buy business — Australian-based nephew manages business as director — nephew misuses company funds — nephew seeks further funds from uncle purportedly for inventory but spends himself – nephew resists requests to produce damning bank statements. LIMITATION OF ACTIONS — equitable compensation — Limitation Act 1969 (NSW), s 47 — principles at [187]-[191] — nephew held funds withdrawn from company account in breach of fiduciary duties on constructive trust — 12-year limitation period applies— claim not time-barred. LIMITATION OF ACTIONS — equity — application of limitation periods by analogy — Corporations Act 2001 (Cth), s 1317K — whether unjust for nephew to rely on six-year statutory limitation period by analogy — principles at [193]-[195] — nephew’s knowledge cannot be imputed to company while managing the business — nephew’s wrongdoing not discovered until bank statements produced on subpoena — claim not time-barred. CONTRACTS — oral agreement between uncle and nephew to loan $2.4 million for purchase of land — who were the contracting parties, principles at [223]-[225] — borrower was the nephew’s company. LAND LAW — equitable charge — nephew assures uncle “even if I cannot repay you, the land will still be here” — principles at [249]-[251] — whether equitable charge enforceable — Conveyancing Act 1919 (NSW), ss 23C and 23E — meaning of “disposition” — whether sufficient acts of part performance — principles and case law review at [253]-[270] — act of advancing loan funds not unequivocally referable to agreement to grant security over property — part performance not established — equitable charge not enforceable. RESTITUTION — nephew offers to assist with development of uncle’s property — uncle provides provide funds to pay for expenses — uncle takes management of property development out of nephew’s hands - uncle seeks restitution of surplus funds paid but not reimbursed. LIMITATION OF ACTIONS — restitution — unjust enrichment — principles at [277]-[278] — cause of action complete when period for contractual performance ends, not when funds paid — this occurred when uncle handed over management of property development — not time-barred.

Catchwords:

CIVIL PROCEDURE – ex parte application – freezing orders previously made against certain defendants – application by plaintiff for further freezing orders – further freezing orders granted in respect of first defendants’ motor vehicles – other proposed freezing and case management orders sought refused

Catchwords:

CIVIL PROCEDURE – Subpoenas – To produce documents or things – where suppression orders limiting access to protected documents made in District Court – where plaintiff seeks to use information contained within protected documents to contact identified complainants and brief expert witness.

Catchwords:

CIVIL PROCEDURE — admissions — admission of facts — withdrawal of admissions — where defendant previously admitted to having signed documents — where defendant later concluded that the signatures were not his — whether leave should be granted to withdraw admissions

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Where plaintiffs in revenue proceedings successful in revoking assessments under challenge — Where issues raised in appeal statements abandoned at hearing — Whether successful plaintiffs should be ordered to pay unsuccessful defendant’s costs of abandoned issues — Whether plaintiffs should otherwise be deprived of some of their costs by reason of the abandonment of issues — No issue of principle COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Two issues decided by the Court in its principal judgment — One issue concerned interpretation of a deed and whether it constituted a declaration of trust — Plaintiffs succeeded on the declaration of trust issue — Other issue concerned valuation of properties — Where valuation issue strictly not necessary to decide in light of plaintiffs’ success on the first issue — Where the Court proceeded to determine the valuation issue in the alternative — Defendant would have succeeded on the valuation issue if it was reached — Whether valuation issue was a dominant and separable issue in the proceedings — Whether it is relevant to consider the fate of arguments that did not strictly need to be reached in the proceedings — Consideration of how general principle that trial judges ought to decide all issues may affect exercise of the Court’s costs discretion vis-à-vis dominant and separable issues

Catchwords:

CHILDREN – Care and Protection – Contact Order – Appeal – Ambit of appeal limited by nature of order the subject of the appeal

Catchwords:

CONTRACT – whether oral agreement entered into – whether Plaintiffs have beneficial interest in property – question of fact – no agreement – no interest – no issue of principle LANDLORD AND TENANT – residential tenancy – proceedings commenced in NCAT – proceedings transferred to Supreme Court by consent – whether Supreme Court has power to make order terminating lease and granting possession – no power – proceedings remitted to NCAT

Catchwords:

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – Adjudication – Application for interlocutory injunction – where usual practice is to condition the grant of interlocutory relief on payment of the adjudicated amount into Court – where Plaintiff asserts that it is not reasonably able to pay the adjudicated amount into Court and proposes alternative form of security – where Plaintiff asserts that it has paid the Defendant an amount greater than the Adjudicator determined, such that the Defendant has already been paid for the works – whether Court should depart from usual practice – whether proceeding should be stayed pending payment into Court

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – serious sexual offences – existing extended supervision order due to expire – application for interim supervision order – where defendant did not appear – whether the Court can determine the matter in the defendant’s absence – where defendant had due notice of the proceedings – where the defendant expressed an intention not to participate – significant and complex mental health conditions – lack of insight into the relationship between defendant’s mental health and risk of reoffending – defendant has not engaged with treatment or interventions during period of existing supervision order – well above average risk of reoffending – orders made

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable – enabling order – passage of time – insight

Catchwords:

ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional fact – whether existence of a registered interest in land in a jurisdictional fact – whether a registered planning agreement is a legal interest in land

Catchwords:

Builders licensing - statutory interpretation - whether Secretary “must” dismiss application where prior experience of applicant unable to be verified due to death of supervisor

Catchwords:

TORT – Nuisance – land sloping down from Defendant’s land to Plaintiff’s land – retaining wall on the Plaintiff’s land – whether Defendant has interfered with the Plaintiff’s use of its land – whether there has been a nuisance – circumstances in which the Court will grant a quia timet injunction

Catchwords:

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

Catchwords:

NEGLIGENCE – historical sexual abuse – where plaintiff alleges abuse by teachers at a school – non-delegable duty – approach to fact finding

Catchwords:

CIVIL PROCEDURE – motion to dismiss proceedings commenced in defiance of regime established by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether dismissal is mandatory or discretionary – relevant factors in exercise of discretion to dismiss

Catchwords:

CRIME – sentence – murder – sentencing following verdict of guilty – fact finding where jury has rejected self-defence, excessive self-defence and extreme provocation – offender’s history of mental and physical illness – childhood deprivation – finding of special circumstances

Catchwords:

ADMINISTRATIVE LAW – administrative review – refusal of certificate of registration – whether disqualified person – convictions for dishonesty – whether offences should be ignored – whether offences trivial – passage of time - whether fit and proper person

Catchwords:

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

Catchwords:

RES JUDICATA – consumer claim for defects in motor vehicle – same claim in Tribunal dismissed in earlier proceedings due to lack of proof of defect at time of supply – subsequent proceedings brought between same parties in light of expert report obtained by applicant – dismissed on basis claim had already been determined. APPEALS- appeal dismissed – decision in primary proceedings was correct.

Catchwords:

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

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage from branches impacting common boundary fence and shed – apprehension of further damage

Catchwords:

DEVELOPMENT APPEAL — boat shed, ramp and jetty — satisfaction of jurisdictional prerequisites for consent to undertake development in the foreshore area and below the mean high water mark — conciliation conference — agreement between the parties — orders

Catchwords:

COSTS – application for costs in absence of determination of claim on the merits – where both parties seek legal costs associated with an application for preliminary discovery

Catchwords:

DEVELOPMENT APPLICATION – State significant development – commercial mixed-use development – whether adequate arrangements have been made for public utilities infrastructure cl 6.1(1) of Appendix 5 of State Environmental Planning Policy (Precincts—Western Parkland City) 2021 – Planning Proposal – whether certain and imminent – weight to be given under s 4.15(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (NSW)

Catchwords:

CIVIL PROCEDURE – Jurisdiction – Transfers to and from other courts – District and Local Courts – application to transfer proceedings from District to Supreme Court – whether the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit – whether public interest requires transfer to Supreme Court – application refused.

Catchwords:

COSTS – Application for indemnity costs – Application for gross sum costs – whether gross sum costs order is suitable – where plaintiff identifies asserted grounds for appeal – where plaintiff argues defendant enjoyed only mixed success. JUDGMENTS AND ORDERS – Amending, varying and setting aside – application to stay or extend time for compliance with orders – whether the interests of justice require a stay of orders the subject of an appeal – application refused.

Catchwords:

CORPORATIONS – winding up – failure to comply with creditor’s statutory demand – presumption of insolvency – application to adjourn under Corporations Act 2001 (Cth) s 440A(2) – whether adjournment in creditors’ interest

Catchwords:

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Consent orders — Where interlocutory in nature — Whether based on contract between the parties — Whether exceptional circumstances or material in circumstances present sufficient to nonetheless permit variation

Catchwords:

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:

DEFAMATION – practice and procedure – whether document a concerns notice – commencement of proceedings before applicable period to make amends has lapsed – whether leave should be granted

Catchwords:

EQUITY — Trusts and trustees — judicial advice — Trustee Act 1925 (NSW), s 63 — no issue of principle

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:

COSTS — indemnity costs — Calderbank offers — whether refusal of offers unreasonable — first offer involving purchase of land — second offer “walk away” offer — third offer incapable of acceptance absent concurrence of co-defendant — unsustainable allegation lacking evidence — indemnity costs ordered

Catchwords:

COSTS – Security for costs – where plaintiff resident in and has assets in the United Kingdom – where plaintiff has no assets in Australia – where reciprocal arrangement between Australia and the United Kingdom for the enforcement of foreign judgments – where risk that it will be a long, complex and costly process for the defendants to register and enforce in the United Kingdom any costs judgment against the plaintiff in these proceedings, having regard to plaintiff’s conduct in relation to such matters in earlier proceedings between the same parties – where an order for security for costs would not stultify the proceedings – plaintiff to ordered to pay security for the defendants’ costs

Catchwords:

CIVIL PROCEDURE – application for appointment of tutor – whether appellant under legal incapacity – where insufficient evidence – no appointment of tutor made

Catchwords:

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — no reasonable cause of action disclosed — where proper defendant not a party to proceedings — where relief sought has been superseded by subsequent events

Catchwords:

TORTS – Trespass – damages – electricity poles and power lines on plaintiffs’ land – statutory authority – Electricity Supply Act 1995 (NSW) – network operator – statutory bar to action COSTS – offer of compromise – indemnity costs – compliance with UCPR

Catchwords:

EQUITY — defences — laches — whether claim to rectification of share register barred by laches — disadvantage or prejudice suffered — no link between prejudice and delay EVIDENCE — rejection of affidavit evidence — whether evidence purporting to be in support of laches defence outside pleadings following abandonment of estoppel argument – no error of principle PROCEDURE – no error of principle, matter of public importance or reasonably clear injustice going beyond something that is merely arguable – refusal of leave to appeal

Catchwords:

COSTS — Indemnity costs — Whether genuine offers of compromise made — Whether reasonable not to accept offers

Catchwords:

COSTS — application for costs by Respondent in Class 1 Appeal — question of mixed fact and law — whether Applicant acted unreasonably — whether Applicant maintained a claim with no reasonable prospects of success

Catchwords:

LOANS — account — appeal — quantum of amount owing by son to mother for unpaid loans — erroneous apprehension about the significance of a figure contained in a schedule of payments — requirement to review evidence of the loans and make findings of fact pursuant to power in s 75A of the Supreme Court Act 1970 (NSW) LIMITATION OF ACTIONS — debt — requirement that defence under the Limitation Act 1969 (NSW) be pleaded