Browse decisions Displaying 1 - 200 out of 120862 results

Catchwords:

CIVIL PROCEDURE — pleadings — defamation — leave to file Proposed Further Amended Statement of Claim — capacity to convey pleaded imputations — imputations different in substance — contradictory imputations — single meaning rule — embarrassing and vexatious — aggravated damages — republication — leave refused

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EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation by consent — Increase to rates of pay arising from Fair Work Commission’s Aged Care Work Value Case

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TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to a ceramic pot – apprehension of further damage and injury – nuisance caused by debris from tree – both parties seek tree removal – abuse of purpose of the Trees Act

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WORKERS COMPENSATION — limitation period — s 151D Workers Compensation Act 1987 (NSW) — application for leave to commence proceedings more than three years after injury — prejudice to defendant — different versions of accident — absence of witnesses — extension of time granted

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APPEALS – questions of law – procedural fairness – legal reasonableness – adequacy of reasons where statutory requirement to give written reasons – appeal dismissed ADMINISTRATIVE LAW – administrative review – fit and proper person

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BUILDING AND CONSTRUCTION — Contract — Defects – Home Building Act 1989 (NSW) – Design and Building Practitioners Act 2020 (NSW) – liability of builder – liability of engineer

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ADMINISTRATIVE LAW – merits review – Victims Rights and Support – restitution order against person convicted of relevant offence – financial hardship

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ADMINISTRATIVE LAW - administrative review - assessment - objection - review by Civil and Administrative Tribunal STATE TAXES - surcharge purchaser duty - tax default - interest - market rate - premium rate - penalties - remission - discretion - circumstances beyond control of taxpayer -reasonable care - exceptional circumstances - personal circumstances

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

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DEVELOPMENT APPLICATION – mixed use development and basement parking – conciliation conference – agreement between the parties – orders

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ADMINISTRATIVE LAW – administrative review – Government information – failure to appear at hearing - public interest test – correct and preferable decision – confidential hearing

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BUILDING AND CONSTRUCTION – Home Building – renewal of proceedings where work order previously made under Schedule 4, Clause 8 of the Civil and Administrative Tribunal Act 2013 (NSW) – claim on renewal cannot include pre-existing defects not claimed in original proceedings. BUILDING AND CONSTRUCTION – Home Building –BC4 contract - extensions of time – form - requirement that variation be complete in order to claim extension of time BUILDING AND CONSTRUCTION – Home Building –quantum meruit claim – proof required.

Catchwords:

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

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CRIME — appeals — appeal against conviction — Liberato direction — application of proviso — trial judge made reference in summing up to competing evidence — appeal by co-accused upheld on the basis of failure to give Liberato direction — majority in co-accused’s appeal declined to apply the proviso — whether earlier appeal decision should be followed in relation to the Liberato direction and the proviso on the basis of the principle outlined in Kwu v R [2024] NSWCCA 199 — whether any evidence only applicable against applicant constitutes material distinction between applicant and co-accused’s case CRIME — appeal against conviction — extension of time in which to appeal — co-accused’s appeals not heard jointly — delays in preparing appeal — unnecessary judgments of the court — wastage of resources

Catchwords:

TAXES AND DUTIES – transfer of farming property between family members – applicant transferee a company as trustee for a discretionary family trust – whether transfer exempt from duty under section 274 of the Duties Act 1997 (NSW) (Duties Act) - date on which the matters in section 274(2) to (4) must be satisfied. TAXES AND DUTIES - whether the amendment of the family trust deed that substituted another family member as the person entitled, as taker in default of appointment to the interest in the capital of the trust fund, has the effect that the three-year requirement in section 274(4A)(b)(ii) of the Duties Act 1997 (NSW) cannot be met.

Catchwords:

CONTRACTS — Remedies — Specific performance — Whether buyer ought be ordered to specifically perform unit sale and purchase agreement — Whether buyer’s parent ought be ordered to specifically perform guarantee and/or indemnity GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability — Whether guarantee on proper construction is “see to it” or primary obligation to pay money — Whether indemnity requiring buyer’s parent to pay certain amounts on demand requires payment of balance of purchase price where completion has not occurred CIVIL PROCEDURE — Discontinuance of proceedings — Leave of court — Whether cross-claimants ought be granted leave to discontinue claims for declaratory relief at the commencement of hearing — Where claims raised by cross-claim said to be hypothetical

Catchwords:

BUILDING INFORMATION CERTIFICATE - DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

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TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – creeping fig – whether the tree is on adjoining land – damage to property – damage to dividing fence – whether tree removal is required – orders for fencing works

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

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CRIME – appeals – appeal against conviction – miscarriage of justice – where the applicant pleaded guilty to the murder of his sister – where the applicant was under the influence of drugs at the time of the offending – where the applicant was diagnosed with schizophrenia – where the applicant entered his plea on the basis of advice that the applicant did not meet the definition of “mental health impairment” – whether the advice was wrong and thus constituted a miscarriage of justice – whether the applicant’s impairment at the time of the offending was “solely caused” by drug ingestion – where none of the expert evidence engaged with the “caused solely by” test – the advice given to the applicant was wrong – conviction set aside STATUTORY INTERPRETATION – whether the Crown bears the onus of demonstrating that s 4(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) applies – where s 4(3) provides an exception or a qualification to what is contained in s 4(1) – where the Crown asserts no mental health impairment by reason of ingestion of drugs or substance use disorder the Crown bears the onus of proof under s 4(3)

Catchwords:

COMMERCIAL ARBITRATION – arbitration agreement – stay of proceedings – proper construction of scope and effect of arbitration clause – where plaintiff and first defendant are parties to a joint venture deed – where deed included arbitration agreement with arbitral seat in Singapore – where first defendant’s rights in joint venture deed transferred to creditors’ trust administered by remaining defendants as trustees under deed of company arrangement – where plaintiff seeks declaratory relief and specific performance in relation to acquisition of first defendant’s interest in the joint venture – where first, second, and fifth defendants raise matters in defence of the proceedings and a cross-claim for contribution to a call on performance security – whether those claims are arbitrable – whether the proceedings involve any “matter” that is “capable of settlement by arbitration” pursuant to s 7(2)(b) of the International Arbitration Act 1974 (Cth) COMMERCIAL ARBITRATION – arbitration agreement – stay of proceedings – whether arbitration agreement is null, void, inoperative or incapable of being performed – whether arbitration agreement “inoperative” pursuant to s 7(5) of the International Arbitration Act 1974 (Cth) – whether commencement of proceedings was a repudiation, waiver or abandonment of arbitration agreement

Catchwords:

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payments Act 1999 (NSW) – service of payment claims – where payment claim sent after business hours through agreed electronic messaging system – where that system generated an email to an authorised recipient – where that email not opened until next business day – where contract deemed service after 5pm to be service on the next business day – whether deeming provision modified the operation of the Act and therefore void – operation of Electronic Transactions Act 2000 (NSW)

Catchwords:

COSTS – application for gross sum cost order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – whether appropriate to make a gross sum cost order – quantum of gross sum – no issue of principle

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COSTS – plaintiff obtains award of nominal damages for breach of contract after abandoning claims for substantial damages for breach of contract (and in negligence) and compensation for non-compliance with consumer guarantees – plaintiff fails to obtain order for court-ordered apology under the Australian Consumer Law – characterisation of the ‘event’ for the purposes of r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) – whether ‘successful’ party should be wholly or partly disentitled to its costs

Catchwords:

BUILDING AND CONSTRUCTION — Contract — Specific performance – Where changes to zoning laws altered contractual parameters – Whether contract was frustrated by changes to zoning laws – No issue as to principle BUILDING AND CONSTRUCTION — Contract — Termination — Frustration – Where changes to zoning laws altered contractual parameters – Whether contract was frustrated by changes to zoning laws – Whether frustration is impacted by statutory scheme – No issue as to principle LAND LAW — Conveyancing — Contract for sale — Off the plan Contracts — Rescission – Where rescission of an off the plan contract for sale of land was sought – Where the Conveyancing Act 1919 s 66ZS creates requirements for rescission – Where changes to zoning laws altered commercial conditions – Whether developers acted unreasonably COSTS — Party/Party — Exceptions to general rule that costs follow the event – Orders when proceedings involve multiple parties – How parties liable – Multiple claims in multiple proceedings – Where statutory scheme modifies the general rule that costs follow the event – Whether statutory scheme captures the entirety of the multiple claims – Held: Conveyancing Act 1919 s 66ZS(8) applies only to claims under s 66ZS, not the proceedings as a whole

Catchwords:

LAND LAW – conveyancing – contract for sale – notice to complete – where vendor finances portion of purchase price – where purchaser’s offer of finance in relation to balance conditional upon vendor executing proposed deed of priority – where vendor rejects terms of proposed deed of priority – where issue of priority was not the subject of prior agreement as between purchaser and vendor – whether completion was dependent on vendor executing proposed deed of priority – whether vendor’s conduct prevented issuance of valid notice to complete – whether termination valid based on failure to comply with notice to complete. CONTRACTS – express terms – construction of express terms – construction of multiple contracts executed contemporaneously – construction of further assurance clause – whether covenant for further assurance obliged vendor to negotiate and execute the proposed deed of priority. CONTRACTS – implied terms – construction and interpretation – terms implied in law – general rule of construction – implied duty to cooperate – consistency with express terms of contract – whether implied duty to cooperate obliged vendor to negotiate and execute the proposed deed of priority.

Catchwords:

CIVIL PROCEDURE – Notice to Produce – Application to set aside – no issue of principle COSTS – Security for costs – whether there is reason to believe the Plaintiff will be unable to pay the Defendants’ costs if ordered to do so – quantum of security

Catchwords:

DEFAMATION — defamatory matter — particular imputations — fraud — misuse of charitable funds for personal financial benefit — misappropriation of funds — misleading people for the purpose of raising funds — registered charity — Wild2Free — wildlife care DEFAMATION — defamatory matter — capacity to convey pleaded imputations — ordinary reasonable reader — ordinary and natural meaning of words — Grapevine effect — onus of proof on plaintiff — on the balance of probabilities — Jones v Dunkel — publications found to have conveyed some pleaded imputations DEFAMATION — publication — multiple publications — emails — social media — Facebook — Facebook comments — defendants found to have published defamatory material — republication — defendants responsible for republication DEFAMATION — harm — Defamation Act 2005-2019 — previous version of legislation applicable — assumption of harm — serious harm not necessary to prove — plaintiff suffered significant harm DEFAMATION — defences — Defamation Act 2005 (NSW) — justification— triviality — honest opinion —contextual truth — lack of jurisdiction — where email was published overseas — common law qualified privilege — mutual interest and/or duty — reply to attack — where Facebook comments posted for a short period of time — onus of proof on defendants — plaintiff to prove malice in relation to qualified privilege — malice not found — plaintiff was not acting dishonestly DEFAMATION — remedies — injunctive relief — general damages — aggravated damages — malice — where plaintiff had a good reputation — where plaintiff suffered hurt and damage to reputation — general damages awarded

Catchwords:

Administrative Law Merits Review – private managers appointed – NSW Trustee and Guardian refused a gift to the financial manager from protected person’s estate– private manager seeks review – whether gift is seasonal in nature – whether gift is for a special occasion- whether gift is a donation of the nature made by protected person when they had capacity- paramount consideration is the welfare and interests of the person subject to the financial management order – correct and preferable decision

Catchwords:

NEGLIGENCE – risk was foreseeable – risk was not insignificant – reasonable person in the position of the council would have taken precautions – significant probability that the harm would occur – serious harm could result – minimal burden to take precautions – social utility – factual causation established – scope of liability extends to the harm so caused DAMAGES – non-economic loss – past and future out of pocket expenses – future domestic assistance OTHER – trip in hole in nature strip – council had actual knowledge

Catchwords:

SENTENCING – offences – environment and planning – non-compliance with clean-up notice and prohibition notice – ss 91(5) and 102 of the Protection of the Environment Operations Act 1997 (NSW) – defendant convicted after not guilty pleas – totality – limited capacity to pay fine – s 6 of the Fines Act 1996 (NSW) – fine imposed – investigation costs – legal costs – moiety

Catchwords:

HUMAN RIGHTS – Discrimination – disability – claim not substantiated – Costs

Catchwords:

DEVELOPMENT APPEAL – dwelling houses – regularise alterations and use – conciliation conference – agreement between the parties - orders

Catchwords:

MODIFICATION APPLICATION - s 4.55(8) application to the Court to modify a development consent granted by the Court – deletion of toe levels of basement parking – change to floor plans to reduce the number of managers rooms – changes to architectural presentation of the proposed building – amendment to design of proposed communal spaces – impacts of the proposed development.

Catchwords:

APPEAL – development application – dwelling house with swimming pool – conciliation conference – agreement reached – orders made

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PRACTICE AND PROCEDURE – interlocutory ruling on admissibility of affidavit – deponent of affidavit not available for cross-examination– Uniform Civil Procedure Rules 2005, rule 35.2(3) – leave to rely upon affidavit refused

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EQUITY – Equitable remedies – where equitable mortgagee seeks order for judicial sale – whether order for judicial sale should be made – no question of principle

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CIVIL PROCEDURE – extension of time – application to rely on expert evidence served out of time – where expert evidence is essential to the Plaintiffs’ case – where explanation for delay in serving expert evidence provided – where no prejudice identified by Defendant – extension granted

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EMPLOYMENT AND INDUSTRIAL LAW – awards and enterprise agreements – dispute resolution – remuneration – variation – public sector – health professionals

Catchwords:

LAND LAW – strata title – notice of motion – Strata Schemes Development Act 2015 (NSW) – ancillary orders – appointment of a trustee for the sale of an owner’s lot

Catchwords:

WORKERS COMPENSATION – s 151D Workers Compensation Act 1987 (NSW) – leave to commence proceedings more than three years after injury – presumptive and actual prejudice – availability of witnesses and evidence – whether plaintiff establishes the conduct of the trial will not cause the defendant significant prejudice such as to render the trial unfair – appropriate costs order

Catchwords:

EQUITY – trusts and trustees – where building contract provided that retention shall be held in trust by defendant developer for plaintiff builder until such time as either became entitled to retained funds – where plaintiff builder alleges breach of trust against defendant developer – where plaintiff builder alleges defendant director knowingly involved in the defendant developer’s breach of trust – whether any trust constituted – no trust constituted EQUITY – contribution – coordinate liability – where plaintiff builder settled claims against some defendants prior to hearing by transfer of residential lots – whether settling parties had coordinate liability to the plaintiff builder for the defendant developer’s contractual debts – whether coordinate liability arose by reason of knowing involvement in breach of trust or by reason of mortgages entered over properties – whether effect of settlement was to discharge that liability – whether transfer of residential lots was at an undervalue such that the plaintiff builder achieved a benefit – no discharge of coordinate liability BUILDING AND CONSTRUCTION – contract – variation – where defendant developer’s representative priced and approved variations – where plaintiff builder obliged to do work when directed by defendant developer under contract – whether defendant developer now entitled to contest variations – construction of “variation” and “direction” BUILDING AND CONSTRUCTION – contract – damages – delay – where defendant developer claims liquidated damages against plaintiff builder for delay – factual dispute over the original contracted date for practical completion

Catchwords:

COSTS

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LICENSING – security industry – licence revocation – registration under mutual recognition legislation – false information – public interest

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APPEAL - Residential Tenancies Act 2010 (NSW) - setting aside consent orders - duress - unconscionable conduct - interpretation of Tribunal orders - extension of time

Catchwords:

DEVELOPMENT APPLICATION — Alterations and additions to a residential dwelling — amended plans and supporting documents — conciliation conference — agreement between the parties — orders made.

Catchwords:

DEVELOPMENT APPLICATION – centre based childcare centre – joint expert conferences – merit concerns resolved with amended plans and additional information – agreed orders to effect final outcome in the proceedings

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between parties - orders

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BUILDING AND CONSTRUCTION - CONTRACTS – Home Building Act 1989 (NSW) – general contractual principles - repudiation – measure and assessment of damages - calculation of damages – quantum meruit WORDS AND PHRASES - prime costs – provisional sums

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PRACTICE AND PROCEDURE – Variation of orders by consent – Orders under the Health Practitioner Regulation National Law (NSW)

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EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Rescission

Catchwords:

EVIDENCE – criminal proceedings – discretions – exclusion of evidence – hearsay – video walkthrough – positioning of vehicles – exception to hearsay rule – where maker available – whether representations concern identity of a person, place or thing for the purpose of s 66(3) of the Evidence Act 1995 (NSW)

Catchwords:

EVIDENCE – criminal proceedings – discretions – exclusion of evidence – text messages between co-accused – “half done job” – competing inferences – where inference is available that the sender of text messages was party to an agreement to harm persons seeking revenge for earlier attack – whether probative value outweighed by danger of unfair prejudice

Catchwords:

JUDGMENTS AND ORDERS — Amending, varying and setting aside — For irregularity, illegality or against good faith — Limited application of rule after full hearing on the merits — Not available where merits of decision challenged such that appeal is the proper course — UCPR Pt 36 r 36.15(1)

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Whether no reasonable cause of action disclosed — Cause of action untenable EMPLOYMENT AND INDUSTRIAL LAW –Victimisation – Whether protected attribute as prescribed in s 210(1) of the Industrial Relations Act 1996 (NSW) established

Catchwords:

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of secured creditors to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

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COSTS – Whether costs order should be made – Whether costs should follow the event

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FINANCIAL MANAGEMENT ORDERS — New hearing consequent upon orders allowing an appeal of financial management orders of the Guardianship Division of the NSW Civil and Administrative Tribunal under the Guardianship Act 1987 (NSW) PROTECTIVE JURISDICTION — Evidence — New hearing — In the exercise of its protective jurisdiction the Court is not necessarily bound by strict rules of evidence but, subject to or with due regard to considerations of procedural fairness, has a discretion to act on material which is rationally probative of material facts and issues, even though excluded by technical rules of evidence PROTECTIVE JURISDICTION — New hearing — Application for financial management orders — Repeated impermissible correspondence by applicant (first defendant) to Judge’s chambers email disclosed actuating purposes in respect of the new hearing which were very remote from the purported purpose of whether the third defendant was incapable of managing her affairs — Case management directions to achieve procedural fairness required service of affidavit material by the parties for the new hearing and relevantly by the applicant before mid-December 2024 — In early February 2025 the new hearing of the application was fixed to take place in early May 2025 — Applicant in early March 2024 provided certain “witness statements” rather than affidavits — That material was not rationally probative and not permitted to be relied upon — No subsequent application was made by the applicant, prior to the hearing, to be permitted to rely upon oral evidence (nor other materials) on the hearing — At the listed hearing the applicant had not served affidavit evidence, had travelled to China and sought to be permitted to conduct the hearing by AVL from China and contemplated that oral evidence would be called from two witnesses who had not been subpoenaed to attend to give any such evidence — That request was refused (in light of above context and prejudice to the active respondent) and the application for financial management order dismissed FINANCIAL MANAGEMENT ORDERS — Permissible purposes — A financial management order, per se, is not a vehicle for commandeering and otherwise realising and dividing family wealth by reference to purported intentions of the deceased family members or otherwise than in accordance with the principles that properly inform the jurisdiction to make a financial management order CIVIL PROCEDURE — Dismissal of proceedings — Civil Procedure Act 2005 (NSW) s 61(3)(a) — Failure to comply with case management orders PRACTICE AND PROCEDURE — Principles regarding email communications with Judge’s chambers — Approach with self-represented litigants HEARINGS — Mode of appearance at hearing —Proceedings in Supreme Court are generally held in person — Audio visual and other modes of appearance — r 31.3 Uniform Civil Procedure Rules 2005 (NSW), Pt 1A Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Catchwords:

PROCEDURAL RULING – jurisdiction – dismissal

Catchwords:

BUILDING AND CONSTRUCTION – Damages – where admitted defects in structural design prepared by the second and third defendant engineers for the plaintiff’s home – where breach of general law duty of care admitted by engineers – where it is common ground that additional wind bracing is necessary and reasonable to rectify the structural defects – where the design for the additional bracing is agreed – where scope of works required to implement that design is disputed – where the reasonable cost of undertaking the rectification works is disputed – quantum of damages – no question of principle.

Catchwords:

CRIME — appeals — appeals against convictions — offences of publishing or broadcasting the name of a child with respect to whom proceedings before the Children’s Court were brought — posts uploaded to Facebook referring to child by name — self-represented appellants — whether indictment invalid — whether failure to leave alleged defences to jury — whether error in instructing jury of effect of removing Facebook posts — whether error in directions to jury about time of the offences — whether failure to dismiss matter where no harm to child allegedly shown — whether failure to allow the appellant Katelaris to inform jury of right to acquit even if offence had been proved — where grounds 1, 2 and 7 raised a question of law alone and did not require leave — leave to appeal on grounds 3, 4, 5 and 6 granted — appeal dismissed

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PRACTICE – application to reopen under UCPR r 36.16 – no basis for reopening

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DEVELOPMENT CONTROL ORDER — restore works order — conciliation conference – agreement between the parties - orders

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APPEALS — costs — self-represented litigant — loss of income not costs

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DEVELOPMENT APPLICATION — co-living development — conciliation conference — agreement between the parties — orders

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APPEALS — Appeal on question of law – Scope of question of law APPEALS — Constructive failure to exercise jurisdiction by not addressing a material issue or by overlooking material evidence – No constructive failure to exercise jurisdiction APPEALS — Leave to appeal — Principles governing – Leave to appeal refused BUILDING AND CONSTRUCTION – Residential building work – Statutory warranties under Home Building Act 1989 (NSW) – Claim by owners against builder – Whether the owners breached their duty to mitigate their loss CONSUMER LAW – Misleading or deceptive conduct – Contract for residential building works – Representation by director and by silence that the works would be carried out by appropriately licensed, qualified and experienced tradesmen – Whether the representation was actionable - Whether the representation was untrue – Whether the director is personally liable for the loss suffered by the owners

Catchwords:

ADMINISTRATIVE LAW — jurisdictional error — procedural fairness — where District Court refused application to re-examine complainant on conviction appeal — where prosecution case depended on evidence of complainant — whether refusal amounted to denial of procedural fairness ADMINISTRATIVE LAW — jurisdictional error —relevant considerations — whether District Court failed to take into account matters supportive of applicant’s case ADMINISTRATIVE LAW — jurisdictional error — irrelevant consideration — whether District Court incorrectly assumed existence of evidence corroborating complainant’s account — whether District Court failed to take into account evidence inconsistent with complainant’s account ADMINISTRATIVE LAW — jurisdictional error — whether District Court failed to consider all elements of offence — whether sufficient evidence to find conduct was “towards” another person — whether sufficient evidence to find defendant knew of lack of consent

Catchwords:

COSTS - award of costs to local council respondent following unsuccessful judicial review challenge to stop work order issued under Environmental Planning and Assessment Act – award of costs for notice of motion granting extension of time to commence judicial review proceedings also awarded to the local council - usual rule that costs follow the event applied

Catchwords:

CONTRACTS – Breach of contract – Sale of business contract – Whether vendors in breach of contract for failing to adjust the purchase price for tax liabilities and employee entitlements – Where clause did not impose an obligation on the vendors – Where two inconsistent clauses – Application of generalia specialibus non derogant maxim – No breach established CONTRACTS – Restraint of trade – Sale of business contract – Whether vendor in breach of restraint of trade – Where vendor loaned real estate licence to a competing business during the restraint period – Construction of restraint of trade clause – Meaning of ‘capacity to exercise control’ – Where vendor found to have capacity to exercise control of competing business pursuant to Property and Stock Agents Act 2002 (NSW) – Breach established CONTRACTS – Breach of contract – Sale of business contract – Where vendor did not discharge registered security interest – Whether vendor failed to comply with conditions precedent – Where vendor failed to satisfy conditions precedent – Classification of a contingency versus a promise – Whether purchaser waived the requirement to satisfy conditions precedent by proceeding with completion of the sale – Waiver of condition precedent established CONTRACTS – Breach of contract – Sale of business contract – Whether vendor breached warranty – Whether shares were sold free of any security interests – Whether a security interest over the assets of a company is different from a security interest over the shares in a company – Where a company does not own its own shares – Where shares were sold free of any security interests – No breach of warranty established CONTRACTS – Construction and interpretation – Principles of construction of commercial contracts – Application of principles set out in Electricity Generation CONSUMER LAW – Misleading or deceptive conduct – Where certain pleaded representations not established on the evidence –Representation made as to intention to retire – Representation made as to future employment – Representation made as to predicted sales figures – Whether representations were misleading or deceptive or likely to mislead or deceive – Where representations as to future matters – Whether reasonable grounds for making representations as to future matters – Where reasonable grounds established – No misleading or deceptive conduct established CONTRACTS – Remedies – Damages for breach of restraint of trade – Whether loss suffered as a result of relevant breach – Where failure to establish causation – Where failure to quantify damages – Where failure to demonstrate any loss – No entitlement to damages EQUITY – Equitable remedies – Rescission – Whether restitutio in integrum possible – Where substantial time elapsed and substantially altered circumstances – Rescission not available – Whether partial rescission an available remedy –Partial rescission not available CONSUMER LAW – Remedies – Remedies for misleading or deceptive conduct – Declaring whole or part of contract void – Whether court’s discretion informed and guided by principles at common law and equity – Where partial rescission not possible – Where no loss established – Partial rescission not available EVIDENCE – Credibility of witnesses – Where similarities in affidavit evidence calls into question credibility of that evidence – Where no contemporaneous record – Where denial of the account by another witness – Evidence with striking similarity found not to be credible

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CORPORATIONS – application to set aside creditors’ statutory demand under Corporations Act 2001 (Cth) s 459H and 459J – whether application and supporting affidavit were served within the statutory period – whether genuine dispute has been established – whether some other reason for statutory demand to be set aside – statutory demand set aside

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CIVIL PROCEDURE – discontinuance – leave of the court – whether plaintiff should pay defendant’s costs – supervening event making proceedings futile – proceedings under the Criminal Assets Recovery Act 1990 – where defendant subsequently became insolvent – where defendant had no interests in property to enable the making of an unexplained wealth order – where proceedings properly instituted

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NEGLIGENCE — non-delegable duty of care — liability — where appellant injured back during primary school long jump competition — where appellant felt feet hit hard surface — whether failure to take reasonable precautions to ensure adequate amount of properly raked sand in landing area — whether failure to take reasonable precautions was a necessary condition of occurrence of harm NEGLIGENCE — damages — assessment of damages — assessment of loss of earning capacity for injury negligently occasioned to child — whether injury likely to be productive of financial loss — assessment of damages for non‐economic loss — whether primary judge erred in assessing damages at 20% of a most extreme case

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COSTS — party/party — bases of quantification — indemnity basis — where proceedings dismissed without proceeding to final determination — whether plainly unreasonable conduct

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CRIME – sentence – murder – son and mother party to a joint criminal enterprise to drive a Triton dual cab ute at the deceased and hit him from behind to exact revenge in context of ongoing feud – where the driver of the ute had intention to kill – where the passenger in the ute was a party to a joint criminal enterprise to cause grievous bodily harm or to kill the deceased – mitigating subjective circumstances – need for denunciation and general deterrence for revenge motivated offending

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TAXES AND DUTIES — Administration — Tax garnishee notices — Notice issued to purchaser under contract of sale of land by taxpayer — Mortgagee requires payment of purchase moneys in full – whether purchaser bound to account to Commissioner for tax debt specified in notice – whether mortgagee would have equitable interest in proceeds which would defeat Commissioners – Taxation Administration Act 1953 Sch 1, s 260-5

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LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – ss 87, 154A, 154E - Housing Act 2001 (NSW) – s 57 – Whether the Tribunal has jurisdiction to consider the circumstances in which a rental subsidy was terminated

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ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - merits review LICENCING - firearms - licence - fit and proper person - public interest - public safety - domestic violence

Catchwords:

CIVIL PROCEDURE – Stay of proceedings – Application for permanent stay of proceedings based on the passing of approximately 54 years since the alleged events – Has the impoverishment of evidence caused by the passage of time resulted in a fair trial not being possible – Principles to be applied – Stay refused TORTS — Trespass to the person — Alleged sexual assaults in 1971 or 1972 when the plaintiff was 6 or 7 years’ old – Proof – Onus of proof – Assessing reliability or accuracy of evidence based on memory of events more than 50 years ago

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APPEAL – land subdivision – conciliation conference – agreement between the parties – orders

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APPEALS — Leave to appeal — leave required — no issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable — leave refused

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PRACTICE AND PROCEDURE – application for recusal – whether apprehended bias – application declined

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EVIDENCE — certificate of conviction — where certificate of conviction is admissible to prove elements of offences for which the perpetrator was convicted — where primary judge misled a litigant in person as to the effect of the Evidence Act 1995 (NSW) — where primary judge denied appellant procedural fairness — whether Court of Appeal ought approach the matter as if the certificate of conviction had been tendered — where primary judge misapprehended the effect of ss 91, 92 and 178 of Evidence Act — where primary judge’s failure to appreciate the admissibility of certificate of conviction to prove elements of offences compromised assessment of the credibility and reliability of the appellant — Evidence Act 1995 (NSW), ss 91, 92, 178 EVIDENCE — tendency evidence — civil proceedings — tendency rule — whether certificate of conviction had significant probative value — Evidence Act 1995 (NSW), ss 97, 100, 135 NEGLIGENCE — duty of care — vicarious liability — whether the State breached its duty of care to the appellant by failing to apply for an adoption order — whether the State breached its duty of care to the appellant by placing her with the perpetrator — whether the State breached its duty of care to the appellant by failing to foster her relationships with her natural siblings — whether the State is vicariously liable for the conduct of the appellant’s former foster carers — whether third respondent breached her duty of care to the appellant by failing to prevent or report the abuse TORTS — trespass to the person — assault — battery — sexual assault — where appellant was physically and sexually abused by her foster carer while a ward of the State — where second respondent had been convicted of criminal offences against the appellant APPEALS — where appellate court has found error — whether court should resolve issue to avoid economic and emotional costs of re-trial — Supreme Court Act 1970 (NSW), s 75A TORTS — general principles –– damages –– aggravated damages –– buffer for past and future economic loss – earning capacity

Catchwords:

CRIME – appeals – appeal against sentence – whether sentencing judge erred by not providing reasons for how onerous bail conditions were taken into account – whether sentencing judge erred by not backdating the sentence to account for pre-sentence quasi-custody – whether the sentence imposed was manifestly excessive

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Local Council approval of development application – whether Council failed to consider the Development Control Plan in its terms as prescribed by the Environmental Planning and Assessment Act 1979 (NSW) – whether decision was unreasonable – no question of principle LAND LAW – Easements – Creation of easements – Creation by implication – implied easement for light – where apparent sale of adjoining lots by common vendor to separate purchasers – whether Wheeldon v Burrows easement as extended by Aldridge v Wright created – whether undertaking by purchaser of servient tenement to respect dominant tenements solar access and natural ventilation to create an in personam exception to indefeasibility LAND LAW – Easements – Creation of easements –Creation by court order – s 88K easement for light – whether easement is reasonably necessary – whether easement is in the public interest – whether reasonable attempts have been made to obtain the easement through negotiation LAND LAW – Easements – Creation of easements – Creation by court order – compensation – where concurrent expert evidence given on value of land – quantum of appropriate compensation ENVIRONMENT AND PLANNING – Environmental planning instrument – whether environment planning instrument would defeat the claimed implied easement – whether the claimed s 88K easement would be inherently defeasible given the operation of the environment planning instrument

Catchwords:

DEVELOPMENT APPLICATION – manufactured home estate – conciliation conference – agreement between the parties – orders

Catchwords:

OCCUPATIONS – Medical Practitioner – sexual harassment of colleagues – protective orders – cancellation of registration

Catchwords:

ADMINISTRATIVE LAW — Appeals — judicial review — decision of medical assessor referred to review panel — whether primary judge erred in finding that review panel determined the question of causation according to law — where primary judge did not so err ADMINISTRATIVE LAW — Appeals — judicial review — decision of medical assessor referred to review panel — whether primary judge erred in finding that review panel exposed its actual path of reasoning — where primary judge did not so err

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — hedges — sunlight — whether trees that were not planted to form a hedge can become part of a hedge — obstruction not severe — application dismissed

Catchwords:

PROFESSIONAL DISCIPLINE – Medical Practitioner – Where the registration of the Practitioner was cancelled with a non-review period of one year following gravely serious findings of misconduct perpetrated by the Practitioner against Patient A – Whether a reinstatement order should be made – Where a reinstatement order is made subject to conditions – Where an order for costs is made in favour of the Commission

Catchwords:

CRIME – appeals – appeal against sentence – offence of supply prohibited drug not less than commercial quantity – offence of deal with property reasonably suspected to be proceeds of crime – self-represented applicant – complaints with respect to backdating, cumulation, parity – further issues – manifest excess – failure to specify non-parole period in indicative sentence for offence with standard non-parole period – grounds of appeal not established – leave to appeal granted – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — whether trial judge erred in failing to take into account evidence relevant to the issue of the date sexual intercourse occurred other than with respect to the credibility of the complainant — where trial judge did not so err CRIME — Appeals — Appeal against conviction — whether trial judge erred regarding application of burden and standard of proof — where trial judge was satisfied beyond reasonable doubt of the applicant’s guilt — where trial judge did not so err CRIME — Appeals — Appeal against conviction — Unreasonable verdict — whether verdict of guilty of one charge of carnal knowledge by a teacher following trial by judge alone was reasonable — where evidence as a whole sufficient in nature and quality to eliminate any reasonable doubt as to the applicant’s guilt — where verdict not unreasonable

Catchwords:

CONTRACTS — Breach of contract — Consequences of breach – Assessment of damages

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant convicted of supply a large commercial quantity of methylamphetamine —Whether sentencing judge erred in assessing the seriousness of the applicant’s conduct — Whether assumptions about criminal organisations unrelated to the offence in question were made — Whether a denial of procedural fairness CRIME — Appeals — Appeal against sentence — Where applicant convicted of supply a large commercial quantity of methylamphetamine — Prospects of rehabilitation — Whether sentencing judge failed to take into account that applicant had good prospects of rehabilitation — Resentencing exercise

Catchwords:

CIVIL PROCEDURE – separate determination of questions – where appropriate – where defendant seeks separate determination on the plaintiff's application for preliminary discovery –where resolution of the proposed separate questions would not be dispositive of the plaintiff’s claim and would require determination of possibly multiple contested questions – no order for separate question

Catchwords:

CONTRACTS — Breach of contract — Consequences of breach — Right to damages — Joint venture agreement EQUITY — Trusts and trustees — Breaches of trust — Remedies

Catchwords:

Application for approval of contract agreement - agreement approved for registration

Catchwords:

APPEALS — leave to appeal — application for stay pending appeal — stay refused — Civil Procedure Act 2005 (NSW), s 67 — Uniform Civil Procedure Rules 2005 (NSW), r 50.7 — lack of utility of stay CIVIL PROCEDURE — parties — failure to join all necessary parties to proceedings — where trustees were necessary parties COURTS AND JUDGES — bias — apprehended bias — lack of utility in granting a stay of primary judge’s dismissal of application for recusal

Catchwords:

CIVIL PROCEDURE — suppression and non-publication — interlocutory issues — suppression orders — transgender woman — targeted by activist — Binary Australia — order sought suppressing information concerning employment, occupation, residential address and financial position — whether order “necessary to protect the safety of any person” — whether order “necessary to prevent prejudice to the proper administration of justice” — Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 COSTS — application for protective costs order — appellant seeking capped costs — protective costs order made — factors to consider in making protective costs order — whether first respondent brought application in the public interest — protective costs order made — Uniform Civil Procedure Rules 2005 (NSW), r 42.4(1)

Catchwords:

CIVIL PROCEDURE – security for costs – where plaintiffs are ordinarily resident outside Australia – where plaintiffs have no significant assets within the jurisdiction – where plaintiffs contend that the reason for their lack of assets in Australia is due to second defendant’s conduct – where prima facie case of wrongdoing – whether costs orders can be enforced against plaintiffs assets in Hong Kong – security for costs granted – freezing order – where prima facie case that second defendant has dishonestly taken assets of the plaintiffs – where plaintiffs delayed in commencing application – where second defendant has not dissipated assets to date – where second defendant alleges plaintiffs would not be able to satisfy an undertaking as to damages – limited freezing order appropriate – security required to support undertaking as to damages.

Catchwords:

COMPULSORY ACQUISITION — Objection to compensation offered pursuant to s 66 of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) — Valuation — Public purpose for which the land acquired — Rezoning of land — Disturbance claim — Easement

Catchwords:

APPEAL – Australian Consumer Law – defective engine – alleged sale by auction – whether findings of Tribunal in error – leave to rely on evidence refused by Tribunal at first instance– procedural fairness – order for costs challenged – whether questions of law raised – leave to appeal requested

Catchwords:

APPEAL – Denial of procedural fairness alleged – not established APPEAL – no realistic possibility of different outcome if the application was remitted for rehearing

Catchwords:

APPEAL — Modification Application — child care centre — conciliation conference — agreement between the parties — orders

Catchwords:

APPEAL – Dividing fences- no error of law or basis to grant leave to appeal- necessity for orders to expressly identify the party responsible for causing the fencing work to be carried out.

Catchwords:

CIVIL PROCEDURE – Administrative law – Judicial review – Interim relief – Request for adjournment – Discretion to make directions in context of extant proceedings concerned with what is required for a fair trial – Deference to Commissioner in terms of managing safety and security of inmates and correctional centres generally – Where prayer based on anticipated inadequacy of computing facilities at Lithgow – Difficulties in seeking to bring proceedings whilst incarcerated – Where Commissioner gave undertaking with respect to facilities to be provided to plaintiff – Undertaking sufficient to ensure plaintiff’s access to justice – No utility in adjourning proceedings – Application dismissed

Catchwords:

DEVELOPMENT APPLICATION – development application for a long term Caravan park and associated infrastructure – concurrent application for water and sewer works – whether the development is characterised as development for the purpose of a manufactured home estate and therefore prohibited – whether the proposal is likely to have a significant and unacceptable impact on the local populations of koala – whether there are adequate arrangements for the provision of sewer services – appeal dismissed

Catchwords:

APPEAL – highway service centre – business identification sign – whether signage is business identification sign – whether visual impact – whether visual clutter

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – AWARDS – Rescission of award– Consent award application to replace existing award – Whether there is utility in making an award where there are no employees falling within the scope of the existing award – Application to make proposed award dismissed – Award rescinded

Catchwords:

PRACTICE AND PROCEDURE – summary judgment application – complete denial by defendants – whether clear case – principles applicable

Catchwords:

COSTS – application for gross sum cost order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – where defendant seeks gross sum cost order following plaintiff seeking leave to discontinue proceedings – no issue of principle

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:

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranty – proceedings for breach – whether proceedings were commenced by plaintiff owners corporation within the warranty period – whether effect of interim occupation certificate was to cause warranty period to commence – whether interim occupation certificate authorised “the occupation and use of the whole of the building” – whether the two blocks of units should be seen as “separate buildings” that have separate completion dates ESTOPPEL – promissory estoppel – where parties entered into deed of settlement containing a term allowing plaintiff owners corporation to rescind the deed in particular circumstances – whether plaintiff owners corporation estopped from rescinding deed – alleged representation by conduct inconsistent with express right of rescission – where defendant builder already in breach of contract and exposed to rescission before alleged representation made – no detrimental reliance established LAND LAW – strata title – owners corporation – whether owners corporation has standing to seek compensation for building defects within strata lots – no standing established

Catchwords:

ADMINISTRATIVE LAW – Government Information (Public Access)

Catchwords:

ADMINISTRATIVE LAW – administrative review of disciplinary decisions – applications to stay operation of decisions – factors relevant to stay

Catchwords:

CRIME – appeal against conviction – unreasonable verdict – whether open to jury to accept Crown case that applicant contemplated use of knife to cause death or really serious injury – verdict not unreasonable – breach of prosecution’s duty of disclosure – conceded materiality of breach – appeal allowed, conviction quashed and retrial ordered

Catchwords:

VICTIMS Support – Administrative law – act of violence – single act of violence as series of related acts -whether evidence satisfied elements of act of violence being treated as separate acts– whether medical evidence verifies injury arising from series of acts –- related acts – unelated acts – circumstances of acts of violence

Catchwords:

ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - merits review LICENCING - firearms - licence - public interest - expert evidence - ballistics

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeals against sentence –Commonwealth offences of transmitting soliciting and possessing child pornography – alleged failure to assess objective seriousness – alleged statement of agreed facts – alleged as application of s 16A(2AAA) of the Crimes Act 1914 (Cth) concerning sentence of sufficient duration to permit a rehabilitation program – all grounds dismissed – no point of principle

Catchwords:

DEVELOPMENT APPEAL – dwelling – conciliation conference - orders

Catchwords:

MODIFICATION APPLICATION – residential apartment development – agreement between the parties – orders

Catchwords:

APPEAL – Modification Application – conciliation conference – agreement between the parties – orders

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – risk of death or serious injury – duty of worker - death of worker

Catchwords:

LAND LAW – possession of land – where defendant re-entered land after execution of writ – where writ of restitution sought – where service of judgment with endorsement threatening committal or sequestration authorised

Catchwords:

DEVELOPMENT APPLICATION – construction of specialised retail premises – conciliation conference – agreement between the parties – orders

Catchwords:

CORPORATIONS – Shares – Transfer – Whether estate of deceased company director entitled to one or two company shares – Where prior purported transfer of a share was not effective – Orders not made

Catchwords:

CIVIL PROCEDURE — Notice of Motion — Application for joinder — Seeking to join after judgment has been delivered — Jurisdictional error — Restrictive covenants — Application to set aside judgment of Commissioner — Application for a stay

Catchwords:

CIVIL PROCEDURE – experts reports – service of experts reports – notice of motion to extend time to serve expert evidence and unsigned evidentiary statement – whether there are ‘exceptional circumstances’ that warrant a grant of leave to rely upon expert reports – where there is no explanation for extensive delay in serving expert evidence – where defendant has identified difficulties in witness adopting unsigned evidentiary statement CIVIL PROCEDURE – medical evidence – psychometric testing – notice of motion to require plaintiff undertake psychometric testing – where expert has expressed the opinion that plaintiff was ‘malingering’ – whether the proper purpose of the application is for a medical examination – where application is disguised as an attempt to impugn plaintiff’s credit

Catchwords:

HUMAN RIGHTS – Discrimination – disability – provision of services – claim not substantiated HUMAN RIGHTS – Victimisation – claims not substantiated

Catchwords:

ADMINISTRATIVE LAW — Application for review under s 27(2) of Child Protection (Working with Children) Act 2012 — Applicant was given a working with children check clearance in 2020 despite conviction for intimidation and assault of an adult in 2019 — Report of charge of domestic violence offences in 2023 caused clearance to be cancelled and an interim bar imposed — Subsequent criminal proceedings in 2024 found applicant not guilty of domestic violence charges — Tribunal to assess whether applicant poses a risk to the safety of children.

Catchwords:

Appeals – failure to consider and determine issues raised for adjudication – denial of procedural fairness – implied terms in oral agreement – misleading and deceptive conduct by silence

Catchwords:

ADMINISTRATIVE LAW — Access to government information – whether excluded information – whether access application valid

Catchwords:

TAXES AND DUTIES – payroll tax – employment agency contracts - whether services were provided in and for the conduct of the clients’ businesses

Catchwords:

HOME BUILDING – application for administrative review - disciplinary action – breach of statutory warranties - improper conduct – extension of time – stay

Catchwords:

DUST DISEASES – notice of motion for dismissal – amended pleadings went beyond the bounds of order for amendment – order must be understood in the context in which it was made – failure to comply with a requirement of the Civil Procedure Act 2005 (NSW) – an irregularity – proceedings not invalidated DUST DISEASES – notice of motion for discovery – only documents relating to a matter in issue are discoverable – examination of the pleadings to ascertain matters in issue – interests of justice – scope of discovery can be limited – cost and delay is to be considered – no evidence as to cost concerning discovery – documents relate to matters in issue

Catchwords:

ADMINISTRATIVE LAW – Government Information – discretion to refuse to deal with application – how discretion should be applied – systemic factors – weight applied to factors

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions -- conciliation conference – agreement between the parties – orders

Catchwords:

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

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — whether damage to retaining wall caused by tree — apportionment of costs of rectification — whether a retaining wall is a dividing fence

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — construction of a jetty and pontoon — agreement between the parties — orders

Catchwords:

CIVIL PROCEDURE – cross-vesting – application to transfer the proceedings to Federal Circuit and Family Court of Australia – where the Supreme Court proceedings include claims by the plaintiffs for a declaration that the first and second defendant hold property on remedial constructive trust for their benefit – where the relevant property in the Supreme Court proceedings is the only asset of value in the FCFCA proceedings – where the FCFCA has jurisdiction to hear the matter – whether it is in the interests of justice to transfer the proceedings – balancing the interests of justice – proceedings transferred

Catchwords:

CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — where notice of appeal filed out of time — whether value of claim sufficient for purpose of s 101(2)(r) of the Supreme Court Act 1970 (NSW)

Catchwords:

PRACTICE AND PROCEDURE – stay of enforcement of judgment and orders pending appeal – consideration of terms and conditions of stay – where the fifth defendant has been served with bankruptcy notices issued by the second and fourth plaintiffs in respect of judgment debts arising from orders made by this Court – where an interim extension of time for compliance with those notices has been granted by the Federal Court of Australia pending determination of the fifth defendant’s application for an extension of time, which has been adjourned pending the determination of the fifth defendant’s present application for a stay – where the grant of a stay would adversely affect the second and fourth plaintiffs’ ability to oppose any further extension of time for compliance with the bankruptcy notices – where fifth defendant has offered an undertaking not to deal with his property for the period of any stay – whether it should be a condition of any stay that the fifth defendant grant the second and fourth plaintiffs a charge over his real property where judgment debts may already exceed value of the fifth defendant’s property – where risk of prejudice to second and fourth plaintiffs arises from the prospect that the fifth defendant’s liabilities will increase during the period of the stay – where no evidence of prejudice to the fifth defendant of the imposition of such a condition is adduced – where fifth defendant has given evidence that he has no other current creditors.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — stay pending appeal — whether the applicant has raised sufficiently serious issues to warrant stay — motion seeking stay of execution of writ of possession dismissed

Catchwords:

HEALTH — Burial and cremation — Burial – plaintiffs include the named executor of the estate of a deceased person, who was a member of the Jewish faith – the deceased survived her parents, who were Holocaust survivors – the deceased’s parents are buried in a part of the cemetery (Section 18E) reserved for Holocaust survivors and Orthodox members of the Jewish faith who observe the Sabbath – the first defendant is the cemetery operator responsible for managing this cemetery on Crown land – the function of the second defendant is to care for the burial needs of the Sydney Jewish community according to Jewish law – the deceased was not proven to be an observer of the Sabbath – the plaintiffs applied for the transfer of an existing interment right to the estate of the deceased enable the deceased to be buried with her parents in Section 18E – after consulting the second defendant, the first defendant declined to allow the transfer or the burial applied for – whether the plaintiffs can require the first defendant to issue an order for interment under Cemeteries and Crematoria Act 2013, s 65 to allow the deceased to be buried in section 18E – construction of the Cemeteries and Crematoria Act ss 46 and 58.

Catchwords:

LAND LAW – specific performance – alleged competing interest – where off the plan sales and subsequent sale of entire Lot without disclosure of earlier off the plan contracts – whether off the plan purchasers have an interest in land prior to registration of subdivision sufficient to compete with later bona fide purchaser for value without notice – consideration of nature of interest of off the plan purchaser prior to registration of subdivision – question of principle LAND LAW – contract for the sale of land – proper construction of pre-sale contracts – whether pre-sale contracts are at an end after the expiry of Sunset Date – no question of principle LAND LAW – competing priorities – whether postponing conduct of holder of earlier interest – no question of principle LAND LAW – specific performance – whether purchaser ready, willing and able to perform – whether third parties would suffer hardship – no question of principle

Catchwords:

OCCUPATIONS – administrative review application from Australian lawyer for review of decision of the Council of the Law Society of New South Wales to refuse to grant applicant a practising certificate – application for stay of decision of the Council – jurisdiction of NSW Civil and Administrative Tribunal (NCAT) not engaged – appeal and review rights under s 101 of the Legal Profession Uniform Law (NSW) – designated tribunal – NCAT not designated tribunal for applications made – no source of jurisdiction for NCAT to decide applications under ss 28 or 29 of the Civil and Administrative Tribunal Act 2013 (NSW) – applications dismissed for want of jurisdiction

Catchwords:

JUDICIAL REVIEW – review of decision to grant development consent – cll 4.1 and 4.1B of the Cooma – Monaro Local Environmental Plan 2013 – statutory interpretation – orders and declarations – development consent void and of no effect

Catchwords:

APPEAL - Residential Tenancies Act 2010 (NSW) - rent abatement - transcript or sound recording not provided - leave to appeal refused

Catchwords:

ADMINISTRATIVE LAW – Government Information – discretion to refuse to deal with application – how discretion should be applied – systemic factors – weight applied to factors

Catchwords:

ADMINISTRATIVE REVIEW; Firearms Act 1993; fit and proper person; public interest;

Catchwords:

CIVIL PROCEDURE — application by third party to re-open concluded proceedings to adduce evidence — false and misleading information — whether to join a party to the proceedings — whether joinder is proper or necessary — non-publication orders - access to inspect court file

Catchwords:

LEASES AND TENANCIES — termination of fixed term residential tenancy agreement — termination order under former s 84 of the Residential Tenancies Act 2010 (NSW) — suspension of order for possession — effect of eviction under warrant executed before appeal hearing

Catchwords:

SENTENCE – civil contempt – failure to comply with court orders – guilty plea – wilful contempt – capacity to pay a fine – fine imposed

Catchwords:

CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — Where juror has engaged in misconduct CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury — Whether to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice — Where strong inference that discharged juror was the dissident juror — Whether the accused has lost the sole voice standing against a conviction — Whether discharged juror’s misconduct has contaminated the remaining jurors

Catchwords:

CRIMINAL PROCEDURE – applications for trial by judge alone – whether trial by judge alone in the interests of justice – where no evidence was led to explain delay in application – where context evidence of other offence necessary – where proposed expert evidence is not particularly complex – where courts proceed on the basis that juries are presumed to follow directions not to access internet materials relating to the event and the earlier trial – not in the interests of justice to order a trial by judge alone – applications refused

Catchwords:

CRIMINAL LAW – appeal against conviction – multiple counts of sexual assault and indecent assault on complainants who were detained at Reiby Juvenile Justice Centre at the relevant time – where the accused was a youth worker at Reiby when offences allegedly committed – where Crown relied on evidence of Dr Lennings to buttress credibility of complainants – where evidence of Dr Lennings extended beyond evidence of behavioural responses by children under orders to sexual assault – where evidence of Dr Lennings included opinion about qualities attributed to youth workers in detention centres – whether the evidence was relevant and admissible pursuant to s 108C of the Evidence Act – whether Dr Lennings’ evidence was within his area of specialised knowledge – where trial Counsel failed to object to evidence of Dr Lennings in its entirety – where the evidence in so far as it related to opinion about youth workers was irrelevant and highly prejudicial – requirement of material irregularity – whether the irregularity could realistically have affected the reasoning of the jury to the verdicts of guilty – whether admission of the evidence occasioned a miscarriage of justice – appeal allowed

Catchwords:

SUCCESSION — Family provision — Costs — Statutory framework in which costs orders are made discussed — Purposive approach to costs orders in family provision proceedings discussed SUCCESSION — Family provision — Costs — Relevance of impecuniosity — Default rules in rr 42.1 and 42.20 UCPR applies to family provision proceedings, though its application remains subject to the Court exercising greater than usual “liberality and discrimination” in deciding whether to depart from it SUCCESSION — Family provision — Calderbank offers — Unusual deployment of offers by the parties — Unsuccessful applicant seeking to underpin a different costs outcome than provisionally foreshadowed following dismissal of claim notwithstanding the outcome achieved was worse than the offer made — Conversely the successful defendant not seeking indemnity costs notwithstanding the making of an offer giving the plaintiff substantial provision bettering the actual outcome (dismissal of her claim)

Catchwords:

APPEALS — where party appeals from interlocutory decision of Tribunal relating to non-disclosure, non-publication and exclusion of public from hearing —whether leave should be granted to appeal from interlocutory decision — leave to appeal refused CIVIL PROCEDURE — hearings – exclusion of public — non-disclosure and non-publication — powers of Tribunal under ss 49 and 64 of Civil and Administrative Tribunal Act 2013

Catchwords:

SUCCESSION — Family provision — Claim by adult child of de facto partner of deceased— Whether claimant is an eligible person — Whether there are factors warranting the bringing of the application — Whether an order for further provision should be made — Where deceased held a right of residence in de facto partner’s property — Where claimant time and money repairing property SUCCESSION — Family provision — Notional estate — Where property of the estate already distributed — Whether order designating property as notional estate should be made

Catchwords:

PRACTICE AND PROCEDURE – application for determination of separate questions – application for questions of liability to be determined separately and in advance of quantification of damages – whether there should be a departure from the ordinary position to hear and determine all issues concurrently – whether separate questions will facilitate the just, quick and cheap resolution of the real issues in the proceedings – where there would be a potential for overlapping evidence – no separate questions to be answered.

Catchwords:

CIVIL PROCEDURE – summary disposal – judgment for plaintiff – where defendant admits allegations in list response

Catchwords:

COSTS – general rule that costs follow the event – application of the rule and discretion – costs of motion seeking stay of judgment – where cross-claimant ultimately successful in having stay lifted but unsuccessful in relation to earlier hearing of motion – where unnecessary for plaintiff to be an active participant on the motion

Catchwords:

APPEAL – development application – two-storey residential addition above an existing building commercial building – contravention of development standard for height of building – clause 4.6 variation

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Award — Making of a Consent Award — No issue of principle

Catchwords:

APPEAL – adjournment of hearing - procedural orders

Catchwords:

JUDGMENTS AND ORDERS – final quantification of costs for rectification works – final orders for damages, interest and costs – no issue of principle

Catchwords:

APPEALS — Leave to appeal — Principles governing — Whether leave required — Whether questions of law are of sufficient public importance TAXES AND DUTIES — Land tax — Liability — Exemptions — Whether principal place of residence exemption applied to land where some areas reserved for commercial use only — Where plaintiff intended to leave the exclusively designated commercial areas vacant

Catchwords:

SUCCESSION — Probate and administration — Informal document — Dispensing with requirements for execution of a will pursuant to Succession Act 2006 (NSW), s 8 — Intention to constitute a will

Catchwords:

SUCCESSION — Family provision — Claims by adult children — Whether insufficient provision was made by deceased to plaintiffs SUCCESSION — Family provision — Notional estate — Whether estate was affected by relevant prescribed transactions

Catchwords:

CORPORATIONS – Winding up – Public examination of director, officers and others – Interim orders previously made under s 1323(1) of the Corporations Act 2001 (Cth) for freezing of assets – Where liquidator’s examinations will shortly take place – Whether final orders should be made under s 1321(1) of the Corporations Act – Whether interim relief could be granted under UCPR r 25.11, 25.14 – Whether interim relief could be granted under s 1323 of the Act pending any appeal.

Catchwords:

APPEAL – combined water supply works and water use approval – conciliation conference – agreement between parties – orders

Catchwords:

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

Catchwords:

PRACTICE AND PROCEDURE — Application for recusal of judge — apprehended bias — actual bias

Catchwords:

COSTS – interlocutory appeal against a stay order made in the Administrative and Equal Opportunity Division – each party to pay their own costs – s 60 of the Civil and Administrative Tribunal Act 2013

Catchwords:

COSTS – application to vary costs order by the respondent – application dismissed

Catchwords:

LICENSING – security industry – licence revocation – stay – fit and proper person – public interest – offence

Catchwords:

DEVELOPMENT APPEAL – centre based child care facility – orders

Catchwords:

CRIMINAL LAW – release application – appeals bail – where previous applications dismissed by the Court of Criminal Appeal – statutory prohibition on multiple applications – whether grounds established for further application – whether material information to be presented that was not presented on earlier applications – whether circumstances relevant to the grant of bail had changed – self-represented applicant – indulgent approach to filing of evidence and submissions in contravention to Registrar’s directions and after the hearing – whether “more settled” grounds appeal amounted to grounds under s 74(3) of the Bail Act – changes to grounds cosmetic – whether imminence of applicant’s release a relevant change of circumstance – release date known on two previous release applications – provisional decision to grant parole – review hearing pending – relevance to release application where no outstanding charges – grounds for further release application not established – application dismissed – decision should not impact on decision of Parole Authority

Catchwords:

APPEAL – Development application - alterations and additions – existing use – agreement between the parties - orders

Catchwords:

DEVELOPMENT APPLICATION: subdivision of land in C2, C3 and R5 zone – biodiversity values of site – whether biodiversity Development Assessment Report adequate – whether development avoids and minimises impacts – whether serious and irreversible impacts – flood management – assessment of off-site impacts – bush fire protection

Catchwords:

APPEAL — development application — co-living housing — conciliation conference — agreement reached — orders made

Catchwords:

FREEZING ORDERS – sale of only real property asset by plaintiff/cross-defendant – ex parte application – risk of dissipation

Catchwords:

PRIVILEGE — client legal privilege — waiver —plaintiff seeks declaratory relief as to proper construction of contract — defendant seeks rectification – plaintiff denies common understanding or knowledge of defendant’s misunderstanding – plaintiff waives privilege over email with lawyer – whether waiver over related documents – test of inconsistency, principles at [22]-[26]. ISSUE WAIVER — plaintiff cross-examined as to state of mind – whether ‘issue waiver’ — principles at [31]-[38] — plaintiff does not assert state of mind in pleading – plaintiff did not refer to legal advice in cross examination – plaintiff made no assertion as to contents of any such advice – privilege not waived.

Catchwords:

CIVIL PROCEDURE – discovery – further and better discovery – whether discovery adequate – whether reasonable search undertaken – where limited documents discovered – where defendant earlier indicated that email inboxes are automatically deleted, but then indicated email inboxes are automatically archived – where defendant has not undertaken search of such archives – whether reasonable grounds for being fairly certain other relevant documents have not been discovered

Catchwords:

CRIME — Costs Application — whether to grant Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) — application of s 3(a) of the Costs in Criminal Cases Act 1967 (NSW) — question of credibility of Complainant — whether an issue for determination by judge or jury

Catchwords:

CIVIL PROCEDURE – form of final orders to give effect to judgment – where Court has made determination of proper construction of the Deed – where neither party sought any order as to status of the Deed following determination – where plaintiffs now seek to amend pleadings to find Deed has been frustrated – where not appropriate for plaintiffs to agitate matters at this very late stage

Catchwords:

EQUITY – Equitable remedies – injunctions – where the plaintiff seeks leave to proceed pursuant to UCPR r 11.8AA – where the plaintiff seeks final relief by way of default judgment - where defendants’ names unknown but defendants involved in clearly identifiable acts – injunctive relief ordered against such “persons unknown” – non-publication and suppression orders.

Catchwords:

CRIMINAL LAW – murder – sentence for murder – where offender is found guilty of murdering his mother with a pot-plant – contested factual issues – whether the offence was motivated by a need for money to purchase heroin – whether pressure was applied to mother’s neck – whether offender acted with an intention to kill – where victim’s death was the tragic and unintended consequence of the offender’s actions – lower end of objective seriousness – subjective case – where generalised anxiety disorder, COVID and drug withdrawal affected offender’s decision making capabilities and his capacity to control himself – whether the offender’s moral culpability is reduced – where emphasis upon general deterrence is not appropriate – limited risk of re-offending – whether the offender was truly remorseful – victim impact statement – difficulty coping with the prison environment

Catchwords:

SUCCESSION – where the plaintiff is the adult child of the deceased – where the defendant is the widow of the deceased – where the plaintiff is not the issue of the defendant – where the plaintiff seeks a family provision order for his maintenance, education or advancement in life – where the deceased died intestate – where the estate of the deceased is nominal – whether to designate property as notional estate of the deceased to satisfy family provision and costs orders – where the plaintiff is entitled to a family provision order – where notional estate orders are granted.

Catchwords:

HIGH RISK OFFENDER – application for extended supervision order – very serious sexual offender – community safety paramount – whether there is an unacceptable risk that the defendant will commit a serious offence – unacceptable risk found – dispute as to the length of the order – proposed exception to curfew – whether the defendant should be able to ride his motorbike at night along an approved route to alleviate alleged stress – route passes many parks and suburbs – proposed exception inappropriate – extended supervision order imposed

Catchwords:

CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — Cy-près scheme — Trust property CHARITIES AND NOT-FOR-PROFITS — Charitable purposes — Advancement of education — Spirit of the Trust

Catchwords:

BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Building and Construction Industry (Security of Payment) Act 2021 (WA) — Where plaintiff has succeeded in establishing that review adjudicator’s purported determination affected by jurisdictional error — Whether order in the nature of certiorari and/or declaration ought be made BUILDING AND CONSTRUCTION — Contract — Bank guarantee — Injunction — Whether interim restraint preventing enforcement of original adjudicator’s determination concerning release of the bank guarantees until notice given or further order of Court ought be made EQUITY — Equitable remedies — Injunctions — Whether interim restraint preventing release of moneys paid into trust under s 40 Building and Construction Industry (Security of Payment) Act 2021 (WA) until notice given or further order of Court ought be made COSTS — Party/Party — Exceptions to general rule that costs follow the event — Whether judicial review of review adjudicator’s purported determination a dominant or separable issue — Whether costs of late abandonment of positive case advanced in reply ought be awarded

Catchwords:

PRACTICE AND PROCEDURE – improper constitution of tribunal at first instance – decision vitiated by jurisdictional error – decision set aside APPEAL – Anti-Discrimination Act 1977 (NSW) –defence to complaint invokes federal jurisdiction – Tribunal has no jurisdiction to resolve

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of magistrate to reject application for professional costs under s 213 of the Criminal Procedure Act 1986 – application for judicial review under s 69 of the Supreme Court Act 1970 – no jurisdictional error – no error of law on the face of the record – Court’s residual discretion to decline relief – bad faith – improper purpose – disproportionality – application dismissed

Catchwords:

NEGLIGENCE – professional negligence – where solicitor failed to draft notice to complete with reasonable care – client subsequently repudiated the contract – purchaser sued client for return of the deposit and damages – deposit repaid but no damages or costs awarded against client – whether unpaid deposit instalment would have been unrecoverable as a penalty in any event – causation of loss – whether client suffered loss by not lawfully terminating the contract BREACH OF FIDUCIARY DUTY – where solicitor continued to act for client in defence of litigation brought against client about defective notice to complete – solicitor acted in circumstances where there was a conflict or possible conflict of interest and duty – where client nonetheless won the litigation – whether client suffered loss BREACH OF FIDUCIARY DUTY – where solicitor acted for client on negotiation and implementation of refinance – where solicitor received payments from funds drawndown from new finance – payments for past legal costs and refinance expenses not properly accounted for – whether monetary benefit or profit received by solicitors when acting in circumstances where there was a conflict or possible conflict of interest and duty

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – overhanging tree – damage to property – risk of injury

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction — Freedom from victimisation — Staffer employed under Part 3 of the Members of Parliament Staff Act 2013 (NSW) — Termination of employment — Whether Commission can make an order pursuant to Industrial Relations Act 1996 (NSW), s 213 STATUTORY INTERPRETATION — Legal presumptions — That two laws made by same legislature are intended to work together — Common law “at pleasure” principle — Legislative intention to abrogate human rights or freedoms — Whether Crown’s right to “dispense with” an employee amounts to right to dismiss employee “at pleasure” STATUTORY INTERPRETATION — Legal presumptions — Jurisdiction — Privative clauses — Whether relief is restricted to relief obtained in judicial review WORDS AND PHRASES — “dispense with the services” — Members of Parliament Staff Act 2013 (NSW), s 20(3) — “any other relief” — Members of Parliament Staff Act 2013 (NSW), s 26(5)