Browse decisions Displaying 1 - 200 out of 94498 results

Catchwords:

PROCEDURE - miscellaneous procedural matters - declarations - declaration sought that various property forfeited to the Commonwealth - order of the Court required to register Commonwealth as owner of various property - restraining orders previously made by the Court

Catchwords:

SENTENCE –attempt to possess a commercial quantity of unlawfully imported drug - 4339.8 grams of cocaine – illegally imported from Peru into Australia - Controlled Operation – one previous similar offence over 20 years ago – native Spanish speaker – issues of parity

Catchwords:

PRACTICE AND PROCEDURE – costs – appeal – variation of costs order – variation by consent – appellant not liable to pay costs of respondents not joined by it PRACTICE AND PROCEDURE – costs – application to vary costs orders made at trial – orders failed to reflect apportionment of liability – orders not challenged on appeal – no power to vary after appeal determined – slip rule not available PRACTICE AND PROCEDURE – appeal – apportionment of indemnity – order at trial limited to apportionment of interest – no error alleged on appeal – no power to vary after appeal determined

Catchwords:

ADMINISTRATIVE LAW – review under section 28 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – act of indecency with person over 16 years of age – section 61N(2) Crimes Act 1900 (NSW) – enabling order – discharge onus -would a reasonable person allow unsupervised access to their own child in context of child related work

Catchwords:

HUMAN RIGHTS – discrimination – grounds – gender discrimination – claim that employer permitted unlawful sexual harassment – whether conduct of a sexual nature – sex discrimination – victimisation

Catchwords:

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

Catchwords:

MENTAL HEALTH – criminal proceedings – fitness to be tried – Presser principles – consent of both parties – accused unfit to be tried

Catchwords:

PUBLIC ASSEMBLY — Summary Offences Act 1988 (NSW) — whether order pursuant to s 25(1) should be made prohibiting the holding of a public assembly STATUTORY INTERPRETATION — Summary Offences Act 1988 (NSW) — whether immunity in s 24 extends to offences arising from breach of ministerial direction prohibiting gatherings of more than 20 people

Catchwords:

PRACTICE AND PROCEDURE – civil proceeding – invocation of ‘slip’ rule to correct word in Court’s dispositive orders – Court’s orders gave effect to Terms of Settlement – Terms of Settlement provided for proceeding to be ‘dismissed’ – Court order was that the proceedings were ‘discontinued’ – application to substitute the word ‘dismissed’ for ‘discontinued’ – explanation for application is a party’s application for costs assessment, apparently concerning same subject matter of proceeding – whether discretion to correct the order should be exercised – whether any utility in making correction

Catchwords:

CORPORATIONS — Receivers and managers — Appointment of liquidator as receiver with power of sale — Where mortgaged property was the only substantial trust property — Where company in liquidation has right of exoneration for liabilities incurred under outstanding mortgage — Where there is outstanding judgment debt against company in liquidation in separate proceedings EQUITY — Trusts and trustees — Transfer in equity — Imperfect gifts — Where no signed transfer had been delivered to transferee — Where certificate of title still held by mortgagee FAMILY LAW — Property — Marriage — Adjustment of property interests — Proper construction of Family Court orders — Where trustee was not party to Family Court proceedings — Whether orders transferred title in property without compliance with orders for correspondence discharge of mortgage

Catchwords:

CIVIL PROCEDURE – payment of judgment debt – application to set aside decision of deputy registrar to pay judgment debt by instalments – hearing de novo – where half of judgment debt now paid – whether to permit payment of balance by instalments

Catchwords:

SUCCESSION – Family provision – Notional estate – Where property of the estate distributed – Where primary beneficiary deceased and her estate held by executor – Where notional estate order made by primary judge – Whether estate of deceased beneficiary able to be designated notional estate under Family Provision Act 1982 (NSW), s 24 – Appeal allowed. SUCCESSION – Family provision – Claim by adult child – Proceedings not commenced within time – Where application made 12 and a half years out of time – Where primary beneficiary of testator now deceased – Where general assurances of a testamentary benefit given to applicant by deceased beneficiary – Whether sufficient cause shown to extend time – Whether primary judge erred in disregarding prejudice to deceased beneficiary and her estate in exercising discretion to extend time – Appeal allowed.

Catchwords:

AMENDMENT – where application to amend cross-claim on appeal to add liquidated claim for breach of covenant to pay rent – where no leave sought to amend cross-claim at trial – whether cross-respondent bound by conduct of its case at trial – amendment application refused CONTRACTS – registered lease – where leased premises damaged as a result of water overflowing from box gutters on roof – where lessee covenanted to maintain and repair leased premises and to regularly clean and clear gutters, drains and downpipes – where installation of decorative grates and gauze in box gutters was a cause of damage to leased premises – whether the installation of grates and gauze constituted a breach of lessee’s covenants – whether lessor entitled to indemnity EVIDENCE – whether primary judge erred in finding that the “only available inference” on the evidence was that the lessee installed grates and gauze in box gutters – where open to Court of Appeal to review evidence and make appropriate finding as to the most probable inference JUDGMENTS AND ORDERS – interest – whether lessor entitled to contractual rate of interest on component of judgment sum referable to unliquidated claim for damages or indemnity for breaches of lease – whether primary judge’s discretion miscarried in choice of date from which prejudgment interest would accrue on the judgment sum – Civil Procedure Act 2005 (NSW) s 100

Catchwords:

REAL PROPERTY – possession of land –indefeasibility of title – personal equities – where the plaintiffs are receivers and managers appointed by a lender who has legal title over the property – where the second defendant alleges an in personam exception to indefeasibility – where second defendant alleges a life estate was granted and estoppel by convention applies – no evidence of the requisite assumptions being adopted by all parties – no exception to indefeasibility found – possession granted to the plaintiffs

Catchwords:

NEGLIGENCE – breach of duty – Civil Liability Act, s 5B – whether failure of solicitors to commence proceedings for Family Provision Act provision against estate prior to mediation constituted breach – whether there was a relevant risk of harm NEGLIGENCE – causation – whether a readily enforceable settlement was reached at mediation – whether there was a realistic chance that the appellant would have recovered the full settlement sum but for the negligence – relevance of actions of a third party NEGLIGENCE – damages – loss of commercial opportunity contract claim – prospects of appellant recovering the full settlement sum NEGLIGENCE – defence of proportionate liability – Civil Liability Act, s 35 – concurrent wrongdoers – whether the loss sued for was a different loss to that caused by the alleged wrongdoer NEGLIGENCE – advocate’s immunity – whether alleged breach was intimately connected with the resolution of the proceedings by court decision – whether consent orders entered by registrar in Family Provision Act proceedings involved the exercise of an independent discretion

Catchwords:

SENTENCING - dangerous driving causing death– dangerous driving causing grievous bodily harm - victim impact statement – dispute over facts –driving whilst impaired on alprazolam –exceptional circumstances – mercy - offender’s child has profound cerebral palsy - mental health issues - application of sentencing principles – significant deviation from the statutory ratio

Catchwords:

SENTENCING — Penalties — Aggregate term of imprisonment – Sexual intercourse with a child – Offender between the age of 15-17 for the majority of offences – Youth of the offender as a sentencing consideration – Significant mental health issues – No prior criminal record

Catchwords:

NEGLIGENCE — professional negligence — claim against solicitors by former clients in tort and contract — relationship breakdown between company directors and shareholders — advice as to appropriate process to divide company assets between shareholders — external administration — scope of duty of care owed by solicitor to client in the circumstances — Civil Liability Act 2002 (NSW) s 5O not pleaded in defence — liability assessed under Civil Liability Act s 5B NEGLIGENCE — causation — loss of opportunity to take alternative course resulting in different financial outcome — whether defendant's alleged breaches of duty caused plaintiff's loss — extent of plaintiff's reliance on defendant for advice — whether plaintiff would have accepted and acted upon further advice from defendant contrary to course adopted by plaintiff and other shareholders

Catchwords:

DEVELOPMENT APPEAL – Concept Plan Approval pursuant to Part 3A – Transitional Part 3A – whether application is generally consistent – subdivision of land – traffic and transport impact assessment - likely environmental impacts of the development

Catchwords:

ADMINISTRATIVE LAW – merits review

Catchwords:

TRADES AND PROFESSIONS – accredited certifier – disciplinary action – application for review – consent orders

Catchwords:

CIVIL PROCEDURE – Application for summary dismissal pursuant to UCPR r 13.4 – Whether proceedings are frivolous, vexatious or an abuse of process – Where proceedings in the Supreme Court before application filed in NCAT – Whether Tribunal deprived of jurisdiction – Where amounts claimed by the plaintiff for breach of residential tenancy agreement may exceed the monetary limit for such claims in NCAT – Whether inappropriate to deprive the plaintiff of opportunity to have his claims heard on the merits – Notice of motion dismissed

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to attached dwelling – conciliation conference – agreement between the parties – orders

Catchwords:

CRIME — appeals — appeal against conviction — extension of time in which to appeal — point not raised below — where vulnerable complainant gave evidence at trial in manner provided by Ch 6 Pt 6 of the Criminal Procedure Act 1986 (NSW) — where all parties consented to course taken at trial — whether trial judge first required to form independent satisfaction of condition in s 306P(2) — whether miscarriage of justice

Catchwords:

LAND LAW – possession of land – where plaintiff is administrator of estate and is seeking an order for possession – where a contract for the sale of the land is pending – deceased died intestate – letters of administration taken out but administrator later died – land not transmitted to earlier administrator - where estate has been in limbo unadminstered for many years – deceased’s son remained in occupation of property after deceased’s death - where defendant moved into property to care for deceased’s son – where deceased’s son died - where defendant remained in occupation and commenced to pay portion of property rates – whether a residential tenancy agreement arose between deceased’s son and defendant – whether residential tenancy agreement could be implied between defendant and unadministered estate - where defendant continues to pay rates after plaintiff appointed administrator - whether residential tenancy agreement arose by implication – whether estoppel arose from prior payment of rates – where no evidence that plaintiff knew of payments – plaintiff entitled to possession LEASE AND TENANCIES – residential tenancy agreements – where land owned by unadministered estate - whether residential tenancy agreement arose by reason of occupation of land by defendant and payment of rates by him – whether subsequently appointed administrator estopped from claiming no residential tenancy agreement existed – where no evidence of acceptance by administrator of payment of rates

Catchwords:

APPEALS – jurisdiction – challenges to evidentiary rulings at trial by Crown and accused – whether jurisdiction of Court of Criminal Appeal to review refusal of permanent stay permitted accused to challenge evidentiary rulings – whether Crown could, in absence of an appeal, challenge a contingent ruling concerning tendency evidence – no jurisdiction to entertain either challenge APPEALS – stare decisis – Court invited to depart from longstanding authority on statutory provision – sustained criticism of section by courts and law reform bodies – test for departing from settled construction – significance of re-enactment of legislation substantially unaltered despite criticisms CONSTITUTIONAL LAW – principle in Kable v DPP – whether law which precluded questioning complainant in sexual offence prosecution substantially impaired court's institutional integrity – where court retained power to stay prosecution – challenge to validity dismissed CRIMINAL LAW – permanent stay – where statute said to cause significant prejudice to accused, to give jury a distorted picture and to detract from prosecutor's obligations of fairness – complainant permitted to be asked certain questions not infringing s 293 – nature and extent of prejudice not presently ascertainable – application dismissed EVIDENCE – Criminal Procedure Act (NSW), s 293 – provision precludes questions disclosing or implying that complainant has or may have taken part or not taken part in any sexual activity – accused sought to rely on evidence that complainant had previously fabricated claims of sexual assault – evidence of varying qualities, ranging from third hand hearsay to pleading guilty to making a false report – whether s 293 applied to evidence of fabrication – whether s 293 applied to "proven" instances of fabrication – whether instances of false complaint over many years comprised a "connected series of events" occurring "at or about the same time" as the commission of the offence – history of s 293, its predecessors and its counterparts in other jurisdictions considered

Catchwords:

EVIDENCE – hearsay – exceptions – admissions – where evidence admitted as a previous representation of a common purpose by former co-accused – whether evidence can only be admitted as a previous representation of the common purpose alleged in the proceedings – whether evidence improperly admitted CRIMINAL PROCEDURE – trial – judge alone – where applicant gave evidence he does not swear – where applicant slipped and made an exclamation as leaving the witness box – where trial judge alleged he swore – whether trial judge erred in holding that the applicant swore – whether trial judge erred in refusing application to discharge herself EVIDENCE – corroboration – meaning of corroboration – whether trial judge erred in finding that complainant’s evidence was corroborated CRIMINAL PROCEDURE – trial – judge alone – directions – where trial judge requested to direct herself to approach evidence with caution due to the witness’ age and ill health – whether trial judge erred in giving no weight to the effect on reliability of the witness’ evidence CRIMINAL PROCEDURE – trial – judge alone – delay – where 44 year delay in applicant being brought to trial – where trial judge requested to direct herself that applicant was under a forensic disadvantage because of delay – whether trial judge erred in refusing to do so CRIMINAL PROCEDURE – trial – judge alone – verdict by direction – where trial judge gave Markuleski direction – whether trial judge erred in properly considering implications of directed verdicts EVIDENCE – character evidence – good character – whether trial judge erred in dismissing good character evidence EVIDENCE – judicial notice – matters of common knowledge – where trial judge took judicial notice of church practices of moving priests from parish to parish when complaints arose – whether trial judge erred in doing so CRIME – appeals – appeal against conviction – unreasonable verdict

Catchwords:

CRIMINAL LAW – sentence – offender originally charged with murder – jury found offender guilty of manslaughter on the basis of excessive self-defence – where offender has possible traumatic brain injury, mental illness and intellectual disability that has not been officially diagnosed – where offence below mid-range of objective seriousness – where offender had a troubled upbringing – where offender remorseful and reasonable prospects of rehabilitation

Catchwords:

COSTS – offer of compromise – small offer made by defendant shortly after recovery proceedings commenced in District Court pursuant to Workers Compensation Act 1987 (NSW) s 151Z(1)(d) – motor vehicle accident many years earlier – ample time to investigate – defendant ultimately successful in Court of Appeal – whether offer of compromise amounted to genuine compromise – significance of important evidence emerging later in litigation

Catchwords:

CRIME – SENTENCE APPEAL – Crown appeal against asserted manifest inadequacy of aggregate sentences – charges of possession, production, and dissemination of child abuse material – use child or consent to use child under 14 to produce child abuse material – aggravated indecent assault – incite act of indecency – respondents step-father and mother of child victim – very young child used to produce child abuse material – abuse of trust – question of whether sentencing judge erred in assessment of objective gravity

Catchwords:

Crime – sentencing – aggravated break enter and steal – break enter and steal – dishonestly obtain financial advantage – deal with proceeds of crime – take and drive conveyance – drive manner dangerous in police pursuit – break and enter with intent – break enter and steal – form 1 – Bugmy factors

Catchwords:

MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Possession — application to stay execution of writ of possession — application dismissed

Catchwords:

CIVIL PROCEDURE – direction to serve expert evidence – guillotine order – affidavit served 17 business days after due date – whether plaintiff should have leave to rely on the affidavit – whether prejudice to defendant demonstrated

Catchwords:

Commonwealth offence. Possession of tobacco products knowing they were imported with intent to defraud the revenue

Catchwords:

DEVELOPMENT APPLICATION – subdivision of land – conciliation conference – agreement between the parties – orders

Catchwords:

SUCCESSION – family provision – claim by adult child of the deceased for provision out of the deceased’s estate – where deceased’s last will left to the adult child some clothing and a legacy in the sum of $2,000 – where residue of the deceased’s estate bequeathed to the defendant – where adult child suffers from permanent intellectual disability – where adult child is retired and is not capable of independent living – where adult child presently entitled to disability income – where disability pension only just sufficient to cover her accommodation and other living expenses – where defendant accepts that adult child is entitled to further provision out of the deceased’s estate – where estimating future needs of the adult child’s care is imprecise – further provision ordered to be paid out of the deceased’s estate in the sum of $150,000 SUCCESSION – family provision – claim by adult child of the deceased for provision out of deceased’s estate – where deceased’s last will left to the adult child a legacy in the amount of $1,000 – where residue of the deceased’s estate bequeathed to the defendant – where relationship between adult child and deceased was not close and at times estranged – where assets held jointly by adult child and his partner greatly exceed the value of the deceased’s estate – where adult child made only modest contributions to the welfare of the deceased during her lifetime – where there is a strong competing claim by other adult child – where the deceased enjoyed a strong and close relationship with defendant prior to her death – family provision claim dismissed

Catchwords:

APPEAL – development application – subdivision of land – Voluntary Planning Agreement for the construction of a turning bay and the dedication of land – contentions resolved – resident submissions

Catchwords:

DEFAMATION – application for third party costs order – extensive requests PROCEDURE – subpoena – application to set aside PROCEDURE – notice to produce – application to set aside

Catchwords:

TRADES AND PROFESSIONS – reinstatement of health practitioner under the Health Practitioner Regulation National Law COSTS – applicable principles where Tribunal is conducting an inquiry into an application for review of a cancellation order under s 163B of the Health Practitioner Regulation National Law

Catchwords:

CONTRACTS — Remedies — Damages — Damages in addition to order for specific performance CONTRACTS — Remedies — Damages — Damages after specific performance — Damages after election to continue or enforce order for specific performance CONTRACTS — Penalty — Whether clause in the form of a conditional release imposed an unenforceable penalty on the defendants — Whether amount to be paid upon breach was out of all proportion with the interests protected — Where loss difficult to calculate or insusceptible of calculation — Where amounts to be paid upon breach related to existing liabilities CONTRACTS — Construction — Where clauses and terms ambiguous — Reference to surrounding circumstances COSTS – Appropriate principles and considerations – Lump sum or gross costs order – Whether lump sum costs order should be made – Appropriate discount to lump sum or gross costs order INTEREST — Interest up to judgment and post judgment — Sections 100 and 101 of the Civil Procedure Act 2005 (NSW) — Interest on monies due under order for specific performance — Interest on monies due under subsequent deed — Interest on legal costs — Interest on foreign currency

Catchwords:

STRATA SCHEMES – s 126(1)(a) Strata Schemes Management Act 2015- meaning of “other alterations to common property directly affecting the owner’s lot”.

Catchwords:

ADMINISTRATIVE LAW - Administrative review - Births, Deaths and Marriages Registration Act 1995 – registration of birth under corresponding law - arrangement under s 11 between the Attorneys General for NSW and Victoria made 14 July 1999 - refusal to register birth of child in Wodonga, Victoria when registrant not a resident of Albury, NSW – decision affirmed

Catchwords:

PRACTICE AND PROCEDURE – Administrative Decisions Review Act 1997 - administrative review – application out of time – extension of time granted. PRACTICE AND PROCEDURE - Civil and Administrative Tribunal Act 2013 – whether materials lodged by parties sufficient to dispense with hearing. HUMAN RIGHTS - Privacy and Personal Information Protection Act 1998 - adequacy of review of conduct under s 53.

Catchwords:

ADMINISTRATIVE REVIEW – motor mechanic – whether fit and proper person to hold a tradesperson’s certificate – seriousness of criminal convictions – period of time since convictions – rehabilitation – lack of honesty in dealing with Commissioner

Catchwords:

Administrative Law – costs - GIPA Act - Whether special circumstances established

Catchwords:

ADMINISTRATIVE LAW – refusal of an application for a working with children check clearance – allegations made by foster children in the day to day care of the applicant – whether circumstances surrounding the allegations give rise to a risk to safety of children – factors to be considered – correct and preferable decision

Catchwords:

CIVIL PROCEDURE — Subpoenas — Application to set aside — Whether relevant to a fact in issue — Whether oppressive CIVIL PROCEDURE — Discovery — Classes or categories of documents

Catchwords:

PROFESSIONS AND TRADES – pharmacist also registered as medical practitioner proprietor of pharmacy adjoining medical practice – held conflict of interest with respect to circumstances of employed pharmacists dispensing prescriptions issued by respondent – held in circumstances where history of inappropriate filling of prescriptions for drugs of addiction respondent as proprietor was in breach of Guidelines issued by Pharmacy Board of Australia – finding of professional misconduct – finding that registration as a pharmacist would have been cancelled if the respondent had remained registered – consequential orders made – costs reserved

Catchwords:

APPEAL – Building and Construction – Quantum Meruit

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – application to dismiss proceedings – whether proceedings frivolous or vexatious – whether Civil Procedure Act 2005 (NSW) requires proceedings to be dismissed – whether notifier should be required to commence fresh proceedings – whether Commission should hear the “questions for determination” posed by the notifier

Catchwords:

CRIME – appeals – application under r 50C of the Criminal Appeal Rules to set aside judgment and reconsider merits of the appeal – misapprehension about facts established – whether error had material effect on determination of appeal – material effect not established – application dismissed

Catchwords:

CRIME – sentencing – sexual intercourse with child under ten years – offender 14 and one week – digital penetration – delay – assistance

Catchwords:

TORTS – Negligence – Motor vehicle accident – duty of care – joint illegal enterprise – illegal street race – voluntary assumption of risk

Catchwords:

CONTRACT – EQUITY – ESTOPPEL – Claim against guarantors for moneys due under a Share Purchase Deed and for damages for failure to pay – Plaintiff alleges that it suffered damages significantly in excess of the amount due because it had a back-to-back liability to a third party for the amount and entered into a disadvantageous settlement with the third party – Guarantors allege that they and the principal debtor were discharged by agreement or that the plaintiff is estopped from asserting a claim against the principal debtor and the guarantors because the plaintiff represented that the principal debtor would be discharged upon certain conditions which were met and upon which the principal debtor and the guarantors relied – HELD – Agreement and representation not established – No detriment to found an estoppel established – HELD – Damages beyond amount of payment due not established – In addition, settlement not reasonable – Verdict for the plaintiff

Catchwords:

CIVIL PROCEDURE — Time — Extension of time — where defendant seeks leave to rely on further lay and expert evidence — whether extension ought be granted CIVIL PROCEDURE — Witnesses — whether witnesses ought be permitted to give evidence by audio-visual link

Catchwords:

LAND LAW – real property – joint venture agreement to develop properties owned by parties – where plaintiff commenced proceedings seeking specific performance of the joint venture agreement – those proceedings settled – where plaintiff now seeks specific performance of settlement deed – where settlement agreement agreed to be a contract for sale of land – whether terms were implied into settlement agreement by s52A(2)(b) of Conveyancing Act 1919 (NSW) and Conveyancing (Sale of Land) Regulation 2017 (NSW) concerning land tax certificates – whether purported notice to complete and notice of termination of settlement agreement effective CONTRACTS – remedies – specific performance – whether plaintiff entitled to specific performance of settlement agreement

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker SENTENCING –objective seriousness – deterrence – aggravating factors – mitigating factors COSTS – prosecution costs

Catchwords:

CRIMINAL LAW – appeal against sentence – 11 offences of dishonestly obtaining a financial advantage by deception – 10 further offences of the same kind on three Forms 1 – $3.6 million unaccounted for – whether sentencing judge erred in failing to assess the objective seriousness of the offences – whether sufficient discount for assistance to authorities allowed – whether sentence imposed was manifestly excessive – objective seriousness of offences properly assessed – no error in discount allowed for assistance – sentence not manifestly excessive – error in formulation of indicative sentences – requirement to set out basis for differences between indicative sentences – error in formulation of indicative sentences not sufficient to require change in the aggregate sentence – appeal against sentence dismissed.

Catchwords:

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

Catchwords:

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

Catchwords:

PROTECTIVE JURISDICTION – Management of protected estate – Powers of the NSW Trustee – Investment of a protected estate in a Retail Superannuation Fund MENTAL HEALTH — NSW Trustee — Powers — Investment of funds – Retail Superannuation Fund

Catchwords:

STATUTORY INTERPRETATION – Payroll Tax Act 2007 (NSW) – ss 32(2)(a) and 32(2)(d)(i) – relevant contract –whether payments made under a subcontract were exempt from payroll tax – whether legal title required to pass for there to be a supply of goods – whether payments were made “under” the subcontract – whether installation services were “ancillary” to the supply of goods STATUTORY INTERPRETATION – Taxation Administration Act 1996 (NSW) – ss 25 and 33 – whether the power to remit penalty tax and interest is limited

Catchwords:

CRIMINAL LAW - sentence - applicant convicted after trial of offences of recklessly dealing with proceeds of crime contrary to s.193B(3) Crimes Act 1900 (23 counts) and attempting to commit offences under s.193B(3) (five counts) - sophisticated scheme to defraud bank by means of fraudulent loan applications - applicant sentenced to aggregate sentence of imprisonment for nine years and two months with non-parole period of six years and three months - co-offender convicted at later separate trial of knowingly dealing with proceeds of crime contrary to s.193B(2) Crimes Act 1900 (23 counts) and attempting to commit s.193B(2) offences (five counts) - co-offender sentenced to aggregate sentence of imprisonment for six years with a non-parole period of four years - different maximum penalties for offences under s.193B(3) (10 years’ imprisonment) and s.193B(2) (15 years’ imprisonment) - applicant claims legitimate sense of grievance arising from lesser aggregate sentence imposed on co-offender - principles of parity, proportionality and relativity of sentences considered - relevance of co-offender receiving lesser aggregate sentence for offences carrying greater maximum penalties arising out of the same criminal enterprise - consideration of objective and subjective factors relating to the applicant and the co-offender - breach of proportionality principle established - appeal allowed - applicant resentenced taking into account proportionality principle - lesser aggregate sentence passed

Catchwords:

APPEAL – sentence appeal – where appellant assaulted victim with knife with intent to rob – where appellant self-represented – whether sentence manifestly excessive – whether sentence unreasonable or plainly unjust

Catchwords:

APPEAL – sentence appeal – where altercation at motel – whether error in making findings as to objective seriousness – whether Crown made concession as to objective seriousness – where objective seriousness a matter for sentencing judge – where applicant not denied procedural fairness – where sentence manifestly excessive

Catchwords:

APPEAL – Crown appeal against sentence – where offender participated in a conspiracy to import a commercial quantity of border controlled drug – where offender middle man responsible for creating introductions between overseas group and Australian group – whether sentence manifestly inadequate

Catchwords:

DEVELOPMENT APPLICATION – heritage conservation area – Birchgrove Distinctive Neighbourhood – building bulk, form and scale – building location zone – view loss

Catchwords:

CRIME — Violent offences — Reckless wounding CRIME — Public order offences — Affray

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity CRIME – Drug Offences – Deal with property proceeds of Crime

Catchwords:

CIVIL PROCEDURE — separate determination of questions — whether appropriate

Catchwords:

PRACTICE AND PROCEDURE - final hearing of civil claim - application by Plaintiff for adjournment made on hearing date - proceedings not ready to proceed due to late steps taken by both parties - discovery process undertaken late and just before hearing - both parties serving voluminous documents on eve of hearing - Plaintiff’s non-compliance with court orders - failure to comply with duty under s.56 Civil Procedure Act 2005 - fair hearing not possible given state of litigation - proceedings “in a state of litigious semi-chaos” - hearing vacated - Court to consider appropriate costs order to be made - orders made to progress litigation

Catchwords:

EQUITY – trusts and trustees – express trust – interest in property – family arrangement with plaintiff’s in-laws to live with them in property to be purchased by them – no intention to create immediate legally enforceable commitment or interest EQUITY – trusts and trustees – constructive trusts – common intention – no contribution to acquisition of property ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – no contribution to property – no evidence of financial detriment – plaintiff and her family lived on property at subsidised rate and received a reasonable income from working in the family business

Catchwords:

BUILDING AND CONSTRUCTION – contract – defects – whether defendant had opportunity to rectify works – whether plaintiffs failed to mitigate their loss BUILDING AND CONSTRUCTION – consideration of incomplete works and defective works – use of Scott Schedule

Catchwords:

ADMINISTRATIVE LAW — Judicial review — Workers Compensation — where Registrar referred assessment of whole person impairment arising from specific body parts to Approved Medical Specialist — where second defendant found Approved Medical Specialist erred by going beyond terms of referral — whether referral entitled Approved Medical Specialist to assess degree of permanent impairment arising from body parts not specifically referred — relevance of employer’s concession that left wrist ought to have been included in referral — whether error of law on face of the record

Catchwords:

ADMINISTRATIVE LAW — Particular administrative bodies — Legal Aid — decision of Legal Aid Commission not to grant legal aid — whether Court has jurisdiction to review decision — whether error of law or jurisdictional error

Catchwords:

SUCCESSION – Family provision – claim by adult son – whether adequate and proper provision made for plaintiff by modest provision in will – where plaintiff’s financial situation deteriorated after deceased made her will – where defendant, the other adult son, had a strong competing claim to deceased’s estate – extent of provision made by deceased to plaintiff and defendant during lifetime – where plaintiff took over the family business – where plaintiff and defendant provided with property – where defendant had legitimate expectations to bulk of estate comprising 50% interest in property – where plaintiff’s income significantly reduced and unable to service debt and expenses – where value of remaining cash assets in deceased’s estate not small – further provision ordered COSTS – Family provision – excessive costs – where legal costs disproportionate and exceed claim for provision – where total legal costs far exceed the value of cash assets available for distribution – where probate and other claims made and abandoned prior to and at hearing – whether costs capping order should be made – family provision costs capped at $125,000 – other costs orders made

Catchwords:

PROCEDURE – whether civil enforcement proceedings competently commenced by incorporated association

Catchwords:

CONTEMPT — Civil contempt — Breach of undertakings — Terms of undertaking permitted works which were exempt development pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 — Whether works undertaken were exempt development — Charges not made out

Catchwords:

CIVIL PROCEDURE – notices to produce – application to set aside CIVIL PROCEDURE – notices to produce – Practice Note SC Eq 11

Catchwords:

APPEAL – Appeal from orders made by Guardianship Division – decision to revoke appointment of private financial manager – decision to appoint NSW Trustee and Guardian – leave to appeal refused – appeal dismissed.

Catchwords:

PROFESSIONS AND TRADES – health care professionals – nurse – disciplinary action – personal relationship with two patients – breach of undertakings – prohibition order

Catchwords:

CIVIL PROCEDURE — judicial review — administrative decision of medical appeal panel — where plaintiff suffered psychological injury at work — where dispute as to degree of whole person impairment — where request by plaintiff for re-examination — where no re-examination by medical appeal panel — where no reasons or consideration given

Catchwords:

LIMITATION OF ACTIONS – personal injury – when plaintiff knew of injury – when plaintiff “ought to know” facts – whether just and reasonable to permit proceedings to be brought – whether a fair trial could be had

Catchwords:

APPEALS - whether question of law - error of law – incorrect test for determining unconscionable conduct and misleading or deceptive conduct under the Australian Consumer Law (NSW)

Catchwords:

APPEALS – application by the owners corporation for leave to be legally represented where no relief claimed against it – leave granted for solicitor to appear as amicus curiae – application by the appellant for an extension of time in which to appeal where he is no longer an interested person – application dismissed

Catchwords:

ADMINISTRATIVE REVIEW – Child Protection – Authorised carers – Where designated agency decided that no further children would be placed with the applicant authorised carers – Whether decision is an administratively reviewable decision

Catchwords:

SUCCESSION – Family provision – Claim by adult step-child of the deceased for provision under Ch 3 of the Succession Act 2006 (NSW) – Eligible person – No dispute as to eligibility under s 57(1)(e) of the Act – Whether factors which warrant the making of the application – Court finds factors which warrant the making of the application – Court not satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased – If that conclusion wrong – As a matter of discretion Court not satisfied that order should be made – Summons dismissed

Catchwords:

APPEALS - decision made in the absence of the respondent to the application-lack of reasons - extension of time for appeal to be lodged.

Catchwords:

STATUTORY INTERPRETATION – access to government information – where applicant applied for government information but did not include such information as was reasonably necessary to enable the government information applied for to be identified – whether application wholly invalid - meaning of phrase “the government information applied for” in s 41(1)(e) of Government Information (Public Access) Act 2009

Catchwords:

APPEAL – residential tenancy agreement – failure to identify how tenancy ended – error of law – abandonment – compensation for loss – leave to appeal – substantial miscarriage of justice

Catchwords:

TAXATION – Land Tax Management Act 1956 – exemption for primary production use – multiple users of subject land – appropriateness of aggregating use of land by different users in applying tests for exemption – appropriateness of considering financial integration of primary production enterprise where different primary production use of other land from that of the subject land

Catchwords:

APPEAL – Magistrate refused application for stay of execution of Local Court civil judgment – judgment obtained by respondent following registration of adjudication certificate under s.25 Building and Construction Industry Security of Payment Act 1999 – consideration of ss. 39 and 40 Local Court Act 2007 – whether judgment appealed against was an interlocutory judgment requiring leave – Local Court judgment held to be interlocutory – leave to appeal required – whether leave to appeal should be granted – appellants commenced separate proceedings in District Court against respondent seeking damages including recovery of money covered by Local Court judgment – District Court proceedings still on foot – claim of error in construction and application of ss.92 and 94 Home Building Act 1989 - issue sought to be argued on appeal not raised squarely in Local Court – appellants able to litigate issue in District Court proceedings – leave to appeal refused with costs

Catchwords:

PROFESSIONS AND TRADES – lawyers – professional misconduct – unsatisfactory professional misconduct – consequential orders – removal from roll – restricted practising certificate – costs

Catchwords:

HUMAN RIGHTS — Discrimination — Grounds — Disability discrimination – amendment of complaint – joinder of party

Catchwords:

ADMINISTRATIVE LAW – personal information of a person other than the applicant - whether there is public interest against the disclosure of the information sought and on balance, that public interest against disclosure overrides the public interest in favour of disclosure – client privilege – in-house lawyers – independence –reasonable searches

Catchwords:

DEVELOPMENT APPLICATION – shop top housing – heritage conservation – State Environmental Planning Policy (Sydney Region Growth Centres) 2006 - Appendix 8 Liverpool Growth Centres Precinct Plan – initial more intense development in a low density setting

Catchwords:

APPEAL – Retail Leases Act- right to rent review-application of precedent-compensation for disruption and access to premises-compensation for unconscionable conduct and misleading and deceptive conduct- no error of law-rejection of document tender-no new evidence permitted-leave to appeal refused

Catchwords:

TORT – misfeasance in public office – elements – identification of public power or duty – where police officer involved in trial laughed and rolled eyes during applicant’s trial – where applicant alleges her conduct amounted to misfeasance in public office – whether a purported exercise of a public power or duty identified – whether a capacity to act as an incident of a public office an exercise of public power TORT – summary disposal – whether statement of claim and particulars disclosed cause of action – whether applicant’s claim for misfeasance in public office was hopeless and doomed to fail – Whether limits of the tort of misfeasance in public office so settled that applicant’s claim is doomed to fail

Catchwords:

RESIDENTIAL TENANCY - alleged damage to tenant's goods - failure to discharge burden of proof

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – offence of indecent assault on a child under sixteen years of age contrary to s 61M(2) of the Crimes Act 1900 – offence of sexual intercourse with a child under the age of ten years contrary to s 66A(1) of the Crimes Act 1900 – first trial aborted – Crown tendered complainant’s evidence at second and third trial – accused applied under s 306J of the Criminal Procedure Act 1986 to compel complainant to give evidence – application refused – trial judge erred in construction of s 306J of the Criminal Procedure Act 1986 – whether Crown Prosecutor’s closing address reversed the onus of proof – ground dismissed – appeal allowed – whether new trial or acquittal – new trial ordered

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Catchwords:

CLINICAL TRIAL – pilot trial – COVID-19 – pandemic – COVID-19 Acute Respiratory Distress Syndrome requiring intensive care – new medication – mesenchymal stem cells – whether clinical trial meets criteria in s 45AA of the Guardianship Act – safety and ethical considerations – whether it is in the best interests of patients that they take part in the clinical trial – no disease specific treatment available – clinical trial approved under s 45AA(1) of the Guardianship Act – whether consent to participation should be given by person responsible – whether information and consent forms sufficient – approval given under s 45AB(1)(a) of the Guardianship Act.

Catchwords:

CORPORATIONS – examinations relating to insolvency – whether examination orders should be set aside for non-disclosure.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Review of a certificate of a review panel –Failure to properly apply cl 1.34 of the Motor Accident Permanent Impairment Guidelines – Whether dementia is a physical or psychological injury for the purposes of assessing impairment

Catchwords:

HIGH RISK OFFENDER – application for preliminary orders – interim supervision order – orders for examination of defendant by expert – defendant convicted of serious sex offences – question as to whether the defendant poses an unacceptable risk to the community if not supervised

Catchwords:

BUILDING AND CONSTRUCTION - Progress payments – Where right to present payment claim contingent on the provision of a draft payment claim on a certain date – Whether contingency void for unduly restricting the operation of the Building & Construction Security of Payment Act 1999 (NSW)

Catchwords:

ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure

Catchwords:

CIVIL PROCEDURE – summary dismissal – fraud or abuse of process in obtaining restraining order – property suspected of being proceeds of crime – subsequent forfeiture as result of convictions – Uniform Civil Procedure Rules, r 13.4(1) JUDGMENTS AND ORDERS – amending, varying and setting aside – fraud, misrepresentation or suppression of material facts – requirements for setting aside judgment on basis of actual fraud PROCEDURE – judicial review – plaintiff in custody serving sentence for Commonwealth offences – requirement for leave to commence proceedings –whether convicted of a “serious indictable offence” within Felons (Civil Proceedings) Act 1981 (NSW), s 4 – application to federal indictable offences – Judiciary Act 1903 (Cth), ss 79, 80; Interpretation Act 1987 (NSW), s 21

Catchwords:

PROFESSIONS AND TRADES – Health Practitioner – dental practitioner – disciplinary proceedings – where non-publication order made to protect identity of patients – whether new non-publication order should be made to prevent publication of proceedings and name of dental practitioner – application refused – costs reserved

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties – non-compliance with development standards for floor space ratio, height of buildings and site requirements for residential flat buildings

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties — boarding house development

Catchwords:

Equity – trusts and trustees – original trust deed lost – trust administered in accordance with copy – presumption of regularity – declaratory relief inapplicable – judicial advice given

Catchwords:

SUCCESSION – family provision – proper provision for maintenance education and advancement – claim by estranged adult child with net assets of $4.3 million conducting farming enterprise – “financial needs” – alleged misappropriation by deceased of part of claimant’s inheritance when he was a child – alleged forbearance by claimant in settlement of claim against deceased’s husband’s estate – alleged reconciliation between claimant and deceased – negative judgment of claimant in deceased’s will – no entitlement to provision

Catchwords:

JUDGMENTS AND ORDERS – application to vary orders

Catchwords:

CIVIL PROCEDURE – application to rely on further evidence CIVIL PROCEDURE – guillotine order

Catchwords:

ENVIRONMENTAL OFFENCES: person concerned in the management of a company which caused a place to be used as a waste facility without lawful authority – executive liability - plea of guilty – sentencing principles – no actual environmental harm – low potential for environmental harm – whether offence committed recklessly - substantial financial losses to third party caused by the commission of the offence – offence committed for financial gain – whether defendant had capacity to pay monetary penalty to be imposed - monetary penalty imposed – costs orders made.

Catchwords:

PRACTICE AND PROCEDURE – joinder of an additional party to the plaintiff’s claim – refusal of dismissal or a stay

Catchwords:

CRIME — Crime Commission — variation of non-disclosure orders — investigative agencies’ duty of disclosure

Catchwords:

CRIME — Crime Commission — variation of non-disclosure orders — investigative agencies’ duty of disclosure

Catchwords:

CRIME — Crime Commission — variation of non-disclosure orders — investigative agencies’ duty of disclosure

Catchwords:

CRIME — Crime Commission — variation of non-disclosure orders — investigative agencies’ duty of disclosure

Catchwords:

CRIME — Crime Commission — variation of non-disclosure orders — investigative agencies’ duty of disclosure

Catchwords:

CRIMINAL LAW – sentence – where offender originally charged with murder – where offender pleaded guilty to manslaughter on the basis of excessive self-defence – where minimal evidence of remorse – where prospects of rehabilitation poor – where actions were without provocation – where offender had a troubled upbringing

Catchwords:

CIVIL PROCEDURE – Associate Justices – discussion of jurisdiction of judge in Division to hear appeal – effect of s 48 of Supreme Court Act – interaction of UCPR and SCR – jurisdiction allocated to Court of Appeal – exercise of jurisdiction under s 51 of Supreme Court Act CIVIL PROCEDURE – Summary disposal – appeal from dismissal of application for summary dismissal – leave to file Amended pleading – directions LIMITATION OF ACTIONS – Personal Injury – Negligence – Police Officer – Discoverability – knowledge of fault of defendant – knowledge of connection between damage and fault – Associate judge determined to hear Limitation Act issues at substantive hearing – medical evidence indicating exacerbation of injury by two sets of cross-examination – exercise of discretion

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 – appropriate penalty COSTS – prosecution costs OTHER – worker fell from a height over the edge of an exposed balcony – lack of edge protection in place to minimise the risk of workers falling from an unprotected open edge – failure to direct that temporary edge protection be installed – verbal instructions to avoid area inadequate

Catchwords:

PRACTICE – parties – supervisory jurisdiction – review of orders made by District Court dismissing appeal from Children's Court – whether sibling of child should be joined to appeal – whether child the subject of the appeal required tutor – joinder refused, requirement for tutor dispensed with

Catchwords:

SUCCESSION – Wills, probate and administration – Caveat against grant – Proceedings commenced propounding Will in solemn form – No Defence and Cross-Claim filed by caveator – Notice of motion then filed that caveat cease to be in force and seeking summary judgment – Parties agree that there should be a grant of Probate of Will being propounded by Plaintiffs COSTS – Whether Court should make a specified gross sum costs order

Catchwords:

COSTS – whether special circumstances exist pursuant to s 60 of the Civil and Administrative Tribunal Act 2013 – no special circumstances exist – application for costs dismissed – no order as to costs.

Catchwords:

CORPORATIONS – 19 year liquidation – two court-appointed liquidators – one liquidator retiring – whether under old s.473 (pre-Insolvency Law Reform Act 2016) all liquidators must be removed in order to replace just one: at [12]-[20] – Condon v Watson doubted – appropriate to appoint a new liquidator STATUTORY CONSTRUCTION – whether construction has unreasonable consequences – “subject to this Part” – specific provisions prevail over general provisions LEGISLATION – transitional provisions – whether current Corporations Act 2001 (Cth) applies – Part 10.25 – “ongoing external administration” – Division 90 of Insolvency Practice Schedule applies – section 1627 (vacancies in office of liquidator) prevails over section 1617 (old Act continues to apply to ongoing proceedings) – s 90-15 and s 473A apply to change of liquidator. CORPORATIONS – Rule 70-40, Insolvency Practice Rules (Corporations) 2016 (Cth) – dispense with requirement - no utility and unnecessary costs [36]-[40] CORPORATIONS – Section 1322(4)(d) Corporations Act – extensions and abridgement of time for lodging of accounts by retiring and incoming liquidators [43]-[45] CORPORATIONS – leave to assume roles of both liquidator and scheme administrator under section 411(7) and 532(2) Corporations Act 2001 (Cth) at [46]-[50], [53] – leave granted nunc pro tunc at [52]-[53]

Catchwords:

CONTEMPT — Criminal contempt — Intentional conduct — Interference with administration of justice — where deliberate and intentional destruction of items subject to search and seizure orders — where other contemptuous conduct

Catchwords:

ADMINISTRATIVE LAW — Particular administrative bodies — NSW Civil and Administrative Tribunal – Appeal under (NSW) Health Practitioner Regulation National Law s 159 against decision of Council for a health profession under s 150 and 150A – Hearing de novo – The essential task of the Tribunal in such an appeal ADMINISTRATIVE LAW — Hearing rule — Rules of evidence — Examination and cross-examination – Second aspect of the rule in Browne v Dunn (1894) 6 R 67 – Whether Tribunal erred in failing to have regard to the circumstance that evidence not accepted by Tribunal went unchallenged by cross-examination ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Findings of fact – Where obvious and innocent explanation not considered in circumstances where findings were grave, devastating and infected the whole decision – Error established ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Decision not authorised — Statutory construction – Hearing and review of decision under (NSW) Health Practitioner Regulation National Law, ss 150, 150A – Whether Council precluded from varying its earlier s 150 decision under s 150A where there is no finding of a change in circumstances by s 150A(4) – Where s 150C(2) authorises the variation of a decision without such limitation

Catchwords:

PROCEDURE – remitted matter – notice of motion to vacate hearing dates – request to re-open case – seeking leave to amend development application – leave to rely on expert evidence – motion dismissed

Catchwords:

MODIFICATION APPLICATION – conciliation conference – contravention of development standards – retrospective approval – agreement between the parties – orders

Catchwords:

SUCCESSION - family provision - approval of release under s 95 Succession Act 2006 - where plaintiff was the owner of property and defendants and their children (both minors) moved to property to care for plaintiff - defendants were daughter and son-in law of plaintiff - where relationship has broken down and plaintiff now seeks possession of property – cross-claim by defendants for constructive trust - settlement of proceedings at mediation – where settlement involves selling property, distributing balance between the plaintiff and defendants, and paying grandchildren a portion of the estate upon plaintiffs death – where defendants and grandchildren seek approval of release of rights – whether release should be approved by Court – whether agreement was advantageous, prudent and fair and reasonable for the defendants

Catchwords:

DEVELOPMENT APPLICATION – consolidation of two lots into one lot – proposed construction of a dwelling house and granny flat – whether proposal is consistent with the desired future character of Oxford Falls Valley – whether potential impacts of the proposal are acceptable – grant of consent not opposed by Respondent

Catchwords:

SENTENCING — appeal against sentence — co-offenders — disparity between sentences — co-offenders sentenced in Local Court and applicant in District Court — where sentencing judge did not consider parity when sentencing applicant — whether justifiable sense of grievance — whether failure of applicant's counsel on sentence to raise parity should be taken as acceptance of its limited role in determination of sentence — resentencing

Catchwords:

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

Catchwords:

CIVIL AND ADMINISTRATIVE TRIBUNAL – Aboriginal Land Rights Act – local aboriginal land council – Board member – misconduct – referral to Tribunal – disciplinary proceedings

Catchwords:

DEVELOPMENT APPLICATION – subdivision into five Torrens title lots – conciliation conference – agreement between the parties – orders

Catchwords:

CIVIL PROCEDURE – application for leave to appeal against decision striking out statement of claim and dismissing proceedings – claims for judicial review largely an attempt to relitigate issues dealt with in previous proceedings – remainder long out of time and lacking utility

Catchwords:

TRADES AND PROFESSIONS – nursing – inappropriate removal a schedule 4 drug – breach of conditions

Catchwords:

DEVELOPMENT APPLICATION – subdivision of land – conciliation conference – agreement between the parties – orders

Catchwords:

PROFESSIONS AND TRADES-dental surgeon conducting courses for dentists for cosmetic procedures – complaint that practitioner practising outside the area of dental practice-registration as a dental practitioner suspended after conduct of hearing by Dental Council-appeal on points of law-principles of legal unreasonableness-conclusions of delegates expressed in tentative terms – held delegates failed to comply with legal reasonableness and procedural fairness – decision set aside – costs reserved.

Catchwords:

CIVIL PROCEDURE — parties — representation — UCPR r 7.1(2)(a) — rules state that a company may carry on proceedings by a solicitor or a director of the company — issue of representation by unqualified persons — previous order of the Court as to representation by unqualified persons — consideration of whether it is appropriate for an unqualified person to appear on behalf of a litigant — present circumstances do not warrant the rules of the Court being dispensed with — informal application for representation by unqualified persons — application refused. MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession — deed of forbearance executed — consent judgment signed and annexed to the deed of forbearance — deed of forbearance entitles the plaintiff to file the consent judgment — deed of forbearance prevents the opposition of any judgment in favour of the plaintiffs

Catchwords:

CORPORATIONS — Winding up — Conduct of liquidation — Court-appointed liquidator — Powers of liquidator to enter deed and lease on behalf of company — Application for Court approval under Corporations Act 2001 (Cth) s 477(2B)

Catchwords:

CRIME – SENTENCING – historical child sex abuse – three complainants – 13 charges for sentence – 10 charges on Form 1 documents – totality.

Catchwords:

EVIDENCE ON COMMISSION – Evidence on Commission Act 1995, s 32— Application for assistance in obtaining evidence for proceedings in Switzerland– Leave granted to issue subpoena to attend to give evidence

Catchwords:

EVIDENCE ON COMMISSION – Evidence on Commission Act 1995, s 32— Application for assistance in obtaining evidence for proceedings in the Republic of Turkey– Leave granted to issue subpoena to attend to give evidence

Catchwords:

CRIMINAL LAW – severity appeal following partially successful appeal against conviction – intentional sexual touching of victim aged between 10 and 16 – sentencing court imposed same sentence on two charges, to be served concurrently – whether setting aside conviction of one charge should result in variation to terms of sentence for the other charge – relevance of prior good character

Catchwords:

CONTRACT – admitted breach of contract – causation of loss where alleged that, had proper due diligence been undertaken, an investment would not have been made – whether trial judge erred in holding that no damage was suffered by reason of breach of contract. INSURANCE – whether professional indemnity policy responded to a claim – whether insured party became aware of any circumstances that could give rise to a third party claim during the policy period.

Catchwords:

PROCEDURE – Whether proceedings in the District Court should be transferred to this Court – Whether leave should be granted to file cross claim

Catchwords:

APPEALS — Appeal from NSW Civil and Administrative Tribunal Appeal Panel — where Tribunal listed matter for hearing when plaintiffs’ legal representatives unavailable — where plaintiffs’ subsequent application for adjournment refused — where Appeal Panel refused leave to appeal — whether decision of Appeal Panel or original listing decision was legally unreasonable — whether each decision constituted denial of procedural fairness

Catchwords:

PARTNERSHIPS – legal characterisation of business relationship between two insolvency practitioners – where insolvency practice conducted through a corporate trustee of a unit trust – where income derived by the practitioners in a personal capacity – where cheques for remuneration endorsed to corporate trustee – where practitioners had previously conducted a business in partnership – whether insolvency practice was a partnership PARTNERSHIPS – dissolution – account of partnership assets and liabilities – valuation of work in progress – where finding that work in progress comprised “collectible” component and so-called “goodwill” component – whether appropriate to have reference to collections actually made in valuation of collectible work in progress PARTNERSHIPS – dissolution – where no utility in appointing a receiver – form of orders appropriate to give effect to account of partnership assets and liabilities EQUITY – fiduciary duties – where shareholder transferred share to director’s nominee for nominal consideration upon dissolution of partnership – whether breach of fiduciary duty claim pleaded – whether open for primary judge to find director breached fiduciary duty owed to shareholder

Catchwords:

SUCCESSION – executors and administrators – special and limited grants of administration – administrators pendente lite – Probate and Administration Act 1898 (NSW), s 73 – basis of appointment – whether the assets of deceased estate are in some jeopardy – where defendant beneficiary alleges that the plaintiffs have engaged in certain misconduct in their capacity as putative executors of deceased estate – whether plaintiffs have used estate funds to pay their personal legal costs associated with contested probate proceedings – where plaintiffs’ conduct and evidence creates uncertainty about whether funds used by plaintiffs are estate funds, despite orders of the Court requiring the plaintiffs to serve an affidavit clarifying the position – estate assets in some jeopardy due to hostility and suspicion between plaintiffs and defendant – administrator pendente lite to be appointed unless plaintiffs provides certain undertakings to remove jeopardy to the estate EQUITY – injunctions – interlocutory injunctions – mandatory interlocutory injunctions – where defendant seeks interim order requiring the plaintiffs to replenish funds allegedly misappropriated from deceased estate for the purposes of paying the plaintiffs’ legal costs of proceedings – order sought as an incident of the Court’s power to award costs pursuant to s 98 of the Civil Procedure Act 2005 (NSW) as applied in the context of probate proceedings – interlocutory injunction refused

Catchwords:

EVIDENCE – taking evidence of interstate witnesses via audio visual link during COVID-19 pandemic – whether evidence should be taken from the home or workplace of each witness – whether an independent lawyer should be present when interstate witnesses are giving evidence – documents to be shown to witnesses – manner of taking expert evidence from experts located in different states

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference - health services facility – amended plans – agreement between the parties – orders

Catchwords:

ADMINISTRATIVE LAW – cancellation of working with children check clearance – allegations against applicant concerning conduct as a teacher – relevance of allegations to risk to safety of children - factors to be considered – correct and preferable decision

Catchwords:

APPEAL – guardianship - where Tribunal dismissed an application to review a guardianship order - where daughter of subject person has appealed from that decision – whether Tribunal made an error of law – whether leave should be given for appellant to appeal on questions other than questions of law APPEAL – financial management – where Tribunal made a financial management order and appointed the NSW Trustee and Guardian – where daughter of subject person has appealed from that decision – whether Tribunal made an error of law – whether leave should be given for appellant to appeal on questions other than questions of law

Catchwords:

MODIFICATION APPLICATION — conciliation conference — agreement between the parties

Catchwords:

COSTS – class 4 civil enforcement proceedings – enforcement of brothel closure order – consent orders made in terms sought in summons – capitulation warranting costs order in council’s favour

Catchwords:

DEVELOPMENT APPLICATION – boarding house – amenity – character – parking – conciliation conference – agreement between the parties – orders

Catchwords:

COSTS – gross sum costs order – indemnity basis – admissibility of expert evidence in gross sum costs order application – whether certain items outside scope of costs orders – appropriate discount in particular circumstances.

Catchwords:

PRACTICE AND PROCEDURE – appeal from decision of the Small Claims Division of Local Court – judgment against plaintiff for damaging defendant’s residential property – application for adjournment of hearing in this Court made by plaintiff – whether utility in adjournment having regard to reason for adjournment and the nature of appeal to this Court – unusually lengthy procedural history – plaintiff unrepresented in Local Court because of absence of solicitor – unsuccessful adjournment application to Assessor – whether plaintiff was denied procedural fairness by Local Court because of refusal to accede to adjournment application

Catchwords:

CIVIL PROCEDURE – vexatious litigants – Vexatious Proceedings Act 2008 (NSW) – leave to institute proceedings – leave to file Notice of Appeal in the Court of Appeal – leave refused

Catchwords:

CRIME – Murder – Defences – Self-defence – whether the Crown excluded self-defence beyond reasonable doubt CRIME - Murder – Attempted murder – Mental element – Intention to kill – Effect of intoxication – whether the accused turned their mind to the achievement of the purpose to kill

Catchwords:

ANTI-DISCRIMINATION – Disability discrimination in the provision of services – Where applicant suffered from a disability which made it hard for him to communicate in writing - Whether service provider refused to communicate with the applicant by telephone – Whether service provider imposed a requirement that the applicant only communicate with it in writing – Whether special circumstances exist warranting an order for costs

Catchwords:

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW) – whether medical review panel’s decision affected by error of law on the face of the record or jurisdictional error – whether correct legal test as to causation applied – whether review panel findings were unreasonable and without probative evidence – whether guidelines as to apportionment for pre-existing condition were correctly applied – whether review panel engaged with the plaintiff’s articulated case – review panel found not to have responded to plaintiff’s substantial argument – review panel decision set aside – matter remitted for re-determination

Catchwords:

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether consent of birth parents ought to be dispensed with — Whether adoption plan in the child’s best interests and proper in the circumstances — Change of name

Catchwords:

CRIMINAL PROCEDURE – trial - application for trial by judge alone pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) – where leave from court required as application made within 28 days of trial date – where prior application had been made before another judge and refused – whether in the interests of justice to be bound by earlier order – where circumstances arising out of current COVID-19 pandemic were not factors at the time of the first application – where trial previously vacated - where substantial risk that these circumstances could cause the trial to be vacated for a second time – where that risk unacceptable – order made for judge alone trial

Catchwords:

CRIME – appeals – interlocutory appeal by Director of Public Prosecutions – numerous counts of aggravated sexual assault and indecent assault involving digital vaginal penetration in course of gynaecological services – evidence of sexual gratification – cross-admissibility of complaint evidence – admissibility as tendency evidence CRIME – sexual offences – aggravated sexual assault – “sexual intercourse” – “proper medical purposes” exception – whether necessary for prosecution to prove sole purpose of sexual gratification – Crimes Act 1900 (NSW), s 61H(1)

Catchwords:

LAND LAW – strata title – by-laws – construction of by-law – effect of new by-law passed following the enactment of the Strata Titles Act 1973 (NSW) – exclusive use of common property – provision for amendment of, addition to or repeal of exclusive use by-law LAND LAW – strata title – common property – whether orders for remediation of common property lacked specificity such as to amount to error of law – whether failure to take into account – relevant (and necessary) consideration – substantial loss of amenity in Lot owners losing direct access to the roof of the building – direct access to roof not part of original, approved development – no evidence that subsequent approval has been given – whether denial of procedural fairness where reliance placed on the term “usual undertaking as to damages” as defined in interim consent orders

Catchwords:

CRIME – appeal - conviction – miscarriage of justice – prosecutor’s statements in closing address – whether prosecutor’s use of rebuttal evidence impermissible – whether prosecutor mischaracterised or undermined accused’s good character evidence – Evidence Act 1995 (NSW), Pt 3.8 CRIME – appeals – conviction – unreasonable verdict – offences committed by father against son and daughter – prosecution reliance on young child complainants and their mother – defence denials and evidence of good character – rebuttal evidence EVIDENCE – character evidence – purpose and use of good character evidence – admissibility – rebuttal of good character – whether rebuttal evidence relevant to guilt or only to rebut good character – Evidence Act 1995 (NSW), Pt 3.8

Catchwords:

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

Catchwords:

CONTEMPT – contempt of the District Court of New South Wales – declaration of contempt – solicitor who disclosed CCTV footage produced under compulsion by a litigant without the leave of the court – gross negligence of obligation to court – early apology tendered to the court – acknowledgment of guilt – remorse and contrition – willingness to pay plaintiff’s costs – need for denunciation – role of general deterrence

Catchwords:

EVIDENCE – CRIME – tendency evidence – identity of the offender and fact of the commission of the offences in issue – tendency evidence allegations of conduct in some respects substantially different in nature from the conduct the subject of the allegations made by the complainant – tendency evidence of conduct committed towards different child, although of comparable age, three or four years after alleged offence – admission of tendency evidence did not give rise to a miscarriage of justice

Catchwords:

CIVIL PROCEDURE – Proceedings brought by person under legal incapacity – Settlement of proceedings arising from a motor vehicle accident – Court approval

Catchwords:

CRIME – Sentencing – s11 bail – successful rehabilitation – young Offender – remorse – reduced risk of reoffending – intensive corrections order

Catchwords:

Enterprise Agreement – approval

Catchwords:

COSTS – Two proceedings involving the same parties in which various interlocutory hearings conducted – Determination of the costs of the interlocutory hearings in each proceeding – Apportionment of costs in respect of the interlocutory proceedings in the 2017 proceedings – No apportionment of costs in respect of the interlocutory proceedings in the 2018 proceedings – Whether costs should be calculated on the indemnity basis and should be payable forthwith

Catchwords:

CRIME – appeals – interlocutory appeal – appeal by Director of Public Prosecutions against ruling on evidence – multiple charges of sexual offences – complainant a child with a neurodevelopmental disorder – admissibility of admission by accused during pre-text call made by complainant’s mother – limited admission accompanied by exculpatory explanation – whether trial judge applied a wrong principle or mistook the facts – whether exclusion of the evidence substantially weakened the prosecutor’s case

Catchwords:

ADMINISTRATIVE LAW — Judicial review — Motor Accidents Compensation Act 1999 (NSW) — where Medical Review Panel requested additional information and submissions from parties — where parties were not notified of Panel’s request — whether plaintiff denied procedural fairness – whether practical injustice

Catchwords:

COSTS – No point of principle

Catchwords:

CIVIL PROCEDURE - interlocutory orders – the plaintiffs are executors of an estate – the defendant is a beneficiary of the estate – upon the expiry of orders restraining the plaintiffs from selling certain real property in the estate, the plaintiffs seek liberty to sell the property on the open market – whether or not the expired restraining orders should be renewed – whether the defendant should be given more time to take advantage of previous unperformed orders, which allowed the defendant to acquire the real property from the plaintiffs.

Catchwords:

CORPORATIONS – directions to liquidators - s 90-15 Insolvency Practice Schedule – advice to trustees - section 63 Trustee Act 1925 – principles at [5]-[14] –appropriate to give directions and advice. EQUITY – hotchpot – history, particularly in cross border insolvency and claims by contributors to mixed funds - see [78]-[87]. Ponzi scheme – definition, history and features – see [15]-[24] – common misfortune – how to distribute remaining funds to investors – different approaches – ‘net investment approach’ – pari passu – ‘North American method / lowest intermediate balance rule – pari passu with hotchpot - see [89]-[108] – distribute remaining funds pari passu with hotchpot.

Catchwords:

CIVIL ENFORCEMENT – proceedings to remedy or restrain a threatened breach of the Local Government Act 1993 – Council meeting called to consider motion to terminate general manager’s contract – whether power to terminate general manager’s contract is an implied power under s 334 of the Local Government Act 1993 or an entitlement under the terms of the contract – whether exercise of implied statutory power conditioned by procedural fairness requirements – whether Councillors failed to accord procedural fairness to general manager – whether apprehension of bias by reason of Councillors being accusers – no apprehended bias as Councillors are not accusers – whether apprehension of bias by prejudgment of Councillors – no apprehended bias through prejudgment – whether failure to afford general manager opportunity for a hearing – duty to accord procedural fairness owed by Council as decision maker and not individual Councillors – no threatened failure by Council to afford general manager opportunity for a hearing – no threatened statutory breach – proceedings dismissed with costs

Catchwords:

ADMINISTRATIVE LAW – privacy – exemption – NSW Police Force - administrative and educative functions

Catchwords:

ADMINISTRATIVE REVIEW – Firearms – Revocation of firearm licence – Where applicant found guilty of offence of cultivating prohibited plant - Whether applicant a fit and proper person to hold a licence – Whether it is in the public interest for applicant to hold a licence – Whether conditional release order in relation to offence warrants revocation of licence where order would preclude applicant from obtaining a new licence – Whether Tribunal needs to be satisfied that there are exceptional circumstances - Non-disclosure orders – Where non-disclosure orders made which prohibited disclosure of some evidence to applicant – Principles of open justice and procedural fairness –Approach to dealing with confidential evidence which has not been disclosed to the applicant

Catchwords:

COSTS – Disbursements and expenses of a self-represented litigant

Catchwords:

APPEAL – Residential Tenancy – whether relevant evidence overlooked by Tribunal

Catchwords:

APPEAL – costs – costs of application for a stay

Catchwords:

ENVIRONMENT AND PLANNING – validity of development control order – manner of service – s 10.11 Environmental Planning and Assessment Act 1979 – email service arrangements can be indicated by conduct of parties – stop work order was served and was effective ENVIRONMENT AND PLANNING – validity of development control order – adequacy of time for compliance with stop work order – schedule 5, clause 27 Environmental Planning and Assessment Act 1979 – determination of a “reasonable period” for compliance is an objective question of fact –circumstances of previous stop work order are relevant – if stop work order maintains current state of affairs compliance forthwith is not an unreasonable period – immediate compliance not limited to clause 27(2) ENVIRONMENT AND PLANNING – validity of development control order – adequacy of reasons – read as a whole the reasons are more than a recitation of the circumstances that enliven the power to issue an order – in any case they could comprise adequate reasons ENVIRONMENT AND PLANNING – validity of development control order – whether factual foundation to enliven power to issue – Council had sufficient factual foundation ENVIRONMENT AND PLANNING – whether work undertaken breached development control order –– work undertaken did not conform with the modification to the development control order – stop work order breached EVIDENCE – where evidence is not evidence of truth – Respondent given sufficient opportunity to respond to criticisms relating to his evidence – Respondent not a witness of truth – Respondent’s evidence should not be relied upon absent some independent corroboration ENVIRONMENT AND PLANNING – validity of complying development certificate – breach of clause 3.7.2.7 of Building Code of Australia – complying development certificate not authorised to be issued – complying development certificate invalid ENVIRONMENT AND PLANNING – whether breach of orders for entry – service of notices of entry was effective – failure to give access breached the orders DISCRETION – s 25E Land and Environment Court Act 1979 – discretion to validate complying development certificate – invalidity arising from absence of power – no steps available to permit validity – breach integral part of the complying development certificate – no reasonable way to sever non-compliant element of the consent – s 25B discretion not available – if available not exercised on circumstances of case GENERAL DISCRETION – breach of inspection notices – whether declarations sought are bare declarations – declarations serve the public purpose of denouncing conduct – discretion not exercised

Catchwords:

CRIMINAL PROCEDURE — Trial — Sexual offence proceedings

Catchwords:

APPEAL – separate question of law – statutory construction of floor space ratio in environmental planning instrument

Catchwords:

CIVIL LAW – high risk offender – extended supervision order – history of violence against woman – murder – strangulation – sad history of mental health issues – appropriate concessions as to statutory prerequisites – inconsistent attempts at rehabilitation – drug and alcohol problems – dispute over conditions – no question of principle

Catchwords:

EQUITY – Trusts and trustees - Resulting trusts – Purchase money trusts – Dispute as to ownership of assets following breakdown of relationship

Catchwords:

PRACTICE AND PROCEDURE – civil claim for damages for alleged conversion – alleged stolen vehicle – plaintiff previously unrepresented – first defendant unrepresented – prior purported representation of first plaintiff by lay advocate (SM) – prior statement by SM that plaintiff has no claim to subject stolen vehicle – title to vehicle apparently in third party which is currently in liquidation – need for delay for liquidator to consider position and to take steps to assert claim to property of the company

Catchwords:

ADMINISTRATIVE LAW — Judicial review — Workers Compensation — Guidelines issued under Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 376 — where plaintiff sought adjustment under cl 1.32 of Guidelines — whether Appeal Panel gave adequate reasons explaining application of cl 1.32 — whether error of law on the face of the record

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – discretion of Commission to award increases – whether Commission required to award increases to salaries and salary-related allowances each year – s 146C Industrial Relations Act 1996 (NSW) – cl 6(1)(a) Industrial Relations (Public Sector Conditions of Employment) Regulation 2014