Browse decisions Displaying 1 - 200 out of 123178 results

Catchwords:

APPEAL – right of appeal – question of law – leave to appeal STATE TAXES – Land tax – fixed trust – special trust – unit trust – trustee’s right of indemnity and exoneration INTERPRETATION – interpretation of trusts – incorporation of terms – “casuistic” drafting

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Whether success or failure on separate claims should affect costs orders

Catchwords:

REAL PROPERTY – LANDLORD and TENANT – RESIDENTIAL TENANCY – was the written agreement between the parties a residential tenancy agreement – limited Tribunal jurisdiction to make a declaration on that matter – Residential Tenancies Act 2010 (NSW) s 11

Catchwords:

MENTAL HEALTH – forensic patient – preliminary hearing – orders appointing experts – interim extension order – offences of intentionally causing fire and being reckless as to its spread – Black Summer bushfires – mild intellectual disability – moderate alcohol use disorder – not mentally ill – “Well Above Average” risk compared to other male sexual offenders – “High” likelihood of sexual offending – conditional release in community – no behavioural concerns since release – fishing, walking, bike riding – chronic nature of defendant’s cognitive condition – ongoing minimisation and absence of targeted intervention – response to challenges in community – orders made as sought

Catchwords:

HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave

Catchwords:

APPEALS – Costs – Rule 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) – fixed costs sum or indemnity costs

Catchwords:

ADMINISTRATIVE REVIEW – firearms – firearms offences – suspension and revocation - criminal convictions quashed on appeal – underlying conduct – gel blasters – paintball - imitation or “toy” firearms – public interest.

Catchwords:

COSTS – costs of appeal where appeal dismissed – special circumstances established – costs awarded

Catchwords:

CRIME – appeals – appeal against sentence – offence of sexual intercourse without consent – domestic violence – whether the sentencing judge erred in the application of a 25% discount for the applicant’s plea of guilty – whether the sentencing judge denied the applicant procedural fairness in finding that the offending was aggravated by a breach of trust – whether the sentencing judge double counted aggravating factors of a breach of trust and the offending having occurred in the victim’s home – no point of principle – leave to appeal granted – appeal dismissed

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Award interpretation –assignment of a Relieving Station Officer to a Zone Office

Catchwords:

APPEALS – Consent orders – Application of parties for consent orders disposing of the appeal – Principles – Application dismissed

Catchwords:

HIGH RISK OFFENDER – interim application – serious violence offender – application for an Interim Detention Order – where the making of an order is opposed by the Defendant – where the Defendant is subject to an Interim Supervision Order – where the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order – application for an Interim Detention Order is refused

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — No issue of principle EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Where residuary beneficiary incurs costs recovering property which benefits estate

Catchwords:

OCCUPATIONS – application of lay associate for approval under s 121(1) of the Legal Professional Uniform Law – relevant considerations where the applicant pleaded guilty to a serious offence – whether conditions should accompany the Tribunal’s approval – application approved subject to conditions.

Catchwords:

ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — jurisdiction following amendments under Child Protection (Working with Children) and Other Legislation Amendment Act 2025 — administrative review of refusal — whether a real and appreciable risk to the safety of children — serious allegations of historical sexual abuse — charges withdrawn – no other criminal record, charges or allegations made against the applicant PROCEDURE — admissibility of documents recording helpline reports – tender of documents authorised

Catchwords:

TAXES AND DUTIES – land tax – principal place of residence exemption – onus of proof

Catchwords:

CONTRACTS — hire of equipment — damage to diamond saws — whether General Terms of Hire applied — whether “Hire Schedule” required to enliven terms — allocation of risk for damaged equipment — latent defect or damage during hire — application of Jones v Dunkel — assessment of damages by reference to repair invoices — admissibility of repair invoices — proportionality and case management — liability under guarantee — definition of “Owner” — overriding purpose — unpleaded issue raised in reply — Local Court appeal

Catchwords:

DEVELOPMENT APPLICATION – demolition and new dwelling – conciliation conference – amended plans and documents – agreement reached – orders made

Catchwords:

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Whether Court is satisfied to a “high degree of probability” that defendant poses unacceptable risk of causing serious harm — Whether risk cannot be adequately managed by other less restrictive means — Where risk dependent upon whether defendant maintains sobriety — Where pattern of alcohol-related offending

Catchwords:

APPEALS — Procedure — Time limits — Extension of time – Extreme delay — Appellant seeking to file an appeal in 2025 against decisions published in 2016 and 2017 — Belated attempt to appeal due to change of legislation following the delivery of the decisions — Extension of time refused COSTS – Special circumstances — Extreme delay in lodging appeal award of costs — Appeal without substance and misconceived

Catchwords:

TAXES AND DUTIES — Land tax – Surcharge land tax – Applicant holds land on trust – discretionary trust – whether, during the relevant land tax years, foreign persons were excluded as a beneficiary under the terms of the trust deed for the purposes of s 5D of the Land Tax Act 1956 (NSW) – no discretion to relieve liability arising under statutory provisions

Catchwords:

REVENUE LAW - State taxes - surcharge purchaser duty - exemption - assessment - objection - appeal REVENUE LAW - interest - penalties - reasonable care -whether tax default due to matters beyond control of taxpayer - personal circumstances - remission ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal PRIVACY – information protection principles – disclosure of personal information – breach of information protection principles

Catchwords:

DEVELOPMENT APPLICATION – attached dual occupancy – conciliation conference – agreement between the parties – orders

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — damage caused by neighbouring trees — ivy on the dividing fence — whether ivy is on adjoining land — whether damaged property is on the applicant’s land — whether the ivy needs to be removed — whether the fence needs repair or replacement — who should pay for the works

Catchwords:

PROFESSIONS AND TRADES – health care professional - physiotherapist – appropriate protective orders

Catchwords:

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

Catchwords:

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

Catchwords:

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Residential building work — allegations of defective work and incomplete work — whether builder abandoned the site or was excluded from it by the owner

Catchwords:

Judicial Advice — overseas proceedings — beneficiary not contactable

Catchwords:

CIVIL PROCEDURE — Stay of proceedings — Concurrent civil and criminal proceedings — Same subject matter — Where first defendant charged with serious criminal offences — Where plaintiffs allege first defendant engaged in misleading or deceptive conduct in relation to an investment — Where the transaction at issue in these proceedings also forms the basis of some of the criminal charges being defended by first defendant – Whether it is in the interests of justice to stay proceedings in these circumstances

Catchwords:

ESTOPPEL — Proprietary estoppel — Encouragement — Where deceased transferred approximately 3000 ha of farmland to second defendant — Where second defendant and plaintiffs are siblings — Whether the deceased had made representations to the plaintiffs that they would each get a third of the farmland — Whether it was reasonable for the plaintiffs to rely on the alleged representations — Whether the plaintiffs relied to their detriment on the alleged promises SUCCESSION — Family provision — Claim by adult children for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Potentially large notional estate — Where plaintiffs each received cash legacy and second defendant received farmland — Whether adequate and proper provision made for the plaintiffs — Where plaintiffs contend they should each be given further provision to fund the purchase of farmland

Catchwords:

SUCCESSION – Probate and administration – contest between children of the deceased testator as to which of two competing wills should be admitted to probate – the equity in the estate’s principal asset is being eroded by mortgage interest, an issue which the parties are not addressing – two parties apply for pro bono legal assistance under Uniform Civil Procedure Rules 2005, r 7.36 for the probate contest – whether in the circumstances pro bono legal assistance should be recommended by the Court where the Court doubts the declared financial position of the parties and the parties are not focused upon the declining financial position of the estate.

Catchwords:

ADMINISTRATIVE LAW — Government Information (Public Access) — administrative review — government information — scope of review — reasonable searches — sufficiency of search — balancing competing public interest factors for and against disclosure.

Catchwords:

APPEALS – application for leave to appal – no question of principle

Catchwords:

COSTS – application for costs in Class 3 proceedings – Encroachment of Buildings Act 1922 (NSW), ss 14 and 15 – Civil Procedure Act 2005 (NSW), s 98 – Uniform Civil Procedure Rules 2005 (NSW), r 42.1 – whether the Applicant’s conduct disentitled costs – Respondents to pay the Applicant’s costs

Catchwords:

SENTENCING — appeal against sentence — relevant factors on sentence — Form 1 offences — whether sentencing judge impermissibly took Form 1 offence into account when assessing the objective seriousness of the principal offence — whether sentencing judge failed to make finding accepting or rejecting case advanced by the applicant — where appeal allowed — resentence — where a greater sentence ought to have been imposed than that given by the sentencing judge

Catchwords:

ADMINISTRATIVE LAW – appeal from judicial review decision – legal unreasonableness –certificate under Costs in Criminal Cases Act 1967 (NSW) – determination of costs that should be paid by Secretary of Department – whether Secretary bound to award “costs reasonably incurred” – application of Attorney General’s payment rates for solicitors and counsel – standard of legal unreasonableness – advertence to policy considerations – statutory purpose – no error in reasoning of primary judge

Catchwords:

CONTRACTS — incorporated medical practice has 7-year contract to provide IVF specialist services to bulk billing IVF clinic — IVF specialist receives negative online reviews — IVF clinic receives patient complaints about ‘bedside manner’ and lateness — staff complain about rudeness and yelling — contract terminated without notice on the basis of the “reasonably held opinion” of the IVF clinic that the doctor had “committed an act which if true would” adversely affect its reputation or business – doctor seeks $3.8M damages. NATURAL JUSTICE — whether IVF clinic obliged to give notice – whether IVF clinic obliged to afford natural justice and investigate complaints – case law review and principles at [212]-[232]. CORPORATIONS – attribution of state of mind of officers – principles at [256] – necessary to consider the evidence of three officers to determine whether the corporation had a ‘reasonably held opinion’. NOTICE OF BREACH — whether written notice required — whether notice conformed to requirements of clause — principles at [209]-[210] – oral notice sufficed. DAMAGES — company provides services by its director, who is paid a salary – whether company’s loss is gross income or nett profit – principles at [293]-[296] — failure to mitigate — doctor does not resume medical practice for three years – principles at [304]-[306]. WORDS AND PHRASES — “would” at [233].

Catchwords:

INSURANCE – interpretation – standard business insurance policy – insurance of petrol station – meaning of “building” within policy – whether underground pipes fall within definition of “building” INSURANCE – interpretation – meaning of “contract value” – whether “contract value” distinguishable from “contract price”

Catchwords:

CRIME – sentencing – assault of frontline health workers in hospital mental health unit – assault nurse s 60AE(2) of the Crimes Act – assault security officer s 60AE(2) – occasion actual bodily harm to security officer s 60EA(4) – recklessly wound security officer s 60AE(6) – use of knife – offender in state of drug-induced psychosis – risk of institutionalisation – 84% of adult life spent incarcerated – deprivations of early life – adjustment of parole to non-parole ratio s 44 CSP Act – backdate commencement of sentence where parole revoked on account of offences ss 47(2)(a) and (3) of CSP Act

Catchwords:

PRACTICE AND PROCEDURE – summary dismissal of appeal – application to modify development consent for integrated development – approval body refused to grant general terms of approval – consent authority refused modification application – appeal against approval body’s refusal to grant general terms of approval – no appeal against consent authority’s refusal of modification application – competency of appeal – where the approval body erroneously considered a modification application to be a development application for integrated development – where the approval body had no power to issue general terms of approval to a modification application – whether approval body made an appealable determination – decision not to grant general terms of approval not an appealable determination – Court lacked power to make orders sought by applicant – appeal summarily dismissed

Catchwords:

CRIME — Driving offences — Dangerous driving occasioning death JUDGE ALONE TRIAL — s 132 Criminal Procedure Act — Findings beyond reasonable doubt that driving dangerous and caused death — Central issue was the accused the driver EVIDENCE — No direct evidence as to who driver of vehicle was as between deceased and accused — Inferences — Intermediate facts need to be proved beyond reasonable doubt — Totality of facts proved beyond reasonable doubt accused as driver — Alternative explanation that deceased was the driver not a reasonable or rational conclusion from totality of proven facts

Catchwords:

WORKERS COMPENSATION — s 151D Workers Compensation Act 1987 (NSW) — Extension of time — Undesirability of application for leave being heard at the same time as final hearing — Such an approach to be discouraged NEGLIGENCE — Duty of care — Vicarious liability — Employment health and safety — Claim by former NSW Police officer against NSW Police Force for psychiatric injury being PTSD caused by repeated exposure to traumatic incidents — Scope and context of duty of care — One breach established — Finding that breach did not cause injury

Catchwords:

CIVIL LAW – Building and Construction Industry Security of Payment Act 1999 – whether plaintiff contracted to withdraw payment claim – whether parties objectively evinced an intention to withdraw a payment claim – where defendant did not serve a payment schedule – where plaintiff did not forfeit statutory rights but rather made a commercial accommodation for minor reduction of sum claimed in payment claim

Catchwords:

TRUSTS – whether directors of trustee resolved to amend trust deed and to approve appointment of a new appointor – whether amendment was outside power – whether appointor exercised power to appoint a supervisor for an improper purpose – whether supervisor exercised power to remove and replace trustee upon real and genuine consideration – whether appointments of appointor, supervisor and replacement trustee were invalid and of no effect EMPLOYMENT – where employment of chief executive officer terminated on payment of five weeks’ pay in lieu of notice – whether employment governed by written executive employment agreement – whether a mutual intention to abandon or vary the terms of the written agreement is imputed to the parties – whether employment could only be terminated on reasonable notice – whether employer breached implied obligations of good faith and reasonableness – whether there were grounds for summary dismissal CONTRACT – offer and acceptance – where parties exchanged emails regarding the terms of a proposed bonus in return for the successful implementation of a strategy to develop pubs – whether there was a binding agreement as to this “hospitality bonus term” CORPORATIONS – Oppression – whether the affairs of group of companies were conducted in a manner oppressive to minority shareholder – whether there was a strategy to remove minority shareholder as chief executive officer and as a director of operating entities for purpose of persuading him to agree to sell shares – whether there was commercial unfairness in removing minority shareholder from those roles

Catchwords:

EVIDENCE – Expert evidence – application for single expert to be appointed pursuant to r 31.37 of the UCPR – complex and contested quantum issues – unclear scope of expert’s task – financial prejudice to defendants – whether appointment would advance the just, quick and cheap resolution of the real issues – HELD – application dismissed

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – murder – joint criminal enterprise and extended joint criminal enterprise – investigated nine years later – where applicant acquitted by this Court – where High Court allowed Crown appeal and remitted for determination – admissions – where admissions central to proof of Crown case – reliability of admissions – inconsistent and against interest – litany of lies – Court invited to review recorded material – intercepted telephone calls and interviews with police – nature of advantage held by jury – whether advantage capable of resolving doubt.

Catchwords:

CIVIL PROCEDURE — subpoenas — objection to production of documents or things — client legal privilege — privileged documents not to be produced CIVIL PROCEDURE — subpoenas — objection to production of documents or things — compliance burden

Catchwords:

CRIMINAL LAW — appeal against conviction — causing grievous bodily harm with intent to cause grievous bodily harm — alleged unreasonable verdict — substantial evidence of multiple blows to the victim’s head – admissibility of statement made immediately after assault — statement made when victim unconscious — whether capable of constituting admission — motive to inflict grievous bodily harm — s 81 Evidence Act 1995 (NSW) — extension of time — delay caused by seeking a second opinion — appeal lacking merit

Catchwords:

COSTS — Appeals - Party/Party — indemnity costs - Calderbank offers - Misconduct of a party

Catchwords:

CRIME – Appeal – Appeal against sentence – Aggregate sentence – 35 counts including dangerous driving occasioning death, dangerous driving occasioning grievous bodily harm, actual bodily harm caused by wanton driving – Whether material error in factual findings –Whether sentence manifestly excessive – Whether notional accumulation excessive – Leave to appeal granted but appeal dismissed

Catchwords:

Occupations – legal practitioners – solicitors – disciplinary proceedings – Respondent found guilty of professional misconduct – Respondent engaged in a conflict of interest involving his own interests and those of clients – instrument of consent – Respondent having given up his practising certificate and undertaking not to apply for a fresh practising certificate – consideration of personal circumstances of Respondent – application for an order for confidentiality.

Catchwords:

CRIME – Appeal – Appeal against conviction – Unreasonable verdict – Murder – Whether Crown excluded the possibility that a person other than accused inflicted at least one blow to the head of the deceased – Deference given to advantage of jury in assessing credibility and reliability of witnesses

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – application for an enabling order –applicant is a disqualified person having been convicted of a disqualifying offence (act of indecency)– whether applicant has displaced the statutory presumption that he poses a risk to the safety of children.

Catchwords:

ADMINISTRATIVE LAW - Firearms – objects of legislation – public interest – public safety – fit and proper – associations – confidential evidence

Catchwords:

APPEALS – whether utility where no practical consequences for the parties – principles – appeal dismissed

Catchwords:

CRIME — appeal against sentence — sentence approximates the sentence actually sought at first instance — not manifestly excessive — parity ground — less severe outcome for co-offender amply justified by differences between cases — no question of principle

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – dual occupancy development in R2 low density zone – orders

Catchwords:

CRIMINAL LAW — work health and safety — offences — category 3 — risk of other persons being struck by collapse of cabinet that was not securely fixed to a wall — workers not provided instructions on how to assemble and fit cabinet in English — worker did not use all L-brackets provided —section 10(1)(a) application — not an appropriate matter for disposal pursuant to s 10(1)(a) SENTENCING — relevant factors on sentence — De Simoni principle — pleaded risk could lead Court to De Simoni error — pleaded risk amended — both parties bear a responsibility to ensure that material tendered on sentence does not offend De Simoni rule — evidence that permitted an inference that the workers were exposed to a risk of serious injury or death disregarded SENTENCING — relevant factors on sentence — aggravating factors — mitigating factors —deterrence — reduced need for specific deterrence

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – attempt to possess commercial quantity of heroin – whether prosecution required to exclude possibility that an associate of the applicant had attempted to possess the heroin alone – unnecessary for prosecution to exclude that possibility – verdict not unreasonable CRIME – appeals – appeal against sentence – principles in R v De Simoni (1981) 147 CLR 383 – whether sentencing judge sentenced applicant based on his “role in importation” – error established – no lesser sentence warranted

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – Pleadings – Amendment – Where a defendant opposes the filing of a further Amended Statement of Claim – Where a defendant submits that proceedings ought be summarily dismissed – Whether plaintiff had been given sufficient opportunity in the past to re-plead such that further leave should not be granted – Where defendant subject to real prejudice as a result of costs incurred by continued failed attempts to adequately re-plead cause in action – Where plaintiff entitled to ventilate their claim in circumstances where they were a victim of sexual abuse – Where failure of plaintiff’s solicitors to adequately draft an appropriate pleading is not to be attributed to the plaintiff so as to prevent the matter being litigated – Leave granted

Catchwords:

CRIMINAL LAW — appeal — conviction — self-represented applicant — maintaining unlawful sexual relationship with child under 16 years — challenges to conduct of prosecutor, defence counsel and trial judge — allegations of miscarriage of justice — admissibility of tendency, context and complaint evidence — alleged judicial bias — unreasonable verdict — constitutional challenge to s 66EA of the Crimes Act 1900 (NSW) CRIMINAL LAW — appeal — conduct of defence counsel — conduct of prosecutor — whether conduct caused miscarriage of justice CRIMINAL LAW — appeal — sentence — maintaining unlawful sexual relationship with child under 16 years — incompetence of counsel — alleged error in assessing number and frequency of acts — manifest excess — failure to consider particular circumstances — absence of remorse or insight

Catchwords:

SENTENCING — appeal against sentence — co-offenders — disparity between sentences — whether the applicant had a justifiable sense of grievance having regard to the sentences imposed on five co-offenders — where five co-offenders received lesser sentences after the applicant was sentenced — where co-offenders sentenced by different judges — where co-offenders found guilty of different offences — whether open to applicant to impugn findings in co-offenders sentencing judgment

Catchwords:

PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Application for variation or rescinding of previous orders – Application for continuation of stay previously ordered PRIVATE INTERNATIONAL LAW – Orders sought – Where plaintiff seeks to rescind, set-aside or vary an order made by a Judge of the Supreme Court of NSW regarding the registration of foreign orders based on an alleged error of law and fact – Where said order was made by consent – Whether the order was consented to by the parties in error as a result of an error of fact and foreign law – Insufficient cause shown that the order was made irregularly, illegally or against good faith – No application of the ‘slip rule’ contained in r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) – Where order sought by the plaintiff does not fall within any identified rules contained within the Uniform Civil Procedure Rules 2005 (NSW), Supreme Court Act 1970 (NSW) or Civil Procedure Act 2005 (NSW) – Where inappropriate for the Court to exercise discretion to set aside an order whilst an appeal is pending with respect to that order – Relief not granted PRIVATE INTERNATIONAL LAW – Orders sought – Where plaintiff seeks through Notice of Motion a declaration that a stay ordered by a Judge of the Supreme Court of NSW remains in full force and effects whilst awaiting the outcome of similar proceedings in a foreign jurisdiction – Whether a stay ordered previously has come to an end as a result of the delivery of a foreign judgment – Whether there has been final determination of the defendant’s set-off application – Where stay order contains reference to bankruptcy petitions and statutory demands which have not yet been determined – Where international judicial comity and public interest suggests that overlapping proceedings should not be heard simultaneously in different jurisdictions – Where it would be contrary to public policy to permit the same matters to be litigated in Australian courts before the outcome of a set-off application in a foreign court – Where the stay order was made on the basis that there would be a determination of a balancing figure after the completion of set-off – Relief granted

Catchwords:

HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for extended supervision order – final hearing – whether defendant high risk terrorist offender – convicted NSW terrorism activity offender – statutory preconditions – jurisdiction – unacceptable risk test – expert evidence – other relevant material – autism spectrum disorder diagnosis – demonstrated belief in violent jihad – risk-increasing effect of order – primary risk of general violence – untested in community – risk unacceptable – discretion – extended supervision order made – period of 1 year – significantly less restrictive conditions imposed – if I had more time, I would have written a shorter letter – Mark Twain – Blaise Pascal

Catchwords:

CIVIL PROCEDURE – default judgment – setting aside – discretionary factors

Catchwords:

CORPORATIONS — voidable transactions — application for orders under s 588FF of the Corporations Act 2001 (Cth) – where Second Defendant relied on defence under s 588FG(2) of the Corporations Act 2001 (Cth) – whether defence under s 588FG(2) of the Corporations Act 2001 (Cth) is established

Catchwords:

ADMINISTRATIVE LAW — Application for review under s 27(3) of Child Protection (Working with Children) Act 2012 — Interim Bar placed on the applicant’s clearance pending a risk assessment to decide whether the clearance should be reinstated or cancelled — Report made by former foster child that she had been sexually assaulted by the applicant and an allegation that the applicant’s ex-wife failed to act protectively towards the child — Tribunal to assess whether applicant poses a risk to the safety of children.

Catchwords:

CRIME – jurisdiction to prosecute executive liability offences under the Food Act – absence of express power – whether Food Authority as a statutory body has implied power to prosecute Food Act offences STATUTORY INTERPRETATION – legislative purpose – consideration of Act as a whole – text and context – coherence of outcome of construction

Catchwords:

HEALTH – non disclosure / non-publication order – application for reinstatement of a general practitioner after deregistration - application refused - costs

Catchwords:

COSTS – matter fixed for trial – plaintiff serves substantial body of further liability and quantum evidence – trial vacated – whether plaintiff should pay costs of motion to vacate and costs thrown away – no issue of principle.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — industrial disputes — dispute orders — penalty — proper approach to imposing penalty pursuant to s 139(3)(e) of the Industrial Relations Act 1996 (NSW) in light of Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 — purpose of penalty imposed under s 139(3)(e) — standard of proof — calculation of maximum penalties — course of conduct

Catchwords:

APPEAL – extension of time in which to appeal – exercise of discretion – length of delay – adequacy of explanation for the delay – whether significant new evidence has arisen

Catchwords:

CRIME – appeals – appeal against sentence – offence of wound person with intent to resist or prevent arrest – related offences on s 31 certificate – police pursuit, not stop and drive dangerously – robbery armed with offensive weapon – whether sentencing judge erred by sentencing the applicant ‘at law’ for the related offences – whether the sentencing judge erred by sentencing the applicant to a sentence that was more than jurisdictionally available – whether the sentence was manifestly excessive as a result of the asserted error – leave to appeal allowed – applicant resentenced

Catchwords:

ADMINISTRATIVE REVIEW - Holder of Working with Children Check – Interim Bar – Admission of Evidence Without Provenance – Weight to be Placed on Finding of Overseas Body – Correct and Preferrable Decision – Is it Likely that there is a Real and Appreciable Risk to the Safety of Children

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to dwelling house – impact on heritage significance of an item – heritage conservation area – conciliation conference – agreement between parties - orders

Catchwords:

ADMINISTRATIVE LAW — Application for review under s 27(3) of Child Protection (Working with Children) Act 2012 — Interim Bar placed on the applicant’ s clearance pending a risk assessment to decide whether the clearance should be reinstated or cancelled — Report made by former foster child that she had been sexually assaulted by the applicant’s ex-husband and an allegation that the applicant failed to act protectively towards the child — Tribunal to assess whether applicant poses a risk to the safety of children.

Catchwords:

DEVELOPMENT APPLICATION: Tourist & Visitor Accommodation in RU2 Rural Landscape zone - Restaurant and Function Centre – conciliation conference – agreement between parties - orders

Catchwords:

CIVIL PROCEDURE – Interlocutory applications – application for interim orders staying a decision pending the determination of an administrative review

Catchwords:

CRIME — Appeals — appeal against conviction — unreasonable verdict — Crown alleged exclusive possession of drugs and cash — applicant argued evidence did not establish exclusive possession — whether applicant had exclusive possession of drugs and cash

Catchwords:

ADMINISTRATIVE LAW - administrative review - government information - access application - enforceable right to access government information - public interest considerations for disclosure - public interest considerations against disclosure - legal professional privilege

Catchwords:

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

Catchwords:

APPEAL — new maintenance shed, office building and parking facilities for existing hatchery — conciliation conference — agreement reached — orders made

Catchwords:

CIVIL PROCEDURE – summary judgment – interpretation of insurance contract – where multiple interpretations of relevant provisions reasonably arguable – issue not suitable for summary judgment – motion dismissed

Catchwords:

APPEAL – application to vary interlocutory order - whether application can be used as a mechanism of appeal – application dismissed

Catchwords:

OCCUPATIONS – Legal practitioners – administrative review application from Australian lawyer for review of decision of the Council of the Law Society of New South Wales relating to a practising certificate – statutory condition requiring two years of supervised legal practice – jurisdiction of NSW Civil and Administrative Tribunal (NCAT) not engaged – appeal and review rights under s 100 of the Legal Profession Uniform Law (NSW) – designated tribunal – NCAT not designated tribunal for application made – application dismissed for want of jurisdiction

Catchwords:

OCCUPATIONS – Legal practitioners – Solicitors – Complaints and discipline – Application for leave to withdraw disciplinary application under s 147 of the Legal Profession Uniform Law Application Act 2014 (NSW) – Practitioner previously removed from Roll of Australian lawyers – Utility – Termination of proceedings

Catchwords:

TORTS – trespass to land – underground trespass –action in trespass in relation to underground gas infrastructure – separate determination of questions – whether installation and continued presence, maintenance and use of gas infrastructure done pursuant to statutory authority – nature of ownership and possession of gas infrastructure

Catchwords:

LAND LAW – Public roads – dedication and acceptance between 1892 and 1920 – whether parties instead intended private rights of way – whether mortgagor of Torrens land competent to dedicate public road – whether Council’s statutory title to public road defeated by registered proprietor’s indefeasibility of title

Catchwords:

APPEALS — Australian Consumer Law — whether BMW vehicle was of acceptable quality — adequacy of reasons — whether failure to exercise jurisdiction or denial of procedural fairness — failure to make material findings — constructive failure to exercise jurisdiction

Catchwords:

DEVELOPMENT APPEAL – modification of consent – co-living housing – conciliation conference – agreement between the parties – orders

Catchwords:

CONSUMER LAW – consumer guarantees – supply of goods – alleged non-fitting tyre rims not fit for specified purpose and not matching description – alleged proxy purchasing service – alleged compliance in sourcing tyre rims with consumer instructions – service not supply of goods – service alleged to have been performed in accordance with instructions – Australian Consumer Law (NSW) ss 55, 56, 60

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – mixed use development in Wollongong city centre – cl 4.6 variations for building height and separation – orders

Catchwords:

DEVELOPMENT APPEAL — co-living housing — affordable housing — upgrades to existing lodging rooms — loss of low income housing — FSR variation — contributions calculations

Catchwords:

DEVELOPMENT APPLICATION – animal boarding and training establishment – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – in-fill self-care housing – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPEAL — attached dwellings — conciliation conference — agreement between the parties — orders

Catchwords:

APPEAL: subdivision of land in C3 Environmental Management – conciliation conference – agreement between parties - orders

Catchwords:

DEVELOPMENT APPLICATION: residential apartment development – shop top housing development in MU1 Mixed Use zone – conciliation conference – agreement between parties - orders

Catchwords:

ADMINISTRATIVE LAW – administrative review - privacy – information protection principles – reasonable steps to check accuracy of personal information before use – unlawful use of personal information - unlawful disclosure of personal information – actions Tribunal may take in response to public sector agency’s contravention of information protection principle – written formal apology

Catchwords:

STATUTORY INTERPRETATION – development consent – deferred commencement condition – construction of Environmental Planning and Assessment Act 1979 (NSW) - construction of Liquor Act 2007 (NSW) – when is a development consent ‘in force’

Catchwords:

CIVIL PROCEDURE – Abuse of process – Whether cross-claim should be struck out – Whether cross-claim should be dismissed or permanently stayed – Whether defendant should be estopped from pursuing matters set out in cross-claim – Where pleadings are contrary to previous arguments successfully pursued in this Court – Whether section 93C(3) of the Legal Profession Uniform Law Application Act 2014 (NSW) creates an issue estoppel in relation to question of whether valid costs agreement exists – Operation of s 199(2)(a) of Legal Profession Uniform Law 2014 (NSW) – Abuse of process established

Catchwords:

COSTS — Party/Party — Costs orders in interlocutory proceedings — No issue of principle COSTS — Party/Party — Timing — Costs payable forthwith — No issue of principle

Catchwords:

CIVIL PROCEDURE — Hearings — Suppression and non-publication — Names of law firm, lawyers and counsel

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Award interpretation – entitlement of shift workers in Transport Management Centre to day in lieu for working a public holiday

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – Remuneration – Equal remuneration – consent award – no issue of principle

Catchwords:

JUDGMENTS AND ORDERS – Stay of execution – Pending appeal – Where application for stay predicated upon appeal being filed – Where no appeal was filed – Where no proper basis for stay established – motion dismissed

Catchwords:

CRIME — domestic violence — sexual intercourse without consent — choking, suffocation or strangulation — stalking or intimidation — armed with intent to commit indictable offence — common assault CRIME — sexual offending — where offending took place in the context of a highly sexual consent-no-consent relationship SENTENCING — where crimes committed against one victim over extended period — victim impact statement SENTENCING — aggravating factors — in the presence of infant — armed with a weapon - where offending took place in victim’s home — where offending aggravated by being in the victim’s home notwithstanding that the offender and victim lived in the home together CRIME — offences on s 166 certificate found to be proven by the Court

Catchwords:

PROCEDURE – defendants’ application for determination of a separate question – no order for a separate question

Catchwords:

CRIME – sentencing – robbery armed with offensive weapon – police pursuit – not stop – drive dangerously – take & drive conveyance without consent of owner – where Offender's motivation for offending was to be returned to prison – where Offender has been institutionalised since a young age – reduced moral culpability – special circumstances

Catchwords:

CRIME — Break, enter and commit serious indictable offence — Offence being robbery SENTENCING — Aggravating factors — $100,000 stolen — Elderly victim at home alone — Unnecessary and gratuitous violence — Significant planning and premeditation — Offender a serving New South Wales Police officer — Used information gained during execution of search warrant to commit offence — Breach of trust — General deterrence a weighty factor — Reaction of people on social media caused harm to victim over and above what ordinarily expected — Taken into account as aggravating facto under s 21A(2)(g) SENTENCING — Subjective considerations on sentence — Special circumstances — Offender suffers serious mental issues — PTSD from trauma exposed to during career as police officer — Root cause of offending

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — HELD — proceedings summarily dismissed

Catchwords:

Cost – rule 38A Civil and Administrative Rules 2014 (NSW) – costs follow the events – costs recoverable by self-represented litigant – fixed costs

Catchwords:

MENTAL HEALTH — Criminal proceedings — Special hearing

Catchwords:

GUARANTEE AND INDEMNITY — Scope of liability of guarantor — Construction — Collateral agreement — Where plaintiff lent moneys to first defendant — Where second and fourth defendants each entered into a contract of guarantee and indemnity in respect of the loaned moneys — Where second defendant alleges an oral collateral agreement with the plaintiff whereby the plaintiff stated it would enforce guarantees given by the other guarantors first — Whether such an agreement was made — Whether the agreement would be inconsistent with the terms of the contract of guarantee and indemnity GUARANTEE AND INDEMNITY — Contract of guarantee — Construction — Whether contract of guarantee and indemnity correctly refers to the principal deed of loan GUARANTEE AND INDEMNITY — Rights of guarantor against creditor — Right to notice of default or demand — Where contract of guarantee and indemnity provides for liability under the indemnity ‘on demand’ and liability under the guarantee when guarantor receives a ‘default notice’ — Whether liability arises under guarantee or indemnity — Whether a default notice is a condition precedent — Whether purported demand complied with the requirements of the default notice GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability — Whether plaintiff postponed enforcement of guarantee

Catchwords:

BANKING AND FINANCE — Banks — Banker and customer relationship — creation of relationship – identification of customer AGENCY — Creation of agency — Signing documents — authority of agent — Ratification EQUITY – Trusts – Express trusts – Resulting trusts

Catchwords:

CONTRACTS — Construction — Context – Surrounding Circumstances – Termination Consequences of termination – Damages – Mitigation of loss RESTITUTION — Nature of restitutionary liability —Quantum meruit

Catchwords:

REAL PROPERTY – STRATA MANAGEMENT – owners corporation’s strict duty to maintain and repair common property –alleged damage to lot property from alleged breach of duty – measure of damage to lot property when renovations occurred – whether relevant pipes were common property -Strata Schemes Management Act 2015 (NSW) s 106 - Strata Schemes Development Act 2015 (NSW) s 4 COSTS – application of ordinary costs rules – costs follow the event – ordinary basis

Catchwords:

DAMAGES – personal injury – where plaintiff successful in personal injury claim – calculation of damages for past economic loss and future treatment expenses

Catchwords:

CRIME — appeals — appeal against sentence — where Crown accepted that Court should proceed to resentence the applicant — where extension of time and leave to appeal granted — where appeal allowed — where Court proceeded to resentence the applicant

Catchwords:

APPEALS – adequacy of reasons

Catchwords:

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

Catchwords:

CRIMINAL LAW — appeal against conviction — using carriage service to transmit communications with person believed to be under 16 years — misdirection as to belief element — error conceded — whether Court should direct acquittal or order re-trial — interests of justice — discretion of Director of Public Prosecutions — significance of conviction under Child Protection (Offenders Registration) Act 2000 (NSW)

Catchwords:

ADMINISTRATIVE REVIEW – conduct of a solicitor – whether the Respondent’s decision to caution the Applicant should be affirmed or set aside – whether a letter issued by the Applicant to a costs assessor was misleading or capable of misleading – whether the issue of the letter and its content constituted unsatisfactory professional conduct.

Catchwords:

APPEAL – STRATA TITLE- costs

Catchwords:

CRIME – Appeal and review – Appeal from District Court to Supreme Court – Appeal against conviction – Miscarriage of justice – Whether unedited transcript containing prejudicial material was provided to the jury – Standard of proof – Where balance of probabilities determined to be appropriate standard of proof where the appeal is based on a finding of fact CRIME – Sexual offences – Indecent assault of a person under 16 years of age – Applicant found guilty by a jury – Aggregate sentence imposed CRIMINAL PROCEDURE – Trial – Jury – Access to transcript – Irregularities – Where unedited transcript containing prejudicial material may have been provided to the jury – Where evidence from a previous trial may have been provided to the jury in a second trial after the charges relevant to that evidence had been withdrawn – Where no practitioners in the trial have any recollection of an incorrect transcript being provided to the jury – Where the primary evidence of the applicant is an unedited transcript from the court file which was marked for identification – Where the Court unable to infer that the incorrect transcript was provided to the jury based on the evidence before it – Where practitioners were alert to the need to ensure the correctness of transcripts as a result of an error earlier in the trial – Where the primary evidence at trial was of a small number of recorded interviews – Where significant discrepancies in the transcript and recorded interview would have been alerted to the Judge – Where the recording was played whilst the jury were in possession of the transcript and no discrepancy was raised by any party in the court room at the time – Where the Court was not satisfied as a matter of fact that the jury received an inappropriate transcript – Miscarriage of justice not established – Appeal dismissed

Catchwords:

CIVIL PROCEDURE – pleadings – amendment to pleading – application for leave to file further amended statement of claim – where building inspection report failed to identify various defects in property – where second and third defendants object to certain paragraphs – allegations of misleading or deceptive conduct – complaints about form of the proposed pleading – whether the new claims arise from the same or substantially the same facts – whether a grant of leave would cause the defendants to suffer prejudice

Catchwords:

CRIME – appeals – appeal against conviction – supply commercial quantity of prohibited drug – 1,4-butanediol – whether guilty verdict unreasonable – whether commercial quantity of drug in possession for the purpose of supply – application of deeming provision – s 29(a) Drug Misuse and Trafficking Act 1985 (NSW) – definite and indefinite articles – nature of offence – indivisible whole – where proof of intention to use part of drug not inconsistent with possession of whole quantity for the purpose of supply – appeal dismissed

Catchwords:

CRIME – Appeal against sentence – Sexual offences – Aggravated sexual assault – Indecent assault – Circumstances of aggravation – Victim under authority – Victim under 16 years of age – Leave granted – Appeal upheld – Applicant resentenced CRIME – Appeals – Appeal against sentence – Misapplication of principle – Whether the sentencing judge erred in an assessment of objective seriousness – Whether the characterisation given by the sentencing judge was reasonably open to him –Ground of appeal not upheld CRIME – Appeals – Appeal against sentence – Misapplication of principle – Whether the sentencing judge erred in finding that personal deterrence was a significant factor in sentencing – Whether the offender’s willingness to engage in treatment courses is conditional upon expressions of remorse and insight into offending – Error of principle – Where remorse and insight into offending found not to be a precondition for engagement in treatment courses – Grounds 2 and 3 upheld CRIME – Appeals – Appeal against sentence – Manifest excess – Unnecessary to consider in light of upholding grounds 2 and 3

Catchwords:

CRIMINAL PROCEDURE — costs — Costs in Criminal Cases Act 1967 (NSW) — appeal against the trial judge’s decision to award a costs certificate after finding that it was not reasonable to institute proceedings against the respondent — whether if the prosecution had evidence of all of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings — whether the complainant was unreliable — whether complaint witnesses gave evidence that was inconsistent with the complainant’s account — whether the trial judge fell into error within the meaning of House v The King — whether a certificate should be awarded pursuant to the Suitors’ Fund Act 1951 (NSW) even if the appeal was successful

Catchwords:

CRIME – Appeal and review – Appeal from District Court to Supreme Court – Appeal against sentence – Leave to appeal granted – Appeal dismissed CRIME – Child sex offences – Child abuse material – Bestiality material – Possession of – Pleas of guilty – Imposition of an aggregate sentence CRIME – Grounds of appeal – Failure to take into account a relevant consideration – Failure to consider objective seriousness – Where an ex-tempore judgment lacks the order and precision of a reserved judgment – Principle established in Rotner v R [2011] NSWCCA 207 – Where sentencing Judge refers to the factors relevant to objective seriousness without making an explicit determination – Where assessment of objective seriousness deemed to have taken place when the sentencing judgment is read as a whole – Ground 1 not upheld CRIME – Grounds of appeal – Failure to take into account a relevant consideration – Failure to give sufficient weight to a reduction in moral culpability re Bugmy and the applicant’s mental health conditions – Error in taking applicant’s mental health conditions into account – Application of Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 – Where the applicant submitted that he was an inappropriate vehicle for general deterrence – Where no submissions were made or evidence tendered to support a link between the applicant’s mental health conditions and his offending conduct – Where consideration of Bugmy factors deemed to have taken place when the sentencing judgment is read as a whole – Ground 2 not upheld CRIME – Grounds of appeal – Manifest excess – Where it was open to the sentencing Judge to conclude that each offence needed significant individual recognition for the individual criminality displayed – Where indicative sentences displayed no error – Sentence open to sentencing Judge – Ground 3 not upheld

Catchwords:

CRIMINAL LAW – trial – pre-trial issues – ruling on admissibility of hearsay statements EVIDENCE – hearsay – first-hand hearsay exceptions – s 65(2) of the Evidence Act 1995 (NSW) – maker unavailable – whether the representation was made shortly after the asserted fact – meaning of “shortly after” – whether the representation was made in circumstances that make it highly probable that the representation is reliable – where maker of the representation criminally concerned in the events that gave rise to the proceedings

Catchwords:

CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement and ancillary orders

Catchwords:

CIVIL PROCEDURE – statement of claim – application for dismissal of proceedings or strike out of the pleading – where the statement of claim does not currently articulate or formulate a properly pleaded cause of action – plaintiff given opportunity to replead

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 members to consider and, if thought fit, to agree to proposed scheme of arrangement — whether requirements to order scheme meeting are satisfied

Catchwords:

CORPORATIONS — voluntary administration — deed of company arrangement — where plaintiff creditor applies to set aside a deed of company arrangement — where plaintiff alleges several matters in support of claim that immediate winding up of the company would result in better return for creditors — where plaintiff’s claims depend, in large part, on whether creditor owed substantial claim for ‘make good’ obligations in relation to premises — where plaintiff alleges breaches of directors duties —held that plaintiff did not comply with contractual requirement to give rise to ‘make good’ obligation on which it relied — held that arguable case for breach of directors’ duties not established — plaintiff has not established that deed of company arrangement should be set aside

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of the Personal Injury Commission of New South Wales – where the insurer was found liable to pay for treatment and care expenses that were directly related to, and reasonably contemplated at the time of, the surgery whether or not the treatment was provided after the 26-week period STATUTORY INTERPRETATION – the meaning of the word “incurred” in Motor Accident Injuries Act 2017 (NSW), s 3.28 as it read prior to amendment

Catchwords:

SUCCESSION – burial rights – where there is a will but no grant of probate – where there is a dispute between siblings as to the location of their mother’s burial – where plaintiff contends the deceased wished to be buried in Fiji – where second to fourth defendants contend that the burial location should be Sydney – Amended Summons dismissed

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By prosecutor on a question of law alone — Crimes (Appeal and Review) Act 2001 (NSW), ss 56, 59 — summary dismissal of charge by Magistrate following decision to exclude evidence — nature of an appeal under s 56 discussed CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity — fictitious children — Grindr conversation between accused and purportedly 15 year old male — assault and robbery of accused by group of four — “vigilante paedophile hunting” EVIDENCE — Evidence Act 1995 (NSW), s 138 — whether Magistrate erred in finding evidence of the Grindr conversation was obtained in or in consequence of a contravention of Australian law STATUTORY INTERPRETATION — Crimes Act 1900 (NSW), ss 66EB, 80G — Crimes Prevention Act 1916 (NSW), s 2 — whether the specific preclusion of an incitement offence under s 80G displaces the general application of s 2

Catchwords:

ADMINISTRATIVE LAW – judicial review – review of decision by review panel constituted for review under Motor Accidents Compensation Act 1999 (NSW) – where plaintiff injured in motor vehicle accident – psychological injury – whether review panel failed to provide reasons in applying the Psychiatric Impairment Rating Scale – whether review panel’s path of reasoning is sufficiently exposed on a fair reading of the reasons – whether review panel failed to conduct the medical assessment in accordance with the Motor Accident Permanent Impairment Guidelines

Catchwords:

APPEAL – development control order – emergency works order – repair order – conciliation conference – agreement reached – orders made

Catchwords:

ADMINISTRATIVE LAW – combat sports - administrative review – industry participant and promoter registration - fit and proper person

Catchwords:

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

Catchwords:

DEVELOPMENT APPEAL – Modification application – car parking - conciliation conference – agreement between the parties - orders

Catchwords:

DAMAGES – assessment of damages for statutory unconscionable conduct and breach of fiduciary duties in acquisition of company – valuation of start‑up company – where primary judge rejected expert valuation reports from plaintiff and defendants – whether primary judge erred in relying on statements by defendant to creditor as to the value of the company

Catchwords:

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – dispute as to existence of construction contract under s 4 SOPA CONTRACTS – formation – identity of parties – whether parties intended to be bound subject to execution of formal contract – consideration of subsequent conduct

Catchwords:

EQUITY — Trusts and trustees — Trust instruments — Amendment of— Arrangement to replace deregistered appointor and default beneficiary — No issue of principle — Trustee Act 1925 (NSW), s 86A

Catchwords:

PRACTICE AND PROCEDURE: application to vacate hearing date – applicable legal principles – application upheld.

Catchwords:

BUILDING AND CONSTRUCTION — Contract — Implied terms — Statutory warranties under s 18B of Home Building Act 1989 (NSW) — Whether building work complied with Building Code of Australia (BCA) — Where under BCA different standards relating to waterproofing exists depending on correct classification of given room as ‘habitable’ or ‘non-habitable’ — Meaning of ‘habitable’ under the BCA NEGLIGENCE — Duty of care — Non-delegable duty — Whether claim for breach of statutory duty under s 37 of Design and Building Practitioners Act 2020 (NSW) (DBPA) is apportionable under Part 4 of Civil Liability Act 2002 (NSW) where there has been no delegation of works to third parties — Consideration of Pafburn Pty Ltd v Owners – Strata Plan No 84674 (2024) 99 ALJR 148; [2024] HCA 49 and The Owners — Strata Plan No 84674 v Pafburn Pty Ltd (2023) 113 NSWLR 105; [2023] NSWCA 301 NEGLIGENCE — Defences — Contributory negligence — Whether defence of contributory negligence applicable to breach of statutory duty under s 37 DPBA — Whether defence made out on the facts

Catchwords:

PROTECTIVE JURISDICTION – Costs – Principles to be applied

Catchwords:

COSTS – where plaintiff successful – where plaintiff made a Calderbank offer to settle proceedings including other claims – where plaintiff contends defendant’s conduct was an abuse of process – where plaintiff raised a late argument on which it was ultimately successful – no basis for indemnity costs – no basis for plaintiff to pay portion of defendant’s costs – costs ordered on the ordinary basis PAYMENT OF MONEY OUT OF COURT – where plaintiff paid money into Court as ‘price of injunction’ – where plaintiff has been successful – where defendant resists payment out of Court while it appeals – no basis for money to remain in Court INJUNCTION – no issue of principle – defendant to be restrained from enforcing SOPA determination

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — three sets of proceedings on same subject matter — HELD — proceedings summarily dismissed

Catchwords:

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

Catchwords:

TAXES AND DUTIES — Dutiable transactions —Exemption from duty under First home buyers assistance scheme — Reassessment — Onus of proof satisfied

Catchwords:

CONTRACTS – Termination – Repudiation of contract – where purchaser chooses style of scheme in off the plan unit – where vendor constructs unit with wrong style scheme – where vendor refuses to change style scheme – where purchaser terminates upon vendors renunciation of contract – whether contract permits vendor to change style scheme – whether vendor renunciates contract – no question of principle CONTRACTS – Remedies – Specific performance – Contract for sale of land – whether specific performance should be ordered LAND LAW – Conveyancing – Contract for sale of land – Deposit – whether deposit should be returned pursuant to Conveyancing Act 1919 (NSW), s 55(2A) – no question of principle

Catchwords:

COSTS – security for costs on appeal – impecunious appellant – where appellant’s impecuniosity was in part caused by his own conduct in related proceedings – where security may stifle appeal – limited prospects of success on appeal – security ordered

Catchwords:

CRIME – appeals – appeal against sentence – one count of not stopping and driving a vehicle dangerously knowing that police officers were in pursuit of the vehicle – one count of assaulting a police officer in the execution of his duty – guilty plea – where the applicant was serving the balance of parole SENTENCING – appeal against sentence – whether the sentencing judge erred in the consideration of totality and a finding of special circumstances – whether the sentence was manifestly excessive – no point of principle – leave to appeal granted – appeal dismissed

Catchwords:

APPEALS – question of law – whether error on a question of law – adequacy of reasons

Catchwords:

COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs thrown away by an adjournment — No issue of principle

Catchwords:

CIVIL PROCEDURE: separate determination of questions – questions concern permissibility of proposed development of tourist accommodation – applicable legal principles – separate questions ordered.

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — No issue of principle

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – Remuneration – Equal remuneration – consent award – no issue of principle

Catchwords:

EVIDENCE – written statements – admissibility – whether the evidence is admissible under s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether the material was not reasonably available to the plaintiff when the pre-filing statement was served – whether the failure to grant leave would substantially prejudice the plaintiff’s case

Catchwords:

CRIMINAL LAW — work health and safety — offences — category 2 – where crane on work site came into contact with overhead power lines causing cabin of the vehicle to be scorched – no person injured – obvious risk of injury – where a series of steps could have been easily and inexpensively implemented to address the risk – some steps taken to address the risk which were insufficient to properly do so – serious offending – strong subjective case – early plea of guilty - defendant a small family company – unchallenged evidence of parlous financial state establishing a reduced capacity to pay a fine – substantial moderation of fine justified balanced against the need for any penalty to reflect general deterrence

Catchwords:

BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — Whether there was a “construction contract” within meaning of s 4 of the Act — Whether payment claim complied with s 13(2)(a) — Whether payment claim validly served — Whether subcontractor liable to pay amount claimed COSTS — Whether primary judge erred in ordering costs on indemnity basis in relation to entire proceedings — Where court in position to re-exercise discretion — Whether unreasonable not to accept Calderbank offer

Catchwords:

ADMINISTRATIVE LAW — administrative review — approval to remove club licence to new premises –whether decision to impose conditions on licence is an administrative reviewable decision WORDS AND PHRASES — meaning of “in relation to”

Catchwords:

APPEAL – building information certificate – dwelling house development in R2 Low Density Residential zone – development control order – conciliation conference – agreement between parties – orders

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – risk of damage or injury – orders made for 2 of 4 trees – Pt 2A application – application not pressed

Catchwords:

DEVELOPMENT APPLICATION — Dwelling house development in R2 Low Density Residential zone — conciliation conference — agreement between parties — orders

Catchwords:

CRIMINAL PROCEDURE - Trial - Judge Alone Application; Pre Recorded Evidence Hearing; when does the trial begin?

Catchwords:

CIVIL PROCEDURE – application for leave for an inmate to commence civil proceedings nunc pro tunc – prima facie ground for the proceedings supported by expert evidence – where the proceedings are not vexatious or an abuse of process

Catchwords:

CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings – prima facie ground for the proceedings supported by expert evidence – where a broad impression has been formed that the proceedings are not vexatious or an abuse of process

Catchwords:

CRIME – Appeals – Appeal against sentence – whether sentencing judge erred by finding that general deterrence weighed heavily on the sentence – appeal allowed – resentence

Catchwords:

COSTS – plaintiffs’ application for interlocutory injunction dismissed – where plaintiffs contend costs should be costs in the cause – where defendants contend costs should follow the event – whether there is a usual position as to costs in interlocutory applications – plaintiffs to pay defendants’ costs of the interlocutory application

Catchwords:

TORTS — trespass to the person — assault and battery — historical sexual misconduct — sexual abuse — serious physical abuse — claim for damages for psychiatric harm LIMITATION OF ACTIONS — personal injury — child abuse — legislative removals of previous limitation periods — meaning of serious physical abuse — where serious physical abuse established

Catchwords:

PROBATE – Practice and procedure – Uncontested application for probate – Consideration of application not deferred pending determination of claim that estate property held on trust outside the will SUCCESSION – Costs – Consequences of abandonment of several claims for relief including, but not limited to abandonment of opposition to grant of probate

Catchwords:

COSTS — r 42.20(1), Uniform Civil Procedure Rules (2005) — owners of high-rise development bring four proceedings against developers, builder and others for building defects — fifth proceeding against developer dismissed as abuse of process — whether defendants entitled to costs of proceedings — whether “the Court orders otherwise” — principles at [2]-[4] — plaintiffs seeks to exclude substantial categories of costs as evidence relevant to remaining four proceedings and given suggested failures by defendants — no reason to make “orders otherwise”.

Catchwords:

OCCUPATION – Nursing – Application for disciplinary orders where practitioner found guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(c)(i) of the Health Practitioner Regulation National Law (NSW) in that the practitioner contravened a condition to which the practitioner’s registration is subject – practitioner found guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW) in that the practitioner engaged in more than one instance of unsatisfactory professional conduct.

Catchwords:

LAND LAW – Caveats – extension of caveat – plaintiff’s application to extend caveat over the defendant’s commercial property – the plaintiff is the lessee under a commercial lease agreement – the plaintiff claims an equitable interest in the defendant’s property on account of the plaintiff’s claimed expenditure in the property – but the substance of the caveat does not reflect the interest articulated by the caveator in court on this application – defendant claims the plaintiff/lessee is in default in paying rent – caveator claims there was an agreement to waive rent by the defendant – defendant disputes any arrangement to waive rent – whether caveat should be struck out – whether plaintiff should be given leave to amend his Statement of Claim to reflect the interest claimed in the property as articulate on this application.

Catchwords:

CIVIL PROCEDURE – Pleadings – Amendment – Amendment to Statement of Claim – Application for leave to file a Proposed Second Amended Statement of Claim – Where no cause of action pleaded arising out of the material in a paragraph of a pleading – Where a paragraph in a pleading exists to provide context against which conduct can be considered – Paragraph deemed unnecessary – Reference to objects of the Crimes (Administration of Sentences) Act 1999 (NSW) deemed inappropriate for inclusion in pleadings – Leave granted to file Proposed Amended Statement of Claim STATUTORY INTERPRETATION – Objects – s 2A of the Crimes (Administration of Sentences) Act 1999 (NSW) – ‘safe, secure and humane environment’ – Whether the incorporation of the objects of the Crimes (Administration of Sentences) Act 1999 (NSW) into a pleading is inconsistent with the provision in subs (3) of that Act – Whether one provision or statute can dictate the answer to a question of statutory construction – Whether the correct interpretation of subs (3) of the Crimes (Administration of Sentences) Act 1999 (NSW) is that the objects of the Act cannot give rise to a statutory civil cause of action – Issues demanding a full argument and hearing

Catchwords:

COSTS – Party/party – Costs order in interlocutory proceedings – Each party to pay their own costs – No issue of principle

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders — Strike for 48 hours by correctional officers arising from decision of Magistrate not to give an inmate a custodial sentence for violently assaulting four correctional officers — No notice given to employer of proposed strike action — Non-compliance with procedures for settlement of grievances and disputes provided for in Award — Efforts of employer to obtain redress on behalf of employees not exhausted — Significant safety concerns for remaining staff, inmates and the public — Significant disruption to criminal courts — Public interest in favour of dispute orders being made .

Catchwords:

COSTS — Party/Party — Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers — Where plaintiff obtained judgment more favourable than two offers made to the defendant — Whether indemnity costs should be ordered from date of one of the Calderbank offers — Whether it was unreasonable for the defendant to reject the offers

Catchwords:

CIVIL PROCEDURE – interim preservation – freezing orders – where ancillary orders for the provision of information are sought in aid of asset preservation orders

Catchwords:

Costs – costs of appeal where appeal dismissed – special circumstances established – whether appropriate to make a lump sum order for costs – quantification of lump sum amount – costs awarded

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury verdicts of guilty on two counts of sexual intercourse without consent, knowing the other person does not consent, and two counts of intentional sexual touching without consent, knowing that the victim does not consent, were unreasonable — where no reasonable doubt — where any doubt the Court may have had could readily have been resolved by the jury’s advantage in seeing and hearing the evidence CRIME — appeals — appeal against conviction — miscarriage of justice — whether miscarriage of justice occasioned by trial judge’s comment to jury in summing up that complainant confused or misled by questioning in her cross-examination — where no such miscarriage of justice occasioned and comment did not deflect jury from its fundamental task of deciding whether prosecution had proved the elements of the charged offences beyond reasonable doubt CRIME — appeals — appeal against conviction — miscarriage of justice — whether miscarriage of justice occasioned by trial judge’s direction to jury to decide element of knowledge by considering what applicant’s state of mind would have been if he had not been intoxicated — where no complaint made at trial about trial judge’s direction to jury in this regard — where leave therefore required under r 4.15 of Supreme Court (Criminal Appeal) Rules 2021 — where jury not deflected from its fundamental task and no such miscarriage of justice occasioned — where leave therefore refused under r 4.15 to raise ground

Catchwords:

COSTS – gross sum costs order – whether appropriate to make a gross sum cost order –principles - gross sum cost order made

Catchwords:

Occupational Division – registered nurse - non-publication order – protective, not punitive – failure to maintain appropriate professional boundaries – engaging in intimate relationship with mental health patient – no longer registered – the Tribunal would have cancelled the registration – disqualification two years – costs order made

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW ─ State decision ─ Award Making Principles ─ Whether to retain the paid rates adjustment mechanism ─ Effect of the paid rates adjustment on bargaining ─ Whether the paid rates adjustment should redress changes to the value of money in past years ─ Quantum of the paid rates adjustment for 2025-26 ─ Whether the Value of Money Principle is redundant ─ Whether restrictive language in the Award Making Principles remains necessary ─ Whether to amend the Work Value Changes Principle ─ Whether to permit minor changes that improve or modernise an award without having to establish the criteria for an Arbitrated Case ─ Whether to further simplify the Award Making Principles in a future state wage case

Catchwords:

DEVELOPMENT APPLICATION – residential apartment building development – cl 4.6 written request – floor space ratio – in-fill affordable housing – agreement between the parties – orders

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — termination notice for non-payment of rent — relevance of rental bond to determining arrears APPEAL — obligation of party to lodge material relied on — consequences of failure by appellant to lodge transcript or recording of hearing below

Catchwords:

CONSUMER LAW – Enforcement and remedies – The requirement for the appellant to establish that he was a ‘consumer’ as defined in s79D of the Fair Trading Act 1987 for the Tribunal to have jurisdiction – The requirement for a ‘supplier’ as defined in section 79D of the Fair Trading Act 1987 to have supplied goods or services to the appellant for him to be a ‘consumer’ as defined in section 79D of the Fair Trading Act 1987 - Meaning of ‘direct supplier’ in section 79E(2) of the Fair Trading Act 1987

Catchwords:

EQUITY – trusts and trustees – judicial advice – whether trustees justified in defending proceedings brought by beneficiaries – where beneficiaries seek access to trust documents – where trustees not obliged to provide trust documents under trust deed – advice given – trustees justified in defending proceedings

Catchwords:

CRIME — Sentence — where guilty plea made at first available opportunity — where offences inadvertent but gave rise to serious risk to human health — objective seriousness of offending below mid-range for all but one offence — objective seriousness mid-range for one offence — application of totality principle — corrective advertising ordered