Browse decisions Displaying 1 - 200 out of 120137 results

Catchwords:

CHILD WELFARE — Surrogacy — Parentage Order — requirement for report from independent counsellor — counsellor not independent — “exceptional circumstances” relief not applicable — Surrogacy Act 2010 ss 17, 18 — application declined on existing evidence and submissions

Catchwords:

CHILD WELFARE – adoption – Aboriginal placement – where birth parents disclosed Aboriginal heritage – whether Secretary has made reasonable inquiries as to whether child is an Aboriginal child – whether child is Aboriginal CHILD WELFARE – adoption – best interests – alternatives to adoption – where child has been cared for by adoptive parents for more than 12 years – where adoptive parents have been granted parental responsibility for child until he attains 18 years of age – where adoptive parents not seeking guardianship orders and seek to support child to lead independent life – adoption clearly preferable in best interests of child CHILD WELFARE – adoption – consent – dispense order – child – where 17 year old child diagnosed with speech and language disorders – where child cannot participate in registered counselling to give consent to his own adoption – where child given opportunity to express views freely about the adoption

Catchwords:

CONTRACT – Breach of contract – whether warranties concerning building works were breached – where there was a breach of warranty – whether the purchaser is entitled to damages for breach of contract – whether purchaser is entitled to damages reflecting the cost of making the building conform to the contract – whether replacement of concrete slab is reasonable – where the warrantor discharged his evidentiary onus to show that replacement of concrete slab was not a reasonable course – where purchaser has not otherwise established loss – where purchaser is entitled to nominal damages – whether there should be an order for specific performance.

Catchwords:

LANDLORD AND TENANT – residential tenancy – s 115 Residential Tenancies Act 2010 (NSW) – whether notice of termination was retaliatory APPEAL – procedural fairness alleged but not established – all other grounds of appeal only raised questions of fact – no plain error established and not shown that Tribunal’s factual conclusions were more than arguably wrong

Catchwords:

OFFENCES AND PENALTIES – sentence by Local Court – appeal against sentence – offence of failing to comply with development control order – development control order largely outside power – non-compliance with potentially invalid order of low objective seriousness – no environmental harm, foreseeability of harm or practical measures to prevent harm – offence deliberate but not for financial gain – mitigating factors

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APPEALS – costs – r 38 Civil and Administrative Tribunal Rules 2014 (NSW) - proceedings settled by consent orders – no hearing on the merits – applicable costs principles

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ADMINISTRATIVE LAW – powers of public authority – power to commence legal proceedings – court attendance notices issued by officer of Independent Commission Against Corruption – notices not signed by registrar – officer acting as “public officer” within s 3(1) of the Criminal Procedure Act 1986 (NSW) – whether officer acting in an “official capacity” – whether powers and functions of Commission extend to laying charges under the Crimes Act 1900 (NSW) for matters the subject of investigation into corrupt conduct – whether power and functions of Commission extend to laying charges for breaches of the Independent Commission Against Corruption Act 1988 (NSW) STATUTORY INTERPRETATION – implied powers and functions of public body – powers necessary or reasonably incidental to the exercise of functions and powers – legislation to be read harmoniously

Catchwords:

OCCUPATIONS – medical practitioner – registration of health practitioners – Stage 1 findings – inappropriate prescribing of restricted Schedule 8 and Schedule 4D medications – inadequate medical records – findings of unsatisfactory professional conduct – dismissal of unproven allegation of professional misconduct – Stage 2 hearing to proceed on a date to be fixed

Catchwords:

LAND LAW – co-ownership – statutory trust for sale – application by plaintiff under Conveyancing Act 1919 (NSW) s 66G – where plaintiff is in default of mortgage – where plaintiff contends that defendant has a 5% co-ownership – where defendant refutes ownership on the grounds they were “duped” – where the defendant has made a complaint to the Australian Financial Complaints Authority against the mortgagee – whether it is appropriate to appoint trustees for sale – trustees for sale appointed – no question of principle

Catchwords:

JUDGMENTS AND ORDERS — Amending, varying and setting aside – Setting aside judgment entered in absence of party — UCPR r 36.16(2)(b) — Delay — Non-appearance — Where delay of nearly one year in bringing application and no good reason for delay — Whether bona fide defence on merits — Whether it would be contrary to public policy to enforce foreign judgment — Where foreign court does not recognise undue influence or Garcia unconscionability

Catchwords:

BUILDING AND CONSTRUCTION — adjudication — judicial review — money paid into Court as price for interlocutory injunction — whether funds in Court should be paid to party with benefit of determination following judgment — relevance of appeal by party with benefit of determination

Catchwords:

SUCCESSION — Executors and administrators — Rights, powers and duties – Competition to represent Estate – Financial interests of parties in maintaining litigation. SUCCESSION – Competing Wills – Appointment of Independent Administrator. CIVIL PROCEDURE – Simultaneous proceedings – Where litigant seeks for matters to be heard separately – Order for matters to be heard together. MORTGAGES AND SECURITIES – Interests of creditors – Where creditor provides reverse mortgage facilities – Where value of the estate property has significantly increased since deceased entered into reverse mortgage.

Catchwords:

ADMINISTRATIVE LAW – Children (Education and Care Services) National Law – long day care centre – nominated supervisor – prohibition notice – inappropriate discipline by educator – failure to report to parent - provision of false and misleading information to Regulatory Authority

Catchwords:

APPEALS – application to reopen appeal - power of the Appeal Panel to reconsider original costs decision in the absence of an appeal – application dismissed COSTS – application to vary costs order by the respondent – application dismissed

Catchwords:

COSTS – Argument withdrawn by Applicant at hearing following testimony – late notice by Applicant requiring Respondent’s witnesses to attend – procedural history - onus of proof – concession by Applicant – application allowed to extent of Applicant’s concession

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REVENUE LAW - State taxes - payroll tax - assessment - objection - appeal REVENUE LAW - penalties - reasonable care -whether tax default due to matters beyond control of taxpayer - remission - Revenue Ruling PTA 036 - Practice Note CPN 024 ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Catchwords:

APPEAL – development application – alterations and additions to detached dwelling house – conciliation conference – agreement reached – orders made

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

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OCCUPATIONS - Nursing - Unsatisfactory Professional Conduct and Professional Misconduct - Allegations of Sexual Misconduct During Clinical Examination – Onus of Proof – Failure to record incident

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DEVELOPMENT APPEAL – residential development – alterations and additions while maintaining existing building envelope - conciliation conference – agreement between the parties - orders

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DEVELOPMENT APPLICATION: mixed use development in E3 Productivity Support zone – conciliation conference – agreement between parties – orders

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DEVELOPMENT APPEAL – alterations and additions to existing dual attached occupancy – conciliation conference – agreement between the parties – orders

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DEVELOPMENT APPEAL – multi-dwelling housing – strata subdivision – conciliation conference – agreement between the parties – orders

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APPEALS – leave to appeal – leave not readily granted to challenge to discretionary exercise of power with respect to costs – as regards alleged error in not making a set-off costs order, not in interests of justice to grant leave given decision substantially founded on facts before primary judge, the position has since evolved, and it remains open to applicant to claim any amounts outstanding – applicant’s complaint also involves challenge to orders made in favour of persons not party to appeal proceedings – no point of principle or public important or reasonably clear injustice going beyond something merely arguable

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CIVIL PROCEDURE — Applications for anti-suit injunctions directed to proceedings in Australian courts with co-ordinate jurisdiction — Cross-vesting — Transfer to Federal Court of Australia

Catchwords:

DEVELOPMENT APPLICATION – based on amended plans and conditions – conciliation conference – agreement between the parties – orders

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DEVELOPMENT APPEAL – residential development – new vehicular access to existing garage – conciliation conference – agreement between the parties – orders

Catchwords:

COSTS — Party/Party — Payable out of a fund — Deceased estate COSTS — Party/Party — Bases of quantification — Indemnity basis — Ordinary basis COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers SUCCESSION — Contested probate — Costs — Offers of compromise

Catchwords:

COSTS — Conveyancing Act 1919 (NSW) s 66G — Uniform Civil Procedure Rules 2005 (NSW) rr 42.1 and 42.25 — SUMMONS — Proceedings by Summons for the appointment of trustees for sale of real property co-owned by a deceased estate and a company associated with the deceased during his lifetime — Where orders for sale are made after initial opposition by a co-executor who then does not oppose the sale, but only a forced sale on the basis she will cooperate in the sale — Where the orders for sale reserve the co-executor’s costs of the Summons — Where the co-executor seeks a portion of her costs of the Summons principally being the costs of an affidavit sworn by her to be paid out of the proceeds of sale of the property — Where the co-executor did not seek judicial advice that her opposition to the Summons was justified — Where she did not in fact cooperate in the sale — Where the affidavit could not have contributed in any meaningful way to the resolution of the Summons and where the amount claimed in any event is trivial — HELD: no order for payment out of the proceeds of sale should be made in her favour CROSS-CLAIM — Where the co-executor on behalf of the estate brings an unsuccessful cross-claim against the co-owner for equitable contribution of expenses met by the estate in relation to the property — Where there was clear and uncontested evidence that the deceased did not intend there to be any such contribution — Where the claim included amounts plainly not the subject of joint or coordinate liability — Where to prove the amount claimed the co-executor relied only on an admission arising from a non-answer to a notice to admit facts which admission did not establish any amount the subject of a joint or coordinate liability — Where the co-executor did not seek judicial advice that the estate was justified in bringing the cross-claim — Where the cross-claim amount is small and the cross-claim was unlikely to have yielded any benefit for the estate even if successful — Where the cross-claimant accepts that she should pay the cross-defendant’s costs of the cross-claim but seeks, and her co-executor opposes, indemnity from the estate, of a portion of her costs, excluding costs of, and incidental to, other cross-claims not persisted in — Where the cross-defendant to the cross-claim seeks its costs on the indemnity basis based on the non-acceptance by the co-executor of a Calderbank offer — HELD: the co-executor in substance, acted other than for the benefit of the estate and unreasonably in bringing and maintaining the cross-claim; she should not be indemnified in respect of any of her costs of the cross-claim out of the estate — HELD FURTHER: in context and given the terms of the Calderbank offer, its non-acceptance was not unreasonable to the extent of warranting an order for indemnity costs against her

Catchwords:

CIVIL PROCEDURE – cross-vesting – Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) – application for transfer of proceedings to the Federal Circuit and Family Court of Australia (Division 2) – proceedings concern bankruptcy matters – orders for transfer made

Catchwords:

SUCCESSION — Testamentary promise — Deceased who was battling cancer with a prognosis of 3-6 months to live approaches sister for care — Plaintiff (sister) claims that the deceased promised her half of her estate if she looked after her — In the context of the COVID-19 pandemic, the plaintiff moved from Ocean Grove in Victoria, first isolating in Sydney for 2 weeks, and then travelled to Port Macquarie where she lived with and took care of the deceased for some 10 months, returning to Victoria for a period of 6 weeks — There was no written contract or document reflecting the alleged promise and there was limited contemporaneous documentary evidence generally — Deceased’s Will does not give effect to the purported contract but rather only gives by way of provision to the plaintiff items of personal effect, $20,000 and a motor vehicle, with the residue of the estate being divided between a cancer trust and a wildlife charity — Defendant, who is the executrix and a friend of the deceased, disputes the alleged promise was made or, if made, that it is enforceable — Defendant’s counsel contends that the plaintiff and witnesses in her case (her brother and her husband) have each reconstructed memories of material evidence — Plaintiff’s counsel postulates a case that the deceased harboured negative feelings for the plaintiff for leaving the deceased to look after their sick mother on her own, which led her to plot her revenge against the plaintiff in the form of not honouring the alleged promise CONTRACTS — Testamentary contract — Whether the deceased promised the plaintiff half of her estate if she looked after her — Deceased updated her Will one week after the alleged promise conversation but before the plaintiff arrived in Port Macquarie and did not make the alleged promised provision — Defendant’s witnesses assert the deceased never told them she was giving the plaintiff half of her estate — Submission by the defendant that these factors are inconsistent with the alleged promise conversation not accepted — Found that the alleged promise conversation occurred as asserted by the plaintiff and foreshadowed by the evidence of the deceased’s and plaintiff’s brother that the deceased mentioned her plan to offer the plaintiff the alleged promise — Found that the promise conversation constitutes an agreement — Submission that the terms of the agreement are not certain rejected — Submission that there was no real consideration rejected — Submission that there was no intention to create legal relations rejected — Held that there was a valid testamentary contract between the deceased and the plaintiff which was breached by the deceased ESTOPPEL — Equitable estoppel — Found that there was a clear and unequivocal promise — Discussion of whether an existing or future legal relationship needs to be assumed — Held that no assumption is required by the plaintiff — Found, in any event, that the plaintiff assumed there was an oral contract — Whether the plaintiff acted reasonably in reliance on the promise — Submission that the plaintiff’s reliance was artificial and unrealistic rejected — Whether the deceased knew or intended that the plaintiff would act in reliance on the promise — Found that the deceased knew or intended for the plaintiff to act in reliance on the promise — Whether the plaintiff’s reliance on the promise was to her detriment — Discussion of financial and non-financial detriment — Submission that the plaintiff acted in reliance to her detriment accepted — Whether the deceased acted unconscionably in not honouring the promise — Unpersuaded that the minimum equity is to enforce the promise according to its terms — Held that equitable estoppel is not made out RESTITUTION — Common counts — Claim for money had and received — Whether the plaintiff’s withdrawal of sums totalling $81,799 during the last days of the deceased’s life and after the deceased’s death were authorised by the deceased — Found that the payments were authorised in a conversation between the deceased and the plaintiff — Held there is no obligation for the plaintiff to pay the sums back into the estate EVIDENCE — Unchallenged and uncontradicted evidence — Submission that evidence which is unchallenged and uncontradicted must be accepted or acted upon — Discussion of authorities — Held there is no general rule that such evidence must be accepted EVIDENCE — Rule in Browne v Dunn — Alleged non-compliance with rule — Held no breach of the rule

Catchwords:

LICENSING – firearms – refusal of licence – denial of suicidal ideation – public interest - risk

Catchwords:

LEASES AND TENANCIES – residential tenancy – landlord’s claim for end of tenancy compensation and payment of rental bond dismissed APPEALS – whether decision against weight of evidence – whether decision not fair and equitable – whether there is significant new evidence not reasonably available – leave to appeal refused – no issue of principle

Catchwords:

BUILDING AND CONSTRUCTION – building works on a large residential apartment building – Owners of strata plan, as successors in title, rely upon entitlements to sue on statutory warranties against the builder and developer – Home Building Act 1989 (NSW), ss 18B, 18C, 18D – determination of whether defects were ‘major’ defects – Home Building Act 1989 (NSW), s 18E(4) BUILDING AND CONSTRUCTION – whether District Court empowered to make a ‘work order’ where the alternative claim for relief, a money claim, exceeds the monetary jurisdiction of the New South Wales Civil and Administrative Tribunal – Home Building Act 1989 (NSW), ss 48A, 48K, 48L, 48MA, 48O CIVIL PROCEDURE – exercise of power to make directions for parties to take specified steps and the time for such steps to be completed by – directions for further reports on issues concerning rectification costs

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APPEALS – internal appeal under s80 of the Civil and Administrative Tribunal Act 2013 as of right “on any question of law” - questions of law – “no evidence” – “unreasonableness” – procedural fairness – extension of time – whether to grant leave to extend time – whether reasonable chance of success.

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APPEAL- contract for provision of services- no reliable record provided for the reasons given orally at first instance- both parties at fault-whether deposit should be retained or returned in full or in part- other claims for compensation.

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CONSTITUTIONAL LAW — The Judiciary — Federal jurisdiction — Exercise by State court — Where plaintiffs seek declaratory relief as to whether change of control event clause in licence agreements for use of trade marks will be triggered by restructuring plaintiff group of companies — Whether rights created by the licence agreements owe their existence to federal law — Whether federal or state jurisdiction involved in relation to relief sought in summons CONTRACTS — Remedies — Declarations — Whether declarations can be made about potential future engagement of change of control event clause in licence agreements for use of trade marks — Whether declarations would amount to an advisory opinion without a concrete factual basis

Catchwords:

CRIME — mental health – accused not fit to be tried — special hearing – judge alone trial CRIME — violent offences — armed robbery — offensive weapon — aggravated robbery — in company CRIME — violent offences — discharge firearm with intent to cause grievous bodily harm CRIME — complicity — joint criminal enterprise — extended joint criminal enterprise CRIME — property offences — break, enter and commit serious indictable offence — circumstances of aggravation EVIDENCE — identification evidence — unreliable evidence – visual identification – voice identification – inconsistent identification evidence – incorrect identification of accent EVIDENCE — witness evidence — warnings — unreliable evidence EVIDENCE – ERISP by accused – Liberato direction EVIDENCE – alibi evidence adduced by Crown

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COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed by consent

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HIGH RISK OFFENDER – final hearing – high risk violent offender – application for extended supervision order – making of order and nature of some conditions contested by defendant – whether there is high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order – extended supervision order imposed for two years with conditions – discussion about appropriate conditions

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COSTS – costs order – interlocutory dispute – where undertakings are proffered that resolve the interlocutory dispute – no question of principle

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CIVIL PROCEDURE — Default judgment — Setting aside — Bona fide defence on merits CIVIL PROCEDURE — Default judgment — Setting aside — Irregularly entered – Against good faith

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CIVIL PROCEDURE – Administrative law – Judicial review – Stay application – Whether a decision of the Commissioner of Corrective Services NSW to change the placement of an inmate should be stayed or suspended pending the outcome of substantive proceedings – Whether an order to change the placement of an inmate constitutes a denial of access to the Court to conduct litigation – Where an inmate is ordered to be placed in a different correctional centre with more limited access to technology whilst involved in substantive civil proceedings – Access to computers whilst in a correctional centre for the purposes of conducting civil litigation

Catchwords:

SUCCESSION — Family provision — Extension of time to bring a claim — Deceased died in early 2011, survived (relevantly) by two daughters and the defendant (a brother) leaving an informal holograph testamentary document — From mid-late 2011 the brother and daughters sought and received legal advice regarding estate claims — Initially both daughters were jointly legally represented — In December 2011, informal Will proceedings were commenced and in July 2012 the holograph testamentary document was held to constitute the deceased’s Will — In February 2012, the elder daughter then having separate representation commenced and (in August 2013) settled family provision proceedings — Consent SMO asserted that defendant had served notices of the elder daughter’s claim on any person who may be an eligible person — Settlement approved — Plaintiff aware of her sister’s family provision proceedings, but contrary to assertion had not been served with a Notice of Claim — Plaintiff believes the defendant would subsequently provide for her and she received some ex-gratia provision from the defendant in 2014 and 2016/2017 — In early 2024, the plaintiff’s belief changed and she belatedly commenced a family provision claim — Held in all the circumstances no “sufficient cause” for proceedings to be brought out of time SUCCESSION — Family provision — Extension of time to bring a claim — Separate determination of issue SUCCESSION — Family provision — Extension of time to bring a claim — Policy purposes underlying extension of time provisions in family provision claims discussed — Extension principles discussed EVIDENCE — Cross-examination — Benefits include in certain instances contextualisation of events and understanding of reasons underlying decisions for certain actions and inaction SUCCESSION — Will construction — holograph Will leaving entire estate to defendant “to be dealt with as he sees fit. And at a later date for some such provision to be made by him for my daughters…” — Finding that Will did not create a legal obligation for the defendant to provide for the plaintiff and alternatively if it created an obligation to provide, it is too vague to be enforceable SUCCESSION — Family provision — Parties and affected persons — Forms — Notice of Claim — Service of a Summons and a Notice of Eligible Persons does not satisfy the purposes of service of a Notice of Claim — Practitioners encouraged to familiarise themselves with procedural requirements to avoid potential injustices SUCCESSION — Family provision — Notional estate — Determination of prior family provision claim and distribution of estate does not necessarily preclude property from subsequently being designated as notional estate — Discussion of criteria as to whether property is susceptible to being designated as notional estate

Catchwords:

CORPORATIONS – Capital raising – Information memorandum and other documents issued to plaintiff – Relied upon by plaintiff to purchase shares – Alleged misleading or deceptive conduct s 12DA ASIC Act / s 1041H Corporations Act – Found to be misleading or deceptive conduct engaged in by the corporation and its directors – What is level of conduct by directors or officers to justify finding of engagement by officer of corporation so as to find primary liability for contravention of the misleading or deceptive conduct provisions

Catchwords:

CONSUMER LAW – consumer guarantee in s 60 of the Australian Consumer Law (NSW) in respect of services – services in the rebuild of a car engine – competing expert evidence as to cause of engine failure APPEALS – leave to appeal required – application of leave to appeal principles – Tribunal preferred respondent’s expert to the appellant’s expert – appellant seeking to reargue the merits with the assistance of new evidence- no point of principle – new evidence not shown to be not reasonably available at the time of the hearing – not shown that Tribunal’s factual conclusions were more than arguably wrong

Catchwords:

CORPORATIONS — Directors and officers — Fiduciary duties — Where directors of company resigned — Whether fiduciary duties of directors continued despite resignation — Whether the fact the company may not have been able to exploit commercial opportunity precluded a finding of breach of fiduciary duty by former directors EQUITY — Equitable remedies — Injunctions — Width of injunctive relief ordered against defaulting fiduciary and knowing assistant

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PRACTICE AND PROCEDURE – Summary dismissal – self-represented litigant – applicable test for summary dismissal – no question of principle LAND LAW – Adverse possession – possessory application over Torrens title land – issue to be determined at final hearing – no question of principle

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ADMINISTRATIVE LAW – judicial review – review of Appeal Panel decision under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether jurisdictional error – whether Appeal Panel failed to accord procedural fairness – whether failure to consider and apply the correct legal principles – whether error was material – practical injustice ADMINISTRATIVE LAW – judicial review – whether error of law on the face of the record – whether typographical error in Appeal Panel’s reasons for decision – where Appeal Panel provided its actual path of reasoning to enable conclusion without speculation WORKERS COMPENSATION – psychological injury – medical assessment – where dispute as to assessment of Whole Person Impairment – deduction for previous injury or pre-existing condition or abnormality pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act – decision of Appeal Panel to revoke and issue new medical assessment certificate

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DEVELOPMENT APPEAL – conciliation conference - Torrens title subdivision - agreement between parties - orders

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SENTENCING – manslaughter – unlawful and dangerous act – whether deceased consented to unlawful administration of prohibited drug – where co-offenders and deceased were engaged in manufacture of prohibited drug – drug supply – large commercial quantity – where co-offenders have significant subjective cases – Bugmy considerations and moral culpability – drug addiction – mental health SENTENCING – relevant factors on sentence – co-offenders – parity – where co-offenders engaged in two distinct courses of criminal conduct together – where aggregate sentence imposed for one co-offender and separate sentences imposed for another co-offender

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APPEALS — whether Tribunal erred in dismissing appellant’s application for review pursuant to Administrative Decisions Review Act 1997 APPEALS —appeals in respect of matters of practice and procedure — no question of principle

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APPEAL – development application – stage 1 of a concept development consent – modification application concerning concept development consent – conciliation conference – agreement reached in both matters – orders made

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

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CIVIL PROCEDURE — Hearings — Order that proceedings be heard together — Industrial disputes with common questions — Whether some disputes should be heard separately due to the emergence of award-specific issues EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Remuneration — Where awards contain classifications that fall below the National Minimum Wage

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WORKERS COMPENSATION — Medical assessment — Medical assessment certificate — Appeal against medical assessment certificate — whether second appeal to Appeal Panel available where no change to medical assessment certificate effected and no certificate of determination issued following decision of first Appeal Panel ADMINISTRATIVE LAW — judicial review — whether Appeal Panel misconstrued its jurisdiction — whether Appeal Panel denied Plaintiff procedural fairness in determining that it lacked jurisdiction

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CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – relevant to a fact in issue – justification for production concerns decision not impugned in summons – summons does not set out serious allegations invoked as basis for seeking documents – disputed documents not relevant to fact in issue CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – objection to production of documents or things – client legal privilege – whether waived for purposes of s 122 of Evidence Act 1995 (NSW) – filing of document content of which influenced by views of an expert does not establish disclosure of those views, nor does expert’s agreement to be bound by expert witness code of conduct, nor does provision of joint expert report to court – no prima facie evidence to found alleged misconduct under s 125 of Evidence Act 1995 (NSW) CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – objection to production of documents or things – document prepared for purposes of or in course of or as result of conciliation conference for purposes of s 34(11) of the Land and Environment Court Act 1979 (NSW) – s 34(11) enables production of documents to be resisted if relevant purpose dominant – protection ends when final version presented to commissioner for purpose of seeking s 34(3) decision

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HEALTH – medical practitioner – HEALTH misconduct and discipline – unsatisfactory professional conduct – professional misconduct – suspension – conditions imposed on licence

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CORPORATIONS – directors and officers – directors’ duties – directors causing company to engage in fraudulent and unlawful practice – directors causing company to engage in commercial agreements and practices detrimental to company and beneficial to third parties in which directors had an interest – directors apprehending loss of control diverted business to third parties in which directors had an interest – whether directors breached obligations under Corporations Act 2001 (Cth), ss 181 and 182 – whether third parties involved in breach of ss 181 and 182 within the terms of s 79 – whether directors breached fiduciary duties CORPORATIONS – statutory construction – Corporations Act 2001 (Cth), ss 181, 182 – improper purpose need not be achieved – not necessary that director acts dishonestly – honest belief as to purpose only satisfied where belief is rational – unlawful conduct necessarily improper EQUITY – fiduciary duties – knowing assistance – liability of third parties under second limb of rule in Barnes v Addy – third parties owned or controlled by family members of fiduciaries – appropriate inferences as to knowledge of dishonest conduct of fiduciaries in absence of evidence to the contrary – no requirement of belief on part of the third party that conduct of fiduciaries was dishonest and fraudulent design – whether third parties operated independently of actions of fiduciaries

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OCCUPATIONS — Medical practitioners — findings of unsatisfactory professional conduct and professional misconduct — application for interim suspension before final disciplinary proceedings — health and safety and public interest

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PRIVATE INTERNATIONAL LAW — letter of request — application for orders giving effect to letter of request issued by District Court of the Southern District of New York for the examination of and production of documents by an Australian resident — whether orders sought for improper collateral purpose — whether letter of request impermissibly seeks pre-trial discovery EVIDENCE — evidence on commission — consideration of s 33(6) Evidence on Commission Act 1995 (NSW) — meaning of “particular documents specified in the order” — whether permissible to order production of categories of documents in pursuance of letter of request

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OCCUPATION — medical practitioners — specialist plastic surgeon — appropriate protective orders where guilty of professional misconduct — conditions imposed on licence — costs

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CRIME — drug offences — supply prohibited drug — indictable quantity SENTENCING — relevant factors on sentence — Form 1 offences SENTENCING — subjective considerations on sentence — gambling addiction — personal use

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Crime – Judge alone – historical child sex offending – tendency evidence.

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ADMINISTRATIVE LAW — Judicial review — Development consent and conditions imposed by local government authority — Whether decision to approve modification application was invalid — Five grounds of review — Lapse of consent — Consideration of acoustic and noise impacts as an essential matter — Forming state of satisfaction that development was substantially the same — Satisfaction reasonably open or not — Lawfulness in part of condition — Relief in amended summons granted

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CIVIL PROCEDURE – Discontinuance of proceedings – proper construction of UCPR r 12.1 - where there are co-plaintiffs who are separately represented in the proceedings – where one co-plaintiff seeks to discontinue proceedings – whether all plaintiffs are active parties in the proceedings pursuant to UCPR r 12.1 – whether UCPR r 12.1 permits a co-plaintiff to file a notice of discontinuance only in respect of their claims – whether notice of discontinuance filed by the second plaintiff is void – whether the Court should make orders dismissing the claims made by the second plaintiff – whether defendants consent to orders dismissing the second plaintiff’s claims.

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COSTS — Party/Party — Court’s discretion — Whether indemnity costs should be ordered

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PRACTICE AND PROCEDURE – amendments to primary decision pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) – slip rule

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APPEAL – Review under Taxation Administration Act 1996 (NSW) – Whether Tribunal exercising judicial or administrative power TAXES AND DUTIES – Dutiable transactions – Exemption claimed under Commonwealth law – Section 90 of the Family Law Act 1975 (Cth) – Whether Tribunal bound by High Court authority when determining an administrative review – Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227 applied

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LICENSING - firearms - refusal– whether or not it is in the public interest for applicant to hold a licence–fitness and propriety– candour –traffic offences – late renewals of licence

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CRIME – Appeals – Appeal against sentence – Two offences of sexual intercourse without consent – Aggregate non-parole period greater than the sum of the two indicated non-parole periods – The totality principle applies to aggregate sentences – An aggregate non-parole period which exceeded the sum of the indicated non-parole period constituted error – Applicant resentenced

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Possessing a shortened firearm without authority – Possessing an unauthorised firearm – Supplying a prohibited drug – Dealing with suspected proceeds of crime – Whether sentencing judge erred in finding that the principles relevant to sentencing arising from a background of deprivation did not apply to the applicant – Bugmy v The Queen (2013) 249 CLR 571 SENTENCING – Subjective considerations on sentence – Positive and stable upbringing with mother and grandmother – Extended family environment where violence, heavy drinking and drug use and supply observed and normalised – Commencement of alcohol and drug abuse – Countervailing influences – Offender not required to establish “profound” childhood deprivation – No point of principle

Catchwords:

COSTS — party/party — exceptions to general rule that costs follow the event — party seeking indulgence or dispensation of the court — special or different order — impecuniosity

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings against solicitor – whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers – where Respondent convicted of participating in a criminal group, using a false document with the intention of inducing a person to accept as genuine and then to influence that person to exercise a public duty, and knowingly taking part in the supply of a prohibited drug – where Respondent served sentence by way of intensive correction order (ICO) – where ICO has expired – where Respondent opposes relief sought – whether Respondent likely to be unfit for the indefinite future – Court satisfied of unfitness to practice for the indefinite future

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CIVIL PROCEDURE — Pleadings — Amendment – application to amend Statement of Claim – proposed joinder of additional defendant where claim may be statute barred

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CRIME – appeals – appeal against sentence – importation of a commercial quantity of a border controlled drug – parity – “marked” disparity need not be “gross” or “glaring” – where the differences in roles and subjective cases warrant different sentences – whether the higher sentence imposed on the applicant gave rise to a justified sense of grievance – leave to appeal granted – appeal dismissed

Catchwords:

CRIMINAL APPEALS – interlocutory judgment or orders – sexual assault communications privilege – leave to issue subpoena – whether material sought “will have substantial probative value” – where District Court failed to consider documents or make orders to facilitate production for that purpose – standard of review – “House error” or “correctness standard” – standard different depending on ground of appeal and power exercised – whether Judge applied the wrong test to decision to facilitate inspections – whether irrelevant considerations taken into account – directions to be provided to jury not relevant to evaluation of probative value of evidence – orders made in District Court vacated – orders facilitating production of documents to District Court made CRIMINAL LAW – constraints on lawyers appearing for protected confiders who lack capacity to consent or provide instructions – important questions raised – issue not raised in present case – largely questions of ethics – advisory opinions not provided by appellate courts

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 – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

Catchwords:

CIVIL PROCEDURE — Expert evidence – Leave to adduce –– the first plaintiff is the former wife of the second defendant and the other 5 plaintiffs are their children – the first defendant is the corporate trustee of their family trust – the first plaintiff and the second defendant divorced in 2016 and their matrimonial property dispute resolved by agreement in 2017 – under that agreement certain payments were made to the plaintiffs and the second defendant took sole control of the first defendant trustee company – the plaintiffs claim that the first defendant has failed to pay distributions from the family trust that were due to them and payable between 2004 and 2021 – the plaintiffs allege that this nonpayment was part of a dishonest and fraudulent scheme made between the first defendant and the second defendant to unlawfully divert trust income that would otherwise have been distributed to the plaintiffs – defendants contend that the plaintiffs have received full payment of amounts due to them from the first defendant – accounting dispute about what income is due from the first defendant to the plaintiff and whether what income that is found to be due has been paid to the plaintiffs – contentious allegations in the plaintiffs’ and the defendants’ evidence about what is due to the plaintiffs and whether it has been paid – plaintiff applies for liberty to adduce expert evidence – choice of the best methodology to resolve the accounting dispute in accordance with the objectives of Civil Procedure Act 2005 Part 6. CIVIL PROCEDURE — Pleadings — Amendment – proceedings within the jurisdiction of the Supreme Court for relief brought on behalf the beneficiaries in relation to the administration of a trust – defence pleads that the claim is not maintainable because of the 2017 settlement made and approved under Family Law Act 1975 s 90D and 90G – reply joins issue as to whether the 2017 settlement should be set-aside under the Family Law Act s 90K for fraudulent nondisclosure – issue raised of the Court’s own motion – whether an issue within the jurisdiction of the Federal Circuit and Family Court of Australia and not the Supreme Court should be struck out to avoid the raising of false issues at trial or whether it may be permitted on terms requiring the cross-vesting of applicable Family Law Act jurisdiction for the proceedings in this Court.

Catchwords:

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

Catchwords:

OCCUPATIONS — Pharmacist — application for reinstatement — whether the practitioner has developed insight — reinstatement application granted with conditions

Catchwords:

TAXES AND DUTIES – transfer duty – purchase of property off the plan - tax default – discretion to remit market and premium interest – exceptional circumstances – reasonable care

Catchwords:

DEVELOPMENT APPEAL – excavation under existing 4 storey house to extend garage and build underground tunnel to rear of house – install vertical lift from tunnel to rear of house – steep land – earthworks – geotechnical hazard – proximity to Bungan Head cliff and ‘environmentally sensitive area’ – site suitability – whether excavation excessive – whether impacts unacceptable – desired future character – Newport Locality statement in DCP – reduced landscape area – public interest

Catchwords:

APPEAL – directions at first instance for the lodgment of documents and submissions on costs - whether an internally appealable decision – whether leave to appeal should be granted.

Catchwords:

SUMMONS – summons to produce police body worn video footage – footage is protected information under Surveillance Devices Act 2007 – prohibition on use, communication or publication of such information – application to set aside summons – NSW Commissioner of Police v Zurich Australian Insurance Ltd applied – no legitimate forensic purpose – no exception to prohibition on use, communication or publication

Catchwords:

OCCUPATIONS – Medical Practitioners – Unsatisfactory Professional Conduct – Professional Misconduct – Protective Orders – Cancellation– Disqualification Period

Catchwords:

DEVELOPMENT APPEAL – mixed use development – justification of contravention of development standards - conciliation conference – agreement between the parties - orders

Catchwords:

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

Catchwords:

LAND LAW – possession of land – where plaintiff as registered proprietor had permitted son to occupy premises – where attorneys under power of attorney brought proceedings – where challenge to right of attorneys to bring proceedings - where the registered proprietor required possession of the property to meet ongoing expenses – reliance by defendant on promise to leave property to him in plaintiff’s will – no defence to claim for possession

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Threatened dismissal

Catchwords:

PROCEDURE — stay pending appeal — dispute as to composition of board of listed company — whether applicant had established proper basis for stay — appeal to be heard in 12 business days — applicant profferred undertaking to be personally liable for quantifiable costs — applicant provided security for liability on undertaking — stay ordered

Catchwords:

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

Catchwords:

BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Whether adjudication was affected by jurisdictional error — Whether enforcement of the determination should be stayed even if the determination was not affected by jurisdictional error ADMINISTRATIVE LAW — Jurisdictional error — Whether adjudicator failed to duly ‘consider’ relevant considerations under s 22(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW) — Whether procedural unfairness established

Catchwords:

EMPLOYMENT LAW – CIVIL PROCEDURE - hearings – adjournment sought – where appellant is self-represented – procedural history – interest of justice considered – adjournment granted

Catchwords:

HIGH RISK OFFENDERS — extended supervision orders — unacceptable risk of committing a serious sex offence — final hearing — existing Extended Supervision Order imposed — extension of two years — significant history of sexual offending — previous breaches of terms of Extended Supervision Order — defendant with intellectual disability — Conditions expressed in more easily understood terms

Catchwords:

CORPORATIONS – management and administration – meetings – where quorum requirement will not be satisfied for meeting of members – whether an order under s 249G required to convene a meeting of members because of impracticability.

Catchwords:

APPEALS — Costs — whether there are special circumstances

Catchwords:

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

Catchwords:

LICENSING – whether the Tribunal erred in confirming the revocation of the Appellant’s firearm licence – whether appeal grounds raise questions of law – whether leave should be granted – whether the Tribunal failed to take into account relevant considerations, made findings without evidence and whether the Tribunal misapplied the law

Catchwords:

PROFESSIONAL DISCIPLINE – Legal Profession – Barrister – Professional misconduct and unsatisfactory professional conduct – Instrument of Consent and Agreed Statement of Facts

Catchwords:

APPEAL – error on a question of law – Residential Tenancies Act 2010 (NSW) – compensation – continuing breach – failure to repair defects existing at commencement of tenancy – rent reduction for withdrawal or reduction of goods, services or facilities

Catchwords:

CIVIL PROCEDURE – pleadings – application to strike out pleadings – where proceedings were brought for negligence and nuisance – where it is claimed that the statement of claim is confusing and embarrassing and do not adequately plead cases pursued including for pure economic loss – motion dismissed

Catchwords:

CIVIL LAW – high risk offender – application for 18 month extended supervision order – preliminary hearing – interim supervision order – application of statutory test – whether supporting documentation if established would justify the making of an order – assessment of risk – consideration of authorities – extremely serious sexual offences committed when the defendant was 24 – defendant now 40 – where two year extended supervision order about to expire – positive but not perfect progress towards rehabilitation – reduction in statistical assessments of chances of recidivism – no recent record of violence or sexual offending – assessment of response to parole and current supervision order – where only recent offences arose from disobedience to supervision order and directions – defendant in positive relationship with supports in place – where no relaxation in strict conditions like electronic monitoring and weekly scheduling – where police targeted defendant because of ankle bracelet – where defendant believed racial component – “hero complex” or tying to help – demonstration of increased maturity and capacity to regulate emotions – summons dismissed

Catchwords:

DEVELOPMENT APPEAL – residential development – alterations and additions – conciliation conference – agreement between the parties – orders BUILDING INFORMATION CERTIFICATE APPEAL – orders

Catchwords:

DEVELOPMENT APPEAL – modification application – mixed use building – substantially the same development - conciliation conference – agreement between the parties - orders

Catchwords:

PRACTICE AND PROCEDURE – Disclosure – Disputed claims of legal advice privilege and litigation privilege under ss 118 and 119 of the Evidence Act 1995 (NSW) in relation to communications between defendant’s General Counsel and other officers and employees of the defendant – No question of principle.

Catchwords:

COSTS — Security for costs — Legal nature of the plaintiff — Plaintiff is a company COSTS — Security for costs — Quantum and form COSTS — Security for costs — Relevant factors — Other factors

Catchwords:

CIVIL PROCEDURE – Application to strike out defence for lack of progress – UCPR 12.7(2) – no point of principle CIVIL PROCEDURE – Application to dismiss cross claim for lack of progress – UCPR 12.7(1) – no point of principle

Catchwords:

LAND LAW — Community title — Community scheme — Where resuming authority seeks orders restructuring a community scheme —Whether unit entitlements should be adjusted — No question of principle

Catchwords:

CHILD WELFARE — Parens patriae — Application for secure accommodation orders — Secure accommodation orders made in November 2022 for neurologically affected child exhibiting self-harming behaviours and at significant risk of sexual abuse — Progression of child through a protective care and transformative program designed to restore the child to life in the community having had the benefit of appropriate health and educative supports — Transition leave sought and ordered CHILD WELFARE — Parens patriae — Secure accommodation orders — Protective care and transformative program explained — Care supports and their aims described CHILD WELFARE — Parens patriae — Secure accommodation orders — Transition considerations explained — Leave to transition necessarily to be assessed by reference to viable placement alternatives — Proposed placement remote from child’s former carers — No closer acceptable alternative placement readily available — Balancing of risks associated with move to proposed distant placement against risks associated with delaying transition — Diminishing returns to be gained by keeping child within the existing program and facility — Further confinement with potentially unduly prolonged delay might be counter-productive — On balance, transition is appropriate — Nature of the protective jurisdiction enables the Court to stand ready to meet exigencies of setbacks if risks materialise

Catchwords:

BUILDING AND CONSTRUCTION — RSL club engages builder, who engages subcontractor — subcontractor serves notices of claim on RSL club under Contractors Debts Act 1997 (NSW) — RSL club challenges adjudication determination in favour of builder — RSL club undertakes to maintain funds in bank account to pay notices of claim and pays the balance of the adjudicated amount into Court — RSL club fails — subcontractor still unpaid — whether monies in Court should be paid to the subcontractor, the builder or the RSL club. CONTRACTORS DEBTS ACT 1997 — purpose – review — whether RSL club entitled to defend enforcement action by subcontractor outside the ’pay now, argue later’ regime established by Building and Construction Industry Security of Payments Act 1999 – harmonious operation of both Acts.

Catchwords:

LIQUIDATION – Whether company in liquidation owns motor vehicle.

Catchwords:

JUDICIAL REVIEW – challenge to stop work order –extension of time to file judicial review proceedings under Uniform Civil Procedure Rules 2005 (NSW) r 59.10 granted – remaining judicial review ground in amended summons not established on balance of probabilities.

Catchwords:

CONSUMER LAW — Application of the Australian Consumer Law — whether primary judge was required to, but did not, make a finding as to whether the representations made were “false or misleading” and fell within the ambit of s 29(1)(b) of the Australian Consumer Law and s 12DB(1)(a) of the Australian Securities and Investments Commission Act 2001 (Cth)

Catchwords:

ADMINISTRATIVE LAW — Home building — application for renewal of individual contractor licence — application within 10 years of applicant being a director of a Chapter 5 body corporate — s 33B Home Building Act 1989 — s 33C Home Building Act 1989

Catchwords:

CIVIL PROCEDURE — summary disposal — want of due despatch — delays by self-represented appellant in prosecuting an appeal — new circumstances come to light — not in the interests of justice to dismiss proceedings CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — uncertain whether leave to appeal required — appellant has attempted to comply with orders to file a summons seeking leave to appeal — appellant’s notice of appeal filed two days out of time — not in the interests of justice to dismiss proceedings CIVIL PROCEDURE — summary disposal — dismissal of proceedings — non-appearance of plaintiff — plaintiff withdrew legal representation mid-way through hearing and later left the courtroom— whether r 29.7 of the Uniform Civil Procedure Rules (2005) (NSW) applies where a party leaves the court room mid-way through a hearing CIVIL PROCEDURE — Court of Appeal — pro bono referral — party terminated previous pro bono referral — issue of principle emerged on appeal satisfying the “special reasons” requirement in r 7.36 of the Uniform Civil Procedure Rules (2005) (NSW)

Catchwords:

DEVELOPMENT APPLICATION – centre based childcare centre – joint expert conferences – merit concerns resolved with amended plans and additional information – contention that the appeal was lodged prior to the right to appeal arose – appeal not competent.

Catchwords:

GUARDIANSHIP — whether the Tribunal misapplied s 17(1)(c) of the Guardianship Act 1987 (NSW) — point in time Tribunal is required to form state of satisfaction about whether proposed guardian is able to exercise the functions conferred by the guardianship order GUARDIANSHIP — whether in appointing the Public Guardian the Tribunal failed to have regard to the views of the Daughter as required by s 4(d) of the Guardianship Act 1987 (NSW) PROCEDURAL FAIRNESS — whether the Tribunal failed to give the appellant a reasonable opportunity to respond to adverse material — whether Tribunal was obliged to disclose its proposed conclusions

Catchwords:

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

Catchwords:

DEVELOPMENT APPEAL – modification application substantially the same development - conciliation conference – agreement between the parties - orders

Catchwords:

DEVELOPMENT APPEAL – residential flat buildings – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing structure and construction of shop top housing – conciliation conference – amended plans and materials – agreement between the parties – orders made.

Catchwords:

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

Catchwords:

HIGH RISK OFFENDERS – extended supervision orders (ESO) – final hearing – assessment of unacceptable risk of committing a serious offence – where the criminal history and index offending of the defendant involved serious violent offending – Paranoid Schizophrenia – continued lack of insight into own risk factors – 18-month ESO imposed – where the continued involvement of the ESO remains essential – where a CTO alone does not sufficiently manage the unacceptable risk – electronic monitoring “sunrise clause” condition not imposed

Catchwords:

MENTAL HEALTH – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – application for interim extension order – forensic patient – whether unacceptable risk of causing serious harm if status as forensic patient ceases – where defendant continues to deny he suffers from mental health issues and was non-complaint with pharmacological treatment – where defendant has a history of violence – risk posed cannot be managed by less restrictive means – interim extension order granted

Catchwords:

NEGLIGENCE – duty of care – particular relationships – medical practitioner and patient – proceedings for damages as a result of a procedure carried out on the plaintiff’s left eye by a doctor at the Sydney Eye Hospital – where the plaintiff claims to have lost vision in his left eye and suffered ongoing pain and psychiatric damage – whether the defendant breached its duty of care by performing an excessive number of attempts to tap vitreous fluid causing injury – where the plaintiff’s evidence was found to be unreliable – where the defendant’s evidence was borne out by contemporaneous notes and accepted – where it was accepted that no more than three injections were attempted – where the procedure was carried out to a standard widely accepted in Australia by peer professional opinion as competent professional practice – defendant did not breach its duty of care OCCUPATIONS – medical practitioners – medical records – whether the defendant breached its duty of care by failing to document the procedure – where a number of notes about the procedure were absent – where it was uncertain if the notes were not made or lost subsequently – where the plaintiff claimed that the loss of notes contributed to his PTSD – where there is no requirement on a doctor to make notes – where there can be no breach of duty in omitting to make notes – where the failure to make out a s 5O defence does not impose a liability – defendant did not breach its duty of care EVIDENCE – expert evidence – whether the evidence of the plaintiff’s overseas treating doctor can be used as expert evidence – where the doctor prepared five reports – where the Expert Witness Code was not acknowledged – where a treating doctor lacks the objectivity of other experts – where the doctor has never practised in Australia – where the reports were obtained without letters of instruction – where the doctor reversed his opinion on a significant matter – where the evidence of the plaintiff’s expert was rejected unless there was unanimity with the other experts

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Victimisation — Application for an order that an earlier direction be complied with “in full” — No earlier direction was made — Application dismissed — No point of principle

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – appeal – application for leave to appeal – respondent’s application for security for costs – whether corporate applicant unable to pay costs if unsuccessful – strength of applicant’s case for leave – stay until security paid into court CIVIL PROCEDURE – appeal – application to stay costs order made by primary judge – stay on basis of payment into court CIVIL PROCEDURE – application for leave to appeal – respondent’s application for security for costs – applicant issued notice to produce – respondent’s motion to set aside notice – documents sought to resist security for costs application – agreements between respondent and legal representatives – relevance not established – documents sought to show respondent owed money to applicant – relevance not established – to determine balance of account between parties would be to engage in satellite litigation

Catchwords:

CONTRACT – construction and interpretation of Prospective Approval Indication contract – regard to text, context and purpose – importance of grammatical structure – reading contract as a whole – no question of principle EQUITY – relief against penalties – whether contract clause unenforceable as a penalty – no question of principle

Catchwords:

LICENSING – Security licence – fit and proper person - multiple very serious offences – released from incarceration years ago – no charges since – public interest

Catchwords:

Administrative Law - administrative review – Government information – whether subject information is “commercial in confidence” information of a third party - information provided in confidence – confidential evidence - balancing the public interest – correct and preferable decision

Catchwords:

APPEAL — Appeal against Council’s deemed refusal of development consent for proposed supermarket development — Whether there is noncompliance with planning controls in relation to urban design and landscaping — Effect of building design and appearance and streetscape setback issues on satisfaction of controls — Appeal upheld and consent granted subject to conditions

Catchwords:

APPEAL – Denial of procedural fairness – issue not raised with parties during hearing – failure to provide opportunity for submissions APPEAL – Claim raised by applicant not considered CONSUMER LAW – Limitation periods – Fair Trading Act 1987 (NSW), s 79L(1)(a) considered

Catchwords:

NEGLIGENCE – historical sexual assault – whether error in process of making findings of primary fact – whether removal of limitation period alters obligation of plaintiff to establish elements of cause of action – whether primary judge sufficiently paid regard to inconsistencies in plaintiff’s account NEGLIGENCE – claim brought against “Diocese” – juristic nature of defendant – significance of defendant being proper defendant under Part 1B of Civil Liability Act 2002 (NSW) – whether defendant owed duty of care to plaintiff in 1969 – significance of litigation proceeding on basis that alleged abuser was a parish priest rather than an assistant priest – obligation to establish foreseeability of harm by assistant priest by evidence – no duty of care owed NEGLIGENCE – non-delegable duties – whether appellant could owe non-delegable duty of care for intentional criminal act of assistant priest

Catchwords:

DEVELOPMENT APPLICATION – partial demolition and alterations and additions to an existing dwelling – conciliation conference – amended plans and documents – agreement between the parties – orders made

Catchwords:

DEVELOPMENT APPLICATION – subdivision – matters resolved between parties

Catchwords:

MODIFICATION APPLICATION – conciliation conference – amendments to outdoor terrace to residential dwelling – agreement between the parties – orders

Catchwords:

APPEAL – development application – multi dwelling housing – conciliation conference – agreement reached – orders made

Catchwords:

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

Catchwords:

APPEAL – development application – residential flat building – contentions resolved – appropriate conditions of consent – whether conditions should be imposed requiring creation of right of carriageway or restriction as to user

Catchwords:

DEVELOPMENT APPLICATION – dwelling house alterations – provision of carspace in frontage area – heritage conservation area effects

Catchwords:

MODIFICATION APPLICATION – application directly made to Court – residential flat building – conciliation conference – agreement between the parties – orders

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of Racing Appeals Tribunal – where horse tested positive to prohibited substances after a race – appeal by way of fresh hearing – where expert evidence given little weight – where expert was not cross-examined – where plaintiff contended that they were unaware that the Tribunal was contemplating certain adverse findings – whether plaintiff was denied procedural fairness – no denial of procedural fairness ADMINISTRATIVE LAW – judicial review – failure to give reasons – where expert evidence given little weight – where plaintiff contended that the Tribunal did not give sufficient reasons – adequate reasons provided

Catchwords:

APPEAL – development application – appeal against conditions – conciliation conference – agreement between the parties – orders

Catchwords:

APPEAL – development application – three storey residential flat building – conciliation conference – agreement between the parties – orders made

Catchwords:

COSTS – Whether to make a gross sum costs order.

Catchwords:

CIVIL PROCEDURE – hearings – application to expedite application for leave to appeal where final hearing below soon to commence – prolonged proceeding below with final hearing dates twice postponed on applicant’s application based on mental health arguments – applicant not yet filed materials on application for leave to appeal despite orders – application refused to avoid heavy burden on parties and interference in preparation for final hearing CIVIL PROCEDURE – Court of Appeal – whether should be concurrent hearing of leave application and appeal is administrative decision generally made by President of Court of Appeal – not open to applicant to seek that the decision be made by a judge of appeal determining a motion CIVIL PROCEDURE – hearings – adjournment – adjournment sought when very short period remains before commencement of final hearing

Catchwords:

COSTS – application for indemnity costs for the whole of the proceedings - departing from the general rule that costs follow the event - conduct of the parties - whether the second defendant/cross-claimant's fraud justifies the award of indemnity costs for the whole of the proceedings

Catchwords:

PROCEDURE – judicial review of District Court’s dismissal of interlocutory appeal from Children’s Court – whether independent legal representative of child entitled to be heard – where divergence in submissions between Secretary and independent legal representative – where divergence of principle on face of authorities – where Court would be assisted by submissions from independent legal representative on questions of law – leave granted to be joined as intervener

Catchwords:

CORPORATIONS – voluntary administration – where First Plaintiff is largest shareholder of the First Defendant, which is in administration – where First Plaintiff executed letter of comfort as a deed – where First Plaintiff subsequently provided an executed term sheet, setting out the terms of a proposed bridge funding facility – where the term sheet provides that it is a condition precedent of the facility that financing documentation be entered – where the letter of comfort has been extended to 30 June 2025 or until facility documentation is entered - whether proposed financier has capacity to meet all claims of creditors that are due and payable – whether conditions precedent of facility will be satisfied or waived – whether First Defendant is solvent – whether order should be made ending administration of First Defendant with immediate effect

Catchwords:

CIVIL PROCEDURE – effect of grant of “liberty to apply” – whether costs order conditional or final – time limit imposed by r 36.16 of the UCPR – inherent jurisdiction to make orders to prevent injustice or ensure fairness – general power under s 14 of the Civil Procedure Act to dispense with rules – no power for Court to extend the time for the filing of a motion to vary a costs order

Catchwords:

Education Act- home schooling- registration- reregistration- whether statutory requirements satisfied- role of Tribunal on review

Catchwords:

CRIMINAL PROCEDURE – suppression and non-publication orders – where the Court published reasons in September 2023 dismissing an appeal from an interlocutory judgment in the District Court – where the Court declined to grant a permanent stay of criminal proceedings – where publication of the Court’s reasons was restricted until completion of the District Court trial – where the District Court trial was completed – where suppression orders were made by the District Court in respect of the identities of a solicitor and solicitor advocate in related proceedings – where the respondent sought amendments to the Court’s reasons in order to redact the initials of the instructing solicitor and solicitor advocate prior to publication – whether suppression orders should be made according to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW)

Catchwords:

STATUTORY INTERPRETATION — meaning of definition of “tow truck” in Tow Truck Industry Act 1998 (NSW) — effect of expression “used or operated for the purposes of towing motor vehicles” in definition CIVIL PROCEDURE — proper respondent where administratively reviewable decision made by delegate

Catchwords:

CONTRACTS – Formation – Agreement – Whether an oral agreement of accord and satisfaction was formed – Lack of a genuine dispute between the parties CONTRACTS – Formation – Consideration – Where part payment of a debt is not good consideration EQUITY – Equitable interests in property – Priority disputes between competing equitable interests –Whether there was actual or constructive notice of the earlier equity – Whether there was a “registrable dealing” for the purposes of section 43A of the Real Property Act 1900 (NSW)

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory Rights – Unfair dismissal – Application made out of time - resignation

Catchwords:

CONTRACTS — construction and interpretation — letter of comfort — where parent company undertook to pay “any debts” of subsidiary — where liquidators of subsidiary admitted proofs of debt in respect of undetermined civil claims — whether “any debts” in the letter of comfort includes liabilities accepted by liquidators

Catchwords:

COURTS AND TRIBUNALS – Mental Health Review Tribunal – whether Tribunal’s detention and revocation of conditional release were valid under ss 79 and 81 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) MENTAL HEALTH – forensic patient – forensic patient scheduled under s 19 of the Mental Health Act 2007 (NSW) – whether extension of time and leave to appeal should be granted – where conditional release breached – whether s 109 of Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) provides a mandatory scheme where conditional release breached STATUTORY INTERPRETATION – whether s 81 limited to detention orders – whether s 81 provides a general power to make orders as to detention of forensic patients – where orders being made after initial detention order – whether power to revoke conditional release implied from express power of detention in s 81 – Anthony Hordern principle of statutory construction considered – futility of order for apprehension under s 109 when forensic patient already detained – whether s 109 has a role to play

Catchwords:

TORTS – negligence – fall of six years old plaintiff from three metres high diving board platform onto surrounding concrete – precise circumstances of fall – whether preventative measures should reasonably have been taken by defendant and/or cross-defendant – cause of fall – reliability of witnesses – precise injury caused – extent of disabilities due to accident - appropriate damages to be awarded – legal status of persons contracting to manage pool with the cross-defendant LIMITATION OF ACTIONS – torts – negligence – personal injury – discoverability - tutor initially acting for plaintiff EMPLOYEE – whether person was an employee or independent contractor and consequences of status LEASE – construction of lease – applicable contractual principles - whether indemnity and insuring obligation placed on cross-defendant by lease

Catchwords:

CIVIL PROCEDURE – Summary judgment – whether Defendant cannot succeed - application for summary judgment dismissed.

Catchwords:

CRIMINAL LAW – sentencing – firearms offences – significance of good character – whether it is material that late plea of guilty delayed because of earlier legal advice

Catchwords:

APPEAL – development application – centre-based child care facility – conciliation conference – agreement reached – orders made

Catchwords:

DEVELOPMENT APPEAL – residential development – demolition of existing dwelling – secondary dwelling – development on coastal land – flood planning – compliant BASIX certificate – conciliation conference – agreement between the parties – orders

Catchwords:

PRACTICE AND PROCEDURE – Notice of Motion to set aside a Notice to Produce – Apparent relevance – Legitimate forensic purpose – Notice of motion dismissed – Access granted

Catchwords:

APPEAL – questions of law - refusal of adjournment – whether denial of procedural fairness – application of consumer law – fresh evidence additional material refused

Catchwords:

CIVIL PROCEDURE – consent judgment – compensation for breach of duty of care and professional negligence resulting in ataxia cerebral palsy – where defendant purchased the hospital assets but not the liabilities – further investigations into identity of insurer – satisfied the agreement in the interests of plaintiff – judgment entered

Catchwords:

COSTS – whether departure from usual costs order is warranted – where defendant is not an ordinary litigant – where it is claimed that defendant did not disclose reason for decision until the hearing – whether misconduct warranting an order that each party bear its own costs occurred– not satisfied that any departure from usual costs order is warranted given the plaintiff’s pursuit of a construction of the Motor Accident Injuries Act 2017 (NSW) which could not be accepted

Catchwords:

CIVIL ENFORCEMENT – development in breach of condition of development consent – use of land for carparking without development consent – civil enforcement – ss 4.2 and 9.46 of the Environmental Planning and Assessment Act 1979 (NSW) – orders and declarations

Catchwords:

LEASES AND TENANCIES –delay in filing appeal – - extension of time application - decision not fair and equitable – Tribunal failed to take into consideration rent arrears in making rent refund order

Catchwords:

ADMINISTRATIVE REVIEW – application for renewal of supervisor certificate – administration and liquidation of company of which the Applicant was a director – whether he took all reasonable steps to avoid the appointment of a liquidator – whether he was a fit and proper person to hold a supervisor certificate

Catchwords:

DEEDS – Execution and attestation – Intention to create deed – Delivery in escrow – Intention by parties delivering deed to be immediately bound on condition that deed becomes effective only upon execution by other party – Held: Deed effective immediately upon satisfaction of escrow condition. EQUITY – Unconscionable conduct – Whether defendants’ execution of deed procured by plaintiff taking unconscientious advantage of alleged special disadvantage of first defendant – Held: No. Special disadvantage not established. CONTRACTS – Contracts Review Act 1980 (NSW) – Whether deed unjust – Held: No. EQUITY – Equitable remedies – Specific performance – Where the plaintiff has carried out her obligations under the deed – Where defendants are in default under the deed – Held: Specific performance of the deed ordered. ESTOPPEL – Proprietary estoppel – Where plaintiff became sole registered proprietor of family home by right of survivorship upon death of her husband – Where first defendant is the son of the plaintiff and the deceased – Where first defendant seeks a declaration that he has an equitable interest in the family home and that 50 per cent of that property is held on trust for him by the plaintiff – Where first defendant claims the deceased made representations to him, to the knowledge of the plaintiff, that he would inherit the family home – Whether representations were in fact made – Whether first defendant acted in reliance on the alleged representations – Where the first defendant has acknowledged by deed that he has no equitable interest in the property and has released the plaintiff from any claims against the property – Held: The deed is a complete defence to the proprietary estoppel claim, and the alleged promises were not provided in any event. SUCCESSION – Family provision – Approval of release – Where first defendant has released his rights to apply for an order for family provision out of the whole or any part of the plaintiff’s actual or notional estate – Consideration of matters in Succession Act 2006 (NSW) s 95(4) and circumstances of the case – Held: Release approved under s 95 of the Succession Act 2006 (NSW).

Catchwords:

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

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – whether error in not applying statutory numerical discount for guilty plea entered after trial commenced – error conceded – question of whether any lesser sentence warranted in law– question of whether applicant’s moral culpability should be reduced – approach to Bugmy considerations – approach on resentence – serious offending over many years – multiple child victims – leave granted – appeal against sentence dismissed

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – contract – breach – remuneration – repudiation – termination – Industrial Relations Commission – jurisdiction – procedures and powers

Catchwords:

APPEALS — Contracts — Construction — where two co-owners agreements (COA) govern relationship between co-owners of large suburban shopping centre — where pre-emption rights on defaults and deemed defaults by co-owners in dealing with that co-owner’s ownership interest entitle non-defaulting owners to purchase defaulting co-owner’s ownership interest — whether two separate transactions effecting a transfer of ownership interests were prohibited disposals triggering pre-emption rights — whether second COA had a greater effect than to substitute an outgoing co-owner with an incoming co-owner — whether ownership interest was acquired “under” clauses regulating dealing and establishing pre-emption rights — whether service provisions ought be construed as essential

Catchwords:

ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - objection - appeal – administrative review STATE REVENUE - land tax - exemption - land used for primary production - rural land - dominant use - wine grapes - sale – use for secondary production

Catchwords:

DEVELOPMENT APPLICATION – centre-based child care facility in R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling housing development – agreement between the parties – orders

Catchwords:

COSTS – review of decision of Judge of Appeal under s 46(4) of the Supreme Court Act 1970 (NSW) – where security for costs granted by Judge of Appeal – whether decision involved an error of principle or was plainly wrong – where Judge of Appeal found special circumstances were not required under s 1335 of the Corporations Act 2001 (Cth) – no error of principle

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – The relationship between the guideline judgment of R v Ponfield and s 21A of the Crimes (Sentencing Procedure) Act – An offender’s prior criminal history and being subject to conditional liberty at the time of offending not to be taken into account in assessing the objective seriousness of the offence for sentence

Catchwords:

COSTS – application for costs in Class 2 Trees (Disputes Between Neighbours) Act 2006 (NSW) proceedings – s 98(1) Civil Procedure Act 2005 (NSW) – r 3.7 Land and Environment Court Rules 2007 (NSW) – presumption against an order for costs – whether costs are fair and reasonable – each party to bear their own costs

Catchwords:

BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry (Security of Payment) Act 2021 (WA) — policy of security of payment legislation — timeframes — rough and ready — brutally fast — policy best served by restricting judicial intervention — East Coast model — jurisdictional differences and similarities BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry (Security of Payment) Act 2021 (WA) — jurisdictional fact — where statutory language objectively worded — subjective opinion of adjudicator — release of performance security bonds BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry (Security of Payment) Act 2021 (WA) — whether service requirement met by providing link within email — meaning of “given” — whether strict compliance was a precondition to jurisdiction BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry (Security of Payment) Act 2021 (WA) — proper form of relief — mandamus — whether adjudicator must determine review application in accordance with law — where other proceedings on foot

Catchwords:

BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Whether adjudicator’s determination affected by jurisdictional error on the basis that he erroneously found that certain submissions were not “duly made” or failed to consider submissions about set-off — Whether orders ought to be made in the nature of mandamus compelling adjudicator to determine parts of adjudication application which remain undetermined because of jurisdictional error BUILDING AND CONSTRUCTION — Adjudication — Declaration — Whether declaration about validity of new adjudication application ought to be made

Catchwords:

ASSOCIATIONS AND CLUBS — Particular bodies — Political organisations — Preselection disputes CONSTITUTIONAL LAW — Commonwealth Constitution — Elections — Eligibility for election 7

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Appeals — Discretionary power to make dispute orders — Relevant considerations — Whether the decision at first instance proceeded on the basis that the Act does not tolerate industrial action — Direction to union to post a statement on its Facebook page correcting a misleading post — Whether direction was beyond power — Whether power under s 136(1)(a) to make substantive facilitative directions — Leave to appeal refused in respect of both decisions.

Catchwords:

COSTS – application for costs on an indemnity basis – whether indemnity costs should be ordered.

Catchwords:

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving shareholders’ scheme of arrangement and creditors’ scheme of arrangement – Where formal requirements satisfied – Whether schemes of arrangement should be approved

Catchwords:

CIVIL PROCEDURE – interlocutory applications by defendants to strike out and dismiss proceedings – whether proceedings disclose a reasonable cause of action – whether proceedings are clearly statute-barred – whether proceedings are an abuse of process – whether plaintiff attempting to relitigate or circumvent prior determinations – grant of limited leave to replead

Catchwords:

SUCCESSION — Family provision — Claim by de facto spouse pursuant to s 59, Succession Act 2006 (NSW) — Whether will made adequate provision for the proper maintenance, education or advancement in life of the plaintiff — Where plaintiff given portable life estate in home shared with deceased — Where plaintiff sought in lieu absolute ownership of other real property in the estate — Where provision inadequate SUCCESSION — Family provision — Matters in s 60(2) — Other beneficiaries’ competing claims on the estate — Relevance of historical abuse to the nature and extent of obligations owed by the deceased person to beneficiaries — Weight to be given to testator’s judgment SUCCESSION — Family provision — Whether to exercise power in s 66(2) to make additional orders to adjust the interests of other beneficiaries — Where question not sufficiently addressed in parties’ submissions

Catchwords:

COSTS – adjustment to costs orders – specified gross sum cost order – Civil Procedure Act 2005 s 98(4)(c) – what adjustments should be made to existing costs orders in the proceedings by reason of a decision of the Court of Appeal overturning part of the Court’s prior judgments at first instance. CIVIL PROCEDURE – interest – whether in calculating offsetting claims in costs, whether interest should run on a Local Court judgment the subject of a temporary stay on enforcement when no order made it interest should not run under Civil Procedure Act 2005 s 101(4).

Catchwords:

COSTS – whether special circumstances exist – whether discretion to make a costs order ought be exercised

Catchwords:

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

Catchwords:

GUARDIANSHIP — whether Tribunal failed to consider evidence or considered irrelevant evidence. PROCEDURAL FAIRNESS — whether unanticipated presence of party denied procedural fairness to another party; whether the applicant was able to respond to a document provided days before the hearing.

Catchwords:

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

Catchwords:

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

Catchwords:

CIVIL LAW – procedure – expert conclave of psychiatrists – late service of report – objection to use of report – urgent application – practical resolution – no question of principle

Catchwords:

CORPORATIONS – Reinstatement – Winding up – Liquidators – Appointment. COSTS – Costs incurred by non-parties – Where interested party heard under r 2.13 of the Supreme Court (Corporations) Rules 1999 (NSW) seeks costs - Declined