Browse decisions Displaying 1 - 200 out of 126926 results

Catchwords:

COSTS — claim for damages for personal injury for intentional torts in respect of institutional sexual abuse by a primary school teacher — plaintiff successful in obtaining substantial monetary judgment against the teacher — teacher ceased attending the hearing after admitting torts, whilst disputing causation and raising other defences — plaintiff’s application for costs to be awarded as a gross lump sum COSTS — cross-claim — State successful in recovering order for full indemnity for its liability to the plaintiff and its own claim for damages for breach of employment contract for costs of defending that proceeding — State’s application for indemnity costs — non-acceptance of an offer to contribute — asserted unreasonable conduct by cross-defendant in defence of litigation — State’s application for costs to be awarded as gross lump sum

Catchwords:

CIVIL PROCEDURE — Default judgment — claim for unliquidated damages — judgment for the plaintiff under r 16.7 of the Uniform Civil Procedure Rules 2005 (NSW) LIMITATION OF ACTIONS — Personal injury — Child abuse — Legislative removal of previous limitation period TORTS — Trespass to the person — assessment of damages — continuing serious abuse throughout childhood causing psychiatric injury — Civil Liability Act 2002 (NSW) not applicable by operation of s 3B(1)(a) — general damages — past and future economic loss — medical expenses — single figure awarded for exemplary and aggravated damages

Catchwords:

EQUITY — Equitable remedies — Injunctions — Interlocutory injunction — Where plaintiff seeks interlocutory injunction against defendant to restrain the making of representations about the impropriety of plaintiff’s business model — Where plaintiff claims for misleading or deceptive conduct and injurious falsehood in respect of representations alleged to have been made by defendant — Whether there is a serious question to be tried in respect of each of plaintiff’s claims — Whether balance of convenience favours grant of interlocutory injunction

Catchwords:

NEGLIGENCE – damages – economic loss – earning capacity – where plaintiff has reduced working capacity following injury – assessment of residual earning capacity – consideration of buffer to be awarded NEGLIGENCE – damages – measure of damages – where plaintiff earned salary and received dividends from shareholdings prior to injury – whether any loss suffered by reason of injury

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PRACTICE AND PROCEDURE – external appeal of disciplinary action against councillor – 28 day suspension and apology - application for stay of disciplinary action – factors relevant to whether stay granted – balance of convenience – stay granted

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CIVIL PROCEDURE – application to rely on fresh expert evidence – whether expert shopping – where fresh evidence likely to narrow claim CIVIL PROCEDURE – pleadings – application to amend statement of claim – where application depends upon whether leave to rely on further expert evidence is granted

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EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation of award — Consent application — No issue of principle

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ADMINISTRATIVE LAW – judicial review – decision of appeal panel – psychological injury – whether jurisdictional error or error of law on the face of the record – whether Appeal Panel failed to consider plaintiff’s substantial and clearly articulated argument – whether constructive failure to exercise jurisdiction – whether Appeal Panel failed to take into account plaintiff’s evidence of the restrictions in functioning – whether Appeal Panel’s reasons adequate – whether material errors WORKERS COMPENSATION – Workers Compensation Guidelines – Psychiatric Impairment Rating Scale – application of Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 – where dispute as to assessment of Whole Person Impairment – whether Appeal Panel misapplied SIRA Guidelines – whether conduct wrongly assigned to a PIRS scale – whether conduct was more directly relevant to “travel” then “social and recreational activities”

Catchwords:

SENTENCING — Appeal against sentence — Severity — Sentence manifestly excessive — Domestic violence offences with no physical violence — Principles of totality — Reduction for reduced moral culpability on Bugmy and De La Rosa factors — Appeal upheld SENTENCING — Appeal against sentence — Fresh or new evidence — Whether failure to provide a report to sentencing judge constitutes a miscarriage of justice — Where the report gave a “more detailed and more graphic account” of sexual abuse suffered by the applicant already in material before the sentencing judge — Where the sentencing judge had accepted the sexual abuse occurred — No miscarriage of justice

Catchwords:

COSTS – costs application in Class 3 Aboriginal land rights appeal proceedings – applicant successful in appeal and seeks costs on ordinary and indemnity basis – whether costs should be determined when notice of intention to appeal had been filed – whether general rule that costs follow the event applies in Class 3 Aboriginal land rights appeal proceedings – source of the Court’s power to make a costs order in Class 3 Aboriginal land rights appeal proceedings – effect of the Courts and Other Legislation Further Amendment Act 2011 – discretion in s 98 of the Civil Procedure Act – whether Minister’s conduct warranted award of costs on an indemnity basis – whether it was unreasonable to reject offer of compromise

Catchwords:

DEVELOPMENT APPEAL – shop top housing development – infill affordable housing - conciliation conference – agreement between the parties - orders

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

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APPEALS – no question of principle

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APPEAL – Development Application – appeal against conditions – conciliation conference – agreement between the parties – orders

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APPEAL – Development application – use of shipping container – retail use – agreement between the parties – orders

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CONTEMPT — Criminal contempt — Alleged improper pressure applied to a defendant to inhibit him or attempt to inhibit him from defending these proceedings — Whether conduct proved beyond reasonable doubt — Whether real and definite tendency to interfere with the course of justice in these proceedings

Catchwords:

COSTS – where plaintiff was successful in application to set aside statutory demand – where plaintiff sought lump sum costs order – where plaintiff contended costs were disproportionate and inappropriate in context – where costs assessment was likely to be contested and further increase costs – where defendant contended he acted reasonably and grounds raised were arguable – where it is appropriate for costs to follow the event – defendant to pay plaintiff’s costs on a lump sum basis

Catchwords:

PRACTICE AND PROCEDURE – defendant’s application for recusal from any further determination in proceedings – where the defendant’s statutory demand was set aside – where the remaining issue concerns costs – allegation of apprehended bias – where fair-minded lay observer would not reasonably apprehend that the question of costs had been pre-determined – where fair-minded lay observer would not reasonably apprehend that arguments will not be considered on their merits – consideration of extent of Court’s role in relation to litigants in person – application refused

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — conciliation conference — neighbouring trees — falling branches have damaged property — whether the trees likely to cause damage to property — agreement between the parties — orders for tree removal and compensation

Catchwords:

BUILDING WORK RECTIFICATION ORDER — conciliation conference — agreement between the parties — substituted building work rectification order — final orders

Catchwords:

CRIME — Appeals — Appeal against sentence — Application of De Simoni and Josefski principles — Where the sentencing judge took into account co-offender’s possession and use of a firearm in sentencing Mr Zahab. CRIME — Appeals — Appeal against sentence —Where the offender’s liability and culpability for the offence by reason of his conduct and role were not distinguished. CRIME — Appeals — Appeal against sentence — Reduced moral culpability — Impact on purposes of sentencing. CRIME — Appeals — Appeal against sentence — Where the sentencing judge took into account prior convictions that did not appear in the offender’s criminal history.

Catchwords:

APPEAL — Deemed refusal — amended Development Application — affordable housing — conciliation conference — agreement between the parties — orders made

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CIVIL PROCEDURE — subpoenas — application to set aside — abuse of process — whether legitimate forensic purpose can be identified

Catchwords:

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) – Stay of execution of judgment obtained under SOPA pending determination of plaintiff’s substantive claims in related proceedings – Balance of convenience – Where not demonstrated there would be “catastrophic” consequences if stay not ordered – Where not possible to determine substantive case strong – Where no risk of defendant’s insolvency – Where delay in bringing stay application

Catchwords:

CRIMINAL LAW — Work health and safety — Offences — Category 3 — Unguarded grain auger — Risk of body part coming into contact or becoming entangled — Absence of a guard — Inadequate safe work system — Inadequate instruction or training — Inadequate supervision — Person conducting business or undertaking uninvolved in day-to-day operations of business SENTENCING — Relevant factors on sentence — High objective seriousness — Offender had regard for duty to ensure safety of workers — Duty of a person conducting a business or undertaking when operating business remotely — General deterrence — No aggravating factors — Mitigating factors — Remorse — Early guilty plea — Whether sufficient evidence of cooperation with authorities — Adverse publicity order — Application for no conviction recorded — Relevant factors on no conviction application — Adverse publicity order

Catchwords:

SUCCESSION — Family provision — Proceedings not commenced within time — Where defendants did not oppose an order for application to be made out of time — Where delay was minimal and caused by Registry irregularities SUCCESSION — Family provision — Claim by de facto widow — Where plaintiff received right to occupation of deceased’s property in the will — Where right to occupation was contingent on plaintiff not repartnering — Where residue of estate divided between two children — Where evidence of plaintiff is unreliable, confusing and treated with extreme caution — Where deceased raised two children largely as single parent — Where plaintiff and deceased had a relationship that was loving at times, but filled with arguing at other times — Where plaintiff has limited savings — Where children of deceased put financial circumstances into evidence — No issue of principle

Catchwords:

SUCCESSION — Family provision — Claim by spouse for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Defendants daughters of first marriage of deceased — Where plaintiff deceased’s spouse of 32 years — Where plaintiff provided a lot of care and assistance to the deceased — Where plaintiff received 1-year right of residence and portion of residue of estate — Where plaintiff and second defendant both have significant health issues — Whether adequate provision for proper maintenance made for plaintiff —Whether adequate provision for proper maintenance includes provision for plaintiff to live in retirement village of plaintiff’s choice — Whether adequate provision for proper maintenance includes portable life estate

Catchwords:

CONTRACTS — sale of land — deposit bond — counter indemnity — whether plaintiffs signed deposit bond application and counter indemnity to facilitate purchase of property — plaintiffs alleging signatures forged by finance broker — uncontradicted forensic handwriting evidence supporting forgery — whether indemnity a nullity — whether agreement should be declared wholly void — Contracts Review Act 1980 (NSW), s 7 AGENCY — actual authority — ostensible authority — finance broker — whether finance broker authorised to sign or submit deposit bond application and counter indemnity on behalf of proposed purchasers — provision of identification and financial documents — whether finance broker on a frolic of his own — scope of finance broker’s engagement — where plaintiffs authorised broker to do all things necessary to secure property CONTRACTS — ratification — whether plaintiffs ratified or adopted unauthorised deposit bond application, counter indemnity and deposit bond by subsequently taking steps to obtain finance and complete purchase — whether knowledge of transaction and deposit bond sufficient — whether forged signature capable of ratification — extensive contemporaneous evidence demonstrating plaintiffs' knowledge of financial agreements to facilitate purchase of property CONSUMER LAW — misleading or deceptive conduct — silence or omission — whether plaintiffs failed to disclose alleged forgery before deposit bond was called upon and paid — whether alleged conduct was in trade or commerce — whether duty to disclose arose EQUITY — estoppel — common law and equitable estoppel — alleged forged documents — whether plaintiffs, by silence or subsequent conduct, were precluded from denying liability under counter indemnity — where plaintiffs became aware of alleged forgery — reliance and detriment REAL PROPERTY — caveat — caveat lodged to secure liability under counter indemnity — funds paid into court to procure withdrawal of caveat — whether funds should be paid to plaintiffs or defendants

Catchwords:

ADMINISTRATIVE LAW — judicial review — judicial review of decision of medical Appeal Panel — claim for worker’s compensation — psychological injury — assessment of degree of permanent impairment — consideration of “travel” under the Psychiatric Impairment Rating Scale classes — whether Appeal Panel denied procedural fairness when making factual finding that plaintiff could travel without support person — where plaintiff did not request re-examination — whether Appeal Panel departed from the grounds of appeal when finding demonstrable error — summons dismissed

Catchwords:

BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Where defendant brought payment claim against plaintiff under Building and Construction Industry Security of Payment Act 1999 (NSW) (Act) — Where adjudicator made determinations on payment claim — Where adjudicator decided that payment claim was served within time per s 13(4)(b) of the Act — Whether adjudicator fell into jurisdictional error in his application of s 13(4)(b) — Whether error was material — Whether order in the nature of mandamus is an appropriate form of relief

Catchwords:

ADMINISTRATIVE LAW — judicial review — judicial review of the decision of a review panel constituted under Motor Accidents Compensation Act 1999 (NSW) — where WPI threshold for availability of award of damages for non-economic loss is 10% — where the original assessor assessed 19% WPI but review panel assessed 7% WPI — whether review panel had to grant leave for the introduction of additional documents — whether failure to allow plaintiff to make a written response concerning the additional documents amounted to a denial of procedural fairness — whether assessor’s conduct and questions amounted to procedural unfairness or gave rise to an apprehension of bias

Catchwords:

BUILDING AND CONSTRUCTION — Adjudication determination under s 22 of the Building and Construction Industry Security of Payment Act 1999 (NSW) — Judicial review — Whether determination void for jurisdictional error — Whether plaintiff was denied procedural fairness — Where first defendant advanced waiver and estoppel argument before adjudicator — Where first defendant annexed a bundle of 49 email chains to its adjudication application in support of waiver and estoppel argument — Where adjudicator drew support from a particular email in the bundle in reaching his conclusion that waiver and estoppel was established — Whether determination was made on a basis not advanced by first defendant and not answered by plaintiff

Catchwords:

CONTRACTS — construction — contract for sale of residential property — Spanish style Rose Bay mansion – Villa Biscaya — purchaser granted pre-completion access and exclusive occupation — purchaser permitted to carry out works on property — trees removed from adjoining property — purchaser authorised removal — whether removal breached special condition prohibiting damage, nuisance or inconvenience to adjoining property — clause confined to damage caused by works carried out on subject property CONTRACTS — termination — notice of default — vendor purported to terminate purchaser’s contractual occupation rights — whether notified non-compliance rectified within contractual period — deed polls offered in response to allegations concerning removal of trees — whether rectification required to address only notified non-compliance — whether purchaser rectified notified non-compliance CONTRACTS — performance — vendor required to sign applications, plan and consents reasonably required by purchaser — failure to sign construction certificate application — breach of express term and implied duty to cooperate — no loss caused EQUITY — relief against forfeiture — contractual right of occupation pending completion of sale — vendor’s asserted entitlement to terminate occupation rights — whether relief against forfeiture available EVIDENCE — witness credibility — conflicting accounts concerning responsibility for removal of trees — contemporaneous communications, including WhatsApp messages and video evidence — failure to call material witness — inference that purchaser authorised removal of trees DAMAGES — mesne profits — where purchaser remained in occupation after purported termination — vendor claimed market rent or loss of opportunity to lease property — whether vendor would have leased property to third party — vendor unable to prove lost rental income or opportunity — alternative assessment of mesne profits — whether quantum of land tax payable by vendor if property leased should be deducted from mesne profits DAMAGES — causation — purchaser claimed increased holding costs arising from vendor’s failure to sign construction certificate application — whether purchaser would have commenced main-house works immediately

Catchwords:

ENVIRONMENTAL OFFENCES: sentencing – unlawful clearing of vegetation resulting in the commission of three offences – pleas of guilty – sentencing principles – mental state of defendant at time of commission of the offences – criminal negligence – commission of offences objectively serious – not part of any organised criminal activity – assistance to authorities – remorse and contrition expressed – means to pay – publication order made.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – residential flat building in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders

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ADMINISTRATIVE LAW – child protection – working with children check clearance – refusal of clearance – risk assessment – real and appreciable risk to the safety of children – reasonable person test – public interest test

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APPEAL – building rectification works order – conciliation – agreement between parties – orders

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DEVELOPMENT APPLICATION AND MODIFICATION APPLICATIONS – conciliation conference – agreement between the parties – orders

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

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

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VICTIMS SUPPORT – Administrative law – act of violence –- whether applicant primary victim of act of violence – sufficiency of evidence – whether medical evidence verifies injury as a result of the act of violence

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DEVELOPMENT APPEAL – alterations and additions – heritage significance – community objections

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DEVELOPMENT APPEAL – modification of consent – extension of trading hours – substantially the same development – conciliation conference – agreement between the parties – orders

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

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ENVIRONMENT AND PLANNING — Consent — appeal — s 34 agreement — cl 4.6 variation —conditions of consent

Catchwords:

CRIMINAL LAW — Work health and safety — Offences — Category 2 — Fall from height — Worker sustained minor facial injuries — Grossly deficient construction of scaffold — Failure to have scaffold inspected by a competent person — Workers not appropriately licensed — Absence of documentation — No training provided to worker SENTENCING — Relevant factors on sentence — Objective seriousness — No aggravating factors — Mitigating factors — No prior convictions — Pleas of guilty — Assistance to authorities — General deterrence — Reduced significance of specific deterrence — Moderation of fine for principal contractor — Limited capacity to pay a fine — Insufficient financial evidence before Court

Catchwords:

SENTENCING – specially aggravated kidnapping

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CIVIL PROCEDURE – Application to stay proceedings under r 12.10 of the Uniform Civil Procedure Rules 2005 (NSW) – Where the plaintiff’s previous claim was dismissed with costs – Whether the plaintiff’s identical second claim could proceed without payment of the costs in the previous proceedings

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Consent award — No issue of principle

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation of award — Consent application — No issue of principle

Catchwords:

APPEALS — Leave to appeal — Leave to appeal an interlocutory decision— Principles governing leave to appeal an interlocutory decision Whether reasons were adequate — Assistance to self-represented litigants — Duty to afford a fair hearing — Use of generative AI in proceedings — Leave to appeal refused

Catchwords:

OCCUPATIONS – Medical practitioners – Appeal against decision to refuse limited registration – Jurisdiction under Health Practitioner Regulation National Law – Whether NCAT is the appropriate responsible tribunal

Catchwords:

COSTS — application for contractual indemnity costs — commercial lease — construction of contractual costs provisions — whether proceedings constituted enforcement of covenant or exercise of contractual right or power — whether contractual entitlement to indemnity costs enlivened — consequential orders — interest — Civil Procedure Act 2005 (NSW), s 100

Catchwords:

COSTS — cross-claim — whether successful cross-claimant should be deprived of part of costs because unsuccessful on some heads of damage — whether issues on cross-claim substantially overlapped with issues on statement of claim — whether outcome properly characterised as mixed — ordinary rule that costs follow the event — costs of cross-claim awarded on ordinary basis

Catchwords:

PRACTICE AND PROCEDURE — application to restrain defendant’s solicitor from acting — alleged possession of confidential information arising from former retainer — former solicitor employed by different law firm — no precise identification of confidential information — whether real risk of misuse of confidential information — delay in bringing action — application dismissed

Catchwords:

CRIMINAL LAW — sentencing — environmental offences — construction of dam without Approval — unlawful clearing of native vegetation on waterfront land — actual environmental harm — pleas of guilty — no intention to act unlawfully — whether Defendant should be named in publication notice

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LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty — Television antenna not functioning — Not functioning at commencement of tenancy — Landlord not required to repair — Express clause in tenancy agreement placed responsibility for the provision of television and internet services upon the tenant — Proper construction of tenancy agreement — Clause excluded any obligation upon landlord to repair the antenna

Catchwords:

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

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HUMAN RIGHTS – discrimination – on the ground of a person’s race – employment - vilification

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BANKING AND FINANCE — Banks — Bank accounts — what, if any, duty does a bank owe to an account signatory — allegation of breach of contract by a bank with respect to an account signatory BANKING AND FINANCE — Banks — Liabilities — Negligence — did the defendant owe a duty of care to an account signatory, and, if so, was it breached

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION — proposed signage structure with static and digital advertisement — whether there is an inconsistency between the provisions of two relevant planning instruments that apply to the land — does the development exhibit design excellence — whether the signage is compatible with the character of the area — does the development result in adverse impacts due to visual clutter — appeal upheld

Catchwords:

ADMINISTRATIVE LAW – child protection –application for enabling order and working with children check clearance – where Applicant is a disqualified person due to disqualifying offence - whether presumption that applicant poses a risk to the safety of children has been proved to the contrary by the Applicant – reasonable person test – public interest test

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CIVIL PROCEDURE – discovery and disclosure – Practice Note SC Eq 11 – whether exceptional circumstances warrant disclosure before evidence exchanged

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ADMINISTRATIVE Law – Administrative review – privacy – health information – health privacy principles – whether consent given – scope of consent – reviewable decision – conduct – correct and preferable decision

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DEVELOPMENT APPEAL — commercial premises — medical centre — flooding — floodway — inner floodplain hazard category 1

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RESTITUTION — nature of restitutionary liability — quantum meruit — express or implied request — failure to establish on the evidence CONTRACTS — Construction and interpretation —method of calculation of Service Fee due under a contract — meaning of “cost of products”

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PROCEDURE — Final orders — Where parties ordered to confer on appropriate orders to give effect to reasons in primary judgment — Where parties could not reach agreement on all orders — Final orders made

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EVIDENCE — discretions — exclusion of evidence — improperly or illegally obtained evidence — whether ‘clandestine recording’ was made in a manner reasonably necessary to protect maker’s lawful interests — assessment of desirability of evidence being admitted against circumstances of obtaining it

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APPEALS – application for leave to appeal against refusal to grant interlocutory injunction restraining sale of residential property by mortgagor – where interlocutory injunction also sought on appeal – where appeal has poor prospects of success and damages likely to be an adequate remedy – interlocutory injunction refused

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CRIME – SENTENCE – murder based on joint criminal enterprise – assault of deceased over four days – pleas of guilty – youth, deprived backgrounds and mental health impairments reduced moral culpability – punitive, denunciatory and general deterrent purposes of sentencing reduced – finding of special circumstances

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COSTS — Party/Party — General rule that costs follow the event — Proceedings overtaken by defendant’s separate proceedings in which Court made no order as to costs — No issue of principle

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CORPORATIONS – winding up – statutory demand – application under s 459G of the Corporations Act 2001 (Cth) for order setting aside statutory demand – whether genuine offsetting claim established under s 459H of the Corporations Act 2001 (Cth) – amount of offsetting claim

Catchwords:

APPEALS – Residential Tenancies Act 2010 (NSW) – tenant’s claim alleging breach of s 50(3) regarding actions of neighbour in a social housing complex –– no demonstrated error of law –– no basis for grant of leave to appeal –– incomplete evidence before the Appeal Panel –– leave refused to admit new evidence that post-dated the hearing below COSTS – no basis for award of costs sought by appellant

Catchwords:

ADOPTION — application for adoption of adult child by paternal uncle and uncle’s wife — whether an “Aboriginal child” under s 4, Adoption Act 2000 (NSW) — principles at [35]-[41] — insufficient evidence to satisfy definition in Aboriginal Land Rights Act 1983 (NSW) — whether child of Aboriginal descent within meaning of s 4(2), Adoption Act 2000 (NSW) — evidence inconclusive — weight attached to findings made by magistrate of Children’s Court years earlier, who presided over multiple hearings in person, rather than a judge determining the question ‘on the papers’ — determination made under s 4(2), Adoption Act 2000 (NSW). ADOPTION — Aboriginal placement principles — principles at [52]-[66] — whether Aboriginal placement principles apply to adoption of a child by relatives — no, at [68]-[71] — child not “placed” with a relative — whether Aboriginal placement principles apply to adoption of a child over 18 years old — no, at [72]-[73] — adult child not “placed” by anybody. ADOPTION — consent of child over 18 years of age — principles at [4]-[14] — whether s 64 “Consent to adoption of Aboriginal child” applies to consent of the child being adopted — it does, at [11]-[14] — adult child voices consent in affidavit — consent not informed consent within the meaning of the Adoption Act 2000 (NSW) nor given in accordance with that Act. WORDS AND PHRASES — “placement” at [56]-[62].

Catchwords:

APPEALS — Leave to appeal — whether the primary judge erred in any finding of fact — whether the primary judge erred in drawing a conclusion that the applicants were the relevant cause of the property damage complained of — no error in the primary judge’s fact finding or conclusions — leave to appeal granted — appeal dismissed TORTS — Private nuisance — Basis of liability —stormwater travelling over and from one residential property to another — failure of drainage system located on the higher property not disputed —attribution of liability for damage to the lower property due to stormwater runoff — whether the applicants’ failure to maintain the drainage system caused the nuisance — whether respondent caused the nuisance themselves during renovations TORTS — Right of support — application of s 177 of the Conveyancing Act 1919 (NSW) — whether there was a loss of support — whether the primary judge erred in dismissing s 177 cross-claim — no error found

Catchwords:

ADMINISTRATVE LAW – privacy – summary dismissal – jurisdiction – when applicant first became aware of the conduct under review.

Catchwords:

ADMINISTRATIVE LAW – privacy – summary dismissal – jurisdiction – when applicant first became aware of the conduct under review. PRACTICE AND PROCEDURE – joinder of party

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BANKING AND FINANCE – banker and customer – contract – power to close account immediately in certain circumstances, including “to protect our Legitimate Interests” – grammatical error in standard terms – whether bank had to establish that it was “necessary” to protect its Legitimate Interests – whether contract should be construed with least violence to text – concession that Bank added in good faith and rationally – whether exercise of power required opinion to be reasonably formed – bank officer not cross-examined on basis that he had acted unreasonably – primary judge found bank officer had acted reasonably – even if clause required opinion to be reasonably formed, power available – appeal dismissed

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

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CRIMINAL LAW — Prosecution for environmental offences — Pollution of land — Pollutant of prescribed kind — Alleged dumping of asbestos waste — Alleged dumping of processed and unprocessed building and demolition material — Whether pollution caused or likely to cause potential harm to humans and degradation of the environment —Transporting of waste to a place that cannot lawfully be used as a waste facility — Unlawful use of land as a waste facility — Whether First Defendant “caused” land to be polluted — Whether First Defendant is an “occupier” of the land — Failure to comply with a Clean-Up Notice — Whether First Defendant had a “reasonable excuse” not to comply with a Clean-Up Notice — Whether First Defendant had management or control of Second Defendant — Defendants found guilty on all charges

Catchwords:

APPEAL – development control order – demolish and remove – whether structure a “building” under Environmental Planning and Assessment Act 1979 (NSW) – whether structure a “moveable dwelling” under Local Government Act 1979 (NSW) – whether structure a “caravan” under Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and agreements – application for approval of contract agreement – the agreement for which approval was sought was not an agreement under s 322 of the Industrial Relations Act 1996 as it was made between an association of contract carriers on the one hand, and two principal contractors on the other – application for approval dismissed.

Catchwords:

CIVIL PROCEDURE – security for costs – threshold question – whether primary judge prohibited from taking into account unpaid judgment obtained under Building and Construction Industry Security of Payment Act 1999 (NSW) – s 32(2) not concerned with the procedural conduct of civil proceedings under a construction contract but with their substantive outcome – non-payment of judgment debt not something “done under or for the purposes of this Part”

Catchwords:

SUCCESSION — family provision — claim by stepdaughter as an alleged member of household and dependent of her deceased stepmother for provision from the Estate under the Succession Act 2006 (NSW), Ch 3 — where stepmother died intestate leaving a sister entitled to inherit the whole of her Estate — non-complex facts — where realised Estate comprises cash and jewellery and sports memorabilia of modest value — no notional estate involved — where Plaintiff and her husband are employees whose financial circumstances are not complicated — where the factual background is not complex — where provision is sought principally for assistance to buy a house — where administrator appointed to administer the Estate — where value of the Estate after administrator’s costs is $534,000 — HELD — provision should be made for the Plaintiff in the amount of $160,000 to assist in buying a house COSTS — where Plaintiff claims that her legal costs (including costs claimed by her solicitor for administering the Estate) exceed $282,000 which are sought to be paid out of the Estate but which are not supported by any costs agreements, timesheets or counsel’s fee notes — application by Plaintiff for gross lump sum costs order — HELD — that costs claimed are grossly excessive — an estate is not an underwriting fund against which excessive and disproportionate legal costs may be secured — that the amount of $53,000 should be allowed and paid to her out of the Estate — where Plaintiff has paid more than this to her lawyers — that the provision plus costs of $213,000 is to be paid directly to the Plaintiff — observation: some of this could be used to buy a new car without impairing her ability to buy a house or be used as additional funds towards the purchase of a house

Catchwords:

SENTENCING — offence of fraud following verdict of guilty – joint claim by co-offenders of adverse possession of real property — real property belonged to a deceased estate with the executrix and beneficiaries unable to be located — co-offenders learnt about the property since a family member acted as solicitor for neighbour to the deceased — objective seriousness — absence of proof of value of property obtained — consideration of whether State was a victim, or whether this was a ‘victimless’ crime — hardship to third parties

Catchwords:

COSTS – costs in the cause – where one defendant resiles from an apportionment agreement based on new information – previously asserted fact proved to be wrong – other defendant is entitled to a short indulgence to consider the steps to take to protect its position

Catchwords:

APPEALS – appeal against dismissal of application for reinstatement of the proceedings seeking administrative review of the mandatory revocation of a security licence where there was a guilty finding but with no conviction being recorded of a prescribed offence – appeal dismissed as having no practical utility

Catchwords:

PROFESSIONS AND TRADES – health care professional – pharmacy – appeal from decision of the Pharmacy Council to impose conditions on pharmacist’s registration under s 159B of the National Law – whether grounds were with respect to a point of law – whether a “point of law” is limited to a pure point of law, or whether it includes a mixed point of fact and law – whether the decision to impose conditions was beyond power to the extent that the conditions restrict other practitioners’ practice at the appellant’s pharmacy – whether that decision was beyond power to the extent that the conditions relate to a pharmacy business – whether the respondent’s reasoning in imposing a condition was illogical or irrational – whether a condition requiring the appellant to consent to an audit was beyond power because it was not referable to an identified risk to the public, but was rather a condition to enable the respondent to investigate further matters

Catchwords:

CRIME – SENTENCING – Providing material support to a criminal organisation – Section 390.4(1) Criminal Code Act 1995 (Cth) – Criminal organisation involved in conspiracy to the knowledge of the offender involved in a conspiracy to import border‑controlled drugs into Australia – Discussion as to the mental element of offence – Discussion as to the proper approach to sentencing for the offence of providing material support to a criminal organisations in circumstances where the offender is not charged with being a party to the conspiracy or aiding and abetting the conspiracy – Proper approach to sentencing where the agreed facts disclose offender involved in a “drug related crime” – Approach to be taken to sentencing to determine objective seriousness in circumstances where there is no judicial guidance SENTENCING – Federal offence offenders – Objective seriousness – Delayed caused by AN0M appeals – Strong subjective case – Remorse – Rehabilitation – Prospects of reoffending low RECOGNIZANCE RELEASE ORDER – Appropriate that term of imprisonment be served in the community pursuant to a Recognizance Release Order which will promote the offender’s prospects of further rehabilitation and thus reduce the chances of reoffending to the benefit of the community

Catchwords:

EQUITY — Equitable remedies — Injunctions — interlocutory injunction – damages not an adequate remedy – the first plaintiff, a corporation, borrowed money under a loan facility made with the first defendant, a financier – the second plaintiff is the registered proprietor of suburban residential land used as security for the loan facility between the first plaintiff and the first defendant – the first plaintiff defaults on the facility – the first defendant exercises its power of sale over the land – contract for the sale of the land made in exercise of the first defendant’s power of sale with the second defendant as purchaser – the plaintiffs seek to restrain the completion of the contract – the plaintiffs allege that the first defendant has improperly exercised its power of sale and failed in its duties under Conveyancing Act 1919, s 111 in relation to the sale of the property – the defendants resist the relief sought and seek to complete the contract – whether there is a serious question to be tried – whether the balance of convenience favours the grant or refusal of interlocutory injunctive relief – what orders are appropriate in relation to a possible application for leave to appeal. LAND LAW — Mortgages — Statutory power of sale under Real Property Act 1900 – identification of the duties of the first defendant, a mortgagee exercising a power of sale.

Catchwords:

JUDICIAL REVIEW — Judicial review of council decision — Class 4 — Development consent and modification approval — Mixed-use development — Right of carriageway benefitting neighbouring site — Scope of s 4.17 Environmental Planning and Assessment Act 1979 (NSW) — Whether failure to consider likely impacts of development — Adequacy of consideration of impacts — Reliance on expert advice — Conditions of consent — Legal unreasonableness ENVIRONMENT AND PLANNING — Development consent — Conditions — Whether condition impermissibly deferred consideration of mandatory matter — Condition requiring future engineering design and approval — Whether condition creates legal uncertainty ENVIRONMENT AND PLANNING — Development standards — Height of buildings — cll 4.3 and 4.6 Sydney Local Environmental Plan 2012 — Concept development consent — Subsequent detailed development application — Calculation of “ground level (existing)” — Whether clause 4.6 Sydney Local Environment Plan 2012 variation request legally sufficient ENVIRONMENT AND PLANNING — Concept development consent — Effect of s 4.24(2) Environmental Planning and Assessment Act 1979 (NSW) — Consistency between concept consent and development concept

Catchwords:

COSTS — appeals — appeal from decision of costs review panel — costs order in favour of self-represented litigant law firm — whether costs review panel misapplied principles for quantification of costs orders for self-represented law firms — whether good and sufficient cause shown to depart from presumption that the costs that would have been allowed if an independent solicitor was engaged protected the indemnity principle

Catchwords:

ADMINISTRATIVE LAW — judicial review — Appeal Panel of Personal Injury Commission — whether the Appeal Panel made an error of law by excluding the plaintiff’s belief as to her capacity to function without her husband’s support when rating the plaintiff’s functional impairment for the category of self care and personal hygiene — whether error material

Catchwords:

CRIME – application for adjournment – prosecutor’s obligation of disclosure – material disclosed in related Victorian proceedings which has not been disclosed in these proceedings – untranslated material in Mandarin – whether non-disclosure would create a risk of an unfair trial – potential for the accused to uncover evidence that may materially assist his defence

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APPEALS – Local Court – where dispute concerned characterisation of a cash payment – where defendant below was self-represented – whether the judge erred in application of the rule in Browne v Dunn – whether the judge erred in providing inadequate reasons

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CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — where business-owner applicants charged with manslaughter by criminal negligence — where load being transported by truck alleged to have been inadequately restrained leading to a death on the road — where Crown case asserted duty of care owed by the applicants in their capacity as managers of business transporting the load — alleged negligence by omission or failure to implement safety procedures — whether primary judge erred in ruling that Crown case could proceed against the applicants on the basis of a duty of care in connection with applicants’ involvement in management of their business — whether facts alleged by Crown capable of establishing a duty of care that might form the basis of conviction for manslaughter by criminal negligence — principles for establishing duty of care in such circumstances considered CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — leave to appeal — where Crown concession in oral submissions meant no dispute between parties about principal legal question raised by second ground of appeal — whether utility in granting leave to appeal in respect of second ground

Catchwords:

ADMINISTRATIVE LAW — jurisdictional error — judicial review of Review Panel decision — Motor Accident Injuries Act 2017 (NSW) — where plaintiff underwent spinal surgery to treat other injuries suffered in an accident — whether the surgical removal of bone from facet joints in the spine resulted in further “injury” as defined in s 1.4 — where plaintiff suffered permanent physiological change as the result of the surgery — consent, therapeutic intent and successful treatment of symptoms of other injuries irrelevant to assessing physical consequences of surgery and whether they fall within definition of injury — error established — Panel’s certificate set aside

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ADMINISTRATIVE LAW – child protection – working with children check clearance – refusal of clearance – risk assessment – real and appreciable risk to the safety of children – reasonable person test – public interest test

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CRIME — Appeals — Interlocutory appeal — By Crown against ruling on evidence — whether trial judge’s rulings on admissibility of evidence substantially weakened prosecution’s case — Criminal Appeal Act 1912 (NSW) s 5F(3A) CRIME — Appeals — Interlocutory appeal — By Crown against ruling on evidence — exclusion of evidence under s 138(1) of the Evidence Act 1995 (NSW) — where conversation between witness and respondents using online chat service was recorded without respondents’ knowledge — where primary judge found impropriety on the basis of breaches of online chat service provider’s contractual terms — proper construction of contractual terms — whether contractual terms breached — whether contractual terms supported a reasonable expectation of privacy — whether any breach was an “impropriety” for the purposes of s 138(1) of the Evidence Act 1995 (NSW) CRIME — Appeals — Interlocutory appeal — By Crown against ruling on evidence — where primary judge found breach of s 7 of the Surveillance Devices Act 2007 (NSW) — whether conversation between witness and respondents was a “private conversation” — whether the witness located in Israel “used” a listening device in New South Wales to record the conversation — whether any offence constitutes such a threat to the peace, order or good government of New South Wales that the offence warrants criminal punishment in this State CRIME — Appeals — Interlocutory appeal — By Crown against ruling on evidence — balancing exercise required by s 138(1) of the Evidence Act 1995 (NSW) — [REDACTED] — whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that had been obtained in the way it was obtained

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MODIFICATION APPLICATION: proposed rooftop terrace and external staircase — whether substantially the same development — view loss — visual impact

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SUCCESSION – Family Provision – Claim of de facto spouse

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DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties - orders

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DEVELOPMENT APPEAL – residential development - conciliation conference – agreement between the parties - orders

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DEVELOPMENT APPEAL – mixed use development – commercial premises – co-living housing – conciliation conference – agreement between the parties – orders

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DEVELOPMENT APPEAL – multi-dwelling development – low and mid-rise housing – conciliation conference – agreement between the parties – orders

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APPEALS – civil procedure – appeal from interlocutory decision – refusal to issue Summons to produce documents – no grounds for leave to appeal established

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CRIME – appeals – appeal against conviction – whether jury’s verdict unreasonable – applicant convicted of one count of maintaining unlawful sexual relationship with child under the age of 16 contrary to Crimes Act 1900 (NSW), s 66EA(1) – applicant some 12 years older than complainant – applicant long-time friend of family – applicant assumed a paternal role in complainant’s family – applicant and complainant regularly shared a bed – evidence of complaint many years after the event – no other direct evidence of offending – whether complainant’s lies made verdict unreasonable – whether uncorroborated evidence, lacking detail and years after the event made verdict unreasonable – whether unlikelihood of alleged conduct being undetected made verdict unreasonable – appeal dismissed

Catchwords:

CRIME — SENTENCING — Convicted at trial by jury of 19 offences against four victims over a period of approximately 20 years — Offending occurred within the home of the offender and of the victims — Abuse of trust and abuse of authority of step-parent and step-grandparent role — Varying degree of objective gravity in offending — Application of approach taken in R v RJ [2023] NSWCCA 273 where section 5 Crimes (Sentencing Procedure) Act 1999 threshold not crossed for some offences — Subjective factors — Application of Bugmy principles — No mitigation on account of the offender's self-induced intoxication — Aggregate sentence of imprisonment imposed

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — late amendment

Catchwords:

Third-party fraud – interception of email account for purpose of requesting payment by electronic funds transfer Estoppel by representation – ostensible authority – whether Plaintiff bound by representation of authority – whether reliance on representation reasonable – whether Defendant put on inquiry Contract – Failure to mitigate – whether claim for recovery of monies was an action in debt – assessment of date of breach of contract – whether failure to alert Defendant amounted to a failure to mitigate Estoppel by representation – silence – whether failure to respond to Defendant’s emails was a representation that contract had been complied with – whether reliance on Plaintiff’s conduct reasonable

Catchwords:

INSURANCE – liability insurance – contractor’s pollution legal liability policy – claim by contractor for indemnity for costs incurred in dealing with asbestos-contaminated soil during excavation works – where costs said to be incurred as a result of the dispersal of asbestos fibres into the air – where claimed costs incurred in satisfaction of contractor’s legislative and contractual obligations arising independently of any release of asbestos fibres into the air – loss did not arise from dispersal of asbestos

Catchwords:

DEVELOPMENT APPLICATION — Quick service restaurants — drive through — biodiversity conservation — BDAR — retirement of biodiversity credits — bushfire prone land — signage — conciliation conference — agreement between the parties — orders made

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CRIME – Appeals – appeal against conviction – unreasonable verdict – judge alone trial – dishonestly cause financial disadvantage by deception – proper characterisation of joint criminal enterprise alleged at trial – whether global joint criminal enterprise or multiple individual joint criminal enterprises – whether evidence capable of establishing the applicant’s participation in the joint criminal enterprise alleged – whether open to trial judge to reject the applicant’s evidence – where advantages of the trial judge were significant CRIME – Appeals – appeal against conviction – judge alone trial – whether insufficient reasons for verdict – whether trial judge failed to deal with the case put by the Crown at trial – where Crown case at trial was circumstantial CRIME – Appeals – appeal against conviction – unreasonable verdict – dishonestly cause financial disadvantage by deception – where indictment particularised Westpac Bank as the loss-bearing entity – where fraudulent loan applications submitted to St George Bank – whether separate legal entities – whether evidence capable of establishing interconnectedness between St George Bank and Westpac Bank – whether evidence capable of establishing the particularised financial disadvantages were occasioned CRIME – Appeals – appeal against conviction – unreasonable verdict – knowingly deal with the proceeds of crime – meaning of “deals with” in s 193A of the Crimes Act 1900 (NSW) – whether “deals with” includes an attempt to transfer funds and/or possession or receipt of funds – whether evidence excluded reasonable possibility that the funds were received by accident CRIME – Appeals – appeal against conviction – unreasonable verdict – deal with identification information with intent to commit indictable offence – where trial judge found offence proven on basis of possession only – error conceded – appeal allowed and conviction quashed CRIME – Appeals – appeal against sentence – where challenge to factual finding of sentencing judge – finding that applicant committed offences whilst on bail – where finding relied upon as an aggravating factor – no material error established CRIME – Appeals – appeal against sentence – whether sentencing judge erred in assessment of moral culpability CRIME – Appeals – appeal against sentence – whether sentencing judge erred in assessment of objective seriousness – finding that some of the funds used to repay loan application were derived from proceeds of crime – whether finding reasonably open to sentencing judge CRIME – Appeals – appeal against sentence – extra-curial punishment – where challenges to findings made by sentencing judge – finding that adverse publicity did not involve misogyny or racial vilification – finding that there was no evidence in mitigation that public denigration affected the applicant’s mental health – whether findings reasonably open to sentencing judge – no material error established CRIME – Appeals – appeal against sentence – whether sentencing judge erred in assessment of delay – no error established

Catchwords:

EQUITY — Equitable remedies — Injunctions — interlocutory injunction – damages not an adequate remedy – the defendant, the Chief Commissioner, issues a director’s compliance notice to the plaintiff under the apparent authority of the Taxation Administration Act 1996 ("TAA") s 47B – the directors’ compliance notice is issued on 9 July 2026 and would become operative within 21 days under TAA s 47B - the plaintiff disputes the validity of the notice and seeks interlocutory relief restraining the defendant from acting upon it – the defendant resists any grant of interlocutory relief. TAXES AND DUTIES — Administration — Collection and recovery — Recovery pending review – discussion that when a taxpayer brings administrative law remedies rather than proceedings under TAA Part 10, whether a pending review of a payroll tax liability does not prevent the Chief Commissioner in the meantime from collecting the amount due and payable.

Catchwords:

CIVIL PROCEDURE – application to adjourn – where issues regarding expert evidence necessitate the adjournment – no question of principle

Catchwords:

CIVIL PROCEDURE – defendant’s application under r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) for leave to rely on late-served expert evidence – where the defendant had received numerous extensions for the service of evidence and made the forensic decision not to secure expert evidence – highly unsatisfactory instances of non-compliance with Court orders – whether late service would cause unfairness to the plaintiff

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

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COSTS – whether costs should be determined on an issue by issue basis

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COSTS — Party/Party — General rule that costs follow the event — Proceedings settled at commencement of urgent final hearing — No issue of principle

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CONTRACTS – contract between two solicitors for litigation matters to be transferred from one to the other – promise to pay half “profit costs” received after deduction of payments to litigation funder for “funding and other services” – dispute about amount to be paid – no evidence of amount of payments to litigation funder – onus of proof – breach of contract not proved CONTRACTS – solicitor claims to have retained another solicitor to recover costs from opposing party in litigation – retainer not proved EQUITABLE LIEN – whether former solicitor had a lien over costs paid by opposing party in litigation to current solicitor – lien inconsistent with contract – waiver and release of lien by deed poll – notice of lien not pleaded or proved – relief not available without notice of lien FIDUCIARY OBLIGATIONS – whether fiduciary relationship arose where no retainer and no express trust – fiduciary obligation inconsistent with contract

Catchwords:

DAMAGES — exemplary damages — whether trial judge erred in awarding exemplary damages — basis for award of exemplary damages — whether Harman obligation was breached by provision of CCTV footage to media — whether conduct of civil proceedings formed appropriate basis for award of exemplary damages TORTS — intentional torts — assault and battery — altercation between plaintiff and defendant — whether primary judge erred in relation to factual findings

Catchwords:

OCCUPATIONS — health practitioners — misconduct and discipline — registered nurse — where disciplinary proceedings commenced by Health Care Complaints Commission — where NSW Civil and Administrative Tribunal made findings of professional misconduct when that allegation was not pleaded — whether Tribunal misdirected itself as to its statutory task COSTS — where summons amended on first day of hearing to vary orders sought and to introduce new ground of appeal — where leave to amend summons resisted by defendant on the ground that the new ground was futile and that any such error would not be material — where error identified in new ground of appeal later conceded by defendant — whether conduct of parties such that costs should not follow the event

Catchwords:

APPEALS – Whether Tribunal erred in principle by considering whether breach of guarantee of acceptable quality pursuant to Australian Consumer Law was major defect – whether, if Tribunal did not err in principle by determining whether breach of guarantee of acceptable quality was major defect, Tribunal erred by failing to find that it was

Catchwords:

DEVELOPMENT APPLICATION — alterations to existing development consent – building under construction – desired future character – future character context study - LMR inner area under transition - separation between buildings – setbacks and ADG objectives or controls – ADG prevails over DCP - solar access and opaque glass – design excellence not ‘at large’ – infill affordable housing – neighbouring residential amenity

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — damage to property caused by neighbouring bamboo hedge — orders to remove bamboo — Pt 2A application — neighbouring bamboo hedge — obstruction of sunlight — whether the obstruction is severe

Catchwords:

SUCCESSION — Contested probate — Where deceased made wills in 2010 and 2015 — Where deceased’s son seeks a grant of probate for the 2010 will and challenges the validity of the 2015 will on the basis of lack of knowledge and approval and/or the undue influence of the deceased’s daughter — Where deceased’s daughter seeks a grant of probate of the 2015 will — Where deceased decided to change her 2010 will on the basis of what the deceased understood to be a significant increase in value of her primary asset — Where daughter arranged for the witnesses to the deceased’s execution of the 2015 will — Where daughter, who expected to (and did) receive a substantial benefit under the 2015 will, remained in the room when the deceased’s 2015 will was made and executed — Where the deceased dictated the terms of her 2015 will and read those terms before signing — Whether suspicious circumstances — Whether suspicion dispelled — Held: Deceased knew and approved the contents of the 2015 will SUCCESSION — Contested probate — Undue influence — Where the son’s case of undue influence overlaps with the case as to lack of knowledge and approval — Where daughter did not arrange for the deceased to obtain independent legal advice in relation to 2015 will — History of the deceased declining to change her 2010 will when daughter protested as to perceived unfairness — Relevance of daughter’s 18-month estrangement from the deceased following the execution of the deceased’s 2010 — Where deceased later decided to change her 2010 will on the basis of what the deceased understood to be a significant increase in value of the primary asset of her estate — Where the deceased dictated the terms of her 2015 will and read those terms before signing — Whether the deceased was fearful of her daughter who was present during the making and execution of the 2015 will — Held: Son failed to establish that the deceased made the 2015 will under the undue influence of her daughter CONTRACT— Testamentary contract — Deceased’s son alleges that the deceased and her husband promised that a property in Coogee would eventually pass to him — Held: Alleged representations not proved and testamentary contract claim fails ESTOPPEL — Proprietary estoppel by encouragement — Where the deceased’s son claims that the deceased and her husband promised that a property in Coogee would eventually pass to him — Held: Alleged promises were not made and proprietary estoppel claim fails

Catchwords:

MISLEADING OR DECEPTIVE CONDUCT – Financial Services – where second defendant was corporate trustee of unit trust and third defendant was director of that trustee – where second defendant provided information memorandum to first defendant relating to the unit trust – where first defendant introduced plaintiffs to the opportunity to invest in the unit trust and provided information memorandum to them – where first defendant received referral fee from second defendant consequent upon the plaintiffs’ investment in the trust – whether the first defendant made misleading oral representations to plaintiffs regarding the unit trust – whether the information memorandum made misleading representations regarding the unit trust – whether the defendants engaged in misleading conduct – whether the defendants committed the tort of deceit – whether the plaintiff relied on any misleading representations in deciding to invest in the unit trust EQUITY – Trusts and Trustees – breach of trust – where the second defendant purported to redeem the plaintiffs’ units in the trust in return for units in a different fund which were held in the name of a company controlled by the first defendant – whether plaintiffs gave authority for this “swap” transaction to be implemented – whether second defendant breached the terms of the trust or its duties as trustee in implementing the “swap” transaction – whether third defendant knowingly assisted in breach DAMAGES – whether the plaintiffs’ loss should be assessed in accordance with the “rule” in Potts v Miller (1940) 64 CLR 282; [1940] HCA 43 – whether the plaintiffs were “locked into” their investment in the unit trust by reason of the defendants’ misleading conduct – whether break in chain of causation by reason of the “swap” transaction – whether interest earned by the plaintiffs should be brought to account to reduce quantum of loss

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:

COSTS – Proceedings settled without hearing or determination – Lai Qin principles – No error in Tribunal making no order in relation to costs

Catchwords:

DEVELOPMENT APPLICATION – proposed signage structure and digital advertisement display – whether there is an inconsistency or incompatibility between an environmental planning instrument and the development control plan – whether the proposed sign is incompatible with the desired amenity and visual character of the locality – whether the signage proposed in the development application is inconsistent with the objectives of State Environmental Planning Policy (Industry and Employment) 2021 (NSW) – appeal is dismissed

Catchwords:

APPEAL — Modification application — heritage items — local character — substantially the same development — conditions of approval

Catchwords:

CIVIL PROCEDURE – Where judgment has been given for damages to be assessed – Trial for assessment of damages TORTS – Trespass to person – Assault – Assessment of Damages

Catchwords:

CONSTITUTIONAL LAW — Commonwealth and State relations — Inconsistency of laws — Where inconsistency claimed between s 106 of the Industrial Relations Act 1996 (NSW) and both s 7(1)(c) of the Independent Contractors Act 2006 (Cth) and s 536JP(1)(c) of the Fair Work Act 2009 (Cth) — Where Commonwealth Acts expressly exclude State laws enabling court to vary or declare void services contracts on unfairness ground — Inconsistency found — Proceedings under s 106 of the Industrial Relations Act 1996 dismissed for want of jurisdiction EMPLOYMENT AND INDUSTRIAL LAW — Terms — Unfair terms — Whether application under s 106 of the Industrial Relations Act 1996 (NSW) to declare void or vary a contract of carriage for purposes of Chapter 6 of the Industrial Relations Act — Where additional drivers engaged outside prescribed circumstances — Held no contract of carriage CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Where proceedings brought under State law inconsistent with Independent Contractors Act 2006 (Cth) — Substantive proceedings dismissed for want of jurisdiction

Catchwords:

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Where risk factors of paedophilic disorder and intellectual disability are chronic

Catchwords:

PRACTICE AND PROCEDURE – Enforcement of judgments and orders – Where judgment entered in earlier proceedings in the Court in favour of first plaintiff and against parties including the first and second defendants in the present proceedings – Where charging order made in the earlier proceedings over units held by the first and second defendants in a unit trust by way of enforcement of the judgment debt – Where first plaintiff now seeks order for judicial sale of those units – Held: Orders made for judicial sale of the units at a price determined by reference to an expert valuation of the units and by a process compliant with the pre-emptive rights granted to unit holders under the trust deed.

Catchwords:

COSTS — defamation proceeding — application for indemnity costs — some offers made by parties prior to commencement of proceeding, including purported offer by the defendant to make amends — applicant relies upon Defamation Act 2005 (NSW), s 40

Catchwords:

COSTS – whether general rule that costs follow the event applies – where parties had mixed outcome – where defendants had substantial success – whether costs should be apportioned

Catchwords:

CIVIL PROCEDURE – settlement approval – compromise – whether settlement in best interests of the plaintiff’s son – settlement approved

Catchwords:

COSTS — notice to admit facts — indemnity costs sought under r 42.8(2), UCPR for facts said to have been disputed until first day of trial — the rule is concerned with facts, not mixed legal and factual propositions or legal propositions — unclear what “fact in dispute” the plaintiffs were put to the cost of proving — rule not engaged. COSTS — reserved costs of interlocutory motion — plaintiffs obtain orders for defendant to search archival database — defendant contends that search will likely be time consuming, expensive and a waste of time — judge defers question of costs until product of search known — no discoverable documents found — decline to make costs order sought.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty – appropriate to consider medical evidence in relation to whether injury was “substantial” per s 21A(2)(g) of Crimes (Sentencing Procedure) Act 1999 (NSW) COSTS – prosecution costs OTHER – bucket elevator conveyer maintenance – conveyer went into an uncontrolled free run – fluid coupling failed – explosion of metal debris – debris stuck worker on head – failure to confirm instructions were being followed – failure to make reasonable enquiries that an adequate risk assessment was taken after changes to work process – failure to confirm whether mechanical engineer was consulted about relevant job features

Catchwords:

APPEAL – federal jurisdiction – appeal misconceived and lacking in substance – want of jurisdiction

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ADMINISTRATIVE LAW – Freedom of information – Access to information – Ground for refusing access

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APPEAL – modification application – self storage units – traffic safety and efficiency – sufficiency of information to address potential environmental impacts

Catchwords:

APPEAL – development application – residential dwelling – heritage conservation area – façade retained – conciliation conference – agreement reached – orders made

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ADMINISTRATIVE LAW – Privacy – Personal Information – disclosure – whether Information protection principals apply to respondent – whether context of use of personal information in educative or administrative function – lawfulness of use by third party of legislative provision

Catchwords:

ADMINISTRATIVE REVIEW – government information – refusal to deal with application – whether substantial and unreasonable diversion of agency’s resources – consideration of s 60(3A) and (3B) factors – whether a direction is an administratively reviewable decision

Catchwords:

ENVIRONMENT AND PLANNING — consent — appeal — s 34 agreement — cl 4.6 variation —conditions of consent

Catchwords:

DEVELOPMENT APPLICATION — Conciliation conference — agreement between the parties — orders

Catchwords:

DEVELOPMENT APPLICATION — Conciliation conference — agreement between the parties — orders

Catchwords:

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

Catchwords:

CRIME — Confiscations — Forfeiture orders — Substituted serious crime use property declarations — Proper construction of “used in, or in connection with”, in s 9B(1) of Criminal Assets Recovery Act 1990 (NSW) — Whether primary judge erred in finding that there was no sufficiently realistic possibility or probability that methylamphetamine had been smoked in garage and kitchen of South Penrith property — Whether primary judge erred in finding on the balance of probabilities that appellants had manufactured methylamphetamine at that property — Whether primary judge erred in finding that the property had been “used in, or in connection with”, a serious crime related activity

Catchwords:

CIVIL PROCEDURE – Notice of motion – application to set aside subpoena to produce

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission - Procedure and powers - Award variations - s 19 review

Catchwords:

COSTS – application for costs against solicitor and law practice under ss 98 and 99 of the Civil Procedure Act 2005 (NSW) – where proceedings commenced and conducted in company’s name without authority – where interlocutory process challenging authority successful at time of hearing – where company subsequently ratified and adopted acts of solicitor and purported instructing agent with retrospective effect – where solicitor did not act dishonestly or knowingly without authority – costs order not made

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:

COSTS – Party/Party – Bases of quantification – responsibility for the costs of contested estate proceedings - whether a specified gross sum should be fixed instead of assessed costs under Civil Procedure Act, s 98(4)(c) – no question of principle.

Catchwords:

CONTEMPT – application for warrant for arrest of alleged contemnor – where evidence discloses that alleged contemnor is likely to abscond from jurisdiction – warrant issued

Catchwords:

COSTS — security for costs — application for release of monies paid into Court as security for defendant’s costs — plaintiff partially successful on appeal — defendant successful on costs order in relation to plaintiff’s claim — plaintiff successful on costs of cross-claim to extent separately identifiable — no costs assessment undertaken — plaintiff impecunious — evidence that defendant’s costs substantially exceed plaintiff’s likely entitlement — whether security should remain in court pending costs assessment — purpose of security for costs — release of security ordered

Catchwords:

PRACTICE AND PROCEDURE — summary judgment — no evidence filed by defendants — no opposition to motion — whether defendants have any real prospect of successfully defending proceedings — Uniform Civil Procedure Rules 2005 (NSW), r 13.1 CONTRACTS — deeds of indebtedness and forbearance — admission of indebtedness — contractual and default interest — equitable charges — security for indebtedness

Catchwords:

CRIMINAL LAW — sentencing — environmental offences —construction of dam without Approval — unlawful clearing of native vegetation on waterfront land — actual environmental harm — pleas of guilty — whether deliberate offending — no financial gain — determination of objective seriousness — totality principle and married couple

Catchwords:

COSTS – applicant’s motion seeking appointment of tutor dismissed – whether respondents should pay applicant’s costs – whether there should be no order for cost – whether applicant should pay respondents’ costs on indemnity basis – no reason to depart from default position that applicant pay respondents’ costs

Catchwords:

“BUILDING AND CONSTRUCTION - Appeal allowed in so far as Tribunal ported to deal with common property defects in an application brought by a lot owner otherwise no question or principal in relation to errors on questions of law or other errors"

Catchwords:

COSTS – costs application by the respondent – principles – refusal of application for an extension of time to lodge notice of appeal out of time – costs order made in favour of the respondent

Catchwords:

APPEAL — duties of an expert when giving opinion evidence – scope of renewal application – application of renewal proceedings to circumstances where there is no relevant order in favour of the person who seeks to renew proceedings

Catchwords:

APPEAL — development application — new dwelling house — impact on harbour views from neighbouring properties — view sharing — height non compliance and clause 4.6 variation.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house development in heritage conservation area – impact on the heritage conservation area

Catchwords:

DEVELOPMENT APPLICATION – conversion of existing dwelling to centre based child care facility – conciliation conference – agreement between the parties – orders made

Catchwords:

DEVELOPMENT APPLICATION – neighbourhood shopping centre and associated works – economic and social impact on the locality – compatibility with zone objectives – urban design – traffic and pedestrian impacts

Catchwords:

APPEAL – development application – pergola – view impacts – orders

Catchwords:

CONTRACTS — construction and interpretation — where wholly written contract — dispute as to identity of party to contract — effect of Home Building Act 1989 (NSW), circumstances of execution of contract and post-contractual conduct CORPORATIONS — whether primary judge erred in finding that the company was insolvent EQUITY — equitable charges and liens — contribution to acquisition or improvement of another’s property — whether primary judge erred in imposing an equitable charge over the property JUDGMENTS AND ORDERS — interest — where directors breached statutory and fiduciary duties — whether primary judge erred in award of compound interest CORPORATIONS — directors and officers — directors’ duties — inactive director — whether inactive director’s breach of duty causative of company’s loss — factual inferences that should be drawn from evidence before primary judge CORPORATIONS — directors and officers — relief from liability under ss 1317S and 1318 of the Corporations Act 2001 (Cth) — whether primary judge erred in exercise of judicial discretion to not relieve director from liability

Catchwords:

LOCAL GOVERNMENT – roads – right of access between public road and adjoining private land –discussion of right of access at common law and under s 6 of the Roads Act 1993 (NSW) – distinction between private right of access and public right to use public road – whether appellant’s private right of access infringed by construction of Grand Pacific Walk – no relevant restriction of private right to cross the boundary between road and land

Catchwords:

DEVELOPMENT APPLICATION — Multi dwelling housing in R2 Low Density Residential zone — conciliation conference — agreement between parties — orders

Catchwords:

SUCCESSION — Family provision — Application by 27 year old granddaughter for provision out of deceased’s estate – Where plaintiff an eligible person because of some demonstrated dependence on deceased – Where deceased’s will divided estate between his four children and none of his grandchildren – Whether adequate and proper provision made for plaintiff and, if not, the nature and quantum of the provision to be made – Where plaintiff employed fulltime and has established little need

Catchwords:

CORPORATIONS – application to wind up on just and equitable ground – where Defendant offered bonds and other financial products to retail clients – where ASIC has investigated Defendant’s dealings with clients and use of client funds – where sole director did not have oversight of Defendant’s business operations – where Defendant does not oppose winding up application – whether evidence establishes grounds for a lack of confidence in the conduct and management of Defendant – whether evidence establishes a risk to the public interest that warrants protection by a winding up order

Catchwords:

CIVIL PROCEDURE — application to summarily dismiss proceedings seeking provision of a Local Court transcript — self-represented litigant — where transcript not provided due to outstanding fee — Supreme Court proceedings over $230 contrary to s 56 of the Civil Procedure Act 2005 (NSW) — where defendant made an offer to provide the transcript — summons dismissed

Catchwords:

CIVIL PROCEDURE – application for pro bono referral – where pro bono assistance previously granted for advice – whether special reasons demonstrated – whether further referral in the interests of justice – referral confined to the provision of advice in relation to merits of appeal

Catchwords:

EQUITY — equitable fraud — misrepresentation — claim by Cross-Claimant for payment out of monies standing in Court — HELD — money belongs to Cross-Claimant and payment out ordered accordingly — no other issue of principle

Catchwords:

SENTENCING – murder – sentence following trial – whether the offender inflicted the fatal stab wound to the deceased – where the offender has poor prospects of rehabilitation – where the offender has not shown remorse − application of Bugmy principles – application of the principle of totality

Catchwords:

CIVIL PROCEDURE – Registrars – review of Registrar’s decision – where no error in Registrar’s decision – where new evidence on subsequent application – whether decision should be set aside CIVIL PROCEDURE – originating process – expiry before service – extension of time for service – where plaintiffs seek extension of time to narrow scope of claim before service – no question of principle

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Application for recovery of money — Failure to pay accrued long service leave to 13 employees — No transmission of business — Statutory rights — Set off — Orders made for recovery of long service leave pay

Catchwords:

Administrative Law – home building — application for Qualified Supervisor Certificate — general building work — application of instrument — - qualifications - experience requirements — “wide range of building construction work”

Catchwords:

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

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — interim orders sought under section 105 Anti-Discrimination Act 1977 (NSW) — principles applying to grant of interim orders – indirect disability discrimination – education - victimisation

Catchwords:

BUILDING AND CONSTRUCTION -Home Building Acct 1989 (NSW) – breach of statutory warranties – unlicensed builder - remedies – whether damages the appropriate remedy – assessment of damages – measure of damages - adjustment for unpaid contractual monies COSTS – application of s 60(1)-(3) of the Civil and Administrative Tribunal Act 2013 (NSW) – exercise of discretion – whether failure to consider relevant matters

Catchwords:

CIVIL PROCEDURE – registrars – review of registrar’s decision – application by non-party to set aside orders refusing filing of notice of motion and dismissing proceeding as incompetent – applicant sought substitution for deregistered corporation in application for leave to appeal against winding-up order – whether interests of justice favour intervention – no utility in permitting filing of motion seeking to restrain deregistration where deregistration had already occurred – application dismissed CORPORATIONS – deregistration – company deregistered after commencement of application for leave to appeal – company ceased to exist – company’s property, including any cause of action, vested in ASIC – former director and shareholder sought to be substituted as applicant – distinction between rights of company and personal rights of former director and shareholder – applicant lacked standing to assert rights belonging to company – proposed challenge to deregistration constituted new and different application APPEALS – procedural fairness – hearing rule – registrar dismissed proceeding in chambers – applicant given opportunity to address capacity to act for company and declined invitation to apply in personal capacity – no denial of procedural fairness – any denial rectified by hearing de novo on review COSTS – costs follow the event – asserted public interest and novelty insufficient to displace usual order – unsuccessful applicant ordered to pay respondent’s costs

Catchwords:

COSTS – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – whether rr 38 and 38A apply – s 60 Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

APPEALS — Leave to appeal — application for leave to appeal — no error of law identified — no issue of principle or question of public importance identified

Catchwords:

CRIME – appeals – appeal against sentence – sexual offences – where applicant had a background of extreme disadvantage and deprivation – no requirement for causal link between background of disadvantage and subject offending – moral culpability – resentence

Catchwords:

DECLARATORY RELIEF- Where appellant sought only declaratory relief from tribunal at first instance - whether appellant demonstrates error on question of law - whether appellant establishes entitlement to grant of leave to appeal on other grounds - whether appellant should pay successful respondent’s costs

Catchwords:

HOME BUILDING CONTRACT- Appeal against assessment of damages payable by builder for delay in completion of home building works - whether Tribunal erred in its interpretation of second limb of principle in Hadley v Baxendale - whether Tribunal erred in its application of the principle

Catchwords:

COSTS – Application for costs by respondent where applicant seeks dismissal of application prior to hearing – whether respondent makes out entitlement to costs order – whether lump sum costs should be awarded

Catchwords:

LEASES AND TENANCIES – rent and outgoings – repair and maintenance obligations – where several plumbing and other issues arose and a dispute between the parties as to whose responsibility it was to remedy those defects under the lease escalated – whether these issues were structural in nature – whether the plaintiff was entitled to abate rent LEASES AND TENANCIES – whether the plaintiff is entitled to relief against forfeiture

Catchwords:

CIVIL PROCEDURE – ex parte interlocutory injunction granted

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Victimisation — Meaning of prospective employee

Catchwords:

CRIME — Property offences — Break, enter and commit serious indictable offence CRIME — Motor vehicle offences — knowingly be carried in a stolen conveyance SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Subjective considerations on sentence — Bugmy Principles — Walama List – Special circumstances — Childhood deprivation — Extensive criminal history – Institutionalisation

Catchwords:

CIVIL PROCEDURE – interim preservation – freezing orders – where restraint sought against executors of deceased estate – where no evidence of risk of dissipation – application refused

Catchwords:

COSTS — competing applications for costs — where defensive cross-claim was brought — where cross-claim was unsuccessful but cross-claimant was wholly successful in defence of the proceedings — where Calderbank offers made — whether rejection of Calderbank offers was reasonable — costs awarded on the indemnity basis following first Calderbank offer CIVIL PROCEDURE — question as to discharge of freezing orders — where freezing orders restrained dealing with the relevant property to proceedings — where notice of intention to appeal has been filed but no potential error has been identified — whether removal of freezing orders would render the potential appeal nugatory — freezing orders discharged

Catchwords:

APPEALS—Leave to Appeal—Local Court Act CONTRACTS— Remedies—Liquidated damages—Penalty

Catchwords:

COSTS – plaintiff discontinues defamation proceedings on the last day of the trial, asserting health issues prevent him from continuing – two prior jury trials aborted because the plaintiff collapsed whilst in the courtroom - defendants’ application for indemnity costs of all trials – offers made by both parties – interaction of s 40 Defamation Act 2005 (NSW) with general costs principles – application for indemnity costs refused – fees outstanding under s 10 Civil Procedure Regulation 2017 (NSW) waived