Browse decisions Displaying 1 - 200 out of 100198 results

Catchwords:

COSTS — Application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) — Plaintiff unsuccessful at final hearing and various pre-trial applications — Need for several directions hearings and notices of motion prior to final hearing arose because of plaintiff’s conduct — Reduction of gross sum to ensure plaintiff is not prejudiced by the application

Catchwords:

DEVELOPMENT APPLICATION – construction of shop top housing – conservation area – breach of height and FSR development standards – conciliation conference – agreement reached – orders made

Catchwords:

PARTNERSHIPS – law firm – partner collects monies from client despite agreement with partners to write off fees charged in breach of Legal Profession Act – partnership dissolved by agreement – action against partner for misappropriated funds – partner keeps fees from clients – partner uses partnership monies without consent to pay for personal expenses and his wife’s salary – partner keeps monies from sale of premises – breach of fiduciary duties and failure to account.

Catchwords:

SENTENCING – murder – in gaol – strangulation of cell mate – intent to kill – objective seriousness very grave – severe antisocial personality disorder – extensive and violent criminal history – tendency for unprovoked violence – long term of imprisonment – principle of totality – Crimes (Sentencing Procedure) Act 1999 (NSW), s 56(3) discretion to backdate sentence exercised

Catchwords:

HIGH RISK OFFENDERS – Offenders – Convicted Commonwealth terrorist offender – Application for appointment of experts under the Criminal Code Act 1995 (Cth)

Catchwords:

PRACTICE AND PROCEDURE – notice to produce served by plaintiff on defendant – where identical notice to produce served in context of notice of motion now resolved – where evidence not complete when subject of notice to produce served – where disclosure of document sought in notice to produce would not be ordered absent extraordinary circumstances – Practice Note SC Eq 11 – notice to produce drawn under a misapprehension as to the defendant’s financial year

Catchwords:

BUILDING AND CONSTRUCTION – claim against builder and developer for building defects – claim settled on date of hearing – settlement agreement – provision that rectification works be effected in accordance with remedial contract – provision in settlement agreement that if default occurs judgment to be entered in accordance with pre-signed short minutes of order – whether parties obliged to refer alleged dispute about whether there had been such default to expert determination – whether settlement agreement or remedial contract frustrated

Catchwords:

CRIME - Dishonestly obtain property by deception - Possess unregistered unauthorised pistol - Break, enter & commit serious indictable offence - carried in conveyance taken without consent of owner - Knowingly drive stolen conveyance - Aid/abet assault occasioning actual bodily harm while in custody SENTENCING - Relevant factors on sentence - multiple offences - short period of offending- breach of bail- long custodial history - unable to live a normal life in community - unable to adapt to the custodial environment- incarceration has not proved an effective deterrent – aided an assault in prison - deprived background - early plea - structure of sentence

Catchwords:

HIGH RISK TERRORISM OFFENDERS – preliminary hearing - whether interim supervision order should be made – whether matters alleged would if proved justify an ESO – whether offender poses an unacceptable risk of committing a serious terrorism offence – application refused

Catchwords:

APPEALS — error of law LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — rental bonds — payment and release — rental bond paid for tenancy by husband and wife — whether wife should receive whole of bond following termination of tenancy agreement

Catchwords:

CRIME – sentence – act of indecency toward a person under the age of 10 – incite a person under 10 years to an act of indecency – late plea – lack of criminal record – general deterrence

Catchwords:

APPEAL – building claim – decision said to be against the weight of the evidence – whether decision not fair and equitable – no substantial miscarriage of justice – leave to appeal refused – no error of law in exercise of discretion

Catchwords:

LICENSING – firearms – offences relating to drugs use while driving – public interest

Catchwords:

LICENSING – firearms licensing – licence revocation – confidentiality.

Catchwords:

ADMINISTRATIVE REVIEW — financial management — where private financial manager appointed to manage estate of protected persons — where respondent made decisions to approve proposed sale of protected person’s home and modification of home for sale — where protected person’s daughter and former carer living in home — whether correct and preferable decision

Catchwords:

ADMINISTRATIVE LAW – privacy – review of conduct of agency and if in contravention of IPP 3 and/or IPP 10 – reasonable steps to notify an IPP 3 compliant notice before or after collection – impact of contrary statement in Privacy Statement and collecting information in confidence on right given to Councils under clause 4.11(1) of the Privacy Code of Practice for Local Government to use information for other purposes – assessing causation and amount of damages for psychological harm under s 54 PPIP Act

Catchwords:

TAXES AND DUTIES- stamp duty- real and apparent purchaser concession: Duties Act 1997, ss 55 (1) and (1A)- whether real purchaser provided all money for the purchase of the dutiable property- nature of real purchaser’s purported payments – whether payments to the real purchaser were loans- whether apparent purchaser held dutiable property on trust for real purchaser- presumption of resulting trust rebutted- Applicant’s onus of proof not satisfied.

Catchwords:

CRIME - Robbery in company, car-jacking of taxi armed with knife SENTENCING – co-offenders – neither entitled to leniency with criminal records – both on conditional liberty – Bugmy factors – partial accumulation

Catchwords:

LEASES AND TENANCIES — Rent and outgoings — Failure to pay — Where sublessee agreed to indemnify head lessor in respect of outgoings — Where head lessor says sublessee’s failure to pay rent caused sublessor to breach head lease LEASES AND TENANCIES — Mesne profits — Where occupation continues after termination of lease pursuant to licence — Where sublessee says it would have been entitled to an order under s 130 of the Conveyancing Act 1919 (NSW) staying any proceeding by the plaintiff to enforce a right of re-entry — Whether entitlement to such an order affects calculation of award LEASES AND TENANCIES — Repairs, maintenance and alterations — Obligation to repair and maintain — “Good repair” — Whether premises “reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it”

Catchwords:

DEVELOPMENT APPLICATION – child care centre – whether proposed passing bay on access driveway is acceptable – whether streetscape of Proposed Development is compatible with local area – Proposed Development unable to satisfy considerations in Childcare Planning Guideline

Catchwords:

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

Catchwords:

CONTRACT – construction – design and construct contract – contractor claimed additional payment for works required pursuant to development consent – whether works were “Excluded Works” – significance of definition commencing “Notwithstanding any other clause” – significance of grammatical meaning of clause – clause required to be read as a whole, harmoniously with other provisions in contract

Catchwords:

OCCUPATIONS — legal practitioners — misconduct and discipline — disciplinary proceedings

Catchwords:

ADMINISTRATIVE LAW — hearing rule — disclosure — matters of common knowledge ADMINISTRATIVE LAW — meaning of “condition” in Security Industry Act 1997 (NSW) EVIDENCE — burden of proof — applications under Administrative Decisions Review Act 1997 (NSW)

Catchwords:

DEVELOPMENT APPLICATION – seniors housing development – clause 4.6 written request – agreement between the parties – orders

Catchwords:

DEVELOPMENT CONTROL ORDER – appeal against the order – conciliation conference – agreement between the parties

Catchwords:

CIVIL PROCEDURE — cross-claims — against plaintiff — application for leave to file cross-claim out of time by third defendant — where consent not given by plaintiff to the filing — where Court satisfied that explanation for delay in preparing cross-claim provided — delay due to unavailability of documents and impecuniosity of third defendant — where proceedings did not stall completely during period of defendant’s failure to comply with directions — prejudice to plaintiff was only for relatively short period — where sufficient nexus between issues on plaintiff’s claim and issues raised by cross-claim — leave given to file cross-claim

Catchwords:

CRIMINAL LAW – sentence – manslaughter – victim impact statements – excessive self-defence – intention to cause grievous bodily harm – objective features – objective seriousness – unreasonableness – subjective features – plea of guilty and discount – remorse – prospects of rehabilitation – general deterrence – maximum penalty – non-parole period – special circumstances – orders

Catchwords:

INSURANCE – Claims – Whether lawful reasons where adequately provided for claims assessor’s determination – Whether jurisdiction for claims assessment was properly exercised INSURANCE – Claims – Proof –discount for vicissitudes TORTS – General principles – Damages – Damages – Where discount for vicissitudes in issue

Catchwords:

HIGH RISK TERRORISM OFFENDER – application for ESO – earlier ESO ordered in 2019 – further application – Defendant committed offences in 2017 under s.31 Crimes Act 1900, ss.36 and 51F(1) Firearms Act 1996 and s.36 Weapons Prohibition Act 1998 – Sovereign Citizens Movement – construction and application of s.10(1)(c)(i) and s.20(c)(iii) Terrorism (High Risk Offenders) Act 2017 – “convicted NSW terrorism activity offender” – capacity to re-litigate 2019 finding under s.20(c)(iii) – held s.20(c)(iii) element established – risk assessment under s.20(d) and s.25 – held s.20(d) element established – whether ESO should be declined on discretionary grounds – appropriate to order ESO – consideration of duration and conditions of ESO – ESO made for 18 months subject to conditions

Catchwords:

ADMINISTRATIVE LAW— Working with children check clearance — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012

Catchwords:

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

Catchwords:

PRIVACY – confidential documents - s. 64 Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

DEVELOPMENT APPLICATION – construction of a carport – conciliation conference – agreement between the parties

Catchwords:

DEVELOPMENT CONTROL ORDERS – demolish works order – compliance order – building information certificate – conciliation conference – agreement between the parties – orders

Catchwords:

APPEAL – development application – subdivision – community title – threatened species – assessment guidelines – Green and Golden Bell Frog – endangered ecological communities – hollow bearing trees – water sensitive urban design (WSUD) – impacts on oyster leases – PFAS contamination – remediation – containment cell – adaptive management – community management statement

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Costs of parties up to entry of submitting appearance EQUITY — Equitable remedies — Declarations and injunctions — Obligation to consult — Not appropriate to grant declaration or injunction where content of obligation fact specific and occasion for consultation had not yet arisen

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Costs of parties up to entry of submitting appearance — Whether construction of major political party’s constitution public interest litigation

Catchwords:

CIVIL PROCEDURE – application by plaintiff to set aside defendant’s subpoena and be excused from compliance with notice to produce – whether issue of process for a legitimate forensic purpose

Catchwords:

PROCEDURE – referral to pro bono legal service – application granted - reasons

Catchwords:

PROCEDURE – referral to pro bono legal service – application granted

Catchwords:

CROSS VESTING – Jurisdiction of Courts (Cross-Vesting) Act 1987 – application for proceedings pending in the Dust Diseases Tribunal of New South Wales to be removed into the Common Law Division of the Supreme Court of New South Wales and when removed to this Court to be transferred to be transferred to the Supreme Court of Queensland – interests of justice - consent orders made

Catchwords:

CIVIL PROCEDURE – leave to proceed against insurer – whether plaintiff could establish that there is a real possibility that the tortfeasor will not be able to satisfy any judgment against it – consideration of Civil Liability (Claims Against Third Party Insurers) Act 2017 (NSW)

Catchwords:

CRIME – Supply prohibited drug SENTENCING — Relevant factors on sentence —early plea –parity- psychological conditions- long term drug addiction - previously intractable recidivist - significant turnaround while on remand –demonstrated progress toward rehabilitation drug free at last - severing of ties with criminal associates - community protection

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 – totality of sentence - appropriate sentence - parity

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate sentence – failure to consult, co-operate and co-ordinate activities with other persons who had a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW)

Catchwords:

CIVIL PROCEDURE – Practice and procedure – Plaintiff’s application for leave to amend and for determination of claims raised by proposed amendments separately after conclusion of trial commencing imminently – proposed separate question formulated in the most general terms and incapable of more detailed formulation at this time – overlap between matters to be determined in forthcoming trial and issues raised by proposed amendments – defendant undertakes not to take any Anshun point in any fresh proceeding commenced in respect of the proposed amendments – application dismissed.

Catchwords:

SENTENCING – Plea of guilty to providing sanctioned services to North Korean entities contrary to s 27(1) of the Charter of the United Nations Act 1945 (Cth) and the Autonomous Sanctions Act 2011 (Cth) – brokering services for transactions involving military equipment, coal, petroleum and pig iron SENTENCING – Seriousness of offence – relevance of maximum penalty for most serious category of offences – wide conduct covered by offences SENTENCING – Relevance of motivation – twofold motive to assist people of North Korea adversely affected by sanctions and for financial gain SENTENCING – aggregate sentence imposed – no specification of non-parole period as total term expired prior to imposition of sentence having regard to lengthy period on remand – following grant of bail, strict conditions imposed which amounted to quasi-custody

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 COSTS – prosecution costs OTHER – trolley fell forward from the tines of a forklift causing unsecured glass panels to fall and strike a worker – absence of risk assessment – forklift in use was unsuitable for the task of lifting A-frame trolleys loaded with glass panels – no traffic management plan – absence of a relevant safe operating procedure – lack of exclusion zone – inadequate instructions and training in relation to loading area access

Catchwords:

APPEAL – modification application – conciliation conference – agreement reached – breach of development standard – amendment to modification application – orders made

Catchwords:

LANDLAW – strata title – appointment of compulsory manager to strata scheme, whether appointment possible in light of appointment of existing strata manager, whether appointment possible when no meeting has occurred under s 237(6)

Catchwords:

ADMINISTRATIVE REVIEW – Firearms – Revocation of licence – No ‘genuine reason’ for possessing or using a firearm – Not in the ‘public interest’ for the licensee to continue to hold the licence – Licence since expired

Catchwords:

LICENSING- firearms – revocation - breach of licence conditions – participation requirements -public interest

Catchwords:

ADMINISTRATIVE LAW – privacy and personal information – disclosure of personal information – use of personal information – accuracy of personal information – whether evidence establishes breach – whether exceptions apply

Catchwords:

LAND LAW – strata title – common property – common property rights by-law – whether unreasonable refusal to consent

Catchwords:

CRIME – Appeals – appeal against sentence – whether sentencing judge conflated objective seriousness of offence and moral culpability – whether there was a failure to have regard to particular evidence in relation to moral culpability.

Catchwords:

HIGH RISK OFFENDER – serious sex offender – application for an extended supervision order – whether offender poses unacceptable risk of committing another serious offence without supervision – where offender currently living in community following release on parole – where psychiatric and risk assessment reports suggest limited to no risk of offender committing another serious sexual offence of same type – where reports suspect or fear that offender is at some possible risk of committing intrarelationship sexual violence but no history of him having done so – where offender has manageable schizophrenia secondary to acquired brain injury which presents some likelihood of reducing risk of reoffending – where State has not satisfied test of unacceptable risk to high degree of probability

Catchwords:

APPEAL – development control order – stop works order – restore works order – earthworks – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – boarding house – amended plans – conciliation conference – agreement reached – orders made

Catchwords:

CRIME — appeals — appeal against sentence — whether failure to take into account utilitarian value of early guilty plea

Catchwords:

DEVELOPMENT APPLICATION– biodiversity – koala habitat – bushfire risk – revegetation – riparian – Colo River

Catchwords:

APPEAL – development application – in fill affordable housing under the SEPP – whether proposed development can be characterised as multi dwelling housing – the application of the Low Rise Housing Diversity Design Guide – compatibility with the character of the local area – setbacks – adequacy of private open space – solar access – density – visual privacy – amenity for future residents and neighbours

Catchwords:

APPEALS – leave to appeal – from the Appeal Panel of the New South Wales Civil and Administrative Tribunal – where plaintiff alleged that Appeal Panel took wrong approach in assessing damages – where issue raised by plaintiff in Supreme Court not argued before the Tribunal at first instance or the Appeal Panel – where plaintiff bound by how it conducted its case at first instance and on appeal to the Appeal Panel – where even if damages methodology was incorrect it was the plaintiff who led the Appeal Panel into error – summons dismissed APPEALS – leave to appeal – whether plaintiff demonstrated anything more than error – no matter of principle – where two prior hearings and two appeals – no basis for leave demonstrated – leave to appeal refused

Catchwords:

CRIME – Severity Appeal – Heavy Vehicle offence

Catchwords:

CORPORATIONS – Receivers and managers – Appointment, removal and disqualification – Appointment where no winding up – where sole director and shareholder of company died intestate – no issue of principle

Catchwords:

PROCEDURE – civil – stay of execution of writ of possession – short stay granted on hardship grounds

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring tree – damage to property – whether the tree caused damage – evidence – tree has been removed – compensation – acts or omissions of the parties – application refused

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – whether the trees are planted to form a hedge – obstruction of a view – overhanging branches – limitations for residents dealing with neighbouring trees

Catchwords:

LAND LAW – Caveats – Extension of operation of caveat – where extension sought on different factual basis of contribution to purchase price rather than development agreement – whether serious question to be tried – whether difference in description can be overcome by ss 74L or 74O of the Real Property Act 1990 (NSW) – extension refused

Catchwords:

CRIME - Use offensive weapon to intimidate - in company SENTENCING – Relevant factors- two offenders – both armed - victim threatened and manhandled – offender on parole and bonds - offender left the crime before its completion- Form 1 – early guilty plea - powerful subjective case – special circumstances

Catchwords:

CIVIL PROCEDURE — Protective jurisdiction — Appeals from Guardianship Tribunal — Where the plaintiff appealed the decision of the Guardianship Division of NCAT on 11 grounds — Whether any of the appeal grounds comprised questions of law — Whether any question of law involved an error on the part of the Tribunal — Where the Court found that only one appeal ground comprised a question of law, and found that that appeal ground did not involve an error on the part of the Tribunal — Whether the plaintiff should be granted leave to appeal on a ground other than a question of law — Where the Court declined to grant that leave and consequently dismissed the appeal

Catchwords:

CRIME – Break, Enter & Steal - Attempt Break & Enter- multiple offences SENTENCING - Relevant factors on sentence – on parole for similar offences - long criminal history- never lived a normal community life - institutionalised offender- application of guideline judgement -accumulation and concurrence – need for structured release to the community

Catchwords:

SENTENCING – Murder – Where co-offenders involved in car chase – Where offender deliberately discharged shotgun with intention of killing one of the occupants of the other vehicle involved in chase – Where motive relevant to consideration of objective seriousness – Where three co-offenders next of kin – Whether co-offenders liable on basis of joint criminal enterprise or extended joint criminal enterprise – Where moral culpability of three co-offenders differed SENTENCING – Wound with intent to cause grievous bodily harm – Where offender discovered girlfriend had sexual liaisons with victim – Where victim sent messages via social media to offender’s girlfriend – Where offender posed as girlfriend on social media and ambushed victim – Where offender used weapon to cause blunt force injury to victim’s head – Where offence committed in company – Whether element of provocation – Whether offender’s offer to plead to lesser charge of utilitarian value

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards – Review of awards – rescission of obsolete award

Catchwords:

HIGH RISK OFFENDERS – Extended Supervision Orders – High probability of re-offending – unacceptable risk – significant agreement – duration of ESO – dispute as to conditions.

Catchwords:

COSTS – discretion to award costs pursuant to r 42.1 of the Uniform Civil Procedure Rules – whether costs should be apportioned – applicant successful on first of three issues for determination – first issue for determination not clearly discrete issue in proceedings – usual order made

Catchwords:

PROSECUTION – sentencing for multiple (22) offences of possession and harming of bird eggs of protected and threatened species under National Parks and Wildlife Act 1974 – pleas of guilty – eggs in defendant’s possession collected over many years – not established beyond reasonable doubt that defendant aware that harm to and possession of eggs of threatened bird species – defendant aware that bird eggs in general could not be collected without a licence issued under the National Parks and Wildlife Act – high range of low objective seriousness – mitigating factors of age and health – custodial sentence not appropriate – community correction order made with place restriction condition preventing entry into national park, nature reserve, regional park, state conservation area and wilderness area for 14 months

Catchwords:

APPEALS — appellant failed to attend Tribunal hearing — procedural fairness provided to parties — no unfairness to appellant — leave to bring appeal refused

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – alterations and additions – garage and studio – solar access – agreement between the parties – orders

Catchwords:

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

Catchwords:

TORTS – malicious prosecution – collateral abuse of process – elements – heavy onus to prove negative – plaintiff has not satisfied onus to prove malice or absence of reasonable and probable cause – negligence not available – immunity relating to process of litigation.

Catchwords:

POLICE – applications by two applicants for review of disciplinary transfer orders – disciplinary action taken against both officers following a physical altercation between them – prospect of inconsistent decisions if applications heard separately – applications to be heard jointly

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – lilly pilly – obstruction of a view – whether the obstruction is severe

Catchwords:

COSTS — Two contested Probate proceedings involving different will-makers (husband and wife) heard consecutively with the evidence in one being evidence in the other – Probate sought in respect of the last Will of the two different will-makers – Plaintiffs unsuccessful in propounding each of the Wills – Defendants succeeded in propounding the penultimate Will of each will-maker - Only outstanding issue for determination is whether the Plaintiffs’ costs of each proceeding should be paid out of the estate of each will-maker or whether they should pay the Defendants’ costs, calculated on the ordinary basis of the proceedings – Otherwise agreed that Defendants’ costs, calculated on the indemnity basis, be paid out of the estate of each will-maker

Catchwords:

ASSOCIATIONS AND CLUBS — Particular bodies — Political organisations — Preselection disputes — Construction of Constitution of Liberal Party of Australia NSW Division — No issue of principle

Catchwords:

ASSOCIATIONS AND CLUBS — Particular bodies — Political organisations — Preselection disputes — Construction of Constitution of Liberal Party of Australia NSW Division — No issue of principle

Catchwords:

CIVIL PROCEDURE – application for pro bono assistance – application granted

Catchwords:

CONTRACTS – deed of loan negotiated and signed by husband to complete purchase of property in the name of his wife – husband purports to sign deed on his wife’s behalf – no direct dealings between wife and lender – whether husband had authority to commit his wife EQUITY – subrogation – unauthorised and unenforceable borrowings – equity in Bannatyne v MacIver – claim not available on the pleadings CIVIL PROCEDURE – interlocutory application – withdrawal of solicitor – conflict of interest – discretionary factors

Catchwords:

CIVIL LAW – procedure – leave to commence proceedings – plaintiff in custody at the time proceedings commenced – Felons (Civil Proceedings) Act – institutional abuse suffered as a child – orders

Catchwords:

COSTS – proceedings for nuisance – settlement reached involving dismissal of proceedings – whether circumstances warrant departure from usual position stated in Uniform Civil Procedure Rules 2005 (NSW) r 42.20 – where both parties acted reasonably – where Court could not be confident that if matter had gone to trial plaintiffs would almost certainly have succeeded – no order made as to costs

Catchwords:

CONTRACTS – contract for supply of maintenance services between contractor and subcontractor –agreement as to quantum of labour rates – whether express term of the contract that the subcontractor must pay its workers the same rates at which it charged the contractor DAMAGES – whether suggested term of contract that is breached involves conferral of benefit upon a third party – whether damages recoverable for 'reliance interest' or loss of bargain – whether promisee suffered loss

Catchwords:

Possessing ammunition without holding a licence, permit or authority - firearms prohibition order - whether recipient of Fire Prohibition Order entitled to a reasonable opportunity of complying with the order - whether evidence obtained upon search admissible.

Catchwords:

APPEAL – strata scheme – reallocation of unit entitlements – application to vary past contributions in line with new allocation of unit entitlements – application of s 87 of Act – denial of procedural fairness – exercise of discretion – while error of law found no error in exercise of discretion

Catchwords:

APPEALS – administrative review – construction of cl 1(e) of Table in s 14 of the Government Information (Public Access) Act 2009 - irrelevant consideration – failure to address argument – illogicality APPEALS – leave to appeal – challenges to findings of fact

Catchwords:

CRIME – Sentence Appeal – sexual offences on child – breach of Child Protection Orders – alleged failure to provide reasons for objective seriousness determination – failure to afford reduction for alleged assistance – reasons read as a whole provide sufficient basis for understanding why determination was effected – reasons delivered ex tempore – alleged admissions and plea not assistance that required reduction – no error disclosed

Catchwords:

CIVIL PROCEDURE – summary disposal – frivolous or vexatious proceedings - notice of motion seeking summary dismissal – where solicitor practised first as sole practitioner and subsequently as employee of incorporated legal practice – where both solicitor and incorporated legal practice claimed moneys held on trust for them in relation to costs – where only incorporated legal practice provided legal services to the clients – no right to the costs by the solicitor – no reasonable cause of action by the solicitor COSTS – security for costs – whether an order should be made – where evidence indicates legal entity will be unable to pay first defendant’s costs if ordered to do so – application made early in the proceedings – difficulty of assessing costs to conclusion of proceedings - order for security for costs made up to conclusion of filing of evidence COSTS – security for costs – what amount should be ordered – “Chorley” exception – where issue relates to work done by employed solicitor at the solicitor’s incorporated legal practice – whether abolition of the “Chorley” exception prevents employees of incorporated legal practices recovering costs

Catchwords:

CRIMINAL LAW – unreasonable verdict – two appellants convicted of two counts of wounding with intent to cause grievous bodily harm – alleged part of group that invaded victims’ unit – Crown case that all members of group entered unit or balcony – Crown case depended on proof that same group of males who walked up street returned and entered balcony area – whether Crown excluded reasonable hypothesis that at least one group member did not return down street or did not enter balcony area – appeal allowed for three appellants – judgment in respect of co-offenders determined same issue – appellants entitled to the benefit of that analysis – appellants previously refused legal aid and appeals lapsed – extension of time granted - appeal allowed.

Catchwords:

DEFAMATION – defences – common law qualified privilege – privileged occasion – privileged communication – whether communication relevant to privileged occasion – no test of necessity – news publications based on police media releases – additional information in publications not foreign to occasion of privilege DEFAMATION – remedies – compensatory damages – whether assessment of damages manifestly inadequate – primary judge justified in using appellant’s failure to correct the record as indicative that the appellant was not hurt and distressed as claimed DEFAMATION – remedies – compensatory damages – whether assessment of damages manifestly inadequate – adverse credibility findings

Catchwords:

CRIME – Appeals – Appeal against sentence – Reckless wounding (two counts) – Affray – Aggravated break and enter and commit serious indictable offence – Whether sentencing judge gave appropriate consideration to offender’s background of social disadvantage – Bugmy v The Queen (2013) 249 CLR 571 – Appeal allowed SENTENCING – Subjective considerations on sentence – Social disadvantage and hardship – Excellent upbringing with non-biological parents until aged thirteen – Subsequent discovery of and return to biological family – Entry into environment where criminal conduct normalised – Commencement of alcohol and drug abuse – History of offending associated with alcohol abuse – Childhood and adolescent years equally formative – Reduced moral culpability notwithstanding passage of time and intervening custodial sentences CRIME – Appeals – Appeal against sentence – Extension of time in which to appeal – Whether sufficient explanation for delay – Time required to receive transcripts, advice from counsel, Legal Aid approval, and submissions – Whether arguable case on appeal – Extension granted

Catchwords:

CONSUMER LAW – Misleading or deceptive conduct – Representations – Explicit false representations made in proposal document given to prospective investors in fraudulent betting syndicate scheme masterminded by notorious conman – Appellant a member of partnership promoting scheme – Whether appellant had knowledge of false representations – Whether appellant jointly and severally liable for misrepresentations made in ordinary course of business of partnership – Liability established APPEALS – From findings of fact and credibility – Function of appellate court – Circumstantial case – Briginshaw standard – Inferences from primary facts – Whether open to be comfortably satisfied various factual findings, including inference that appellant knew of false proposal representations PARTNERSHIPS AND JOINT VENTURES – Relationship of partners to persons dealing with them – Liabilities of partner – Partnership intended to be limited – Unlimited because limited partnership agreement never registered – Joint and several liability for misrepresentations made by other partner in ordinary course of business of partnership CONSUMER LAW – Misleading or deceptive conduct – Silence or non-disclosure – Whether appellant represented that conman not involved in scheme – Whether appellant had knowledge of various prerequisite facts such as notoriety, involvement, and alias of conman, and of need to conceal such information – Appellant unable to demonstrate any of these findings as glaringly improbable – Appellant ought to have known of reasonable expectation that conman’s involvement would be disclosed – Appellant did not disclose and deliberately concealed conman’s involvement CIVIL PROCEDURE – Pleadings – Amendment – Late application for amendment on second day of trial – Amendments added alleged liability of appellant for representation by silence and clarified alleged liability of appellant for explicit proposal representations – Whether appellant deprived of opportunity to make “no case” submission – Whether primary judge failed to consider dictates of justice – Not necessary to recite considerations seriatim – Appellant not deprived of fair and reasonable opportunity to meet case – Pleadings sufficiently clear and specific, and not unfairly open-ended CIVIL PROCEDURE – Pleadings – Construction of pleadings – Subparagraphs of pleadings not in precise correspondence with each other – Whether prejudicial construction by primary judge in finding that pleadings nevertheless sufficiently clear CONSUMER LAW – Misleading or deceptive conduct – Causation or reliance – Whether respondent’s decision to invest caused by proposal representations – Whether prospective investor would have been deterred by knowledge of involvement of notorious conman – Gullible investors not disentitled to protection CONSUMER LAW – Misleading or deceptive conduct – Remedies – Quantification of damages – Whether primary judge failed to account for group members’ prior recoveries and respondent’s trading profits received from scheme – Award of damages below only for respondent’s unpaid loan to scheme – Prior recoveries and trading profits irrelevant CIVIL PROCEDURE – Representative proceedings – Remedies – Award of damages to individual group member CIVIL PROCEDURE – Court of Appeal – Notice of contention – Reliance on claim in deceit in addition to misleading and deceptive conduct – Deceit considered briefly in judgment below – Contention material and advances respondent’s case in circumstances where appellant claims apportionment for misleading and deceptive conduct but cannot do the same for claim in deceit – Notice of contention upheld and decisive of appeal – Unnecessary to consider further aspect of notice, namely conspiracy TORTS – Miscellaneous Torts – Deceit – Relationship with misleading or deceptive conduct – Apportionment defence available for misleading and deceptive conduct but not for deceit TORTS – Joint and several liability – Apportionment – Primary judge disallowed late attempt to raise apportionment defence – Disallowance denied a real prospect of significant reduction in liability – Strongly arguable error in disallowance – Unnecessary to consider further as respondent nevertheless able to rely on non-apportionable claim in deceit

Catchwords:

COSTS — party/party — application for review of decision to cancel registration of dental practitioner — application dismissed and costs reserved — held respondent entitled to costs order

Catchwords:

HEALTH — professional registration and discipline — complaints — whether circumstances of offences render practitioner unfit in the public interest to practise practitioner’s profession — costs

Catchwords:

COSTS – Party/Party – Appeals – Appeal against refusal of leave to commence proceedings out of time – Delay attributable to appellant’s solicitors – Unsatisfactory explanation for delay – Respondent opposed application and led court below into error – Costs not sought by respondent against appellant – No order as to costs between parties COSTS – Appeals – Orders against non-parties – Personal costs orders against lawyers – As between respondent and appellant’s solicitors – Solicitors acted negligently – Respondent increased costs considerably by opposing application – Orders not made COSTS – Appeals – Orders against non-parties – Personal costs orders against lawyers – As between appellant and appellant’s solicitors – Costs incurred without reasonable cause – Relevance of undertaking by solicitors to not seek costs against appellant – Orders made

Catchwords:

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

Catchwords:

DEVELOPMENT APPEAL – modification application – residential flat building – conciliation conference – agreement between the parties - orders

Catchwords:

CRIME — Appeals — Appeal against sentence — Co-offenders sentenced for the same offences — Sentencing judge took into account a further offence committed by the co-offender — Applicant alleges disparity between sentences — Whether the applicant was entitled to have a justifiable sense of grievance – whether the co-offender’s strong subjective case, this outweighed the co-offender’s greater involvement and further offence — Co-offenders sentenced by different judges — Whether the sentences can be explained by the different material before each sentencing judge — Co-offender gave evidence at his own sentencing and the applicant did not give evidence at his own sentencing — Agreed facts were substantially the same — Difference in material explains why the co-offender was found to have a considerably greater role than the applicant — Differential assessment of objective seriousness — No standardised language with regard to range — The effect of subjective circumstances reduced the co-offender’s moral culpability — The judge who sentenced the co-offender expressly took into account the additional offence — No disparity between the sentences such as would entitle the applicant to a justifiable sense of grievance

Catchwords:

COSTS — interlocutory proceedings — application to amend pleadings — multiple iterations of application — initial iteration opposed by all parties — final iteration only opposed by some parties —application successful — costs thrown away on previous application — appropriateness of company playing active role in dispute amongst shareholders

Catchwords:

APPEALS – right of appeal – scope of right – excess or lack of jurisdiction below – jurisdiction of the District Court – where there is a common law cause of action for money had and received APPEALS – right of appeal – scope of right – excess or lack of jurisdiction below – jurisdiction of the District Court – whether proceeding is for “relief against fraud of mistake” – District Court Act 1973 (NSW), s 134 CONTRACTS – breach of contract – consequences of breach – right to damages – where total failure of consideration CONTRACTS – termination – consequences of termination – restitutionary claims – where total failure of consideration JUDGMENTS AND ORDERS – interest – pre-judgment interest – rate applicable – where respondent succeeded on restitutionary claim – whether it was open to the primary judge to select the same rate of interest agreed to by the parties – Civil Procedure Act 2005 (NSW), s 100

Catchwords:

DEVELOPMENT APPLICATION – childcare centre

Catchwords:

CRIME — Appeals — Appeal against sentence —The sentencing judge did not overstate the applicant’s moral culpability — Applicant drove straight into the side of a highly visible vehicle on a highway with a speed limit of 110kph — Conduct constituted an egregious want of care — Failure to look properly and assess the presence of oncoming traffic created a substantial risk of collision with catastrophic consequences — The sentencing judge properly assessed the application for an ICO — Assessed the applicant’s risk of reoffending low whether given an ICO or full-time custody — The purposes of general deterrence would not be sufficiently served by an ICO — Sentence was not manifestly excessive

Catchwords:

HEALTH — professional registration and discipline — complaints — medical practitioner found guilty of unsatisfactory professional conduct and professional misconduct — conditions — costs

Catchwords:

SENTENCING – aggregate sentence – two sets of serious sexual offences committed against two victims a decade apart – applicant self harmed after offending discovered in relation to first set of offences and rendered himself a paraplegic – sentencing judge wrongly took into account standard non-parole period when none specified – error conceded SENTENCING – error by sentencing judge – effect of error – discussion of principles in Kentwell v The Queen – application of principles – independent re-exercise of sentencing discretion – ongoing relevance of R v Simpson – by majority, applicant resentenced

Catchwords:

PRACTICE AND PROCEDURE – application for order dismissing the proceedings as an abuse of process – some common issues between these proceedings and earlier proceedings maintained by different plaintiffs against same defendant – present plaintiff not a privy of and had no control over earlier plaintiffs – different claims in the two proceedings – whether oppressive to defendant to allow the present proceedings to continue – whether continuation of present proceeding would bring administration of justice into disrepute.

Catchwords:

CIVIL PROCEDURE – Application to vary security for costs order – whether circumstances have sufficiently changed to warrant the variation of an interlocutory order – application granted

Catchwords:

CRIME – Robbery whilst armed with an offensive weapon- of a service station MENTAL HEALTH - Criminal proceedings - offender found unfit to be tried offender by District Court - found fit by Mental Health Review Tribunal SENTENCING - Relevant factors on sentence - guilty plea at first opportunity after offender found fit- mental illness had causative relationship to offence - background of deprivation – sentencing mentally ill offenders - early exposure to drug use and domestic violence - seriousness of offence - guideline judgment - community protection - risk to community - demonstrated progress toward rehabilitation - structure of sentence

Catchwords:

COSTS

Catchwords:

COSTS — Costs assessment — Gross Sum Costs Orders — Whether costs order should be made against solicitor personally — Where Court made gross sum costs order — Where Court found that solicitor’s conduct did not warrant the making of a costs order against the solicitor personally

Catchwords:

BUILDING AND CONSTRUCTION – statutory duty under s 177 not to do something that removes support from supporting land to supported land – allegation that vibrations from work on supporting land caused removal of support by supporting land to supported land – where proposed Technology and Construction List Statement did not allege facts that if proved would show how vibrations removed such support - where the only geotechnical evidence adduced by plaintiffs was to effect that the vibrations themselves have caused damage to supported land - where plaintiffs also alleged that breach of statutory duty constituted by failure of owner of supporting land to contract with its builder to prevent builder using vibratory equipment CIVIL PROCEDURE – amendment – Technology and Construction List Statement - claim for breach of the statutory duty in s 177 of the Conveyancing Act 1919 – where earlier application to amend List Statement refused - where proceedings on foot for two years – whether proposed List Statement alleged facts that if proved could amount to a breach of such statutory duty

Catchwords:

COSTS – party/party – plaintiff issued notice to produce and subpoenas to defendant and entities associated with defendant – plaintiff challenged sufficiency of compliance with notice and subpoenas – plaintiff successfully brought a motion for the recipients’ examination under Civil Procedure Act 2005 (NSW), s 68 – defendant now seeks her costs of the motion – whether there is reason to depart from the usual rule that costs follow the event

Catchwords:

PRACTICE AND PROCEDURE — Application to set aside default judgment for breach of contract in the provision of foreign exchange services – whether default judgment obtained by the plaintiff was obtained irregularly – whether there is a requirement to notify a defendant of an intention to apply for a default judgment – whether the defendants have a right to have an irregularly entered judgment set aside ex debito justitiae – whether there is a defence on the merits – whether there is a defence available by way of set-off

Catchwords:

PROCEDURE – leave sought to rely on expert funeral industry evidence in judicial review proceedings – evidence of funeral industry consultant to inform characterisation of development consent for crematorium and cemetery reasonably necessary PROCEDURE – leave sought to rely on ecological evidence in judicial review proceedings – whether biodiversity development assessment report required in relation to development consent for crematorium and cemetery a question of jurisdictional fact – ecological evidence permitted

Catchwords:

APPEALS – Application for leave to appeal – no question of principle – whether the Tribunal erred in finding that the appellants were not parties to the contract relied on

Catchwords:

APPEAL – Question of law – Sufficiency of reasons where oral reasons given ex tempore and no request made for written reasons LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Obligation of landlord to provide and maintain premises in a reasonable state of repair – Premises rendered uninhabitable by mould – Whether Tribunal impermissibly reversed the onus of proof in respect of the cause of the mould

Catchwords:

LAND LAW – Strata title - Owners corporation — Meetings of owners corporation - Strata Schemes Management Act 2015 (NSW) - Application under section 24 to invalidate resolutions at general meeting - Relevant principles.

Catchwords:

APPEAL – development application – multi dwelling housing – in fill affordable housing – conciliation conference – agreement reached

Catchwords:

OCCUPATIONS — legal practitioners — solicitor — misconduct and discipline — professional misconduct — trust money — instrument of consent — reprimand — costs order

Catchwords:

DEVELOPMENT APPLICATION – childcare centre – existing ground floor tenancy of shop-top housing development – whether the site is suitable for use as a childcare centre – impacts on adjoining neighbours and apartments within the housing development – whether the amenity of the proposed childcare centre is appropriate – appeal dismissed

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children

Catchwords:

APPEALS- applications to reinstate appeal or set aside appeal decision where appellant not present at hearing-representative granted leave to appear-representative appeared at appeal hearing-conditions for exercise of powers to grant relief did not exist

Catchwords:

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

Catchwords:

CIVIL PROCEDURE — Hearings — Adjournment to permit an application to be made in the Corporations List in the Equity Division pursuant to s 601AH of the Corporations Act 2001 (Cth) — Proceedings as presently constituted are an abuse of process — To grant a stay of proceedings would protect the plaintiff’s right to make the application before the Equity Division with a view to reconstituting proceedings properly — Stay of proceedings ordered

Catchwords:

INTEREST – running account – balance moves from debit to credit due to payments on account – calculation of interest COSTS – party/party – plaintiff company succeeds in three claims for compensation against defendant director for transactions allegedly effected without authority or in breach of duty but fails on fourth – defendant’s cross-claim for rectification of share register succeeds but applications to be relieved of consequences of lack or authority or breach of duty fails – distributive application of rule that costs follow the event – “traditional rule” concerning costs of issues arising in claims – whether to make an overall apportionment of costs CORPORATIONS – costs – party/party – proceedings brought by shareholder in company’s name under Corporations Act 2001 (Cth), s 237 – where the Court ordered that the shareholder’s costs of the s 237 proceedings be the company’s costs in the substantive proceedings – company not party to s 237 proceedings and shareholder not party to company proceedings – whether the previous order can now be discharged or varied

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal from decision dismissing an application for review of a removal order under the Police Act 1990 – whether leave to appeal ought to be granted

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – discrimination – harassment – sexual harassment – where applicant was contracted to design, publish, display and distribute a poster depicting a captioned photograph of the respondent at her workplace – whether conduct was “other unwelcome conduct of a sexual nature” – whether parties were “workplace participants” – Anti-Discrimination Act 1977 (NSW), ss 22A, 22B CIVIL PROCEDURE – appeal on question of law

Catchwords:

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

Catchwords:

CRIME – conviction appeal – jury direction – burden of proof – dealing with proceeds of crime – “reasonable grounds to suspect” – accused’s defence that no reasonable grounds – disbelieving accused insufficient to discharge prosecution burden – whether need for Liberato direction – direction given as sought – leave required under Criminal Appeal Rules SENTENCING – appeal – dealing with proceeds of crime – purpose identified as money laundering – whether judge referring to different offence – whether inflation of objective criminality – whether De Simoni error

Catchwords:

CRIME – sentencing – reckless wounding whilst in company – joint criminal enterprise – three victims with stab wounds – attack directed at rival gang – invasion of birthday party SENTENCING – appeal – manifest excess – assessment of objective seriousness not challenged – applicant did not carry weapon or wound – applicant transported attackers and entered premises where attacks occurred – presence and encouragement during fight SENTENCING – appeal – manifest excess – evidence of entirely favourable personal circumstances – whether adequately reflected in sentence

Catchwords:

CRIME — conspiracy to commit the common law offence of wilful misconduct in public office — elements of the offence — whether the indictment disclosed an offence known to law — joint trial of three co-accused —accused Macdonald former Minister for Mineral Resources in the Executive Government of the State of New South Wales — scope and content of duties and obligations of confidentiality and impartiality owed by a Minister in the Executive Government of the State of New South Wales — eight acts of wilful misconduct particularised as acts by accused Macdonald in furtherance of the conspiracy — overt acts of accused Edward Obeid and Moses Obeid as acts in furtherance of the conspiracy — circumstantial evidence case — Shepherd direction — consciousness of guilt lies — application of co-conspirators rule in s 87(1)(c) of the Evidence Act 1995 (NSW)

Catchwords:

SENTENCING – police officer victim of offence under s 33B(1) of Crimes Act – whether erroneous to refer to their status as aggravating circumstance – no error established - sentencing judge only considered status of victim in characterising objective seriousness of offence - alleged double punishment revealed by indicative sentences – no common elements – sentence not manifestly excessive – leave to appeal granted but appeal dismissed.

Catchwords:

Criminal Law – Firearms Act 1996 (NSW) s 7(1) – Weapons Prohibition Act 1998 (NSW) s 7(1) – Multiple Firearms & Weapons Offences – Breach of Multiple Prohibition Orders – Determination of Additional Matters Dealt with under ss 166 & 167 of the Criminal Procedure Act 1986 (NSW) – Multiple Prior Offences (Different Type) – Sentencing – General Sentencing Principles – Objective Seriousness

Catchwords:

SENTENCE – sexual assault offence – victim and offender had previous casual sexual relationship – content of offender’s knowledge of lack of consent – good character – significance of assault after subject offending to offender’s good character

Catchwords:

CRIMINAL PROCEDURE – sexual assault offence – prosecutor inadvertently omitted to inform Magistrate of the Director of Public Prosecution’s election for trial on indictment – guilty plea entered in Local Court – permanent stay application – whether ex officio indictment abuse of process – whether loss of inadvertent advantage to avoid the imposition of a sentencing option generates unfairness which warrants a permanent stay

Catchwords:

CIVIL PROCEDURE – application for expedited hearing – proceedings for medical negligence – Plaintiff with cancer – expedition granted with parties to take necessary steps to progress litigation towards timely hearing

Catchwords:

APPEALS – procedure – stay pending appeal

Catchwords:

COSTS - “Chorley” exception - client sued former solicitor for negligence in failing to enforce a favourable costs order in Family Court proceedings - former solicitor represented by incorporated legal practice which was its sole shareholder - whether District Court erred in dismissing client’s action for negligence - former solicitor sought gross sum costs order - whether District Court erred in failing to grant second adjournment - whether District Court erred in making gross sum costs order - whether former solicitor to be equated with incorporated legal practice which represented it

Catchwords:

CRIMINAL LAW – Sentence – Murder – Offender found guilty at trial – Where jury rejected self-defence and excessive self-defence – Stabbing outside home in St Clair – No intention to kill – Assessment of objective seriousness somewhat below the middle of the range – Provocation not established – Prior good character and very limited criminal record – Good prospects of rehabilitation – Acceptance of responsibility for actions and genuine remorse – No special circumstances – Sentence imposed

Catchwords:

CIVIL – trip and fall on footpath – absence of evidence as to where on footpath plaintiff fell – s5B CLA applied

Catchwords:

JUDGMENTS AND ORDERS - amending, varying and setting aside - consent orders - set aside - parties attended court-annexed mediation – both parties legally represented - parties signed consent orders requiring court approval - defendant alleged he was pressured to sign orders - where nothing in affidavit of defendant evidencing undue pressure to settle proceedings - no basis for setting aside agreement reached at mediation REAL PROPERTY - possession of land - defendant’s mother owner of premises with NSW Trustee & Guardian as her financial managers - where plaintiff the registered proprietor of the land and defendant in occupation of the land - where defendant alleged constructive trust from agreement with plaintiff to look after her and maintain the property - resolution at mediation - parties signed consent orders requiring court approval due to legal incapacity of plaintiff - settlement approved pursuant to s 76(4) Civil Procedure Act

Catchwords:

APPEALS — local government councillor — disciplinary action by Chief Executive — finding of misconduct — appropriate disciplinary action

Catchwords:

PRACTICE AND PROCEDURE – Application for leave to be heard at conciliation conference or hearing under s 38(3) Land and Environment Court Act or as amicus curiae – Court’s power to permit non-party to participate in s 34 Conciliation Conference – Leave granted on terms to non-party to participate pursuant to s 38(2) – Unnecessary to determine amicus curiae

Catchwords:

ENVIRONMENT AND PLANNING – development consent – challenge to validity – whether environmental impact statement complied with Environmental Planning and Assessment Regulation cl 7(1)(c) – requirement to consider feasible alternative sites – requirement to consider feasible alternative designs ENVIRONMENT AND PLANNING – meaning of “feasible alternatives” – requirement for competitive design process – scope of alternative designs – Parramatta Local Environmental Plan, cl 7.10

Catchwords:

CRIME – Appeal against sentence – sentencing judge precluded aggregate sentence and order of ICO – effective sentence of 3 years from 2 offences fully concurrent – aggregate sentence available and, if imposed, ICO available – appeal allowed – aggregate sentence imposed – ICO ordered.

Catchwords:

ADMINISTRATIVE LAW – government information – access application – information not held – reasonableness of searches – redacted information - information out of scope ADMINISTRATIVE LAW – jurisdiction of tribunal – matter between a State and resident of another State - whether tribunal exercising judicial power

Catchwords:

ADMINISTRATIVE LAW – building and construction – licence - home building - experience - Instrument.

Catchwords:

ADMINISTRATIVE LAW – merits review – access to government information – adequacy of search – information for which there is a conclusive public interest against disclosure (excluded information and privileged information) – information for which there is an overriding public interest against disclosure (cl 1(d) and (f), cl 3(a) and (b) and cl 6(1) of the table to s 14(2) of the Government Information (Public Access) Act 2009) – processing charge

Catchwords:

APPEALS — consumer claim — contract by travel agent to make reservations for airline services for overseas travel, accommodation and excursions — contract frustrated — whether travel agent acted as general principal — whether travel agent personally liable to reimburse client for services

Catchwords:

SENTENCE – murder – extended joint criminal enterprise – victim shot dead by co-offender – offender present and aware co-offender armed with gun – where offender does no act directly leading to death of victim – liability for murder based on presence at scene of shooting and agreement with co-offender, an incident of which being that he foresaw the intentional infliction of very serious harm as a possibility – strong subjective case – assistance to authorities – absence of planning – general deterrence – history of psychiatric illness and background of social deprivation

Catchwords:

CONTRACTS — Breach of contract — alleged default by borrower under mortgage – where due date for payments disputed – whether due date varied orally or in writing by parties – held, due date was varied as advanced by lender CONTRACTS — Implied terms — Terms implied in fact – whether it was an implied term of the loan agreement that the lender would provide a loan statement upon request – where borrower had express right to early repayment of loan – where borrower had to give irrevocable notice specifying the amount to be repaid – held, necessary to imply such a term ESTOPPEL — Promissory estoppel — where borrower believed payment was due on 11th – where lender previously accepted payment on 11th – whether lender entitled to issue default notice due to failure to pay on 8th of the month – held, lender was estopped from issuing default notice CONSUMER LAW — Unconscionable conduct — In connection with goods or services — System of conduct or pattern of behaviour – where lender failed to issue loan statement without reasonable excuse – where lender entered negotiations for deed of forbearance during COVID-19 shutdown – where lender issued default notice during negotiations – where default notice issued two days before borrower believed payment was due – held, lender acted unconscionably under s 21 of the ACL CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters – where lender said it would “action” request for a loan statement “now” – where lender failed to do so – held, not misleading and deceptive conduct

Catchwords:

ADMINISTRATIVE LAW — freedom of information — personal information — Government Information (Public Access) Act 2009 — disclosure

Catchwords:

DEVELOPMENT APPEAL – Torrens title subdivision – vehicular access to battle axe lots – heritage interpretation – waste – weight given to evidence from party as an expert to the proceedings – orders

Catchwords:

EVIDENCE – Evidence Act 1995 (NSW), ss 44(3), 43 – cross-examination of one accused by another – prior inconsistent statement – “use” to be made of Crime Commission Information Report – report was a summary of the co-accused’s account of events – inconsistency between Information Report and co-accused’s account of events at trial – no questions expressly or impliedly referring to existence of report allowed – questions about oral statements made by co-accused to the Commission should have been allowed with leave – rebuttal evidence should have been allowed under s 106 – erroneous ruling under Evidence Act 1995 (NSW), s 192A CRIME – appeals – Criminal Appeals Act 1912 (NSW), s 6(1) – third limb – loss of chance of acquittal – second limb – wrong decision of any question of law CRIME – appeals – proviso – error relevant to credibility of co-accused only – credibility of both accused comprehensively rejected by the jury – no significant denial of procedural fairness – Court able to assess proviso – accused’s guilt proved beyond reasonable doubt – proviso applied – appeal dismissed CRIME – appeals – unreasonable verdict – circumstantial case – joint criminal enterprise – two accused – Crown unable to prove which accused fired the fatal shots – cut-throat defence – Crown attack on both accused’s credibility – lies demonstrating consciousness of guilt – exculpatory explanations frankly absurd and third grade fictional – neither accused a criminal genius CRIME – appeals – fresh evidence – evidence came forward after the Rogerson was sentenced – key witness a friend of the accused – “oh by the way don’t tell Rogerson about this” – evidence not credible – no miscarriage of justice EVIDENCE – exclusion – Evidence Act 1995 (NSW), s 135 – evidence that Rogerson admitted having participated in several homicides and other criminal violence – evidence relevant to whether McNamara’s conduct committed under duress – limited probative value – highly prejudicial to Rogerson in context of murder trial – evidence correctly excluded CRIME – appeals – appropriate standard of review – Evidence Act 1995 (NSW), s 135(a) – review of trial judge’s decision to exclude evidence – s 135 involves an evaluative judgment, not an exercise of judicial discretion – House v The King standard not appropriate – “correctness” standard applied – appellate court to decide for itself whether the evidence should be excluded WORDS AND PHRASES – Evidence Act 1995 (NSW), s 135(a) “evidence unfairly prejudicial to a party” – “a party” includes a co-accused in a joint criminal trial CRIME – appeals – appeal against refusal to discharge jury – inadmissible evidence before jury – evidence would have had minimal effect on jury in the context of the trial – carefully crafted directions given – agreed fact stating the inadmissible evidence was incorrect – trial judge correct to refuse the application SENTENCING – appeal against sentence – life sentence – Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1) – “level of culpability in the commission of the offence” – two-stage approach appropriate – not the same two-stage approach previously rejected by the High Court – no inconsistency with instinctive synthesis approach – circumstances surrounding or causally connected to the offence – objective and subjective distinction unhelpful in context of s 61 – life sentence appropriate SENTENCING – appeal against sentence – challenge to factual findings on sentence – sentencing judge found plan to kill deceased was formed well before murder – finding overwhelmingly supported by evidence – no error

Catchwords:

ADMINISTRATIVE LAW - workers compensation - examination by approved medical specialist - request for re-examination by appeal panel refused - primary judge held that request not considered by appeal panel - appeal panel in fact considered request - adequacy of reasons of appeal panel - whether denial of procedural fairness by primary judge - whether any denial could be material in light of the right of appeal by way of rehearing - whether other judicially reviewable errors in appeal panel’s decision - consideration of differences in assessment regimes under workers compensation and motor accident legislation - appeal allowed and decision of appeal panel reinstated COSTS - whether reason to depart from rule that costs should follow event - inclusion by appellant of voluminous irrelevant pages in appeal materials - where error by primary judge could have been corrected without need for appeal

Catchwords:

SENTENCING – appeal against sentence – money laundering offences – co-offenders – disparity between sentences – first co-offender’s sentence reduced on appeal due on parity principles – applicant faced charges carrying significantly lower penalties than those faced by second co-offender but applicant’s sentence significantly more severe – legitimate sense of grievance demonstrated – sentence set aside – sentencing discretion re-exercised – adjustment achieved by restoring proportions with first co-offender’s sentence SENTENCING – appeal against sentence – sexual assault offences – whether primary judge erred in assessing objective seriousness – whether applicant had actual knowledge of absence of consent – knowledge clearly established as absence of consent manifest by violent assaults which preceded sexual assaults – whether offences less serious where committed in context of ongoing consensual relationship – no principle that sexual assault committed in prior or existing relationship is, for that reason alone, less serious than one committed by a stranger – Bussey v R [2020] NSWCCA 280 SENTENCING – appeal against sentence – whether level of accumulation resulted in overall manifestly excessive sentence – sentence lengthy but justified – no error by primary judge established

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – where hearsay evidence not erroneously admitted – where evidence insufficient to support finding beyond reasonable doubt that offender committed physical assault – reduced moral culpability of offender – appeal allowed

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – where appellant convicted of setting fire to his house – destroying or damaging property – attempt to dishonestly obtain financial advantage from insurance company – where there are several available reasons why appellant may have not started fire – where it was open to jury to be satisfied beyond reasonable doubt that appellant’s interpretation of evidence should not be accepted – where there are no inconsistencies in evidence that are irreconcilable with finding of appellant’s guilt – verdict not unreasonable and can be supported having regard to evidence – appeal dismissed

Catchwords:

SENTENCING – Appeal against sentence – General principles – Accumulation – Where sentencing judge expressed an intention to partially accumulate but failed to do so – Appeal allowed

Catchwords:

APPEAL - Appeal against conviction CRIME - Break Enter and Steal CRIMINAL LAW − Evidence − DNA evidence − Where appellant's DNA obtained from object found at crime scene − Whether DNA evidence sufficient to establish beyond reasonable doubt appellant's presence at, and participation in, crime committed.

Catchwords:

CRIME – sentencing after Judge alone trial – 3 counts of aggravated sexual assault of a victim under 16 years – historical sex offences – sentencing a minor when an adult

Catchwords:

CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — Form and content — Where plaintiff seeks leave to file and serve a further amended statement of claim — Where first defendant opposes and second defendant consents to the filing and service of the further amended statement of claim — Where first defendant submits that the draft further amended statement of claim does not comply with the accepted rules of pleading in circumstances where serious allegations are sought to be made against the first defendant — Where the Court found some defects in the pleadings — Where the Court also separately recommended that the plaintiff reconsider his application for leave to file a further amended statement of claim that would introduce breach of trust and fiduciary duty claims against the first defendant as executor personally, having regard to the applicable principles of the law of succession

Catchwords:

COSTS — Costs assessment — Determination of a gross sum costs order — Where second defendant acted entirely unreasonably — Where Court assessed costs on a gross sum basis discounted by 30%

Catchwords:

CIVIL LAW - order for evidence to be taken on commission - request by foreign court - no question of principle

Catchwords:

EQUITY – resulting trust – defacto couple purchase family home in 1987 – few contemporaneous documents – defacto wife contributed to purchase price – husband held half of interest in property on resulting trust for wife – husband to account for half of rental income – defence of laches not established. FAMILY LAW – matrimonial cause – whether the Court should determine the application – leave not required to commence proceedings under s 44(3), Family Law Act – proceedings within s 78, Family Law Act – consent implied where no objection raised until 2 years after proceedings were commenced – this Court should determine the matter. ESTOPPEL – consent orders made in Family Court without admission that appropriate forum was in Poland – in fact, Polish Court has no jurisdiction in respect of Australian property – whether issue estoppel, Anshun estoppel or abuse of process – no estoppel or abuse of process found.

Catchwords:

CIVIL PROCEDURE – subpoenas – to produce documents or things – application to set aside – legitimate forensic purpose – test for determining the validity of a subpoena issued in civil proceedings – whether sufficient that the documents sought by a subpoena have “apparent relevance” to an issue in the proceedings – whether necessary to satisfy the court that the documents are likely materially to assist the case of the party issuing the subpoena – consideration of bases for setting aside subpoenas CIVIL PROCEDURE – Subpoenas – Legitimate forensic purpose – origins of concept – converse of abuse of process – whether a party issuing a subpoena will lack a legitimate forensic purpose if unable to demonstrate that documents sought by subpoena likely to assist its case – legitimate forensic purpose may be presumed where documents sought have apparent relevance to matters in issue or are capable of assisting in cross examination COURTS AND JUDGES – precedential value of decisions of Court of Appeal refusing leave to appeal.

Catchwords:

ADMINISTRATIVE LAW — application for review under s 27 of Child Protection (Working with Children) Act 2012 — where teacher acquitted of criminal charge alleging indecent assault of a female student under the age of 16 years — assessment of risk

Catchwords:

CRIMINAL LAW – sentence – jury verdict following trial for murder – verdict of guilty of assault occasioning death whilst intoxicated – where victim died as the result of stab wounds inflicted by offender following long period of mutual drinking – where offender perceived threat from victim and armed himself with a knife – where jury verdict excluded finding of death by reason of excessive self-defence or that the stabbing was unlawful and dangerous – alternative verdict CRIMINAL LAW – sentence – verdict of guilty of assault occasioning death whilst intoxicated – mandatory minimum sentence and mandatory minimum non-parole period – where clear legislative intention to constrain sentencing discretion – where ability to give effect to favourable subjective considerations consequently restricted

Catchwords:

CORPORATIONS — Winding up — Statutory demand — Offsetting claim — Where separate proceedings in respect of matters relied on in offsetting claim commenced by party seeking to set aside creditor’s statutory demand. CORPORATIONS — Winding up — Statutory demand — Application to set aside — Where Defendant accepted that offsetting claim established — Whether to impose condition as to payment into Court on setting aside statutory demand. CORPORATIONS — Winding up — Statutory demand — Application to set aside — Some other reason to set aside — Where creditor’s statutory demand not supported by affidavit — Where demand relies upon judgment debt — Where credit allowed in respect of that debt for amount recovered by garnishee order. COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where institution of other proceedings relevant to establishing offsetting claim — Whether costs should only be awarded from date those proceedings commenced.

Catchwords:

COSTS – interlocutory proceedings – presumptive order for costs for substantially successful respondent to the motion – unsuccessful applicant seeks costs to be reserved or alternatively, costs in the cause

Catchwords:

CIVIL PROCEDURE — Notice of motion — Default judgment for plaintiffs on liquidated claim and on the claim for possession — Plaintiffs granted leave to issue a writ of possession — Borrower and guarantors seeking that the judgments be set aside and a stay of the writ — Application to set aside turn on whether there exists a defence on the merits or a triable issue — Whether interest clause is void for uncertainty and its construction are triable issues — Whether interest rate provision qualifies as a penalty is a triable issue — Whether second loan was unconscionable and unjust are defences that raise triable issues — Explanation for delay given — Default judgments ought be set aside CONTRACTS — Construction of loan agreements — Whether terms of the first loan are unconscionable and the second loan is unjust by reason of its terms and surrounding circumstances — Considered in the context of whether there exist triable issues

Catchwords:

ADMINISTRATIVE LAW - Working with children check clearance — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Catchwords:

COSTS — no question of principle

Catchwords:

CRIME – Appeals – appeal against conviction – whether there was a miscarriage of justice in that the applicant allegedly did not give evidence in relation to his application for a permanent or temporary stay of proceedings – where contemporaneous evidence revealed that decision not to proceed with stay application was taken on the applicant’s instructions

Catchwords:

LEASES AND TENANCIES – obligation to leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted as existed at the commencement of the tenancy - obligation to leave the residential premises in a reasonable state of cleanliness - damage to premises – lack of evidence of damage – no question of principle INSURANCE - subrogation - insured and uninsured losses – partial indemnity by the insurer provides no defence to the wrongdoer

Catchwords:

COSTS – no question of principal

Catchwords:

LICENSING – firearms – victim of domestic violence – suspension of licence – previous suspension – whether false and misleading statement in application – licence subject to conditions

Catchwords:

CONSUMER LAW – No issue of principle

Catchwords:

CONSUMER LAW – consumer guarantees - defective repairs to motor vehicle - whether repairs to a motor vehicle the supply of goods or services – first inquiry is whether transaction involves a supply of goods – supplies of goods under the Australian Consumer Law includes supplies of goods together with services - supplies of services under the Australian Consumer Law does not include supplies of services together with goods – if the whole of the transaction involves the supply of goods then none of the supply will involve a service LIMITATION OF ACTIONS – jurisdiction of the Civil and Administrative Tribunal under s 79L of the Fair Trading Act – when cause of action of action accrues for failure to comply with consumer guarantees under the Australian Consumer Law – when cause of action accrues in relation to supplies of goods – when cause of action accrues in relation to supplies of services -

Catchwords:

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Contract not complying with the Home Building Act - Quantum meruit – Whether do-and-charge building contract an entire contract – Where owner had paid invoices issued by builder but failed to pay further invoices – Whether assessment of value of benefit received by owner should include work the subject of invoices which had been paid – Sufficiency of evidence - Whether builder had established the reasonable value of work performed.

Catchwords:

ADMINISTRATIVE LAW - working with children - application for an enabling order - applicant a ‘disqualified person’ having been convicted of a ‘disqualifying offence’ (indecent assault) – whether applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children

Catchwords:

ADMINISTRATIVE LAW – Child Protection – Working with Children – Disqualifying Offences – Administrative Review

Catchwords:

ADMINISTRATIVE REVIEW - tattoo parlours – tattoo operator licence - adverse security determination - fit and proper person - public interest

Catchwords:

OCCUPATIONS — legal practitioners — solicitors — non-publication orders — whether principles of res judicata apply — open justice — whether “desirable” to make order

Catchwords:

COSTS — party/party — specific court rules in relation to costs — action which should have been brought in inferior court — significance of concurrent proceedings and jurisdiction of the District Court

Catchwords:

HEALTH — professional registration and discipline — complaints — stay application — concurrent court proceedings — common evidence — different nature of proceedings — stay refused

Catchwords:

WORKERS COMPENSATION – referral of medical dispute to approved medical officer – assessment of permanent impairment – whether approved medical officer is confined to an assessment of the body parts and systems specified by the Registrar in the referral form WORDS AND PHRASES – “medical dispute”

Catchwords:

DEVELOPMENT APPLICATION – child care centre – streetscape impacts – acoustic impacts

Catchwords:

CRIME – appeals – appeal against sentence – findings of pre-meditation and planning - whether findings made which were inconsistent - whether erroneously taken to be aggravating factor on sentence – held no inconsistency in judge’s findings – leave granted - appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – where a majority verdict direction was given instead of a Black direction – whether a miscarriage of justice occurred by the failure to give a Black direction – direction was not a proper perseverance direction – appeal allowed – quash the verdicts of guilty returned by the jury – retrial ordered

Catchwords:

BUILDING AND CONSTRUCTION – civil procedure – application to amend Technology and Construction List Response – proposed amendment to limitation defence based on construction of Home Building Act 1989 (NSW), ss 18C and 18E and schedule 4, clause 109 – defendants had previously withdrawn limitation defence – prejudice to the plaintiff if limitation defence now re-introduced – whether consistent with overriding purpose and dictates of justice to grant leave to amend – leave refused CIVIL PROCEDURE – application for leave to file a cross-summons and list cross-claim statement against sub-contractors of the defendant builder – where no material facts pleaded or alleged defects particularised in support of the allegations – application dismissed

Catchwords:

MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Personal Property Securities Register — Application under s 182 of the PPSA — Where amendment demand made under s 178 of the PPSA — Where interest recorded on PPSR exceeds terms of contractual agreements between the parties.