Browse decisions Displaying 1 - 200 out of 91940 results

Catchwords:

DEVELOPMENT APPEAL – semi-detached dwelling development – heritage conservation – conciliation conference – agreement between the parties - orders

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APPEAL – costs – transfer of proceedings to Local Court – whether Tribunal erred in exercise of costs discretion

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SECURITY LICENCE – revocation – fit and proper person – public interest – discretion – master licence – additional responsibilities

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ADMINISTRATIVE REVIEW – personal information – review of conduct of agency admitted to be a contravention of Privacy and Personal Information Protection Act 1998 – order for compensation

Catchwords:

LEASES AND TENANCIES – Retail Leases Act 1994 (NSW) – whether a retail tenancy existed over premises – director of tenant remaining in possession to knowledge of landlord after deregistration of tenant – oral agreement for tenancy – whether tenant entitled to withhold rent unless provided with a tax invoice – no condition in tenancy agreement permitting tenant to withhold rent – claim for damages by tenant following termination

Catchwords:

LEASES AND TENANCIES – Residential (Land Lease) Communities Act 2013 (NSW) – jurisdiction of Tribunal – agreement between park operator and resident satisfied the definition of site agreement in s 4 of the Act – extension of time for bringing of objection to increase in site fees – s 41 of the Civil and Administrative Tribunal Act 2014 (NSW) permits the Tribunal to extend the time for bringing an objection to an increase in site fees.

Catchwords:

Security licence – whether offence related to a “weapon” - mandatory revocation

Catchwords:

DEVELOPMENT APPLICATION – first floor alterations and additions – whether the bulk, scale and setbacks are appropriate – period development controls – consideration of neighbours’ objections – appeal upheld

Catchwords:

COSTS — Party/Party – usual rule that each party bear their own costs – application found to be frivolous, vexatious, misconceived and lacking in substance – special circumstances justifying an order for costs

Catchwords:

ADMINISTRATIVE LAW – government information – preliminary question - whether the board of a local health district is an public authority.

Catchwords:

FREEDOM OF INFORMATION – government information - misconduct investigation into allegations of breach of confidence and privacy – witness evidence received in confidence – results of investigation – personal information – personal factors.

Catchwords:

Victims Rights and Support – administrative review – act of violence – standard of proof

Catchwords:

CONTRACTS — Construction and interpretation — Parol evidence rule — evidence of subsequent conduct inadmissible in the interpretation of a contract wholly in writing — Termination — Breach of term — Remedies — Damages — After repudiation – Quantum Meruit - Contract price providing a ceiling on amount recoverable

Catchwords:

LAND LAW – possession – application for stay of execution of writ of possession – application refused

Catchwords:

PRACTICE AND PROCEDURE – defamation proceedings set down for hearing in August 2019 for a 5-day hearing in June 2020 – defendants bring application in December 2019 for affidavit evidence at the trial – plaintiffs offer to provide outlines of evidence or, alternatively, witness statements – no provision in the UCPR (rr 31.1 and 31.4) containing any provisions for outlines – circumstances in which statements, affidavits or outlines may be ordered in defamation proceedings – timetable for statements and outlines made – case management issues – long history of brinkmanship in relation to interlocutory argument – potential for ambush at the trial – timetable for parties to provide a list of issues still in dispute

Catchwords:

Service station – traffic safety and flow efficiency – design excellence

Catchwords:

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

Catchwords:

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

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

Catchwords:

ADMINISTRATIVE LAW — jurisdictional error — judicial review of Valuer-General’s compensation determination — where comparable sales method employed — whether alleged error in applying comparable sales method amounts to jurisdictional error   VALUATION — compulsory acquisition — compensation — disturbance — whether error in allowing claim for stamp duty and relocation costs where land valued based on development potential — whether jurisdictional error   VALUATION — compulsory acquisition — powers of Valuer-General under the Land Acquisition (Just Terms) Compensation Act 1991 (NSW) — power to redetermine compensation determination once made

Catchwords:

APPEAL - Civil and Administrative Tribunal (NSW) – Home Building – Review of decision to refuse application for contractor licence – Whether Tribunal denied appellant procedural fairness – Whether Tribunal biased – Whether Tribunal had regard to an irrelevant consideration – Whether the Tribunal’s decision was legally unreasonable

Catchwords:

PRACTICE AND PROCEDURE - bias - whether appeal hearing should be dispensed with and appeal determined 'on the papers' without an oral hearing   PRACTICE AND PROCEDURE – allegation of bias – application for recusal of member conducting call-over

Catchwords:

EQUITY — equitable remedies — injunctions — Interlocutory injunction — where first defendant a former employee of the plaintiff which is a not-for-profit company offering disability services to customers — where first defendant established the second defendant through which to conduct a business that offers disability services to customers — plaintiff alleges first defendant in breach of confidentiality clause and restraint of trade clause in former employment contract — prima facie case established — balance of convenience — consideration of the impact of an injunction on third parties — not appropriate at the present time to grant injunctive relief   RESTRAINT OF TRADE — general principles governing enforcement of restraint of trade provisions — whether the alleged breach infringes the terms of the restraint — where restraint of trade clause has no temporal or geographical limitation

Catchwords:

COSTS – Whether special circumstances warranting an award of costs – No special circumstances

Catchwords:

DEVELOPMENT APPLICATION – demolition of two dwellings and construction of a residential flat building – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT– Demolition of existing demountable building and construction of new pub – conciliation conference – agreement between the parties – orders

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DEVELOPMENT APPLICATION: subdivision

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

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HUMAN RIGHTS – interim order – prima facie case – balance of convenience – complaints of victimisation and discrimination on ground of disability

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GOVERNMENT INFORMATION – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure

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LAND LAW - Strata title - Owners corporation – By-laws

Catchwords:

ADMINISTRATIVE REVIEW – application for administrative review of decision to revoke a security industry licence issued under the Security Industry Act 1997 – revocation mandatory under s 26A of under the Security Industry Act 1997 – application in proceedings made for summary dismissal under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 – administrative review application dismissed as lacking in substance and misconceived

Catchwords:

COSTS – departure from the usual rule – public interest litigation – where plaintiffs were wholly unsuccessful in their claim against the first defendant which is a political party registered under the Electoral Act 2017 (NSW) – where plaintiffs seek orders that the first defendant pay their costs and the costs of the active defendants – where plaintiffs and other defendants members of the first defendant – where plaintiffs claim to have no vested financial or political interest in the proceedings – where proceedings involved no question of public importance – where outcome would only affect a small number of people – no reason to depart from the usual rule   COSTS – pre-commencement costs of proceedings – whether Court has power to award pre-commencement costs of proceedings – where a substantial amount of legal work was undertaken well before the originating process was filed – where the dispute ripened into litigation in an extraordinarily fast fashion – good reason to make a specific order that costs be awarded from a date before the filing of the summons – Chow v Chow (No 2) (2015) 229 BPR 35,385; [2015] NSWSC 1348 applied

Catchwords:

ADMINISTRATIVE LAW – review under section 27(1) Child Protection (Working with Children) Act 2012 (NSW)child protection – working with children - risk to children whether risk real and appreciable– indecent assault contrary to s 61L Crimes Act 1900 (NSW)– enabling order – discharge onus -would a reasonable person allow unsupervised access to their own child in context of child related work

Catchwords:

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

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION – alterations to, and change of use of, existing terrace – conciliation conference – agreement between the parties – orders

Catchwords:

STRATA TITLE – appeal from order of Tribunal awarding damages for breach of statutory duty – whether s 232 of the Strata Schemes Management Act 2015 confers order making power on the Tribunal to order damages under s 106(5)   STATUTORY INTERPRETATION – meaning of phrase “make an order to settle a complaint or dispute about any of the following” in s 232 of the Strata Schemes Management Act 2015

Catchwords:

PUBLIC SECTOR DISCIPLINARY APPEAL – Senior Technical Policy Advisor – termination of employment – unsatisfactory performance – Informal Performance Improvement Plan – Formal Performance Improvement Plan – appellant contracted Legionnaires’ disease – work performance affected by major depression – reinstatement ordered – no order for back pay

Catchwords:

LICENSING – firearms – licence revocation – domestic circumstances – public interest – safe storage – whether real and appreciable safety risk.   WORDS AND PHRASES – “premises”

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PROFESSIONS AND TRADES – Dentistry – self-prescribing – fraudulent prescribing – prescribing in breach of conditions – prescribing while suspended – criminal convictions – impairment – competence to practise

Catchwords:

PROFESSIONS AND TRADES – legal practitioner – professional disciplinary proceedings – professional misconduct and unsatisfactory professional conduct – attempting to mislead a fellow practitioner concerning receipt of trust monies and payment of court filing fees – failure to comply with undertaking to transfer trust monies – misappropriation of trust monies

Catchwords:

COSTS – departure from the usual rule – where the plaintiff formally abandoned a substantial part of her case immediately before the final hearing – where plaintiff accepted earlier offer made by the defendant that in return for the plaintiff abandoning several issues, each party would bear their own costs of the issues to be abandoned – where plaintiff successful on remaining issue at a final hearing – appropriate that the defendant pay the plaintiff’s costs of the remaining issue up to the date of accepting the defendant’s offer and the costs of the proceedings thereafter

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – proposed implementation of new procedures – whether such implementation is “organisational change” for the purposes of the relevant awards – whether dispute resolution procedures require maintenance of status quo pending determination of the dispute

Catchwords:

APPEAL – Residential tenancy, social housing, termination, discretion, s91, 154D, unlawful use of the premises

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – award interpretation – meaning of the word “arrangement” in the phrase “industrial instrument or arrangement” – whether a system of regulation of employment conditions through employment contracts is an “arrangement” for the purposes of the award – whether such a system “comprehensively determines conditions of employment” so as to oust the operation of the award

Catchwords:

COSTS – consequential costs orders – where a number of issues not determined in the principal judgment – whether it is appropriate for the Court to make a specified gross sum costs order – further consideration by the parties required

Catchwords:

LANDLORD AND TENANT-residential tenancy agreement- agreement to reduce rent- appeal on a question of law

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ANTI-DISCRIMINATION – application for leave to proceed with complaint - complaint of disability discrimination in employment – whether fair or just to grant leave

Catchwords:

APPEAL – Whether respondent correctly named – whether question of law – leave to appeal

Catchwords:

PROFESSIONS AND TRADES – health practitioner – nurse – conviction of criminal offences – failure to notify charge and conviction – impairment – appropriate protective orders

Catchwords:

Complaint declined and referred by President ADNSW - disability discrimination in education

Catchwords:

ADMINISTRATIVE LAW — workers compensation — worker’s thumb crushed and amputated in workplace accident — judicial review of decision of appeal panel convened under s 328 of the Work Place Injury Management and Workers Compensation Act 1998 — where appeal panel confirmed medical assessment certificate determining worker’s whole person impairment at 14% — whether constructive failure to exercise appeal panel’s jurisdiction

Catchwords:

APPEAL – development control order – demolish works order – stairway constructed on public reserve – statutory requirements for the issue of the order met – discretion as to whether order should remain or be revoked in circumstances where the Council’s own actions and plan of management supported the construction of the stairs – discretion exercised to vary the order to allow them to remain with work to be carried out

Catchwords:

ADMINISTRATIVE REVIEW – health information – review of conduct of agency admitted to be a contravention of Health Privacy Principle

Catchwords:

ADMINISTRATIVE REVIEW – decision to grant contractor licence under Home Building Act 1989 (NSW) – whether applicant is fit and proper person

Catchwords:

ADMINISTRATIVE LAW – privacy – personal information – alleged disclosure of personal information about the applicant – absence of evidence of breach

Catchwords:

EQUAL OPPORTUNITY - leave required for complaint to proceed - principles applying to grant of leave EQUAL OPPORTUNITY - disability and race discrimination in education

Catchwords:

DEVELOPMENT APPLICATION: Conversion of existing building – whether the proposed development will have a detrimental impact on the heritage significance of a contributory building in a heritage conservation area – whether the methodology of retaining the existing fabric is sufficiently certain – whether there is an unreasonable uncertainty of impacts to the building - appeal dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – iconic views

Catchwords:

ORDER – appeal – prevention notice - conciliation conference – agreement between the parties – orders

Catchwords:

ORDER – appeal – conciliation conference – agreement between the parties – orders

Catchwords:

PROFESSIONS AND TRADES – registered midwife – breach of conditions – failure to advise of conditions – false statement to council – unethical behaviour

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FREEDOM OF INFORMATION – government information – whether information held by agency – whether reasonable searches conducted.

Catchwords:

ADMINISTRATIVE LAW – person under guardianship – review of decision of Public Guardian that person be accommodated in aged care facility – correct and preferable decision – welfare and interests of person to be given paramount consideration

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APPEAL – home building – claim for variations on quantum meruit basis – leave to appeal refused – no error of law – leave to appeal declined

Catchwords:

INTERLOCUTORY ORDER – decision of Public Guardian – application for administrative review – whether order staying the operation of the decision should be made

Catchwords:

LICENSING – firearms - confidentiality.

Catchwords:

COSTS – departure from the usual rule – defendants unsuccessful in seeking orders to retrain plaintiff’s solicitor on the record from further acting in the proceedings and for the production of documents in Amended Notice of Motion – where basis for relief in respect of restraining the plaintiff’s solicitor was tenuous – where defendants justified for a period of time in pursuing relief in respect of the orders for production of documents – appropriate that the defendants pay one half of the plaintiff’s costs of the Amended Notice of Motion

Catchwords:

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

Catchwords:

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

Catchwords:

DEVELOPMENT APPEAL – residential apartment development – Apartment Design Guide – SEPP 65 – mixed use development – conciliation conference – agreement between the parties - orders

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DEVELOPMENT APPLICATION – seniors living development – conciliation conference – agreement between the parties – orders

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COMPULSORY ACQUISITION – conciliation conference – agreement between the parties – orders

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DEVELOPMENT APPLICATION – proposed construction of a dwelling house with on-site sewage disposal – Subject Site is flood liable land – Court cannot be satisfied that flooding risk to property and life is managed – insufficient information to assess adequacy of proposed sewage management

Catchwords:

APPEAL – development application – seniors living - conciliation conference – agreement between the parties – orders

Catchwords:

APPEAL – development control order – conciliation conference – agreement between the parties – orders

Catchwords:

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

Catchwords:

Practice and procedure – interlocutory applications.

Catchwords:

Practice and procedure – recusal.

Catchwords:

ADMINISTRATIVE REVIEW – Home Building – Application for contractor licence – general building work - where applicant does not meet requirements of an instrument - where the instrument is policy rather than delegated legislation – whether the applicant has experience in a wide range of building construction work - applicant cannot verify their own experience.

Catchwords:

SUCCESSION - executors and administrators - rights, powers and duties – settlement of contested probate proceedings – order whereby second plaintiff appointed administrator with obligation to pay agreed sum to defendant - failure by administrator to pay legacy – extension to pay sought – extension refused

Catchwords:

COSTS – indemnity costs – withdrawal of proceedings – Calderbank letter

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COSTS – various motions – consent orders, except as to costs – discussion of principles and application to facts

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Practice and procedure – orders restricting or prohibiting publication - recusal

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DEVELOPMENT APPEAL – centre based childcare facility – acoustic amenity in residential neighbourhood – traffic impacts in R2 Low Density Residential zone – public interest – resident submissions

Catchwords:

CONSUMER LAW – Australian Consumer Law and Fair Trading Act – misleading or deceptive conduct – unconscionable conduct – sale of “movable” and “immovable” dwellings affixed to a site – sites approved for short-term occupation only – purchased after representations as to “permanent living” for retirees – analysis of provisions – factual summary – orders to be made for declarations and compensation – leave to apply for injunctions if conduct were to continue – plaintiff directed to file orders to reflect reasons

Catchwords:

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of holders of ordinary and preference shares to consider and, if thought fit, approve proposed schemes of arrangement – whether requirements to order scheme meetings are satisfied.

Catchwords:

Security licence – mandatory revocation – application by Respondent to dismiss the Application for Review – whether application “otherwise misconceived or lacking in substance

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, approve a proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied.

Catchwords:

DEVELOPMENT APPEAL – two lot strata subdivisions – dual occupancy (attached) dwellings – minimum lot size

Catchwords:

APPEAL – SENTENCE – offender pleaded guilty to a number of sex offences committed over 10 year period against his sister between 1967 and 1977 – unlawful and carnal knowledge of a girl between 10 and 16 contrary to s.71 Crimes Act – incest offence contrary to s.78A Crimes Act – two offences of rape contrary to s.63 Crimes Act – two further offences of indecent assault taken into account on a Form 1 – offences representative of sexual offending against sister over a period of 13 years – whether sentencing Judge erred in assessment of objective seriousness of the rape offences – no error demonstrated in approach taken by sentencing Judge to assessment of objective seriousness – findings of objective seriousness open to the sentencing Judge – whether aggregate sentence imposed was manifestly excessive – where challenges directed to indicative sentences – whether degree of notional accumulation reflected sentencing practices at the time of the offences – where indicative sentences nominated were substantial but not suggestive of error – where sentencing Judge had regard to sentencing principles and practice at time of offending conduct – no error demonstrated in approach taken by sentencing Judge to historical sex offences – aggregate sentence not unreasonable or plainly unjust – appeal dismissed

Catchwords:

APPEAL – SENTENCE – offender convicted of manslaughter following trial for murder – offender requires an extension of time – offender was party to a joint criminal enterprise – whether sentencing Judge took into consideration a factor which was inconsistent with verdict of the jury – where fair reading of sentencing remarks demonstrated no error – where change in language was a slip – claims of errors in finding aggravating factors in s.21A(3) Crimes (Sentencing Procedure) Act 1999 – whether offence was a “part of a planned or organised criminal activity” – error established – whether offence aggravating because of substantial injury, emotional harm, loss or damage – where finding made by sentencing Judge open in circumstances where family of victim were physically present at time of offence – whether sentencing Judge impermissibly double counted offender’s previous criminal history – no double counting demonstrated – whether offence aggravated because it was committed “in company” – where being in company was an integral component of the offence – error established – interests of justice warranted grant of an extension of time – later sentence imposed for offence of recklessly wounding a law enforcement officer – assault on correctional officer while offender on remand – issue of totality to be considered on resentencing for manslaughter – special circumstances – offender resentenced

Catchwords:

EVIDENCE — privileges — self-incrimination privilege — consideration of s 89A of the Evidence Act 1995 (NSW) — where accused exercised right to silence during police questioning — where jury directed that an adverse inference from accused’s silence was open — whether s 89A applicable   CRIMINAL PROCEDURE — trial — Browne v Dunn — where accused’s explanation for silence is reliance on legal advice — where explanation unchallenged — whether invitation to draw adverse inference a miscarriage of justice   CRIME — appeals — appeal against conviction —application of proviso — whether substantial miscarriage of justice   CRIMINAL PROCEDURE — trial — cross-examination and summing up —where Crown cross-examination and summing up undermined accused’s evidence of good character — where no remedial direction given — whether miscarriage of justice

Catchwords:

COSTS — whether special circumstances warranting an award of costs are established

Catchwords:

COSTS – where interlocutory process did not proceed to hearing – where outcome could be predicted with confidence.

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APPEAL – modification of Concept Plan – incorporation of helipad adjacent to the Marina – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – boarding house – view loss – exceedance in height standard – cl 4.6 request for variation – character – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – residential dwelling – view loss – coastal protection – character – conciliation conference – agreement between the parties – orders

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PROFESSIONS AND TRADES – health care professionals – medical practitioner – where professional misconduct established – appropriate protective orders

Catchwords:

DEVELOPMENT APPLICATION – heritage rock platform - conciliation conference – agreement between the parties – orders

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CRIME – conviction appeal – whether unreasonable verdicts – sexual and violent acts committed against de facto partner – whether jury’s verdicts of not guilty on ten counts and guilty on three others are inconsistent – logical and reasonable explanations available for verdicts – appeal dismissed

Catchwords:

CRIME — appeals — application for leave to appeal against sentence — offences of bribery of a public official, aid and abet importation of tobacco products knowing of an intent to defraud revenue and dealing in proceeds of crime greater than $100,000 — where applicant formerly employed as a Customs Officer — whether sentencing judge erred by considering fact of applicant's former employment as a Customs Officer as a matter seriously aggravating the offending — whether offending constituted an abuse of trust or authority — whether sentencing judge erroneously dismissed applicant's prior good character as a relevant mitigating factor — whether sentence was manifestly excessive — appeal allowed — resentence

Catchwords:

Appeal – application for costs – applicable principles in appeals from decisions of the Consumer and Commercial Division – costs order made.

Catchwords:

ADMINISTRATIVE LAW – Government Information (Public Access) Act – GIPA – sufficiency of evidence to establish factors against disclosure – weight to apply significantly to factors against disclosure – personal factors of application – weight to apply to those factors – currency of investigation

Catchwords:

PRACTICE AND PROCEDURE - appeal from decision under Community Housing Providers National Law to cancel housing provider’s registration – scope of decision being appealed   PRACTICE AND PROCEDURE – appeal from decision under Community Housing Providers National Law – legislation silent on nature of appeal – whether appeal within general jurisdiction or appeal jurisdiction - whether external appeal - nature and extent of appeal – whether strict appeal, rehearing or new hearing – whether new evidence can be introduced on appeal

Catchwords:

ADMINISTRATIVE LAW — Working with children — Application for enabling order — Where applicant committed offence of indecent assault involving an adult — Whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children

Catchwords:

LICENSING - firearms – licence revocation – breach of provisions regulating transportation of firearms – whether fit and proper person – good behaviour bond for prescribed offence – public interest - safe storage – exercise of discretion.   WORDS AND PHRASES – “in battery”.

Catchwords:

TORTS — negligence — liability — prison authority — where respondent victim of prison assault causing serious injury — where prison authority informed of threat — whether failure to segregate and arrange for transfer breach of duty of care — consideration of powers to order segregated custody under the Crimes (Administration of Sentences) Act 1999 (NSW)

Catchwords:

DEVELOPMENT APPLICATION – construction and operation of a helipad – conciliation conference – agreement between the parties – orders

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

Catchwords:

DEVELOPMENT APPLICATION – Earthworks – proposed clearing of an endangered ecological community – species impact statement – significant impact on an endangered ecological community – significant impact on threatened species – functionality of ecological corridor adversely impacted – development application does not comply with cll 7.6 and 7.31 of Liverpool Local Environment Plan – regard had to objectives of IN3 zone – retention of ecologically significant land not incompatible with zoning

Catchwords:

JUDGMENT AND ORDERS – application to vacate hearing dates – hearing on a separate question ordered on hearing dates – hearing dates not vacated – respondents to take all reasonable steps to have Class 1 appeal concerning modification application heard and determined expeditiously – respondents to pay the applicant’s costs of the motion

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CIVIL PROCEDURE – alternative dispute resolution – court referral to referee – orders made to give effect to referee’s report.

Catchwords:

CRIME – appeals – appeal against conviction – whether substantial miscarriage of justice by reason of appellant being tried jointly with co-accused – whether evidence led in joint trial inadmissible against appellant highly prejudicial

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to two drug supply offences – further offences taken into account on sentence – applicant made nine separate supplies to undercover police operatives – seven of the supplies involved methylamphetamine and two involved inert substances – where the sentencing judge assessed the objective seriousness of the offending collectively – where the parties had made submissions on the objective seriousness of the offending collectively – sentencing judge made reference to the relevant matters in assessing the objective seriousness of the offending – no error shown – whether the sentencing judge erred in fixing the commencement date of the sentence – where the commencement date did not accord with the sentencing judge’s decision to backdate the sentence – error demonstrated – no need to engage in the resentencing exercise

Catchwords:

CRIME – Terrorism offences – Membership of a terrorist organisation – Member of Partiya Karkerên Kurdistanê (PKK) between 2011 and 2013 – Travelled with military arm, supported in writings, wore uniform and insignia and carried arms – - Sentencing judge found to be towards the lowest order of seriousness - Sentenced to Community Correction Order.   SENTENCING – Relevant factors on sentence – Objective seriousness – Terrorism – Membership of terrorist organisation – Whether appropriate to take into account the merits of the organisation – Merits of the cause is not a relevant factor - Consideration of ideology – Matter for the legislature.   SENTENCING – Relevant factors on sentence – Objective seriousness – Terrorism – Membership of terrorist organisation – History and objectives of organisation relevant – Fact organisation does not advocate nor engage in indiscriminate killing of civilians relevant – Organisation and resources of organisation relevant – Commitment to international humanitarian law not relevant – Classification of conflict not relevant.   SENTENCING – Relevant factors on sentence – Moral culpability – Relevant that joined organisation and maintained membership with full knowledge of objectives and method – Belief in the rightness of the cause not relevant – Reasons for joining organisation due to cruel treatment mitigates culpability.   SENTENCING – Error found – Exercise of residual discretion not to interfere with sentence.

Catchwords:

CRIME – sentence – cultivation of commercial quantity of cannabis plants and supply of methylamphetamine – assessment of objective gravity – whether objective seriousness was “moderate” – prospects of rehabilitation – whether there was evidence to support offender’s “work ethic” claim

Catchwords:

CRIME – sentence – importation of commercial quantity of border controlled drug – assessment of objective gravity – whether primary judge found that objective seriousness of offender’s offence was “right at the utmost upper end of the upper range” – whether manifest excess – appeal dismissed

Catchwords:

CIVIL LAW - real property - possession - action by mortgagee - mortgage over interest of a tenant in common - mortgagee former brother-in-law of mortgagor - sale of property between husband and wife - ongoing family law proceedings - whether deed of mortgage was a sham - whether deed of mortgage complied with s 38(1) Conveyancing Act - four different copies of deed - tort of deceit - part performance - confusing series of transactions - credibility of witnesses - whether money repaid pursuant to the mortgage

Catchwords:

JUDICIAL REVIEW – identification of “coastal wetlands and littoral rainforests area” in s 6 of the Coastal Management Act 2016 being land identified by State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP)) of “being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests” not a jurisdictional fact   JUDICIAL REVIEW – identification of 100-metre proximity area around coastal wetlands not a disproportionate regulatory approach   JUDICIAL REVIEW – CM SEPP not invalid because Governor did not approve “Coastal Wetlands and Littoral Rainforests Area Map” at time of making CM SEPP

Catchwords:

CORPORATIONS - winding up – liquidators – past and future remuneration - where application opposed – where significant steps were required to be taken in respect of litigation – where limited assets remaining in company – whether remuneration should be approved.

Catchwords:

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – where formal requirements satisfied – whether scheme of arrangement should be approved.

Catchwords:

JUDICIAL REVIEW – application seeking declaratory relief in relation to decisions made by the Minister and Council to prepare, certify and adopt the Great Lakes Coastal Zone Management Plan – whether the applicant has standing – whether the impugned decisions were unreasonable – whether there was non-compliance with the Coastal Protection Act 1979 (NSW) and Guidelines for Preparing Coastal Zone Management Plans – whether there was a deficiency of information for the Great Lakes Coastal Zone Management Plan – whether there was a rational basis for the risk assessment in the Great Lakes Coastal Zone Management Plan – application dismissed

Catchwords:

COSTS – costs of unsuccessful application to set aside examination summonses and associated applications.

Catchwords:

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – approval of supplementary disclosure.

Catchwords:

TORTS – malicious prosecution – appellant convicted of murder – conviction subsequently quashed by Court of Criminal Appeal – appellant brought proceedings against respondent for malicious prosecution – whether primary judge erred in failing to find that the Crown Prosecutor acted with malice in prosecuting appellant – appellant did not contend any error in application of principle – whether cumulative errors established malice – whether error in approach by primary judge – whether error in demeanour-based credit findings – whether prosecutor’s explanations for his conduct were so untenable that they must be rejected – whether malice established

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – SEPP 65 Design quality of residential apartment development – conciliation conference – agreement between the parties – orders

Catchwords:

CRIME – Federal Offences – Conspiracy – Dishonestly cause a loss or risk of loss to the Commonwealth – s 135.4(5) Criminal Code - False depreciation claims in company tax returns – Loss to Commonwealth in excess of $100 million   CRIME – Federal Offences – Conspiracy – Dealing with property of a value of $1 million or more believing it to be the proceeds of crime – ss 11.5(1) and 400.3(1) Criminal Code.   CRIME – Appeals – Appeal against conviction – Whether trial judge improperly applied pressure to jury interfering with free deliberation – s 80 Commonwealth Constitution – Jury notes – Trial judge refused request to adjourn for juror to attend job interview – Trial judge refused request to provide a second letter to juror’s employer.   CONSTITUTIONAL LAW – Commonwealth Constitution – s 80 – Trial by jury – Constitutional contention - Whether trial judge breached s 80 by interfering with jury.   CRIME – Appeals – Appeal against conviction – Admissibility of evidence - Whether evidence of Amended Tax Assessments irrelevant and inadmissible as disclosed opinion of Commissioner of Taxation.

Catchwords:

TORTS - Negligence - Proof of negligence HIGHWAYS - construction, maintenance and repair of footpaths NONFEASANCE – immunity from suit pursuant to statute

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – alterations and additions to a local heritage item – exceedance of the height of buildings development standard

Catchwords:

CONTRACTS – construction – whether parties to a Deed of Cross Guarantee guaranteed the obligations of all entities named in the Schedule to the Deed

Catchwords:

PROFESSIONS AND TRADES – health and professionals – medical practitioners – disciplinary proceedings

Catchwords:

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

Catchwords:

CRIMINAL LAW – sentence appeal – sexual intercourse without consent contrary to s 61I of the Crimes Act – contravene apprehended domestic violence order on s 166 certificate – guilty pleas – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in approach to applicant’s intellectual disability – whether sentencing judge erred by failing to give effect to finding of special circumstances – whether sentence is manifestly excessive

Catchwords:

PROFESSIONS AND TRADES – health and professionals – medical practitioners – disciplinary proceedings – application for cancellation of registration – costs

Catchwords:

CRIME – environment and planning – appeals – appeal against sentence – inadequacy – whether sentencing judge erred in assessment of seriousness – evidence of state of mind of corporation   CRIME – environment and planning – appeals – appeal against sentence – inadequacy – whether sentencing judge erred in application of De Simoni principle – whether moral culpability a factor   EVIDENCE – exclusion of evidence – whether unfairly prejudicial to accused   SENTENCING – EPA appeal against inadequacy of sentence – where grounds of appeal made out – whether Court should exercise discretion to intervene

Catchwords:

COSTS – party/party – appeals – court’s discretion – where appellant filed a submitting appearance and did not cause or contribute to the first respondent’s costs in the proceedings below – where appellant did not cause the errors the subject of the proceedings below – where the proceedings below could not be resolved by consent – whether failure by primary judge to take into account considerations relevant to the costs discretion – order as to costs set aside   COSTS – appeals – Suitors’ Fund – whether decision of claims assessor under the Motor Accidents Compensation Act 1999 (NSW) is a decision of a “court or tribunal” for the purposes of the Suitors’ Fund Act 1951 (NSW) – whether judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) constitutes “an appeal” for the purposes of s 6 of the Suitors’ Fund Act

Catchwords:

BUILDING AND CONSTRUCTION — liability of contractor for breach of statutory warranty under s 18B of the Home Building Act 1989 (NSW) — scope of s 18F defence to a contravention of a statutory warranty under s 18B of the Home Building Act   CONTRACT — ascertaining parties to contract

Catchwords:

APPEAL – whether leave should be given to appeal two interlocutory decisions – no issue of principle

Catchwords:

DEVELOPMENT APPLICATION – infill affordable rental housing – conciliation conference – agreement between the parties – orders

Catchwords:

ADMINISTRATIVE LAW- Working with Children check clearance sought by way of an enabling order) - disqualifying offences – allegations of child neglect and abuse – whether substantiated – whether a real and appreciable risk to the safety of children – reasonable person test

Catchwords:

WORKERS’ COMPENSATION – Entitlement to lump sum compensation – Causal relation between injury and incapacity - The extent to which the first respondent’s present permanent impairment is the result of the first injury as distinct from the second injury.   ADMINISTRATIVE LAW – Jurisdictional error or error of law on the face of the record – Whether the Appeal Panel of the Workers Compensation Commission of NSW in certifying that the percentage whole person impairment of the first respondent as a result of the first injury was 6% committed jurisdictional error or an error of law on the face of the record.

Catchwords:

APPEAL – development application – mixed use development – breach of height development standards – heritage item – amenity – public interest

Catchwords:

CONTRACTS — Breach of contract — Breaches of implied obligations of vendor under contract for the sale of business and sublease — Derogation from the relevant grants in circumstances where the purchaser was completely denied possession and use of the premises and was prevented from conducting the business purchased, and where the vendor sought to recapture as much of the benefit of the goodwill sold as possible — Transaction documents validly terminated in the circumstances   CONTRACTS — Breach of contract — Consequences of breach — Total failure of consideration argument rejected — Purchaser’s entitlement is to damages against the vendor — Calculation of damages   CONTRACTS — Unconscionable conduct —Unconscionable conduct within the meaning of s 21 of the Australian Consumer Law — Relationship between breach of contract and unconscionable conduct   TORTS — Miscellaneous torts — Interference with contractual and other relations — Liability for inducing breach of contract — Director not liable for causing breach of contract by company   CONTRACTS — Construction — Context — Where the parties entered into a suite of transaction documents at or around the same time to give effect to a bargain — Transaction documents to be read together

Catchwords:

EQUITY – fraud - respondent’s wife defrauded employer of over $3.5 million and deposited into bank accounts in her name and accounts held jointly by herself and respondent - respondent’s wife paid money realised from gambling into respondent’s bank accounts - appellant sought various orders in aid of the recovery of the amount defrauded – primary judge dismissed all claims except one against respondent – whether primary judge erred in finding that respondent did not knowingly deal with monies obtained by dishonest means and is not personally liable to appellant – whether primary judge erred in failing to find that the respondent knowingly dealt with monies obtained by dishonest means when withdrew $20,000 after receiving summons and is personally liable to appellant for this amount – whether primary judge erred in failing to find that respondent personally liable to account to the appellant as a constructive trustee.

Catchwords:

MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Power of sale — Mortgagee’s duty to exercise power of sale in good faith — Consideration of whether the duty is fiduciary in nature — Whether the mortgagor’s interests have been “sacrificed” — Whether the duty extends beyond the achievement of a fair price — Relevance of collateral purposes of the mortgagee, if any — Mortgagee not obliged to act as if mortgagor had a right of first refusal — Whether mortgagee obliged to provide payout figure to mortgagor — Reasonableness of mortgagee’s refusal to provide complex payout figure in circumstances of mortgagor’s many prior failed attempts at redemption   MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Power of sale — Mortgagee’s duty to exercise power of sale in good faith — Consideration of alleged breaches of mortgagee’s duty of good faith — Where breaches alleged relate to entry into contract for sale, terms of contract for sale, performance of contract for sale, variation of contract for sale, failure to investigate proposed transaction for redemption by mortgagor, providing finance to purchaser, misrepresentation to mortgagor of terms of contract for sale — In circumstances where the mortgagor was at no time ready willing and able to redeem the mortgage — Breach of duty only found in relation to words and conduct of mortgagee which resulted in the mortgagor losing the chance to obtain $4.25 million by the payment of the higher of two purchase prices in the contract for sale   MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagor — Equity of redemption — Consideration of the equity of redemption in the context of Torrens system land — Consideration of when the equity subsists, is suspended, or is extinguished — Requirements for redemption by mortgagor — Equity of redemption suspended during period in which contract for sale is on foot — Where completion of contract for sale is subject to a condition subsequent   LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud — Allegations of fraud of mortgagee — Concepts of statutory fraud and breach of equitable duty of good faith distinguished — Where fraud case put on materially similar factual basis as breach of good faith case — No basis for finding of fraud or relevant dishonesty except as to the words and conduct of mortgagee which resulted in the mortgagor losing the chance to obtain $4.25 million by the payment of the higher of two purchase prices in the contract for sale — In circumstances where it would not be proper for the Court to speculate and treat a ground for suspicion regarding the joint venture negotiations as a proper basis for a finding of fraud   LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud — Whether purchaser a party to mortgagee’s fraud — Purchaser’s participation in the failure of the mortgagee to inform the mortgagor of the chance to obtain an extra $4.25 million such that purchaser was relevantly a participant in fraud of mortgagee   CONTRACTS — Misleading conduct under s 18 of the ACL and s 12DA of the ASIC Act — Misleading or deceptive conduct — Silence — Circumstances in which silence can constitute misleading or deceptive conduct — Misleading or deceptive conduct found because the mortgagee had a general duty to exercise the power of sale in good faith, which imposed a positive duty to inform the mortgagor of the extra $4.25 million — Whether purchaser has accessorial liability for involvement in such conduct   CONTRACTS — Unconscionable conduct under statute — Failure of mortgagee to inform mortgagor of extra $4.25 million was unconscionable in the relevant sense, because in this respect the mortgagor was vulnerable and good conscience required disclosure — Purchaser a person involved in such conduct for reasons equivalent to finding of participation in mortgagee’s fraud   LAND LAW — Torrens title — Indefeasibility of title — Indefeasibility of third defendant’s title to two registered mortgages — Indefeasibility accepted, as the relevant fraudulent conduct did not actually cause the purchaser to become the registered proprietor of the land — Where likely that other entities would have been required to have been joined as parties — Consideration of whether third defendant was a bona fide purchaser for valuable consideration — In circumstances where mortgages held on trust for another party   MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Power of sale — Burden of proof — Whether burden of proof in relation to the duty of good faith shifts onto the mortgagee exercising the power of sale in circumstances where the mortgagee has an interest in selling to the purchaser — Where the issues in the case before the Court changed substantially after the time at which the defendants were in a practical position to change their forensic strategy   ESTOPPEL — Issue and Anshun estoppel — Where no real curial contest and no definition of issues in the first proceedings — Rejection of submission that it was unreasonable for the plaintiff not to have introduced claims in first proceedings because, although the basis for the claims was unknown, it may have been discovered had the plaintiff called upon a notice to produce — Sufficient to decide that the plaintiff is not estopped from pursuing the claims upon which it has succeeded   CIVIL PROCEDURE — Pleadings — Fraud — Specific and particular allegations — Requirement for fraud to be pleaded and particularised — Reject plaintiff’s fraud, collusion and breach claims to the extent that such claims were not pleaded, or were otherwise introduced too late during the hearing   MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Appointment of a receiver — Whether knowledge of agent imputed to principal — In circumstances where receivers were not under any duty to inform mortgagor about the terms of the contract for sale — Where defence held not to be available on the pleadings in any case   EQUITY — Equitable remedies — Equitable interests in property — Nature of equitable interests — Consideration of appropriate remedy in relation to $4.25 million, including whether the breach or fraud should give rise to a proprietary right   EQUITY — Defences — Laches and acquiescence — Consideration of laches defence, but held inappropriate at this stage in the circumstances to exhaustively examine

Catchwords:

NEGLIGENCE – personal injury – plaintiff slipped and fell on building site – plaintiff sued occupier of site and employer – plaintiff claimed he fell while descending partially built staircase from which not all formwork had been removed – trial judge not persuaded that plaintiff's case made out – whether appellable error by primary judge in assessment of evidence – multitude of grounds advanced, all rejected – appeal dismissed

Catchwords:

CRIME – application for leave to appeal against sentence – drug supply offences – whether error to reject applicant’s evidence of no financial reward for supplies – consideration of correct approach to asserted errors of fact finding on sentence – rejection of applicant’s evidence soundly based on available inferences and well open to be made – whether error in misapplication of reasoning in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 – consideration of non-custodial sentence not available where sentence of imprisonment required and length of sentence set at 5 years – whether sentence was manifestly excessive – sentence not unreasonable or plainly unjust

Catchwords:

COSTS — party/party — general rule that costs follow the event — where multiple issues at trial — where plaintiff not successful on all issues — no issue of principle

Catchwords:

TRADE PRACTICES – misleading or deceptive conduct – sale of bull – auction catalogue – incorrect description of bull’s sire – disclaimer by vendor of correctness of information included in auction catalogue – proper characterisation of misleading or deceptive conduct – whether statement as to bull’s sire was one of fact or belief   TRADE PRACTICES – damages for misleading or deceptive conduct – damages awarded for difference between stud and commercial cattle value of subject bull’s progeny – whether primary judge awarded damages for expectation loss

Catchwords:

CHILD WELFARE — Family Law — Children in need of care and protection — Dismissal of appeal from Children’s Court in care proceedings.

Catchwords:

CONFISCATION - application for proceeds assessment order under Criminal Assets Recovery Act 1990 (NSW)– defendant failed to appear – where the defendant had engaged in serious crime related activity not more than six years prior to the filing of the summons – assessment of order - evidence of defendant's expenditure over six-year period – defendant to pay the Treasurer the amount assessed to be owing by way of proceeds – NSW Trustee and Guardian to take control of defendant’s property

Catchwords:

APPEAL – offender pleaded guilty to a range of child pornography and related offences – whether sentencing Judge erred in assessment of objective seriousness of an offence – no error in assessment demonstrated in approach taken – whether sentencing Judge erred in applying the principles in Veen v The Queen (No. 2) – offender had demonstrated a continuing attitude of disobedience to the law – no misapplication of principle – whether sentencing Judge erred in elevating sentence by reason of a Form 1 offence – orthodox approach to use of Form 1 offence on sentence – whether sentence was manifestly excessive – where reliance placed on assertions of express errors – where other sentencing decisions do not establish pattern or range – sentence was not unreasonable or plainly unjust – leave to appeal granted and appeal dismissed

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – commercial quantity drug supply offences over period of two months – possession of prohibited weapon and conduct drug premises offences – whether error in assessment of objective seriousness of drug supply offences – sentencing judge relied on incorrect reference to prescribed “large commercial quantity” for methylamphetamine – reference was misleading – error in statement as to number of drugs found in possession for purpose of supply upon arrest – no merit in grounds asserting error in relation to consideration of Form 1 offences, applicant’s cognitive ability, or parity – no merit in assertion of manifest excess – sentencing discretion re-exercised

Catchwords:

COSTS – intestate estate – plaintiff found to be de facto partner of the deceased – when multiple offers to settle proceedings made – application for payment of costs on indemnity basis from date of offer – Calderbank letter – relevant principles   SUCCESSION COSTS – intestate estate

Catchwords:

CRIME – application for leave to appeal against sentence – sexual offences – aggregate sentence imposed – whether sentencing judge erred in grouping offences into categories and nominating the same indicative sentence for each offence within the categories – whether sentencing judge erred in not finding special circumstances where he said that doing so would be a form of double counting – leave to appeal granted but appeal dismissed

Catchwords:

CRIMINAL LAW – Appeal – Sentence – Where sentencing judge imposed sentence partially cumulative on existing sentence – Where special circumstances were found – Structure of sentences such that the applicant would be required to serve 80% of his total sentence before being eligible for parole – Nothing to indicate that the sentencing judge considered the precise impact of the level of accumulation – Error established – Applicant re-sentenced   CRIMINAL LAW – Appeal – Sentence – Parity principle – Whether applicant had a justifiable sense of grievance in light of the sentence imposed on a co-offender – Clear distinguishing subjective features between the two cases – No unjustified disparity in the respective sentences imposed

Catchwords:

CORPORATIONS – shares – transfer – where parent company’s chief executive officer and founding director convicted of corporate crimes in China and imprisoned – where subsidiaries of company had an indirect interest in travel business conducted in China – where Chinese state owned corporation held the balance of the interest the travel business and contended subsidiaries’ interest obtained corruptly – where defendant directors caused shares to be transferred on an allegedly reversible basis so that a Chinese national appeared to control the subsidiary and could use her connections and influence in China to resolve the problem – where first defendant ultimately paid $2 million for the shares – whether shares were transferred for “nil” consideration and as a gift – whether directors subsequently caused a rights issue and special distribution to be effected to disguise these activities   CORPORATIONS – directors and officers – directors duties – whether directors in breach of duties concerning rights issue and special distribution to shareholders   EQUITY – fiduciary duties – whether directors duties said to be breached were fiduciary duties – whether remaining defendants knowingly involved in a breach of those fiduciary duties or knowingly received property through that breach of fiduciary duty

Catchwords:

CRIME – appeal – sentencing – offender agreed to court taking into account three offences of transporting waste to facility that cannot be used as a waste facility when sentencing him for principal offences – statutory Form 1 procedure not utilised – common law principle permitting additional offences admitted by offender to be taken into account in sentencing process – whether common law only authorises an additional offence to be taken into account in respect of a single, identified, charged offence   CRIME – appeal – sentencing – non-parole period – special circumstances – whether sentencing judge erred in not considering matters relied upon in combination – whether hardship to offender’s family may be taken into account – points not taken in court below   CRIME – appeal – whether sentencing miscarried because of incompetence of offender’s counsel – mandatory visa cancellation provisions in Migration Act engaged as a result of sentence – evidence and argument not put before sentencing judge as to mandatory cancellation of visa and its effects on the offender and his family

Catchwords:

DEVELOPMENT APPLICATION – residential aged care facility – conciliation conference – agreement between the parties – orders

Catchwords:

LANDLORD AND TENANT – renewals and options – exercise of option – commercial premises – whether email exchange constituted exercise of option – relevance of subsequent conduct – whether absence of further guarantee required by lease precluded enforceable agreement

Catchwords:

CRIMINAL LAW – Application for leave to appeal against sentence – Two offences of violence, including choking into unconsciousness – Self-represented applicant – Whether sentences should have been wholly concurrent – Whether interference warranted on any other basis – Grounds lacking in merit – Application for leave refused

Catchwords:

CRIMINAL LAW – appeal against sentence – manifest excess – domestic violence offences – whether indicative sentences demonstrated error in aggregate sentence – findings as to offender’s subjective circumstances – cumulative effect of multiple sentences

Catchwords:

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

Catchwords:

FAMILY LAW — children — adoption — application for leave to appeal against adoption order — where order opposed by biological father — whether evidence established that children capable of consenting to adoption — whether consent were given in accordance with mandatory requirements — whether proposed adoptive parents suitable — where children already cared for by proposed adoptive parents — whether adoption in children’s best interest and clearly preferable to any other course

Catchwords:

CRIME – appeals – appeal against sentence – by Crown on ground of manifest inadequacy – manslaughter – respondent received a non-parole period of 18 months with an additional term of 2 years – sentencing judge made finding of special circumstances – sentencing judge described offence as “falling below mid-range” and “towards lower end of range” – finding of objective seriousness did not reflect characteristics of offending – finding of special circumstances not justified – non-parole period did not reflect seriousness of offending – respondent re-sentenced

Catchwords:

CRIMINAL LAW – Evidence – Admissibility of credibility evidence of an accused – Where the appellant stood trial on charges of sexual assaulting a child in his care – Where the appellant relied substantially upon evidence of his good character as part of his defence – Where evidence of irrelevant matters had been excluded from a recorded interview between the appellant and police – Where such matters were specifically raised by counsel for the appellant in the appellant’s evidence in chief notwithstanding that they had been excluded by agreement – Where Crown then cross-examined the appellant in relation to such matters without a grant of leave and in breach of relevant statutory provisions – Where the Crown’s stated bases for the cross-examination were wholly inconsistent – Crown’s cross-examination entirely impermissible and grossly unfair to the appellant   CRIMINAL LAW – Summing up by trial judge – Where trial judge repeated a materially erroneous statement made by the Crown regarding certain evidence – Erroneous reference by the trial judge to “bad character evidence” – Erroneous directions given by trial judge as to the evidence of the appellant’s good character – Erroneous directions given by the trial judge as to the evidence of complaint   CRIMINAL LAW – Directions to jury during deliberations – Appellant charged with two counts of sexually assaulting a child in his care – Where jury requested in the course of their deliberations that excerpts of the complainant’s recorded evidence in chief be replayed – Excerpts replayed in the absence of the trial judge reminding the jury of either the cross-examination of the complainant or the evidence of the appellant – No direction given to the jury not to give disproportionate weight to the evidence of the complainant which was being heard for a second time – No direction given to the jury reminding them of the necessity to bear in mind the other evidence in the case – No direction given to the jury reminding them of the necessity to consider all of the evidence in the trial – Where the failure on the part of the trial judge to give such directions and warn the jury as to the caution with which they were to approach the re-playing of the complainant’s evidence amounted to a miscarriage of justice   CRIMINAL LAW – Unreasonable verdicts – Appellant charged with two counts of sexual assaulting a child in his care – Where a number of assertions made by the complainant were not consistent with objective evidence – Untruthful answers given by the complainant in an interview with police regarding contact with the appellant and his wife – Inconsistent evidence of complaint – Evidence of the appellant’s prior unblemished character – Verdicts unreasonable – Convictions quashed – Verdicts of acquittal entered

Catchwords:

JUDGMENTS AND ORDERS – reasons – issue not dealt with in principal judgment – further submissions to be received

Catchwords:

COSTS – party/party – exception to general rule that costs follow the event – where multiple distinct claims brought – where claims clearly dominant or separable

Catchwords:

LIMITATION OF ACTIONS – Discoverability – Personal injury – Knowledge of fault of defendant – Whether “fault” for the purposes of Limitation Act 1969 (NSW), s 50D(1)(b) can be known without the assistance of legal advice in relation to what may constitute a breach of duty and what may amount to a causal link between the breach of duty and the injury – Knowledge of fact as opposed to “belief” of fact – Time to assess knowledge of fact.

Catchwords:

COSTS – costs of reference – where parties asked referee to indicate view as to costs – where referee provided view as to costs – orders to be made in respect of costs of reference.

Catchwords:

APPEAL – Local Court Magistrate – Whether the Magistrate failed to provide sufficient reasons – Whether the Magistrate denied the first plaintiff procedural fairness – Where the decision was delivered ex tempore – Appeal dismissed

Catchwords:

PRACTICE AND PROCEDURE - Default judgment - Application to set aside default judgment - Where the fourth defendant does not recall being served with a statement of claim

Catchwords:

Costs – application for indemnity costs based on Calderbank letter – extent of the offer made

Catchwords:

COSTS – specified gross sum costs order – where orders made by consent for the appointment of trustees for sale of property co-owned by plaintiff and defendant – defendant ordered to pay the plaintiff’s costs as agreed or assessed – where parties’ solicitors entered into negotiations concerning the plaintiff’s costs – where plaintiff’s solicitor experienced difficulties contacting the defendant’s solicitor – where delay by defendant’s solicitor contacting plaintiff’s solicitor – specified gross sum costs order made

Catchwords:

JOINT VENTURES AND PARTNERSHIPS — Joint Venture Agreement — Agreement to conduct development business through special purpose vehicle — Where shares to be held equally between five joint venturers — Mechanism for unequal contributions to be reconciled — “Call” on share for further contribution — Purported forfeiture of shares after non-payment of call — Company in liquidation — No leave to proceed as shares have no value — Cause of action in contract only — Breach made out.   CONTRACT — Breach of contract — Joint Venture Agreement — Purported forfeiture of shares — Exclusion from joint venture vehicle — Breach made out — Alleged loss of share of profits of development — No evidence that venture would be profitable — Subsequent history of venture led to liquidation of company — No evidence that course would have been different but for breach — No loss established — Nominal damages awarded.

Catchwords:

CIVIL PROCEDURE – application to re-open hearing – where plaintiff’s evidence was found to be inadequate in primary judgment – where plaintiff seeks to correct inadequacy by adducing further evidence after reasons delivered –evidence could have been adduced earlier – application refused   COSTS – where plaintiff substantially succeeded – no evidence from either party about costs breakdown - whether usual position under Conveyancing Act 1919 (NSW), s 88K(5) should apply to alternative claim – whether unreasonable conduct by defendant – overall costs order made

Catchwords:

CIVIL PROCEDURE – Debt recovery – Undocumented loans – Dispute arising over payment of two undocumented loans – Loan agreements made between friends – Loan agreement between the three Plaintiffs, or one or more of them, and the two Defendants, or one of them – Dispute about identity of the other parties to each of the two loan agreements – Dispute about who advanced the loan monies and about to whom the loan monies were advanced – What the terms of repayment of each loan were – Whether loans repaid – Whether there was accord and satisfaction in respect of the loan agreements   JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Rate applicable

Catchwords:

CONTRACTS — Parties — Privity — Agency – whether husband acted as agent for his wife – whether the wife consented to, and authorised, her husband to act on her behalf in relation to the alleged agreement – held that an agency relationship was established – the wife had left it to her husband to make arrangements for her in relation to the transaction – the wife was aware of what was being proposed and did not disabuse anyone of the notion that her husband was able to represent her in the relevant transaction.   CONTRACTS — Formation — Agreement — Uncertainty and incompleteness – whether agreement had been reached pursuant to which a party was to hold a property for the benefit of another party on an express or constructive trust – held that agreement reached in principle but that the terms of the arrangement were not the subject of a clear agreement between the parties – held that alternative claim for unjust enrichment failed as there was no binding agreement.   EQUITY — Trusts and trustees — Resulting trusts – consideration of the intention of the parties at the time that one of the parties was registered as legal owner on the title to the property – in circumstances where the other party had contributed to the acquisition of the purchase price with deposit moneys – whether the contribution was intended to be a gift – held that it was not the intention of the parties that the registered party would have an immediate unconditional interest in the property without taking into account the expectations of the other party and their contribution to the purchase price.   CONTRACTS — Formation — Agreement — Uncertainty and incompleteness – whether there was a binding residential tenancy agreement in existence – where unclear whether the document was complete when signed or which version of the cover page (there being two in evidence) formed part of the document when signed – held no binding residential tenancy agreement.

Catchwords:

Stay of execution of Writ of Possession – no question of principle

Catchwords:

Reasonable direction to undertake rural travel – up to five days per month – removal of allowance – representations made by Justice Health DORIS allowance was payable - custom and practice – recommendation to continue to pay allowance

Catchwords:

SUCCESSION — Family provision — application for provision – whether plaintiff failed to make full and proper disclosure of her financial position – whether non-disclosure a “jurisdictional issue”.   SUCCESSION — Family provision — application for provision from potential notional estate consisting of half share of family home – claim by adult child of retirement age – plaintiff’s dealings with her own children concerning accommodation not clear on the evidence – plaintiff estranged from deceased but cause of estrangement not clear on the evidence – plaintiff receiving legacy of $10,000 – whether proper provision– what provision ought to be made. SUCCESSION — Family provision — application for provision from notional estate – whether appropriate to designate property as notional estate – whether proposed designation would interfere with defendant’s “reasonable expectations”.

Catchwords:

CORPORATIONS – winding up – application for directions to pay dividends to shareholders – where interested parties claim authority to receive payment through purported Forms 550 – whether forms are in substantial compliance with Form 550 – whether directions sought by liquidators should be given.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house, clause 4.6 variation to wall height, view impacts

Catchwords:

EVIDENCE – Privilege – Where one of the plaintiffs was a solicitor – Where that plaintiff has been charged with being an accessory after the fact to murder – Where police executed search warrants at the residential and business premises of the plaintiff and seized documents and electronic devices – Claims for legal professional privilege in respect of some of the material seized – Appropriate for the Court to examine the material over which claims were made - Claims determined   EVIDENCE – Privilege – Onus of establishing claim for privilege lies on the party who makes it – Onus renders it necessary for the party making the claim to adduce admissible evidence in support of it – Perfunctory approach adopted by the plaintiff in which there was a general failure to adduce admissible evidence in support of the claim   EVIDENCE – Privilege – Documents seized under search warrants – Whether claims for privilege should be determined according to common law principles or by reference to the Evidence Act 1995 (NSW)   PRACTICE AND PROCEDURE – Application for adjournment pending the determination of an appeal against the refusal to grant legal aid – Whether such appeal frivolous or vexations – Discretionary considerations – Protracted proceedings – Plaintiff in breach of the Court’s orders for the filing of material – Plaintiff given ample opportunity to file necessary evidence and submissions – Application refused   PRACTICE AND PROCEDURE – Application for recusal on the grounds of apprehended bias – Test not met – Application refused

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties

Catchwords:

TRAFFIC LAW AND TRANSPORT — Traffic law — Motor accident legislation — Time limits – failure to commence proceedings for damages within three years of accident – requirement of leave – Motor Accidents Compensation Act 1999 (NSW), s 66(2) and s 109(3) – whether evidence established a “full and satisfactory” explanation for the delay – explanation for delay not full and satisfactory – leave not granted

Catchwords:

CIVIL LAW – high risk offender – where offender has been subject to supervision under a series of orders – where no offences against children for many years – where offender intellectually challenged – where paraphilia continues to exist – previous breaches of order – appropriate conditions – duration of order

Catchwords:

MODIFICATION APPLICATION – privacy screen –bulk and scale – view loss – consistency with character – visual amenity

Catchwords:

DEVELOPMENT APPLICATION – four storey dwelling – view loss – exceedance in FSR – cl 4.6 request for variation – streetscape – conciliation conference – agreement between the parties – orders

Catchwords:

CRIMINAL APPEAL – sentence appeal – availability of intensive correction order – three grounds of appeal – first whether his Honour erred by failing to give paramount consideration to community safety as required by s 66(1) – second whether his Honour erred by failing to provide reasons for refusing to make an intensive correction order – third whether his Honour mistook the facts

Catchwords:

INTERLOCUTORY ORDER – application for stay

Catchwords:

APPEAL - stay – stay of the orders of the Tribunal the subject of the appeal

Catchwords:

ADMINISTRATIVE LAW – privacy – alleged disclosure of personal and health information about the applicant contrary to the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 – judicial functions exemption

Catchwords:

TRADES AND PROFESSIONS –– reinstatement of health practitioner under Health Practitioner Regulation National Law

Catchwords:

PROFESSIONS AND TRADES – health practitioner – mental health nurse – relationship with former patient after termination of involvement in treatment – held constitutes professional misconduct – reprimand imposed – practice conditions imposed – costs order