Browse decisions Displaying 1 - 200 out of 127795 results

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EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — No issue of principle

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PRIVATE INTERNATIONAL LAW — recognition of foreign judgment debt in previous judgment — application to vary judgment and reopen defence to challenge interest awarded — whether claim for contractual interest statute-barred — applicable limitation period determined by Chinese law — no Chinese law limitation defence pleaded or proved — whether interest awarded under foreign judgment properly compared with statutory post-judgment interest — interest sought was pre-judgment interest in this Court — whether base interest and additional interests under Civil Procedure Law of the People’s Republic of China art 253 were penal — base interest derived from contractual rate and not penal — additional interest following default not, without more, penal — no reason to depart from first-instance authorities treating art 253 interest as non-penal — reopening refused — separate application for execution remedies — no stay of judgment — Registrar’s refusal of garnishee orders set aside — garnishee orders, writ of levy, production and examination orders, and asset-preservation orders made — adjournment pending appeal refused.

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WORKERS COMPENSATION – uninsured company – failure to obtain workers compensation insurance – application by Workers Compensation Nominal Insurer for reimbursement of Workers Compensation Insurance Fund for payments made to injured worker – employer corporation placed into liquidation – where plaintiff settled proceedings against first defendant (registered director) – where plaintiff asserts first defendant liable as a culpable director – where plaintiff asserts second defendant also liable as a culpable director by virtue of being a shadow or de facto director – extended definition of director – Held: second defendant liable as de facto director

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CIVIL PROCEDURE – application for leave to discontinue proceedings – whether plaintiff should be ordered to pay defendant’s costs pursuant to r 42.19(2) of the Uniform Civil Procedure Rules 2005 (NSW) – where defendant has not taken an active role in the proceedings – no issue of principle

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SUCCESSION — In 2014, the deceased (then 87) made a formal Will gifting his estate to his wife (then 88) with a gift over to his daughter (P), making no provision for his other three children (sons, D1-D3) — In June and July 2018 the deceased revisited his Will and requested his nephew to assist him in preparation of it — A home-made Will was prepared and executed — Subsequent to the deceased’s death, contest arose regarding the true construction of the deceased’s disposal of his residuary estate (which was substantial including a house and other land at Murwillumbah) — The final part of the Will contained wording of a purpose “Providing the most appropriate care for my loving wife” (Care purpose) — Two of the deceased’s sons (D1 and D2) contended that the residuary gift failed so as to give rise to an intestacy and P contended the gift was effective to give her beneficially the entirety of the residuary estate list — P also sought rectification consistent with that construction — Orders made for separate determination of the construction and rectification issues — The parties accepted that the residuary clause was ambiguous — Construction issues arose as to whether the Care purpose: (a) was precatory or mandatory; (b) qualified the whole of the gift of residue; and (c) was exclusive in focus thus conferring no beneficial interest on P — Held on the true construction of the Will, P is entitled to the residue of the deceased’s estate absolutely in her personal capacity and there is no intestacy of the residue SUCCESSION — Will construction — Evidence —Discussion of admissibility and use of extrinsic evidence being context evidence and intention evidence (general law and statutory), in light of acceptance of ambiguity — If evidence is to be given as to the value of the deceased’s property at all, it is helpful to have evidence as the date of the Will that is the subject of the construction dispute, rather than “probate values”, years after the date of the Will SUCCESSION — Will construction — Discussion of object of Will construction — Discussion of approach to construction of home-made Wills including discernment of ‘schemes’, use of grammar and sentence structure, discerning whether language is precatory or mandatory, determining the effect of gift purpose provisions and testing of alternate constructions SUCCESSION — Will construction — Formatting (relevantly bolding and capitalisation and hyphen operating as an em dash) — Discussion regarding effect and use of text formatting in discerning construction in circumstances where the drafter used a Google form precedent SUCCESSION — Rectification — Principles regarding rectification outlined — Held on the facts, rectification rejected WORDS AND PHRASES — “ambiguity” — “precatory” — “hyphen”, “en dash”, and “em dash”

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EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Dispute resolution — Whether refusal of request made by Technical Officer to be converted to the classification of Hospital Scientist was fair and reasonable in all the circumstances — Application dismissed

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COSTS – nurse – appeal against refusal of registration application – failure to meet English language registration standard

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APPEAL — co-living housing — conciliation conference — agreement reached — orders made

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LAND LAW — Strata title — Common property — Maintenance and repair of common property

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MODIFICATION APPLICATION – residential apartment development in R3 Medium Density Residential zone – whether substantially the same – conciliation conference – agreement between parties – orders

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REVENUE LAW - State taxes - land tax -objection - appeal - owner - freehold estate in possession - land subject to uncompleted agreement for sale - mortgagee - exemption - principal place of residence - land used for primary production - unfairness - estoppel of revenue - land tax “clearance” certificate - hardship - writing off tax ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

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APPEAL — development application — industrial warehouse — change of use — traffic management

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HEALTH — professional registration and discipline — registered psychologist — unethical or improper conduct — inappropriate professional boundaries — inappropriate personal relationship with patient — whether unsatisfactory professional conduct — whether professional misconduct

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APPEAL – Guardianship – Appeal – No Error Made – Appeal Dismissed

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FLOOD WORKS – conciliation conference – agreement between the parties – orders

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CRIMINAL LAW — work health and safety — offences — category 2 — where both a company and a director prosecuted — where workers and other people exposed to risk — where existing safety systems not adequate SENTENCING — relevant factors on sentence — objective seriousness — mitigating factors — plea of guilty — general deterrence — specific deterrence — remorse — post incident remedial steps OTHER — construction on masonry brick wall — inadequate ties and bracing — no exclusion zone — wall collapsed in gusting wind — no one injured

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SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for removal – two testators, a husband and wife, leave very substantial estates involving multiple real property investments in equal shares to their four children (and to family members of one of the children), two daughters and two sons – the testators appoint their two daughters as executors of each of their estates – probate of both wills granted to the daughters – one son complains of lack of transparency and maladministration by the daughters/executors in respect of both estates – son seeks revocation of the grants of probate and the appointment of independent executors as final relief – the daughters/executors contest the son’s claims of maladministration – urgent proceedings brought in the duty list involving contested allegations of estate assets being at risk of loss – what interlocutory relief should be given – whether in the circumstances the proceedings should be adjourned with directions – whether an independent administrator should be appointed in place of the executors – whether a special administrator should be appointed to aspects of the administration of the estates.

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EVIDENCE — application for a view — Evidence Act 1995 (NSW), s 53 — view of correctional centre — where plaintiff inmate in correctional centre — where video and photographic evidence available — application dismissed

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LAND LAW — Caveats — Extension of operation of caveat — Balance of convenience — Defendants joint proprietors of two properties — Plaintiff purports to have interest in properties pursuant to brokerage agreements — Plaintiff lodged three caveats to secure sums it says are owed to it in February and March 2026 — Defendants seek to refinance properties — Lapsing notice of caveats lodged in August 2026 — Defendants concede there is a serious question to be tried — Whether balance of convenience favours extension of the operation of the caveats — Where plaintiff’s purported interest is relatively small compared to value of equity in property — Plaintiff submits removal of caveats would derogate from their interest — Plaintiff submits they require alternative security — Defendants say caveats are preventing refinancing — Defendant say relative strength of plaintiff’s case is low LAND LAW — Caveats — Suitable alternatives to extension of caveats — Whether plaintiff should be permitted to lodge a further caveat pursuant to s 74O of the Real Property Act

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COSTS — claim and cross-claim — mixed success — plaintiff succeeded on significant factual issue and obtained declaratory relief — plaintiff unsuccessful on contractual termination, possession and damages claims — first defendant established breach on cross-claim but failed to prove loss — broad brush apportionment appropriate — whether indemnity costs appropriate for false denial of allegations or unreasonable rejection of offer — late submitting appearance did not insulate second defendant from costs — costs of abandoned relief excluded — reopening applications

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SUCCESSION — probate and administration — informal document — dispensing with formal requirements for execution — Succession Act 2006 (NSW), s 8 — handwritten diary entry — authenticity disputed — allegation of forgery — competing forensic handwriting evidence — whether deceased wrote diary entry — whether document intended to have present testamentary operation notwithstanding contemplation of later formal will — Succession Act 2006 (NSW), s 8 — construction of informal will — reference to “eldest nephew” — latent ambiguity — extrinsic evidence and armchair principle — Succession Act 2006 (NSW), s 32 — gift of “the family trust” — gift to “last person taking care of” deceased — certainty of testamentary gift — held diary entry should be admitted to probate as an informal will — “eldest nephew” referred to deceased’s grandson — “family trust” referred to deceased’s shares in corporate trustee — plaintiff answered description of last person taking care of deceased SUCCESSION — lost will and intestacy — original 2021 will not found — presumption of revocation by destruction — contents of deceased’s filing cabinet removed after death — presumption rebutted — alternatively, if deceased had died intestate, whether plaintiff was deceased’s de facto partner — Succession Act 2006 (NSW), ss 104–105 — Interpretation Act 1987 (NSW), s 21C — held plaintiff and deceased were in a de facto relationship for a continuous period of more than two years up to deceased’s death EQUITY — trusts and trustees — resulting trusts — purchase money trust — purchase of real property through corporate entities — purchase money transferred through bank account of corporate trustee — whether funds became property of family trust or were held on bare trust for deceased — objectively manifested intention — held funds held on bare trust for deceased and later applied at his direction — purchaser intended to take legal and beneficial ownership absolutely — presumption of resulting trust rebutted — claim to property and proceeds dismissed CIVIL PROCEDURE — probate and administration of estates — contentious proceedings — affected person aware of proceedings and potential interest — notice sent by email to person residing overseas — elected not to participate — formal requirements for service of notice dispensed with

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CIVIL PROCEDURE — Stay of proceedings — pending appeal of Local Court interlocutory decision — final judgment reserved in Local Court — where appeal rights will be available after Local Court decision — stay application a waste of time and money — stay refused

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SUBPOENAS – application pursuant to UCPR 11.8AB to serve subpoenas in Hong Kong

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

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CORPORATIONS – statutory demand – where statutory demand served on Plaintiff claiming judgment debt arising from adjudication determination – where Plaintiff raised a number of offsetting claims – whether offsetting claims amount to an impermissible challenge to the adjudication determination

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VICTIMS Support – Administrative law – Scope of administrative review – whether application can be received in absence of internal review – whether determination as to where recognition payment is paid falls within the determination of the recognition payment - whether Tribunal has jurisdiction – whether decision administratively reviewable

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HIGH RISK OFFENDER — serious sex offender — application for extended supervision order — final hearing — whether defendant poses an unacceptable risk of committing a further serious sexual offence if not subject to supervision — dispute as to conditions — no issue of principle

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COSTS – applicant unsuccessful in judicial review proceedings – whether personal costs order against public officer of incorporated applicant should be made – public officer of the applicant not the “real party” to the proceedings – whether departure from usual costs rule justified – whether proceedings were brought in the public interest within meaning of r 4.2(1) of the Land and Environment Court Rules 2007 – whether there was something more – proceedings contributed to proper understanding of the law – whether there were countervailing circumstances – parties to pay their own costs

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TORTS – common law damages – proper interest rate to be applied to past general damages – liability of multiple joint tortfeasors across multiple torts – application of solidary principle CIVIL PROCEDURE – application for leave to reopen – Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 29.5 – exercise of discretion – whether interests of justice are better served by granting leave – leave granted

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COSTS – application for a specified gross sum costs order – where trustees appointed to the bankrupt estate of the plaintiff – where the in-house solicitor rule applies – whether specified gross sum costs order should be made

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COSTS — Party/Party — whether successful party should only be entitled to recover 30% of his costs due to only partially succeeding on one out of three grounds of judicial review — exercise of discretion — application for alternative costs order refused

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Modification application of a consent granted by the Court — conciliation conference — onsite view — agreement between the parties — substantially the same development as that for which consent was originally granted — orders made

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TORT — intentional tort — battery — where respondent found vicariously liable for the battery by a police officer who sprayed the appellant with capsicum spray during a welfare check — where primary judge found battery exacerbated the appellant’s pre-existing post-traumatic stress disorder — where primary judge assessed damages on basis that s 3B(1)(a) of the Civil Liability Act 2002 (NSW) did not apply — whether scope of exemption in s 3B(1)(a) extends to all injuries or is confined to the specific injury intended by the tortfeasor TORT — assessment of damages — quantum — where primary judge assessed general damages on a contingent basis — whether primary judge failed to apply proportionality consistency in assessment — whether assessment of contingent damages manifestly inadequate TORT — exemplary damages — whether primary judge erred in declining to award exemplary damages TORT — causation — principles of causation — whether psychiatric harm natural and probable consequence of tortious act

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CIVIL PROCEDURE – Application for summary relief under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) for summons seeking judicial review of “directions” provided to police officers – Where the plaintiffs failed to comply with r 59.4 of the Uniform Civil Procedure Rules CIVIL PROCEDURE – Application under r 59.9 of the Uniform Civil Procedure Rules for the provision of the “decision” identified in summons seeking judicial review and a statement of reasons for it – Whether orders under r 59.9 are available where r 59.4 is not conformed to – Where the plaintiffs have not identified the decision sought to be challenged – Where such an order would be unfairly burdensome CIVIL PROCEDURE – Provision of additional material after hearing without leave – Court’s entitlement to disregard the supplementary material

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DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders

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DEVELOPMENT APPLICATION — s 34 conciliation conference –– metals processing –– agreement between the parties –– orders made

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DEVELOPMENT APPEAL — overshadowing clause — development standard or prohibition — whether clause 4.6 is excluded — housing SEPP incentive provisions

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CRIMINAL LAW — Work health and safety — Offences — Category 3 — Risk of workers being exposed to high levels of nitrogen in a confined space — No risk assessments undertaken — No SWMS for task of detecting leak in transformer — Failure to provide safety data sheet for nitrogen SENTENCING — Relevant factors on sentence — Above mid-range of objective seriousness — No aggravating factors — Substantial mitigating factors — No role of specific deterrence

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EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – award interpretation – Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2024 – construction of cl 21.1.1 – relief duties – meaning of maintain minimum staffing – meaning of non-availability of permanent or retained firefighters – where permanent firefighters attending training – distinction between appliances and stations – whether retained firefighters directed to crew appliances while firefighters attended training were required to maintain minimum staffing – minimum staffing relates to the staffing of appliances – no entitlement to relief duties rate in disputed scenarios – application dismissed

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CIVIL PROCEDURE — Evidence by audio visual link — where plaintiff applied for order under s 5B of Evidence (Audio and Audio Visual Links) Act 1998 (NSW) for two urogynaecologists to give evidence by audio visual link (AVL) from the United States of America and Scotland — where plaintiff seeks to adduce expert evidence from both witnesses — where plaintiff seeks to also call one of the witnesses as a witness of fact — where plaintiff has adduced evidence of significant cost associated with in-person attendance for trial — whether evidence can more conveniently be given in the courtroom — whether order would be unfair to defendant — whether it is an appropriate exercise of discretion to grant the order — whether it is in the interests of justice to make the order — order made allowing plaintiff to adduce evidence by AVL from the urogynaecologist providing solely expert evidence, but not from the urogynaecologist whom the plaintiff intends to call as a witness of fact

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COSTS — party/party — indemnity costs — where plaintiffs seek to enforce defendants’ guarantee given by an irrevocable authority — where defendants did not challenge plaintiffs’ proposed orders — indemnity costs ordered

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DEFAMATION — Plaintiff failed to establish grounds to make order for suppression or non-publication of judgment.

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ASSOCIATIONS AND CLUBS – incorporated associations – where disputes as to membership and disciplinary action against members within incorporated association – whether various plaintiffs were validly removed from membership register –whether expulsion and suspension of members in disciplinary proceedings complied with association constitution – whether disciplinary decisions made for improper purpose contrary to association constitution – where allegation that association affairs conducted for benefit of president – whether grounds established for winding up incorporated association under ss 63(1)(f) and 63(1)(i) of the Associations Incorporation Act 2009 (NSW) – whether receiver and manager should be appointed – where grounds not established for winding up or appointment of receiver and manager – declarations granted in respect of membership status and invalid expulsions – balance of claims dismissed

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INTERNATIONAL ARBITRATION — arbitration agreement — stay of proceedings — whether claims required to be stayed under s 7(2) International Arbitration Act 1974 (Cth) — claims in tort, contract, and for misleading or deceptive conduct — scope of arbitration clause — arbitrability — whether waiver deemed agreement “inoperable” under s 7(5) — non-parties to arbitration agreement — whether non-parties claiming “through or under” for purposes of s 7(4) PRIVATE INTERNATIONAL LAW — jurisdiction — non-exercise of jurisdiction — foreign exclusive jurisdiction clauses — discretionary stay “as a matter of convenience” under s 67 Civil Procedure Act 2005 (NSW) — where not all parties to proceedings bound by clause — whether non-parties entitled to rely on exclusive jurisdiction clause

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LAND LAW — easements — creation of easements — creation by order of court — where easement created by consent under Conveyancing Act 1919 (NSW), s 88K — where plaintiffs seek order “to the contrary” in relation to costs under s 88K(5) — plaintiffs’ application rejected COSTS — party/party — Court’s discretion — where plaintiffs seek an exception to costs order under Conveyancing Act 1919 (NSW), s 88K(5) — whether first defendant engaged in unreasonable conduct by withholding information — plaintiffs’ application rejected

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CIVIL PROCEDURE — approval of settlement under s 76 of the Civil Procedure Act 2005 (NSW) — claim for pure mental harm as a result of the defendants’ alleged negligence in their treatment of the plaintiff’s mother

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CIVIL PROCEDURE — approval of settlement under s 76 of the Civil Procedure Act 2005 (NSW) — professional negligence claim in relation to the sale of property

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CIVIL PROCEDURE — application to dismiss judicial review proceedings pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) — whether Court has jurisdiction to review a decision of the Health Care Complaints Commission to discontinue a complaint — whether legally enforceable rights are conferred on the complainant by the Health Care Complaints Act 1993 (NSW)

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ADMINISTRATIVE REVIEW – reporting obligations for registrable persons under Child Protection Register – application for stay or interim orders

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DEVELOPMENT APPLICATION – Torrens title subdivision – construction of roads and civil works – conciliation conference – agreement between the parties – orders

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

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CRIMINAL LAW — work health and safety — offences — category 2 — demolition work— where falling object struck worker — worker died — failure to properly implement and enforce existing safety and risk control measures — failure to adequately enforce exclusion zone — failure to remove object at risk of falling SENTENCING — relevant factors on sentence — objective seriousness — circumstances of mitigation — relevance of another duty holder's culpability and established safety measures to objective seriousness — high end of low range of objective seriousness

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COSTS — security for costs — Uniform Civil Procedure Rules 2005 (NSW), r 42.21 — where Plaintiff is found to be not ordinarily resident in Australia — security for costs ordered

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CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker – category 1 offence – category 2 offence for officer – s 155(5) offence SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty

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CIVIL PROCEDURE — application by second defendant to dispense with requirement to plead defences to civil claims — exercise of privilege against self-incrimination

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CIVIL PROCEDURE — approval of settlement under s 76 of the Civil Procedure Act 2005 (NSW) — historical sexual abuse

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Child protection – Working with children – enabling order sought – disqualified person - disqualifying offence –- sexual touching – sexual assault – s 40(1) of the Crimes Act 1958 (Vic) – s 61KC of the Crimes Act 1900 (NSW) - enabling order granted.

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EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Stop bullying order — Meaning of “unreasonable” under s 144C — Unreasonable behaviour not found

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ADMINISTRATIVE LAW — Effect of s 42 of Government Information (Information Commissioner) Act 2009 (NSW) on administrative review jurisdiction of NSW Civil and Administrative Tribunal over decisions of Information and Privacy Commission CIVIL PROCEDURE – Hearings – Adjournment – Relevant factors PRACTICE AND PROCEDURE – Disqualification – Bias – Actual bias PRACTICE AND PROCEDURE – Disqualification – Bias – Apprehended bias

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CONTRACTS — Construction — Interpretation — Where sale contract entered into in respect of shares in a company — Where buyer and selling shareholders were uncertain as to rate of withholding tax applicable to company in respect of its capitalisation of interest — Where sale contract provided for a portion of purchase price to be placed in escrow which was to be released if Australian Taxation Office (ATO) ‘determined’ that additional withholding tax was payable by company — Where ATO accepted company’s position conveyed in a voluntary disclosure that additional withholding tax was payable — Where buyer seeks release of escrow funds to pay additional withholding tax — Whether contractual condition for release of escrow funds was satisfied CONTRACTS — Implied terms — Terms implied in law — Duty to cooperate — Whether duty to cooperate was implied into sale contract — Whether buyer breached implied duty to cooperate by causing company to make voluntary disclosure to ATO of failure to withhold additional amount — Whether any breach of an implied duty to cooperate caused loss to the defendants

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JUDGMENTS AND ORDERS — amending, varying and setting aside — Court of Appeal — application to reopen and vary orders under UCPR r 36.16(3A) — whether judgment affected by misapprehensions — whether misapprehension on part of Court warrants orders being varied — no basis for reopening — application dismissed COSTS — gross sum costs order — where applicant opposes gross sum costs order — where applicant seeks to adduce evidence beyond scope of Court of Appeal proceedings — application to subpoena witnesses refused — gross sum costs order appropriate in the circumstances

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APPEAL – mistake about name of party

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TRUSTS AND TRUSTEES — right of indemnity — plaintiff found to the constructive trustee of family home — extent to which plaintiff contributed funds to pay trust expenses — mixed account — trustee’s bank account used to pay trust and personal expenses — mortgage repayments to repay loan used to acquire trust and personal assets — apportionment of mortgage repayments — disputed deposits into account — breach of trust — whether trustee liable for diminution in value of trust property due to delay in sale — whether trustee entitled to interest

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REAL PROPERTY – alienation of property – s 37A of the Conveyancing Act 1919 (NSW) – whether dispositions of various properties were made with intent to defraud creditors REAL PROPERTY – s 37A of the Conveyancing Act 1919 (NSW) – whether plaintiff is a person prejudiced by alienation of property with intent to defraud creditors – where plaintiff sued defendant seeking order in the nature of a mandatory injunction that defendant perform contractual obligation to pay money to a third party – defendant ordered to pay money to third party – defendant fails to comply with order of the Court – defendant claims to be unable to pay – plaintiff wishes to take steps to enforce order that defendant pay third party (not the plaintiff) – whether plaintiff is a person prejudiced by defendant’s alienation of property with intent to defraud creditors REAL PROPERTY – s 37A of the Conveyancing Act 1919 – whether plaintiff is a person prejudiced by alienation of property with intent to defraud creditors – plaintiff and defendant previously carried on business together through corporate entity – plaintiff and defendant make deed to end their business relationship – plaintiff and defendant agree that corporate entity to be deregistered as a solvent company – plaintiff and defendant agree each to contribute to fund with which to pay corporate entity’s liabilities – defendant fails to make contributions to fund – defendant claims to be unable to contribute – whether plaintiff is a person prejudiced by defendant’s alienation of property with intent to defraud creditors

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DEVELOPMENT APPEAL — secondary dwelling — conciliation conference — agreement between the parties — orders

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DEVELOPMENT APPLICATION — appeal against conditions — public art and ancillary car park — murals on grain silos — conciliation conference — agreement between the parties — orders made

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DEVELOPMENT APPLICATION – residential flat building development in R3 Medium Density Residential zone – health services facility – conciliation conference – agreement between parties – orders

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ADMINISTRATIVE LAW — application for renewal of motor repairer’s licence — undischarged bankrupt

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APPEAL — development control order — restore works order — clearing of land — land to be used for effluent irrigation in wastewater treatment system — whether an existing development consent authorises land clearing in the relevant area — construction of the consent — appropriate terms of modified order

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CRIME — Appeals — Appeal against sentence — Misapplication of principle — whether sentencing judge erroneously applied s 56 of Crimes (Sentencing Procedure) Act 1999 (NSW) — whether public policy underlying provision should still be taken into account on re-sentence CRIME — Appeals — Appeal against sentence — Misapplication of principle — where sentencing judge discerned special circumstances warranting a non-parole period less than 75% of the head sentence — whether sentencing judge erred in sentencing applicant to an overall non-parole period that comprised 83.75% of the combined total sentence CRIME — Appeals — Appeal against sentence — Re-sentence — where applicant sought departure from sentencing judge’s findings without bringing grounds of appeal in relation to those matters — findings made by sentencing judge were reasonably open — re-sentence on basis of sentencing judge’s findings — fresh evidence received on usual basis taken into account CRIME — Appeals — Appeal against sentence — Extension of time in which to appeal — where plaintiff’s explanation for delay unsatisfactory — where Crown did not contest presence of errors — where Crown did not point to any particular prejudice arising from grant of extension — extension granted

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CIVIL PROCEDURE — Court of Appeal — Application for leave to appeal — Leave to appeal from interlocutory orders including removal of interim joint administrators and appointment of independent administrator to administer estates but those orders stayed — Leave to appeal refused — No issue of principle, question of public importance or reasonably clear injustice going beyond something that is merely arguable — Notice of motion filed 24 June 2026 seeking a further stay dismissed

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APPEAL — development application — residential flat building — low and mid rise housing inner area — affordable housing — desired future character — public and private view impacts — heritage impact

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APPEAL — procedural fairness — no attendance at hearing by appellant —appellant not given opportunity to be heard in matter — no reasonable steps taken to ensure appellant was aware of proceedings

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CRIME — Appeals — Appeal against conviction — Admission of expert opinion — Whether decision to admit opinion evidence involved procedural unfairness — Whether witness lacked specialised knowledge — Whether opinion not based on specialised knowledge — Opinion evidence properly admitted CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Where applicant convicted by judge alone of dangerous driving occasioning death and grievous bodily harm — Critical finding that head-on collision caused by applicant crossing centre line was open — No reasonable doubt about verdict of guilty CRIME — Appeals — Appeal against sentence — Dangerous driving occasioning death and grievous bodily harm — Whether judge erred in assessment of objective seriousness — Scalar classification not an error where all circumstances bearing upon objective gravity taken into account CRIME — Appeals — Appeal against sentence — Manifest excess — Dangerous driving occasioning death and grievous bodily harm — Sentence not manifestly excessive

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RECTIFICATION — Unique claim for rectification — The first case in New South Wales (and seemingly in Australia) advanced principally upon the contention that rectification of an instrument is justified on the basis of a common intention derived from a mutually perceived gestalt COMMERCIAL VENTURES — Parties (P1 and D1) of Islamic faith established a business venture (through various corporate entities) for the acquisition, development and sale of land, for mutual profit, for the purpose of making such land available for purchase by members of the community compliant with Shariah Law — Relationship amongst business partners broke down mid-2020 — D1 in earlier proceedings sued P1 alleging various breaches of duty said to arise and oppressive conduct — Parties following settlement discussions in the context of a Court hearing, entered into a Settlement Deed — Settlement Deed required payment by P1 (and associated parties) to D1 of a Settlement Amount of $3.25 million by way of three instalments on specified dates (with time of the essence in respect of each payment) — No payments were made and D1 sought to enforce payments provided for under the Deed — P1 commenced these proceedings alleging Settlement Deed ought to be rectified inter alia to give effect to a gestalt understanding RECTIFICATION — Rectification doctrines generally — Rectification in equity — Nature of the proof of common intention and the rationale for the doctrine — Whether there was common intention contrary to the wording of the Deed — Whether there is evidence of that intention RECTIFICATION — Gestalt claim — Rectification principally advanced on the basis of an alleged mutual gestalt regarding the terms of the Settlement Deed — P1 claims that the instalment amounts and dates in respect of the Settlement Amount were not fixed nor time essential, but rather predicated upon and inextricably tied to completion by the plaintiffs of the purchase of two properties at Leppington (11 & 82 Woolgen) and co-operation by D1 to allow that to occur — P1 contends that the common intention mutual gestalt with D1 is based on their past experience of how projects were progressed and financed (in light of alleged fiduciary duties and implied duties of good faith conduct and cooperation), and extended to D1 being obliged to lift the PPSR charge to allow Mr Alamin to purchase 11 Woolgen — Whether a common intention established from a mutual perceived gestalt — Held no mutual gestalt amounting to a proved common intention established EQUITY — Fiduciary relationships discussion regarding existence of fiduciary relationships — Fiduciary Duties — Scope and content of alleged fiduciary duties discussed — Nature of fiduciary duties whether only proscriptive or also prescriptive — Whether fiduciary duties owed — Whether fiduciary duties breached CONSUMER LAW — Misleading and deceptive conduct — Role of silence and reasonable expectation of disclosure discussed UNILATERAL MISTAKE — Basis for enlivening relief for unilateral mistake discussed — Discussion of proposition as to whether proposition that the existence of a fiduciary relationship more easily enlivens a claim for rectification CONTRACTS — Claim for implication of implied terms — Discussion of duty of co-operation and duty to act in good faith REMEDIES — Winding up — Buyout — Appointment of trustee under s66G Conveyancing Act EVIDENCE — Discussion of rule in Browne v Dunn (1894) 6 R 67 WORDS & PHRASES — ‘gestalt’

Catchwords:

SUCCESSION — Construction — Gifts — the testator held 100 per cent of the shares in a private company, of the testator, which in turn held 50 per cent of the shares in a corporate group which ran a successful cleaning business – the testator gave the share capital of his private company on trust to his co-owner and business partner upon terms that she pay a periodic amount to his siblings from the business held by the private company – disputes arise after the death of the testator – ownership of the shares in the private company is not transferred to the business partner – the business partner does not make the periodic payments to the siblings – clause 11 of the will provides for a gift to the business partner after the siblings’ life estate – the business partner pre-deceases one of the siblings – whether in the events which have occurred clause 11 operates to gift the share capital of the private company to the business partner.

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MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Application for interim extension order — no issue of principle

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CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Claims the subject of previously settled proceedings — Claims released by deed of settlement — Proceeding dismissed

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CHILD WELFARE — Adoption — where the proposed adoptive parents are the children’s current foster parents — whether adoption order is in the children’s best interests — whether paternal and maternal adoption plans are in the best interests of the child and proper in the circumstances — HELD — adoption order is clearly preferable in the children’s best interests — consent of the birth parent not required to be dispensed with — children have each signed an instrument of consent for their proposed adoption — maternal and paternal adoption plans are in the best interests of the child and proper in the circumstances

Catchwords:

CIVIL PROCEDURE — application to transfer District Court claim and cross-claim to Supreme Court under s 140 of the Civil Procedure Act 2005 (NSW) — where amount of cross-claim barely over the monetary jurisdictional limit — where set-off of claims likely to bring cross-claim within jurisdictional limit — not established that transfer necessary to resolve the dispute — where parties had not considered consent to an extended jurisdiction in the District Court — transfer refused — had transfer been allowed then separating the claims as requested would not be consistent with the overriding purpose in s 56 of the Civil Procedure Act

Catchwords:

TORTS – negligence – medical negligence – general practitioner – where patient presenting with rectal symptoms – where defendant failed to take history of duration of symptoms – where defendant failure to refer for specialist investigation – breach of duty established TORTS – negligence – causation – where delayed diagnosis of rectal cancer – counterfactual date of diagnosis – where cancer recurred – life expectancy – factual causation and scope of liability established TORTS – negligence – contributory negligence – where plaintiff failed to seek further medical attention – apportionment reserved

Catchwords:

LAND LAW – easements – construction of easements – general principles of construction – where right of carriageway incorporates Pt 1 of Sch 8 to the Conveyancing Act 1919 (NSW) – where way does not lead to dominant land and dominant owner has direct access to public road – whether right to “go, pass and repass … for all purposes” extends to using way only to turn vehicles LAND LAW – easements – validity of easements – easement must accommodate dominant tenement – where dominant owner has direct access to public road – whether right to turn trucks on servient land confers benefit on dominant land or convenience on owner LAND LAW – easements – extinguishment of easements – extinguishment by order of court – where cross-claimant seeks extinguishment so far as easement benefits a lot – where ground relied on not pleaded but plaintiff not prejudiced – whether extinguishment would substantially injure persons entitled to easement – whether discretion should be exercised

Catchwords:

TORTS – historical sexual abuse – where second defendant pleaded guilty to 10 charges of indecent assault in 1987 – three charges related to plaintiff – abuse on Council grounds established – abuse occurring at the school not established EVIDENCE – probative value of two expert reports – expert reports assumed all abuse alleged occurred – only some of the abuse established on facts – expert reports of value DAMAGES – general damages – aggravated damages – exemplary damages where second defendant already served sentence – aggravated damages awarded – exemplary damages not awarded DAMAGES – past and future loss of earning capacity – paucity of evidence not bar to recovery – damages for past and future loss of earning capacity awarded COSTS – judgment below $500,000 – commencement in Supreme Court warranted

Catchwords:

EQUITY — equitable remedies — specific performance — sale of shares pursuant to shareholders agreement — calculation of consideration for sale of shares — HELD — order for specific performance of sale of shares for particular consideration under the shareholders agreement made COSTS — application by plaintiff for costs to be paid on indemnity basis — HELD — costs to be paid on the ordinary basis COSTS — application by plaintiff for gross sum costs — HELD — gross sum costs order made

Catchwords:

CIVIL PROCEDURE — application for pro bono referral under r 7.36 of the Uniform Civil Procedure Rules — judicial review proceedings — referral made

Catchwords:

APPEAL – administrative review – refusal of contractor licence – appellant disqualified from holding a licence – whether offence of dishonesty – exercise of discretion to ignore offence – no question of law – no ground to grant leave to appeal

Catchwords:

ADMINISTRATIVE LAW — Government Information (Public Access) — administrative review — reasonable searches — secrecy provision in other legislation — balancing competing public interest factors for and against disclosure — form of access

Catchwords:

REVENUE – tax and duties – payroll tax – employment agency contract – security and car cleaning contracts – legal principles to be applied

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Remuneration — Where special circumstances justify extension of payment of temporary attraction and retention allowance for psychiatry staff specialists — New interim award made by consent

Catchwords:

LEASES − residential tenancy –alleged breach of the right to quiet enjoyment in s 50 of the Residential Tenancies Act 2010 (NSW) – noise disturbance from cracked driveway alongside the residential premises- driveway controlled by the landlord. APPEAL – questions of law raised – whether failure to consider key evidence and submissions – adequacy of reasons.

Catchwords:

APPEAL — development application — residential flat building — low and medium rise housing near identified centres – sufficiency of site minimum dimension – sufficiency of landscaping – design response to site constraints – character compatibility

Catchwords:

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — medical negligence proceedings commenced without expert evidence — claim otherwise plagued with difficulty

Catchwords:

PRACTICE AND PROCEDURE – Application for reinstatement – Civil and Administrative Tribunal Act 2013 (NSW) s 55 – proceedings dismissed for non-appearance – extension of time to file reinstatement application - explanation for failure to attend hearing- exercise of discretion to reinstate proceedings.

Catchwords:

COMMERCIAL ARBITRATION — stay of proceedings — s 7(2), International Arbitration Act 1974 (Cth) — first defendant manufactures water meters on-sold by plaintiff to local councils — plaintiff seeks indemnity in respect of $10 million sought by council in related proceedings — contracts for sale of goods between plaintiff and first defendant do not include arbitration clause — plaintiff later enters into Distributor Agreement with second defendant — defendants seek stay on basis of arbitration clause in Distributor Agreement — whether first defendant a party to Distributor Agreement — whether arbitration clause incorporated into contracts for sale of goods — whether defendants entitled to stay proceedings on the basis of arbitration clause in separate contract between plaintiff and defendants’ related entity. COMMERCIAL ARBITRATION — kompetenz-kompetenz — whether Court should consider contractual arrangements or leave it to arbitral tribunal — principles at [9]-[15] — contractual arrangements a “hot mess” — absent some investigation as to existence and scope of arbitration agreement, application would be dismissed for failure to discharge onus. COMMERCIAL ARBITRATION — whether first defendant a party to the Distributor Agreement — Distributor Agreement entered into by second defendant “acting by and through” a business unit —— whether inconsistency between arbitration clause in Distributor Agreement and choice of law clause in contracts for sale of goods in favour of New South Wales — construction of arbitration agreements, principles at [50]-[51] — no inconsistency — first defendant not party to an arbitration agreement — whether arbitration agreement applies to events that pre-date the agreement, at [54]-[55]. COMMERCIAL ARBITRATION — s 7(4), International Arbitration Act 1974 (Cth) — whether defendants claiming “through or under” party to arbitration agreement — principles at [70]-[73] — plaintiff signed Strategic Alliance Agreement with defendants’ related entity — defendants propose to rely on features of this contractual arrangement as informing plaintiff’s duty to take reasonable care and contributory negligence — defendants not taking stand on a ground available to related entity. COMMERCIAL ARBITATION — whether condition should be applied to stay of proceedings — principles at [81]-[83] — no arbitration agreement with first defendant — possibility that small portion of proceedings falls within arbitration agreement with second defendant — arbitration not to proceed until these proceedings are determined.

Catchwords:

APPEAL – development application – new classroom building and car parking upgrades – traffic safety – upgrade of intersection on classified road for a formal channelised right hand turn lane (CHR) – whether the CHR should be defined as a broader public amenity or whether the intersection upgrade reasonably relates to the development– whether the Court has power to impose conditions restricting an interim increase in student numbers for the existing school until additional car parking is constructed and until a public road bypass that is under construction is operational – orders made

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to a local heritage item – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPEAL — demolition of existing structures and Torrens title subdivision — conciliation conference — agreement between the parties — orders

Catchwords:

APPEAL — Development Application — conciliation conference — additional s 34 agreement documentation — cl 4.6 variation to storey limitation — agreement between the parties — orders

Catchwords:

MODIFICATION APPLICATION – erection of a building for 103 boarding rooms – conciliation conference – agreement reached – orders made

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application – neighbouring trees – bamboo–alleged damage – insufficient evidence – risk of damage – application refused – Pt 2A application – obstruction of sunlight – obstruction of views – obstruction not severe – applications refused

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether the trees have caused damage — bamboo — application granted in part — orders for compensation and bamboo removal

Catchwords:

ENVIRONMENT AND PLANNING — conciliation conference — consent — appeal — s 34 Agreement — cl 4.6 variation — conditions of consent

Catchwords:

DEVELOPMENT APPEAL — residential development — dual occupancy development — Torrens title subdivision — conciliation conference — agreement between the parties — orders

Catchwords:

APPEAL — seniors housing — independent living units — conciliation conference — agreement reached — orders made

Catchwords:

OCCUPATION - Registered Nurse – Stage Two – Guilty of unsatisfactory professional conduct and Professional Misconduct – Cancellation of Registration

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW ─ Awards and enterprise agreements ─ Variation ─ State Wage Case ─ Finalisation of variations made arising from State Wage Case 2026 [2026] NSWIRComm 16

Catchwords:

ENVIRONMENT AND PLANNING – Offences – s 60N of the Local Land Services Act 2013 (NSW) – s 12 of the Native Vegetation Act 2003 (NSW) – native vegetation clearing – three separate trials – single judgment – whether clearing was carried out – whether aerial imagery interpretation evidence was generally reliable – whether observations of aerial imagery obvious to the lay eye – whether clearing was of native vegetation – whether ecological evidence was generally reliable – whether clearing was in a regulated rural area within the meaning of s 60N of the Local Land Services Act 2013 – whether prosecutor could rely on evidentiary certificate issued pursuant to s 60F(5) of Local Land Services Act 2013 – whether defendants legally responsible for clearing – whether evidentiary provisions in s 44 of Native Vegetation Act 2003 and s 13.29 of Biodiversity Conservation Act 2016 (NSW) apply in circumstances where prosecutor has not proven manner in which alleged clearing took place or activity constituting alleged offence – whether clearing caused by persons other than defendants without defendants causing or permitting the clearing – whether defendants have established any available defences – whether clearing was for routine agricultural management activities within the meaning of s 11 of the Native Vegetation Act 2003 – meaning of “imminent risk” in s 11(1)(i) of the Native Vegetation Act 2003 EVIDENCE – admissibility – whether evidence in one trial admissible in other trial – rule in Browne v Dunn – whether expert witnesses given opportunity to respond to criticisms of methodology – whether expert witnesses given opportunity to respond to criticisms of specific observations

Catchwords:

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – no question of principle

Catchwords:

ADMINISTRATIVE LAW — application to review the legality of various decisions relating to the plaintiffs’ strata management licences and business — second plaintiff in liquidation — proceedings brought by second plaintiff dismissed — where the determinative issue in the plaintiff’s case is the legality of a search warrant — application out of time — no application made for extension of time — no basis for extension of time established — plaintiff’s case would have anyway failed as the invalidity of the original suspensions had no bearing on the subsequent issuing of the search warrant — proceedings in any event would have been dismissed for failure to take available administrative action — proceedings also futile

Catchwords:

CONTEMPT — procedural orders — where respondents denied opportunity to be heard in opposition to contempt referral application — where respondents adequately explained failure to file material in opposition to contempt referral application — where appeal against orders relied on in contempt referral application heard but decision reserved — whether contempt referral order should be set aside, discharged or permanently stayed — whether proceedings should continue to be decided on the papers

Catchwords:

CONTEMPT — referral application — whether applicant adduces admissible evidence capable of establishing beyond reasonable doubt that respondent wilfully disobeyed summons for production of documents — whether applicant adduces evidence capable of establishing that respondent failed to produce documents in his possession or control — whether if contempt referral application made out applicant’s failure to summons respondent to attend and produce documents disentitles applicant to exercise of discretion to grant contempt referral application

Catchwords:

REVENUE LAW – State taxes – tax on Transfer – interest – appeal.

Catchwords:

ADMINISTRATIVE LAW - administrative review - government information - access application - enforceable right to access government information - - reasonable searches ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Catchwords:

APPEAL — right to appeal — question of law — breach of procedural fairness — discretionary decision — House v The King principles GOVERNMENT INFORMATION — access application — unreasonable and substantial diversion of the resources — exercising any rights under any Act or law — “related” access applications

Catchwords:

PRACTICE AND PROCEDURE – non-disclosure orders – application to vary orders made pursuant to s 164A of the Industrial Relations Act 1996 (NSW) – coronial inquest – disclosure of suppressed information for purposes of coronial proceedings – material change in circumstances – limited exception to existing confidentiality orders – variation granted.

Catchwords:

APPEAL - suppression and confidentiality order – application for suppression orders and pseudonym orders LEASES AND TENANCIES – meaning of residential tenancy agreement – essential ingredients of a residential tenancy agreement – whether there was correspondence between offer and acceptance of the offer - whether residential tenancy agreement concluded

Catchwords:

JUDGMENTS AND ORDERS — Stay of execution — where plaintiff seeks stay of execution of NCAT orders for termination of tenancy and vacant possession by lessor — where plaintiff has commenced appeal in Tribunal — whether arguable grounds of appeal shown — whether balance of convenience favours stay — where plaintiff has not offered undertaking as to damages — where plaintiff has had substantial notice of termination of tenancy — where lessor subject to significant financial pressures

Catchwords:

DEVELOPMENT APPLICATION — three-storey attached dual occupancy — Torrens title subdivision — clause 4.6 variation requests for height and floor space ratio — conciliation conference — agreement between the parties — orders made

Catchwords:

DEVELOPMENT APPLICATION – construction of a dwelling house – conciliation conference – agreement between the parties – orders

Catchwords:

CIVIL PROCEDURE – Amendment – Where plaintiff seeks to amend amended Statement of Claim – Where plaintiff has advanced four iterations of proposed Amended Statement of Claim – Claim now seeks to join the operator airline (as carrier and as second defendant) while maintaining claim against current defendant (as the carrier’s agent and as first defendant) – Principles of case management – Leave granted to amend

Catchwords:

CIVIL PROCEDURE – hearings – where additional issue arises during cross-examination – where plaintiff seeks to obtain additional expert evidence mid-hearing – where additional evidence would occasion delay – whether proceedings could conclude in 2026 – adjournment allowed – whether plaintiff’s treating psychiatrist should participate in expert psychiatric conclave – he should not

Catchwords:

SENTENCE – Maintain unlawful sexual relationship with child – s66EA of the Crimes Act 1900

Catchwords:

SENTENCE – Commonwealth offences – Fail to comply with s3LA order – Multiple offences of using carriage service to menace, harass or offend – Offence pursuant to s80.2H(1) of the Code, did display a Nazi Salute – Importance of general deterrence

Catchwords:

COSTS — Party/Party — exceptions to general rule that costs follow the event — appropriate case in which a special costs order should be made to reflect the plaintiff’s failure on issues of significance in terms of scope and quantum — HELD — the defendant to pay 50% of the plaintiff’s costs of the proceedings on the ordinary basis COSTS — Party/Party — the operation of r 42.34 of the UCPR does not prevent a costs order being made in favour of the plaintiff — HELD — the commencement and continuation of the proceedings in the Supreme Court rather than the District Court was warranted COSTS — offers of compromise — lack of evidence on which the court could evaluate the offers made — no basis on which to conclude that it was unreasonable for the plaintiff not to accept the offers seven days before the trial was to commence was a reasonable period for the plaintiff to consider whether to accept the offer

Catchwords:

APPEALS — Appeal from Local Court — Local Court Act 2007 (NSW), s 39(1) — Right of appeal on question of law — Whether the Magistrate erred by finding that a notice served under s 21(2) of the Pawnbrokers and Second-hand Dealers Act 1996 does not impose a duty of care on the authorised officer who issued the notice APPEALS — Appeal from Local Court — Local Court Act 2007 (NSW), s 39(1) — Right of appeal on question of law — Whether procedural fairness was denied by the Magistrate’s failure to enquire whether the appellant was self-represented — Where a solicitor appeared on the appellant’s behalf — Where an obligation to enquire was said to arise due to the appellant’s participation in addressing the Court and conducting cross-examination

Catchwords:

APPEALS – leave to appeal decision of Appeal Panel of NSW Civil and Administrative Tribunal (NCAT) – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – refusal to grant leave to appeal NCAT’s decision – termination of social housing tenancy agreement – breaches of agreement requiring reasonably clean premises and prohibiting hoarding – whether the clause prohibiting hoarding involved disability discrimination – no evidence landlord was aware of any presumed disorder – whether termination notice retaliatory – no evidence of any motivation to terminate on that basis – neither discrimination or retaliation grounds raised at first instance – factual determinations required which cannot properly be raised here – leave refused EVIDENCE – objection to tender of photographs documenting cleanliness of premises – Residential Tenancies Act 2010 (NSW), s 55A – where smoke alarm inspector disseminated photographs of the premises’ exterior and interior to the landlord whilst carrying out inspections – dissemination of exterior photograph outside terms of provision –dissemination of interior photographs allowable between agent and landlord for approved purpose –photographs not impermissibly “published” by email or tender – tender admissible

Catchwords:

CRIME – sentence – manslaughter on basis of excessive self-defence – stab wounds with a hunting knife to the left buttock, left hip and left shoulder – where the offender was confronted by the deceased over an affair the offender had with the deceased’s partner – where the deceased was the initial aggressor, but was unarmed – where the offender’s anger escalated quickly after being punched – no planning – diagnoses of ADHD, social anxiety disorder, generalised anxiety disorder and trauma-related disorder – conditions likely to have contributed to heightened state of anxiety and fear and impulsive aggression – reduced moral culpability – good prospects of rehabilitation – genuine remorse and acceptance of responsibility

Catchwords:

PRACTICE AND PROCEDURE – application to set aside summons – relevance – legitimate forensic purpose – oppressive

Catchwords:

TORT – negligence – duty of care at common law and under s 5B of the Civil Liability Act 1995 (NSW) – whether there was a breach of a duty of care by failing to take reasonable precautions to minimise or reduce the risk of damage to neighbouring property TORT – negligence – whether breach of the duty of care pursuant to s 177 of the Conveyancing Act 1919 (NSW) – whether s 177 imposes a non-delegable duty TORT – proportionate liability under s 35 of the Civil Liability Act 1995 (NSW) – whether concurrent wrongdoers – principles to be applied in apportioning liability DAMAGES – claim for diminution in value and consequential losses EVIDENCE – improperly obtained evidence – whether breaches of the Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) enliven s 138 of the Evidence Act 1995 (NSW) – whether the desirability of admission outweighs any undesirability

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – parties – persons under legal incapacity – tutors – approval of settlement under s 76 of the Civil Procedure Act 2005 – release of rights under s 95 of the Succession Act 2006 – approvals given and release made – payment of settlement to private trustees under s 77(3) of the Civil Procedure Act 2005

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — high hedges — view obstruction — do the trees form a hedge

Catchwords:

APPEALS – Leave to appeal – judicial review – whether there is power to amend an application for costs assessment – issue of public importance – costs assessment of amended application completed and the subject of a review from which an appeal would lie – application both too late and premature – fragmentation of proceedings – unclear whether relief sought has utility – leave to appeal refused

Catchwords:

ADMINISTRATIVE LAW — Jurisdictional error — constitution of Tribunal — whether Tribunal was properly constituted in accordance with ss 27 and 52 of the Civil and Administrative Tribunal Act 1987 (NSW) STATUTORY INTERPRETATION — principles —meaning of phrase “the consideration of a matter by the Tribunal has commenced” in s 52 of the Civil and Administrative Tribunal Act 1987 (NSW) WORDS AND PHRASES — “consideration of a matter by the Tribunal has commenced”, “proceedings”, “matter, “consideration”

Catchwords:

ADMINISTRATIVE REVIEW – bus driver authority – driving offences – whether of good repute and fit and proper person to be the driver of a public passenger vehicle

Catchwords:

CRIME — Appeals — Appeal against sentence — Sentencing for federal offences — Denial of procedural fairness — Utilitarian value of guilty plea — 20% discount open to the sentencing judge CRIME — Appeals — Appeal against sentence — Sentencing for federal offences — Remorse CRIME — Appeals — Appeal against sentence — Sentencing for federal offences — Manifest excess

Catchwords:

CRIME — Appeals — Appeal against sentence —Aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — Attribution of aggravating factors generally to all offending — Double counting of aggravating factor that is an element of an offence — No lesser sentence warranted

Catchwords:

CIVIL PROCEDURE — application by the Diocese to withdraw an admission in its Defence — whether there is a satisfactory explanation was to why the admission was made — whether there will be some prejudice to the plaintiff and the Marist Brothers if the admission is withdrawn — application dismissed

Catchwords:

CIVIL PROCEDURE — application by representative plaintiffs seeking a discontinuance of the representative proceeding — where Funder is not willing to fund the proceeding while representative plaintiffs are lead plaintiffs — whether there is an issue regarding limitation period for other group members to commence proceedings should representative proceeding be discontinued — whether discontinuance would be unfair, unreasonable, or adverse to the interests of group members — whether a declaration that the discontinuance does not affect any rights of the plaintiffs or any group members to pursue claims be made — whether notice of the proposed discontinuance should be given to group members — confidentiality orders made — representative proceedings discontinued — declaration made

Catchwords:

DEVELOPMENT APPEAL — residential flat building — conciliation conference — agreement between the parties — orders

Catchwords:

LEASES AND TENANCIES – social housing tenancy – claims by tenant of breaches of s 50 (1), s 52 (1) and s 63 (1) of the Retail Tenancies Act 2010 (NSW) – four separate proceedings brought in respect of different alleged breaches - heard together with one decision for all proceedings – tenant incurred alternative accommodation costs when she moved out of premises temporarily due to condition of the premises – award of non-economic loss compensation in the sum of $4,500 for breach of quiet enjoyment due to mould issues – no award made in respect of alternative accommodation costs. APPEALS – errors of law - failure to deal with the claim for breach of s 52 (1) of the RTA - failure to ask the right questions - absence of probative evidence concerning factual conclusions on failure to mitigate loss.

Catchwords:

DEVELOPMENT APPLICATION — two-storey attached dual occupancy — Torrens title subdivision —conciliation conference — agreement between the parties — orders made

Catchwords:

CONTEMPT – whether application should be determined on the papers – whether applicant adduces admissible evidence capable of establishing beyond reasonable doubt breach of orders of Tribunal – whether applicant adduces admissible evidence capable of establishing beyond reasonable doubt conduct tending to interfere with the administration of justice by Tribunal

Catchwords:

APPEAL – refusal to issue occupation certificate – single dwelling – no modified construction certificate

Catchwords:

CIVIL PROCEDURE – application for stay of enforcement of judgment pending leave to appeal – where primary judge made orders enforcing arbitral awards as judgment pursuant to Commercial Arbitration Act 2010 (NSW) – where applicant’s appeal confined to primary judge’s dismissal of stay application – whether arguable case on appeal – whether applicant would suffer prejudice if stay not granted – whether balance of convenience favours granting stay to preserve status quo – whether stay should be granted on terms that applicant pay judgment debt into court – practical solution in the interests of both parties

Catchwords:

DEVELOPMENT CONTROL ORDER – earthworks – restore works order – conciliation conference – amended order – agreement between the parties – orders

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Public Sector Disciplinary Appeal - Industrial disputes – disciplinary decision to assign employee to a different role - whether an appealable decision –relevance of establishing a collective element to the dispute to the exercise of discretion to grant relief – Parties to confer with respect to appropriate recommendations

Catchwords:

CRIME — Appeals — Appeals against conviction

Catchwords:

APPEALS – leave to appeal – contract – damages arising from breach – breach of preliminary agreement – weight of evidence – fair and equitable principles – causation and quantum

Catchwords:

CRIMINAL LAW — Work health and safety — Three offences — Duty of persons undertaking business — Director’s failure to exercise due diligence — Failure to consult, co-operate and co-ordinate activities with other duty holders — Fall from height — Ice machine compressor fell through roof while seven workers were attempting to move it — Failure to ensure roof was structurally capable of supporting compressor and workers — No safe work method — Ad hoc procedure adopted — No adequate risk assessment SENTENCING — Relevant factors on sentence — Objective seriousness — Aggravating factor —Mitigating factors — Plea of guilty — General deterrence — Specific deterrence — Extra-curial punishment — Appropriate penalties

Catchwords:

APPEAL – set aside of a decision made in the absence of a party

Catchwords:

Motor Accident Compensation – proceedings filed outside of 3-year period after date of accident without leave – application to dismiss proceedings filed out of time – application for leave to commence proceedings out of time pursuant to s 6.32 of Motor Accidents Injuries Act 2017 – whether a full and satisfactory explanation provided for delay

Catchwords:

BUILDING AND CONSTRUCTION – Validity of a Payment Claim under the Building and Construction Industry Security of Payment Act – Where a Deed of Amendment expressed termination of lump-sum contract and parties agreed to enter a cost-plus contract – Payment Claim reference to "Costs-plus" contract – Requirements for a valid Payment Claim – No Payment Schedule served

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – application for variation to contract determination – consent position – variation made – effective date

Catchwords:

DEFAMATION — practice and procedure — application for leave to elect for trial by jury out of time — deprivation of defendant’s right to apply for trial without a jury - no issue of principle

Catchwords:

CIVIL PROCEDURE — applications for production of certain documents — no issue of principle

Catchwords:

DEFAMATION — Separate determination — Section 10A — Serious harm not established — Identification not established

Catchwords:

CONTRACTS — loan agreement — whether agreement reached between lender and borrower — oral discussions followed by written agreement executed by lender but not borrower — loan funds advanced to and used by borrower — agreement established by discussions and subsequent conduct — where lender did not advance full amount — waiver of right to further advances — Hong Kong law — alleged licensing requirement under Ordinance — no submissions advanced which explained why lender’s conduct fell within Ordinance — defence failed

Catchwords:

CIVIL PROCEDURE — Default judgment — Default in filing defence — where first defendant has not filed defence — whether first defendant has adequate notice of proceedings and hearing — whether fair to permit plaintiff to seek judgment without further opportunity to first defendant to be heard JUDGMENTS AND ORDERS — where second and third defendants entered into loan agreement including to pay interest on specified terms — no issue of principle — judgment for first and second plaintiffs against second and third defendant

Catchwords:

CIVIL PROCEDURE – failure to honour agreement resolving proceedings – proceedings dismissed – no point of principle

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed

Catchwords:

APPEAL — development application — registered club — conciliation conference — agreement reached — orders made

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government Information – access – correct and preferable decision – conclusive presumption of a public interest consideration against disclosure – confidential information – excluded information

Catchwords:

COSTS — subpoenas — motion seeking access to documents produced under subpoena — costs and expenses of compliance — privilege claims belonging principally to former client — former solicitors no longer acting for plaintiff — whether former solicitors were a necessary party to the motion —whether conduct of former solicitors disentitled them to compliance costs — assessment of reasonable loss or expense on a broad brush basis

Catchwords:

TAXES AND DUTIES — collection and recovery of taxes — director penalties for unpaid PAYG tax, superannuation guarantee charges and GST — unpaid personal income tax — no defence pleaded under s 269-35 of Schedule 1 to the Taxation Administration Act 1953 (Cth) and no evidence filed by defendant — evidence facilitated by s 350-10 of Schedule 1 to the Taxation Administration Act 1953 (Cth) — no issue of principle — able to proceed pursuant to r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW)

Catchwords:

HUMAN RIGHTS – discrimination – interim orders sought under section 105 of the Anti-Discrimination Act 1977 (NSW) where applicant brought two previous applications for interim orders – summary dismissal application – whether proceedings brought for improper purpose – whether principle of res judicata applies – whether applicant is estopped from having issues determined - whether Tribunal has power to make the orders sought – whether proposed interim orders would “preserve the rights of the parties to the complaint” within section 105(1)(b) of the Anti-Discrimination Act 1977 (NSW) – identification of relevant rights to be preserved - whether proposed interim orders would return parties to circumstances before alleged contravention within section 105(1)(c) of the Anti-Discrimination Act 1977 (NSW)

Catchwords:

ADMINISTRATIVE LAW – Access to information – GIPA – confidential information – whether overriding public interest against disclosure

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — leave required for a complaint to proceed — complaint lacking in substance

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2A application — neighbouring hedge — applicants purchase date — bamboo — obstruction of sunlight — obstruction not severe — application refused

Catchwords:

DEVELOPMENT APPLICATION – application for affordable housing and low and mid-rise housing under State Environmental Planning Policy (Housing) 2021 – apartment mix – application of the affordable housing component to the spatial layout of the proposal – desired future character – number of storeys standard does not apply to the proposal – landscaped area definition

Catchwords:

APPEAL – where appellant unrepresented at first instance and on appeal – legally represented respondent lodged no pleadings or evidence pursuant to Tribunal directions – Tribunal refused appellant leave to rely on recent affidavit without consideration of its contents – Tribunal granted leave to respondent to rely on recent affidavit – whether in all the circumstances appellant denied procedural fairness

Catchwords:

DEVELOPMENT APPEAL – modification application – mixed use development – boarding house – retail premises – substantially the same development – conciliation conference – agreement between the parties – orders

Catchwords:

ANTI-DISCRIMINATION – SEX DISCRIMINATION – where employer allegedly directly discriminated against a female job applicant on the basis of sex by preferring male candidates for and disadvantaging an employee in the recruitment process for positions as driver in Council waste management operations- whether that was sex discrimination

Catchwords:

PROFESSIONS AND TRADES – health care professional – psychologist – whether unsatisfactory professional conduct (improper or unethical conduct) established – whether professional misconduct established

Catchwords:

EXPERT DETERMINATION — builder engaged to build high school — contract used New South Wales Government GC21 (Edition 2) General Conditions of Contract — expert determination clause — threshold of $500,000 before an “Issue” determined by the expert may be litigated — expert determines eight “Issues” — whether threshold applies to each Issue or the cumulative result of all Issues — Lahey Constructions Pty Ltd v Department of Education [2020] NSWSC 1158 and Lahey Constructions Pty Ltd v State of New South Wales [2021] NSWCA 69 considered at [40]-[49] — point not argued and, thus, not decided at first instance or on appeal — proper construction of expert determination clause — principles at [50]-[53] — threshold applies to each Issue — CPB Contractors Pty Ltd v Transport for NSW [2021] NSWSC 537 considered — Courts should follow earlier decisions unless plainly wrong, at [70]-[72] — decision not plainly wrong or otherwise distinguishable — relevant Issues “involve” a money claim — proceedings stayed in part. WAIVER — whether Department waived reliance on threshold by filing pleadings including claims inconsistent with interpretation argued for — principles at [78]-[79] — where Department sought confirmation from builder in advance that filing of pleadings would not be taken as waiver — builder agreed not to take this point — no waiver. COSTS — payable forthwith — r 42.7, Uniform Civil Procedure Rules 2005 (NSW) — principles at [82] — motion involved discrete issue at early stage of proceedings.

Catchwords:

LAND LAW — strata title — statutory interpretation — whether New South Wales Civil and Administrative Tribunal has the power to apportion liability for insurance premiums for damage policies under s 162 of the Strata Schemes Management Act 2015 (NSW) where no non-strata part in building — application of ss 160 and 162 — where strata management statement apportioned liability for insurance inconsistently with s 162

Catchwords:

PRACTICE AND PROCEDURE – application to be released from the Harman undertaking in respect of two documents produced by a non-party pursuant to a summons – whether special circumstances established

Catchwords:

CIVIL PROCEDURE — Stay of proceedings — Pending appeal — where plaintiff appeals adverse decision and costs order made against her in Local Court — where defendant has entered submitting appearance — whether plaintiff has arguable ground of appeal — whether balance of convenience favours grant of a stay — whether terms of stay ought restrain defendant from seeking assessment of costs

Catchwords:

CIVIL PROCEDURE — Pleadings — Summary dismissal — Striking out — No reasonable cause of action — where amended statement of claim repeats deficiencies the subject of earlier ruling — where plaintiff notified that amended statement of claim was liable to be struck out if not remedied

Catchwords:

CIVIL PROCEDURE — Default judgment — Default in filing defence — where parties entered into a settlement deed in respect of previous proceedings — where deed provided for payment of a sum by instalments — where deed provided for an entitlement to file consent judgment in Court upon default — where plaintiff filed ‘points of claim’ document — whether appropriate to enter judgment pursuant to s 63 of the Civil Procedure Act 2005 by analogy to Part 16 of the UCPR

Catchwords:

COSTS — Where proceedings are discontinued by leave against the fifth and sixth defendants — No question of principle

Catchwords:

PERSONAL PROPERTY — Assignment of choses in action — Of debts and causes of action — Where plaintiff obtained a loan from a lender, which was secured over its assets by a general security agreement — Where lender entered into deed of assignment to first defendant, an associated entity, with respect to the loan and general security agreement — Where first defendant issued a letter of demand after maturity of the loan for the entire balance owing — Where letter of demand referred to plaintiff being ‘previously notified’ of assignment of loan and security — Where first defendant appointed receivers to plaintiff pursuant to general security agreement after failure to repay — Whether appointment of receivers valid — Whether assignment effective at law — Whether letter of demand satisfied requirement in s 12 Conveyancing Act 1919 (NSW) to give written notice of assignment EQUITY — Assignment — Of legal interests — In personal property — Where first defendant would be an equitable assignee of general security agreement if assignment is not effective at law — Whether first defendant as equitable assignee can exercise right under general security agreement to appoint receivers out of court EQUITY — Fraud on a power — Ulterior purpose — Where sole director of first defendant was involved in separate property development project with sole director of plaintiff, unrelated to the loan — Where dispute had arisen amongst parties to the project — Whether power to appoint receivers to plaintiff under general security agreement was invalidly exercised because it was done in bad faith for an improper purpose — Whether receivers were appointed to plaintiff by first defendant in order for sole director of first defendant to gain a collateral benefit in relation to the project — Whether any improper purpose was the substantial object of the exercise of power

Catchwords:

STRATA TITLES — by-laws — common property rights by-laws — exclusive use of parking spaces and storeroom — agreed errors in registered consolidated by-laws — whether lot owner entitled to declarations concerning rights under original by-laws — where owners corporation does not dispute lot owner’s underlying rights — whether sufficient controversy and utility to support declaratory relief — owners corporation possess an interest in opposing relief — declarations made REAL PROPERTY — correction of Register — powers of Supreme Court under s 138 of the Real Property Act 1900 (NSW) — distinction between a dealing and a recording in a folio of the Register — whether power to order amendment of a recording in a folio extends to orders requiring correction and lodgement of a set of consolidated by-laws — instrument “needed” to give effect to Court’s determination — power extends to orders concerning instrument and underlying recording — ancillary orders made

Catchwords:

MERCANTILE LAW – commercial loan agreements – O’Dea clause – default in repayment – default judgment entered against defendants at interlocutory stage – dismissal of cross claim by defendants alleging penalty term, unconscionability, and misleading and deceptive conduct within the meaning of s 21 of the Australian Consumer Law

Catchwords:

ADMINISTRATIVE LAW – late application for internal review - whether Respondent unreasonably refused to consider late application – whether it is necessary for the Tribunal to deal with the application to protect the Applicant’s interests – dismissal of review application – application for stay

Catchwords:

DEFAMATION — practice and procedure — application for leave to amend defence to include further particulars relevant to justification and contextual truth — whether particulars are capable of sustaining the truth of the relevant imputations

Catchwords:

DEFAMATION — practice and procedure — application for leave to amend pleadings to include imputations not included in original concerns notice — whether potential limitation argument precludes amendment — whether proposed imputations differ in substance

Catchwords:

ADMINISTRATIVE LAW – review pursuant to section 70 NSW Trustee and Guardian Act 2009 (NSW) – review under section 63 of the Administrative Decisions Review Act 1997 (NSW) - NSW Trustee and Guardian – Interests and welfare of protected person – Whether a decision of private financial manager in relation to the affordability of the costs of providing care to protected person from managed property is correct and preferable – private financial manager.

Catchwords:

APPEAL — Development application — conciliation conference — agreement between the parties — orders

Catchwords:

CIVIL PROCEDURE - Application of guardian ad litem to revoke appointment – Principles – Application dismissed

Catchwords:

STATUTORY INTERPRETATION – meaning of “offence involving…dishonesty” for the purposes of the firearms regime – whether includes an offence against s 316(1) of the Crimes Act 1900 (NSW)

Catchwords:

CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — where applicant advanced evidence of ‘childhood-origin substance use’ and childhood deprivation — whether sentencing judge failed to take into account De La Rosa and Bugmy considerations — whether sentencing judge erred in treatment of applicant’s mental illness — whether sentencing judge erred by failing to find that the applicant had shown remorse CRIME — Appeals — Appeal against sentence — Manifest excess — whether Court should have regard to sentencing statistics of aggregate or effective sentences for the same offence — whether sentence was manifestly excessive CRIME — Appeals — Appeal against sentence — whether sentencing judge erred in failing to apply 25% discount under Pt 3, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Catchwords:

SENTENCING — Crown appeal — intensive correction order — federal offence — whether intensive correction order available sentencing option — where federal offence had a “corresponding case” under State law — where corresponding State offence was subject to a disentitling provision — error conceded — concession accepted SENTENCING — Crown appeal — inadequacy of sentence — manifest inadequacy — where material error resulted in imposition of a sentence not available at law SENTENCING — Crown appeal — power to remit matter for resentencing — appropriateness of remittal — matter remitted to sentencing court

Catchwords:

APPEAL – procedural fairness – Tribunal’s obligations to self-represented litigants – whether decision against the weight of evidence – significant new evidence – whether substantial miscarriage of justice

Catchwords:

CIVIL PROCEDURE – application for leave under Felons (Civil Proceedings) Act 1981 (NSW) – claim for alleged sexual abuse by worker at Cobham – leave granted

Catchwords:

CIVIL PROCEDURE – application for leave under Felons (Civil Proceedings) Act 1981 (NSW) – claim for damages for alleged sexual assault by school teacher – leave granted

Catchwords:

CIVIL PROCEDURE – application for leave under Felons (Civil Proceedings) Act 1981 (NSW) – claim for damages for alleged sexual assault by priest and later by youth worker at Daruk – leave granted