Browse decisions Displaying 1 - 200 out of 91162 results

Catchwords:

ORDERS – enclosure of carport, stormwater drainage – conciliation conference – agreement between the parties – orders

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APPEAL – Error of Law - Conduct of parties at hearing – Failure of Appellant to comply with Directions to provide sound recording or transcript of the hearing

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ORDERS – unauthorised attic construction – compliance with National Construction Code – Building Code of Australia

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APPEAL – Appeal from orders made by Guardianship Division – decision to confirm financial management order – decision to confirm appointment of NSW Trustee and Guardian – no denial of procedural fairness – balancing of section 4 principles – no failure to give sufficient weight to views of protected person as reflected in enduring power of attorney – leave to appeal refused – appeal dismissed.

Catchwords:

CRIMINAL LAW – sentence – offender found guilty of murder after trial by jury – offender relied upon partial defence of substantial impairment – jury rejected partial defence – diminution for culpability for murder by reason of mental state still available – discussion of objective and subjective features – sentence imposed

Catchwords:

CIVIL PROCEDURE – separate determination of questions – formulation of questions – primary judge’s discretion miscarried because of error in relation to expected length of hearing of separate question – need for re-exercise of discretion – claim in professional negligence and for statutory breaches in relation to valuation of property for mortgage valuation purposes – limitation defence raised – whether separate question should be ordered in respect of limitation defence – where question essentially one of law and capable of resolving dispute if answered favourably to defendant – consideration of length and cost of any hearing of separate question relative to length of hearing and cost of full trial

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

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REPRESENTATIVE PROCEEDINGS – Civil Procedure Act 2005 (NSW) pt 10 – where duplicate sets of representative proceedings (class actions) are commenced in the Court against the same defendants with different solicitors on the record – whether the Court should relax the one solicitor for plaintiffs rule and permit joint solicitors on the record – procedure to be adopted for determining the question which solicitor should be on the record – HELD – the rule should not be relaxed – HELD FURTHER – If the question which solicitor should be on the record cannot be agreed between the parties, an expeditious abbreviated procedure of the type used to resolve forum non conveniens disputes should be adopted to resolve the question.

Catchwords:

DEVELOPMENT APPLICANTION – removal and replacement of fence structures – conciliation conference – agreement between the parties – orders   NOTICE OF MOTION – application to amend the Court’s orders to allow for correct case name, parties name references and condition of consent – Uniform Civil Procedure Rules – rule 36.16(3A)

Catchwords:

PROFESSIONS AND TRADES – appeal against a decision of the Nursing and Midwifery Council – impairment – conditions attached to nursing registration – practical utility of conditions

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REVENUE LAW – Land Tax – exemption for land used for primary production – significant and substantial commercial purpose or character

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DEVELOPMENT APPLICATION – multi-dwelling development – minimum lot size non-compliance – height non-compliance – cl 4.6 written request –conciliation conference – agreement between the parties – orders

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LICENSING – firearms – licence revocation – fit and proper person – public interest – mental health considerations - whether referral by health practitioner required – jurisdiction to review invalid decision.

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CONSUMER CLAIM – used motor vehicle – alleged breach of statutory warranties – alleged misleading conduct – alleged major failure – remedies

Catchwords:

CONTRACTS – termination – whether building contract validly terminated – whether in the circumstances, 10 business days notice giving opportunity to remedy default needed to be given prior to termination – alternative bases for termination – Shepherd v Felt & Textiles of Australia Ltd

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Civil and Administrative Tribunal of NSW – Decisions of an Appeal Panel and Senior Member of the New South Wales Civil and Administrative Tribunal – Refusal to conduct judicial review under s 34 of the Civil and Administrative Tribunal Act 2013 (NSW)   PRACTICE AND PROCEDURE – Civil procedure – Application for leave to appeal from the decisions of an Appeal Panel and Senior Member of the New South Wales Civil and Administrative Tribunal as to costs – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Where the decision of the Senior Member does not involve an “external or internal appeal” – Inappropriate exercise of discretion – Failure to provide adequate reasons – Failure to afford procedural fairness

Catchwords:

PRACTICE AND PROCEDURE — Applications — Summary dismissal — Abuse of process — Where the plaintiff has filed three notices of motion seeking summary judgment

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By person convicted or sentenced on a question of law alone – alleged failure to apply rule of statutory construction regarding immunity in respect of words used in judicial proceedings – validity of conviction under s 192G of Crimes Act 1900 (NSW) for false statements to Local Court that statements of claim were served – statements made to obtain default judgment   CRIME — Fraud — intention to defraud by false or misleading statement – whether applies to statements in judicial proceedings   CRIMINAL PROCEDURE – unsuitability of injunctive relief to restrain laying of further charges

Catchwords:

COSTS – motion by applicant seeking orders that each of the two motions filed by the respondent be dismissed and an order that the respondent pay the applicant’s costs in relation to the motions on an indemnity basis – whether costs should be awarded in the applicant’s favour – motion dismissed – no order for costs

Catchwords:

COSTS – security for costs – where cross-claim is primarily defensive in nature – no security for costs to be ordered   COSTS – security for costs – procedure and discretion – further security sought from the plaintiff for future costs – broad brush approach – further security ordered

Catchwords:

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

Catchwords:

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

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HIGH RISK OFFENDER – preliminary hearing – application for appointment of two psychiatrists – application for interim supervision order – orders made – conditions imposed

Catchwords:

CIVIL PROCEDURE — Parties — Joinder — Of cross-defendant – application for joinder of Lawcover by cross-claimants – where Lawcover is the insurer of a law firm under a “run-off” professional indemnity insurance policy – where the law firm was instructed by the applicant to draft the relevant trust deed and to act on the conveyance of the relevant property – whether the solicitors allegedly failed to give certain advice to the applicants including to lodge with the Land Titles Office a copy of the relevant trust deed or to lodge a caveat over the relevant property – whether discretion under s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) enlivened to permit the joinder of Lawcover – held that the proposed third cross-claim does not adequately establish the existence of a reasonably arguable cause of action against Lawcover – notice of motion dismissed

Catchwords:

CRIME — murder — trial by judge alone — no dispute that elements of the offence established MENTAL HEALTH — criminal proceedings — defence of mental illness — special verdict of not guilty by reason of mental illness

Catchwords:

HIGH RISK OFFENDER – final hearing – application for extended supervision order – Court satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision – defendant conceded the order should be made – parties agreed on form of conditions – Court satisfied that conditions are appropriate to manage the defendant’s risk – extended supervision order of five years duration made

Catchwords:

ADMINISTRATIVE LAW – jurisdictional error – judicial review of Determinations of Compensation issued by the Valuer-General under s 47 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – whether the Determinations with respect to underlying zoning and development standards lacked probative evidence and were legally unreasonable – whether the Determinations with respect to the comparable sales method of valuation were legally unreasonable – not legally unreasonable – impermissible merits review – no jurisdictional error   ADMINISTRATIVE LAW – jurisdictional error – whether there was power to award certain disturbance costs under s 59(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – where the Valuer-General misdirected himself to the date from which disturbance costs were claimable in accordance with Hoy v Coffs Harbour City Council [2016] NSWCA 257 – whether the legal error made by the Valuer-General in making the Determinations has the consequence that the Determinations are liable to be set aside for jurisdictional error – jurisdictional error – Determinations set aside – declaration made   CIVIL PROCEDURE – stay – orders made by consent staying the legal effect of the Valuer-General’s Determinations until the final disposition of the proceedings – whether the Court can stay the operation of an Act   COSTS – party/party – issues severable – first and second defendants successful on 70 per cent of issues in the case – plaintiff to pay 30 per cent of the first and second defendants’ costs

Catchwords:

CONTRACTS – Construction and interpretation – general principles – ambiguity – surrounding circumstances and commercial objects of contract – interpretation in context of contract as a whole – redundancy of terms – whether redundancy appropriate in these circumstances – whether alternative construction of words inconsistent with other provisions or commercial purpose of contract – standard form contract to which terms have been added – greater weight given to added terms in event of inconsistency

Catchwords:

CRIME - sentence appeal – where applicant pleaded guilty to supply prohibited drug on an ongoing basis – where applicant sentenced to imprisonment for 4 years with a non-parole period of 1 year and 8 months – where further offence of supply prohibited drug on an ongoing basis also taken into account on sentence – whether sentence manifestly excessive - appeal allowed - resentence

Catchwords:

COSTS — Security for costs — Relevant factors – r 42.21(1A) of the Uniform Civil Procedure Rules 2005 (NSW) – consideration of prospects of success or merits of the proceedings (r 42.21(1A)(a)) and whether the cross-claim is defensive in nature (r 42.21(1A)(e)) – security for costs ordered by way of an unconditional bank guarantee or payment into court.

Catchwords:

TORT – defamation – imputations – form and capacity

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

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APPEAL – sale of second hand motor vehicle – mileage too high for statutory guarantee under Motor Dealers and Repairers Act NSW 2013 – whether acceptable quality under NSW Australian Consumer Law – no question of law involved – no appellable error of fact

Catchwords:

DEVELOPMENT– demolition of existing dwelling and construction of new dwelling – conciliation conference – agreement between the parties – orders

Catchwords:

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

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

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DEVELOPMENT APPEAL – desired future character – amenity of neighbouring properties – foreshore scenic protection area – contemporary and innovative design

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APPEALS – actual or apprehended bias – unfavourable comments at pre-trial hearing – whether primary judge dissuadable from alleged fixed opinion – criticism of legal representatives – whether justified – whether indicative of bias   SUCCESSION – family provision – claim by adult son – where deceased remarried – where deceased left entire estate to family from second marriage – deceased’s moral obligation to widow – discussion of role of freedom of testamentary disposition in family provision claims

Catchwords:

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

Catchwords:

CORPORATIONS — Shareholders’ rights and remedies — Access to books and records — Shareholder sought access to completed proxy forms in advance of AGM — Sought to influence votes to assist the election of their candidate — Whether “books and records of the company” for the purposes of s 247A — Section does not apply to books in the company’s possession but not belonging to it — Proxy forms are not books “of the company” — Whether common law right of access to proxy forms — Application of Edman v Ross (1922) 22 SR (NSW) 351 — Whether “necessary with reference to some specific dispute or question in which the shareholder is interested” — Inspection unnecessary having regard to the rights granted by the Corporations Act — Judgment for the defendant.

Catchwords:

CORPORATIONS – winding up – public examination of directors, officers and others – where shareholders propose to examine former director of company – where shareholders investigating potential class action – whether proposed examination is to be conducted for an improper purpose – whether proposed examination is an abuse of process.   COSTS – security for costs – order for production – where liquidators and creditors of company would bear costs of production – where significant difference in costs estimates – whether production should be ordered on condition that persons seeking disclosure fund costs of such disclosure.

Catchwords:

COSTS – multiple defendants and cross-claims – unsuccessful cross-claims by defendants – whether costs of cross-claims should be borne by unsuccessful plaintiffs – whether plaintiffs’ claim was catalyst for cross-claims – whether reasonable for defendants to have joined cross-defendants – whether cross-claims raised issues private to the parties to them

Catchwords:

MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing CRIME — Sexual offences — Act of indecency — meaning of word ‘towards’

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ADMINISTRATIVE LAW – procedural fairness – notice not given by Registrar General when primary application made by neighbour to bring land under Real Property Act 1900 (NSW) – relief granted

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PROFESSIONS AND TRADES – health care professionals – medical practitioners – disciplinary action – practitioner the subject of a criminal finding in relation to a domestic dispute

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EMPLOYMENT AND INDUSTRIAL LAW — Contract — Termination — Termination on notice – whether the plaintiff was justified in terminating the employment contract of the defendant (its former managing director) – whether the plaintiff would have been justified in terminating summarily the defendant’s employment contract on the ground of serious misconduct – where information regarding unauthorised directions and payments made by the defendant were discovered after the termination – whether the contract was for a fixed term – held that the contract was not for a fixed term and the plaintiff was justified in terminating the employment contract and would have been justified in terminating summarily the defendant.   EQUITY — Equitable remedies — Restitution – Unjust enrichment – whether the plaintiff could recover the notice payment paid to the defendant – whether there was a factor rendering retention of the notice payment unjust – held that the payment was made voluntarily in circumstances where the plaintiff chose not to investigate further but to bring the employment to an end immediately.   CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Silence – whether necessary to establish reasonable expectation of disclosure,   EQUITY —Trusts and trustees — Resulting trusts –moneys misappropriated by the defendant held on presumed or resulting trust by the defendant for the benefit of the plaintiff – unauthorised profits in breach of the defendant’s fiduciary duties held by the defendant subject to a constructive trust in the plaintiff’s favour.   EMPLOYMENT AND INDUSTRIAL LAW — Leave — Long service leave – s 4(2)(a)(ii) of the Long Service Leave Act 1955 (NSW) – whether the defendant had been wrongly denied long service leave accruals on termination of his employment – held that the defendant was entitled to long service leave on the basis that his employment was terminated in lieu of notice and not for misconduct.

Catchwords:

APPEALS – time for appeal – notice of intention to appeal filed and served – successful defendant sought orders limiting time within which appeal could be commenced – whether Court of Appeal had jurisdiction and power to make such an order – whether such an order should be made – application refused

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – worker injured   SENTENCING – objective seriousness – deterrence – aggravation factors – mitigating factors

Catchwords:

EVIDENCE – privilege – client legal privilege – where documents previously produced to liquidators of former trustee under s 530B of the Corporations Act 2001 (Cth) – whether current trustee can claim privilege.   CORPORATIONS – winding up – public examination of directors, officers and others – where solicitor acting for major creditor also acts for liquidators – where liquidators will retain independent solicitor to instruct counsel for purposes of conducting examinations – whether examination summonses should be set aside.

Catchwords:

ADMINISTRATIVE REVIEW – privacy – health information – summary dismissal

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ASSOCIATIONS AND CLUBS — Racing clubs and associations — Validity of appointment of an administrator under s 24(1)(j) of the Greyhound Racing Act 2017 (NSW) — Powers of administrator appointed pursuant to same – Interlocutory regime pending determination of validity of appointment

Catchwords:

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

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CIVIL PROCEDURE – Security for costs – capacity to pay adverse costs order – whether moving party is in substance defendant or plaintiff – financial position of plaintiff

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CIVIL PROCEDURE – Costs – cross-claim – general rule that costs follow the event – claim for contribution – no question of principle

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CRIMINAL LAW – SENTENCE – MURDER – offender found guilty following trial by jury – victim shot six times in the head and once in chest – victim and offender’s wife involved in a relationship – where offender’s motive related to his outrage at the relationship between the victim and the offender’s wife and his sense of cultural dishonour – planned offence committed with intent to kill – whether offender provoked by victim attracting operation of s.21A(3)(c) Crimes (Sentencing Procedure) Act 1999 – characterisation as an “honour killing” unhelpful to offender – no “honour” in murder – offence fell markedly above mid-range of objective seriousness – general and specific deterrence important factors on sentence – absence of remorse – consideration of totality arising from accumulation of sentence on pre-existing sentence – limited finding of special circumstances – offender sentenced to imprisonment for 32 years with a non-parole period of 23 years.

Catchwords:

ENVIRONMENT AND PLANNING – Land and Environment Court – Jurisdiction and powers – procedure – Civil Procedure Act s 64 – amendment to points of claim – Roads Act 1993

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing building listed as a local heritage item – change of use of the first floor to retail – impact on the heritage significance of the heritage item.

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CIVIL PROCEDURE – Statutory indemnity – claim for interest – costs - Workers Compensation Act – whether s 100 Civil Procedure Act permits judgment for interest alone – whether Act requires principal judgment which may “include” interest

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COSTS – contract dispute – indemnity costs – Calderbank letters – whether genuine offer of compromise – whether proceedings conducted unreasonably – continued requests to clarify case – passage of two and a half years – relevance of delay

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CRIMINAL LAW – Sentence - Forms 1 – Dishonestly obtain property by deception – Dishonestly obtain financial advantage – Fail to appear in accordance with bail undertaking – Larceny – Aggravation - Unsophisticated offending - Offences committed to support drug habit – On conditional liberty at time of offending – Sad and traumatic upbringing -

Catchwords:

COSTS – indemnity costs – summary dismissal – claim statute-barred – whether should have been apparent to plaintiff that proceedings had no real prospects of success – whether delinquency or unreasonableness on behalf of plaintiff – whether proceedings an abuse of process

Catchwords:

CIVIL PROCEDURE – jurisdiction – Commissioner of Police – power to cause medically unfit police officer to be retired – whether decision “dismissal” – whether decision subject to review in Industrial Relations Commission – whether contrariety between Police Act 1990 (NSW) and Industrial Relations Act 1996 (NSW) – whether review in Industrial Relations Commission incompatible with provisions of Police Act – Industrial Relations Commission’s power to deal with industrial matters covering police officers – whether Police Act evinces a legislative intention to exclude the jurisdiction of the Industrial Relations Commission

Catchwords:

TORTS – injurious falsehood – application for interlocutory injunction to prevent further publications pending final hearing where the first defendant is a media company and the second defendant is an employee and radio broadcaster for the first defendant – where the second defendant made a number of representations about the plaintiff’s business on his radio show – representations were also made in articles published on the first defendant’s website – whether there is a prima facie case that the representations were made maliciously – where the defendants made allegations about the plaintiff with reckless indifference to the truth of the allegations or without any belief in the truth of the allegations – absence of evidence to support a number of statements made by the defendants – prima facie case made out – balance of convenience strongly favours the plaintiff

Catchwords:

APPEAL – appeal against a Commissioner’s judgment on questions of law – whether Commissioner erred in finding that she did not have jurisdiction to grant consent to the development application – whether Commissioner erred in finding that the consent of the owner of adjoining land was required pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) – whether Commissioner erred in finding that the location of existing piles used for structural stability raised an issue of jurisdiction – whether the Commissioner erred in finding that jurisdiction to determine the appeal was only provided if the piles were structurally isolated from the proposed development – whether Commissioner erred in dismissing the appeal without giving the parties an opportunity to make submissions as to whether the consent of the owner of adjoining land was required and whether she had jurisdiction to grant consent to the development application – appeal upheld

Catchwords:

APPEAL – security for costs – appeal from NCAT to Supreme Court – 106 grounds of appeal – decision of an Associate Justice – 30 grounds of appeal – whether appeal or judicial review – whether error of law – House v The King error

Catchwords:

DEVELOPMENT APPLICATION – roof signage – Parramatta Road transport corridor – desired future character – State Environmental Planning Policy No 64 – Advertising and Signage – height standard

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HIGH RISK OFFENDER – preliminary hearing – Terrorism (High Risk Offenders) Act 2017 – application for an interim supervision order – interim supervision order granted

Catchwords:

DEVELOPMENT APPLICATION – Bunnings hardware store – traffic generation – traffic impact – parking demand – residential amenity – economic effects – floor space ratio contravention – cl 4.6 written request – trading hours

Catchwords:

CIVIL PROCEDURE — Originating process — Amendment – Whether proposed amendment statute barred CIVIL PROCEDURE — Parties — Addition of defendant — Date when addition takes effect – Civil Procedure Act 2005 (NSW), s 65(2)(c), s 65(3) LIMITATION OF ACTIONS — Operation of bar — Joinder of defendant out of time

Catchwords:

COSTS – appeal from Consumer and Commercial Division – whether r 38 and r 38A Civil and Administrative Tribunal Rules 2014 apply – whether appropriate order is order for costs in the cause

Catchwords:

COSTS — whether special circumstances warranting an award of costs are established   WORDS AND PHRASES — meaning of phrase “special circumstances” in s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION – addition of a rear deck on the second floor of a terrace house – impact on the heritage significance of the heritage conservation area – impact on the amenity of the northern neighbour

Catchwords:

LIMITATION OF ACTIONS – debt – payable immediately or on demand – usual rule of construction that time runs from date of advance for loan repayable on demand – whether displaced by clear language   APPEALS – failure by magistrate to address limitation defence – whether Supreme Court can determine proceedings or whether remitter required

Catchwords:

APPEAL – where tribunal dismissed whole proceedings as vexatious because predominantly brought for a collateral purpose – whether Tribunal applied a wrong principle as to the scope of collateral purpose

Catchwords:

TORT – defamation – imputations – form and capacity – application for summary dismissal of first matter complained of – substantial pleading errors – difficulties of ruling on remaining imputations due to the number of imputations struck out – general leave to amend subject to further challenge granted

Catchwords:

CORPORATIONS - statutory demand - offsetting claim - whether debtor confined to legal formulation of claim - where application included all material facts relied on, and quantified the claim - statutory demand set aside - Graywinter principle, considered.

Catchwords:

TORT – defamation – negligence – plaintiff brings proceedings against two racing entities and a Council following a refusal to permit him to train horses at a racing club – damage to reputation asserted to arise from unknown persons viewing a 2012 media news hyperlink and using this information in unspecified downloadings and/or publications – no particulars of date, contents, publisher or publishee of any consequent publications – negligence claim brought on a similar basis - application for summary dismissal pursuant to rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW) – abuse of process – whether proceedings brought for a collateral advantage – proceedings struck out and dismissed

Catchwords:

ADMINISTRATIVE LAW — Judicial Review — Motor Accidents Compensation Act 1999 (NSW) s 92(1)(b) — Where plaintiff sought that the claim be exempt from informal assessment process on the grounds that it was not suitable due to the first defendant’s false and misleading statements — Whether there was error of law or jurisdictional error on the part of the assessor — Whether the assessor asked the correct question — Errors established — Matter remitted for determination according to law

Catchwords:

DAMAGES – General principles – Incidence of taxation as affecting damages – Whether interest on award of mesne profits should be grossed up for taxation

Catchwords:

JUDICIAL REVIEW – construction of condition of development consent granted in 2004 concerning amount of material that can be extracted from quarry – no ambiguity in development consent condition   JUDICIAL REVIEW – variation of environment protection licence based on legal error – variation set aside

Catchwords:

UNCONSCIONABLE CONDUCT – causation of loss –findings in principal judgment that the defendant/first cross-claimant deprived of the opportunity to purchase three of six properties by the first cross-defendant’s misleading, deceptive and unconscionable conduct – wrongdoer deters an associate of the defendant/cross-claimants from sharing in the purchase of two of the six properties – on what basis should damages be assessed against the cross-defendants: on the basis that the cross-claimants would have purchased a single additional property or an additional three properties.   TRUSTS AND TRUSTEES – reimbursement and indemnity under Trust Deeds for trustees’ trust-related expenditure – principal judgment makes a finding that the defendants/cross-claimants are trustees for the cross-defendants in the acquisition and development of certain properties – defendants/cross-claimants seek to set aside the Trust Deeds – defendants/cross claimants claim reimbursement and indemnity under the Trust Deeds for trustees’ trust-related expenditure – whether their expenditure is recoverable.

Catchwords:

SUCCESSION – Family Provision – Claim by adult child of the deceased for provision from the deceased’s estate under Ch 3 of Succession Act 2006 (NSW) – Small estate – No notional estate – Competing claim of sole beneficiary named in Will – Clause in deceased’s Will setting out reasons for no provision being made for adult child – Whether facts asserted in the Will as to Plaintiff’s conduct are accurate – Whether adequate and proper provision not made for the Plaintiff – Nature and quantum of provision, if any, that ought to be made for the Plaintiff

Catchwords:

CRIME – sentence appeal – where applicant pleaded guilty to importing a marketable quantity of cocaine – where applicant sentenced to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months – where Crown concedes sentencing judge erred – re-sentence – whether applicant tricked into importing cocaine by on-line suitor whom she had not met – whether applicant’s offending motivated by financial greed – sentence quashed – new sentence imposed

Catchwords:

CONSUMER LAW – misrepresentations in connection with the supply of a caravan and information recorded on its compliance plate – determination of factual matters adverse to the appellants – refusal of leave to appeal.

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DEVELOPMENT APPEAL – modification of consent – exceedance of height – privacy impacts – view loss

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DEVELOPMENT APPLICATION – multi-dwelling development – flood risk – reliance on evacuation plan with safe egress - tree protection plan – absence of root mapping – character and streetscape consistency

Catchwords:

ADMINISTRATIVE REVIEW – accredited swimming pool certifier – lack of understanding of legislative requirements - finding of unsatisfactory professional conduct – appropriate penalty

Catchwords:

ADMINISTRATIVE LAW – privacy – whether an application for internal review has been made – whether the alleged conduct is established – alleged disclosure and use of personal information –- alleged disclosure to legal representative and employee - judicial functions exemption.

Catchwords:

EVIDENCE – hearsay exceptions – criminal trial – maker of representations deceased – whether representations made in circumstances that made it unlikely that they were fabrications – s 65(2)(b) Evidence Act – representations made soon after alleged events to persons in authority, with maker exhibiting injuries consistent with representations   CRIME – appeals – whether misdirection to jury as to mental element of consent in relation to sexual assault offence resulted in any substantial miscarriage of justice – misdirection in written and oral directions – whether erroneous direction could have affected jury’s verdict – no substantial miscarriage of justice – Kalbasi v Western Australia (2018) 264 CLR 62 considered   CRIME – appeals – whether trial miscarried because of irregularities in the Crown’s address to the jury   CRIME – appeals – whether trial miscarried because of incompetence of accused’s trial counsel – appeal ground rejected   CRIME – appeal against sentence – whether sentencing judge failed to take into account accused’s deprived upbringing in relation to moral culpability – leave to appeal against sentence refused

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – supply commercial quantity of methylamphetamine, dealing with proceeds of crime – challenge to sentencing judge’s assessment of objectiveness seriousness of drug supply offence – whether aggregate sentence manifestly excessive

Catchwords:

DEFAMATION – defences – common law qualified privilege – where privileged occasion not identified – relevance of privileged occasion – malice not established – necessary factual findings not supported by evidence

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TORT – defamation – application to strike out Amended Reply – no issue of principle

Catchwords:

REAL PROPERTY – Conveyancing Act 1919 s 88K – Easements – “Reasonably necessary” – where terms imposed on and limiting re use said to be uncertain in their practical operation – where terms in effect required use of alternative means of access in circumstances that were not readily capable of being assessed – where terms in substance required an alternative access route to be used in particular circumstances but where that alternative route would involve traversing property in breach of Crown Land Management Act 2016

Catchwords:

CIVIL PROCEDURE – amendment – application to amend defence where notice given in June 2019 and hearing date set for June 2020 – whether Court should exercise discretion to grant leave to amend – whether amendments are important – whether there was a delay in making amendments – whether there is prejudicial effect on the plaintiffs if the Court grants leave to amend – amendments important – amendments not futile – amendments do not compromise hearing date

Catchwords:

DEVELOPMENT APPLICATION – masonry wall and new fence – consent orders – character – amenity – heritage conservation area – works wholly on applicants land

Catchwords:

COSTS – two notices of motion – decision of Registrar to uphold notice to produce and subpoena to produce documents to third party – challenge to decision of Registrar – no party successful overall

Catchwords:

Practice and procedure — Proceedings — Transfer of proceedings — Forum – application for summary dismissal or stay of proceedings – application for disclosure of details recorded on strata roll per Strata Schemes Management Act 2015 (NSW), ss 187, 188 and 232 – whether appropriate proceedings be transferred to NCAT – jurisdiction of Tribunal.   LAND LAW — Strata title — Owners corporation —Strata roll – application for production from building manager of contact details of owners recorded on strata roll – Schemes Management Act 2015 (NSW), ss 187, 188 and 232 – jurisdiction of Tribunal.

Catchwords:

SUCCESSION – Application for family provision orders under Ch 3 of the Succession Act 2006 (NSW) – Factors warranting the making of the applications – Whether sufficient cause has been shown under s 58(2) of the Succession Act 2006 (NSW) – Whether there are special circumstances that justify the making of a notional estate order under s 79 of the Act.

Catchwords:

SENTENCING - dangerous driving causing death- after trial – defence that pedestrian stepped into car not accepted by jury - moral culpability not low but not high - key factors driving too fast for conditions in high pedestrian area and distraction - general principles in death by dangerous driving cases - application of sentencing principles.   SENTENCING - relevant factors on sentencing – death of pedestrian – impact on deceased’ family - offender a young mother - impact on offender’s family - remorse – good character- psychological harm - general deterrence - custody required - moderation of penalty – special circumstances - good prospects for rehabilitation – referral to Jacaranda House Mothers and Children’s Program.

Catchwords:

CRIMINAL LAW – Trial – Evidence – Witnesses – leave to re-call witnesses after close of Crown case – adjournment – the duty of disclosure

Catchwords:

RESIDENTIAL TENANCY – no error of law – no question of principle

Catchwords:

MODIFICATION APPLICATION – developer contributions – conditions require public road to be constructed over land dedicated as a laneway – agreed material public benefit – whether there is power to amend the contribution – basis for reducing contribution

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CRIME — appeals — appeal against sentence — application for leave to appeal — one count of aggravated robbery with wounding contrary to s 96 of the Crimes Act 1900 (NSW) — sentencing judge's description of applicant's conduct as a 'gratuitous act of cruelty' went to the objective seriousness of the offence — no finding made of an aggravating factor under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW) although this was open to sentencing judge — whether sentence was manifestly excessive — whether sentencing judge failed to have due regard to applicant's subjective factors — no error in sentencing process — appeal dismissed

Catchwords:

APPEAL – interlocutory relief – relief sought pending delivery of reserved judgment of Court of Appeal – applicant claimed equitable interest in land – claim dismissed at first instance, with orders that caveats be removed – no application for a stay – appeal heard expeditiously – in meantime, respondent sought to sell the land – contract for sale of land entered into – purchaser aware of applicant’s claimed equitable interest in the land – application for leave to lodge further caveat, and for injunction against purchaser, refused

Catchwords:

CRIMINAL LAW – guilty plea – sentence – murder – victim impact statement – objective features – objective seriousness – intention to kill – short period of premeditation and planning – subjective features – criminal history – protection of community – remorse – moral culpability and mental disorder – prospects of rehabilitation – general deterrence – maximum penalty – standard non-parole period – special circumstances – orders

Catchwords:

FREEDOM OF INFORMATION - consultation with third parties – personal information – prejudice to court proceedings or right to procedural fairness

Catchwords:

CHILDREN AND YOUNG PERSONS – parens patriae jurisdiction – discharge of secure accommodation order – Court required to be satisfied that appropriate alternative transitional arrangements are in place –interaction of guardianship function of the Public Guardian and the Court’s parens patriae jurisdiction – observations on the progress of the young person in the Sherwood House program upon discharge of the secure accommodation order.

Catchwords:

HIGH RISK OFFENDER – where Defendant does not oppose making of ESO – question as to duration of ESO – question as to conditions attaching to ESO – Defendant has previous convictions for five serious sex offences – offender intoxicated by alcohol or use of methamphetamine at time of offending – aggravated sexual assault index offence – consideration of factors under s.9(3) Crimes (High Risk Offenders) Act 2006 – expert assessments of risk provide cogent foundation for the making of an ESO –ESO made for period of five years subject to conditions as sought by Plaintiff

Catchwords:

CRIMINAL LAW – appeal against sentence – recklessly causing grievous bodily harm – whether sentencing judge erred in failing to find the applicant was remorseful – whether sentence manifestly excessive

Catchwords:

PROFESSIONS AND TRADES – health care professionals – medical practitioners – trainee in psychiatry – failure to attend to an in-patient – professional misconduct

Catchwords:

LAND AND ENVIRONMENT COURT – Jurisdiction and Powers – Class 4 – Heritage Act – Interim Heritage Order – statutory authorisation – local council – statutory construction – conditions of minister’s authority under Heritage Act – discretionary powers – invalidity

Catchwords:

CRIME – appeals – appeal against sentence – manifest excess – sexual offences against four child victims – 13 counts of indecent assault and 2 counts of aggravated incite act of indecency – individual sentence imposed for each count – total effective sentence of 11 years imprisonment and 8 years non-parole period – most of the individual sentences imposed were manifestly excessive – set aside individual sentences – re-sentence to aggregate sentence of 11 years imprisonment and 8 years non-parole period

Catchwords:

ENVIRONMENT AND PLANNING - Land and Environment Court - jurisdiction and powers - Class 5 - Criminal Procedure Act 1986 (NSW) s 29 - discretionary powers - joint trial - the meaning of ‘series of offences’

Catchwords:

CRIME – appeals – appeal against conviction – identification evidence – warnings – unreasonable verdict

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — manufacture of a large commercial quantity of a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) — four co-offenders — where other co-offenders received shorter non-parole period than applicant — whether sentencing judge erred in not finding special circumstances for applicant — whether justifiable sense of grievance arising from a lack of parity between sentences of co-offenders — justifiable sense of grievance as a factor under s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — resentence

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury   SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty   COSTS - prosecution costs   OTHER – worker fell from ladder onto upright reo bars from which caps were missing – additional risk of fall from height because of lack of edge protection

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury   SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty   COSTS - prosecution costs   OTHER – worker fell from ladder onto upright reo bars from which caps were missing – additional risk of fall from height because of lack of edge protection

Catchwords:

MODIFICATION APPLICATION – amend conditions of consent relating to provision of public lighting – conciliation conference – agreement between the parties – orders

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – risk of death or serious injury PROCEDURAL – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known   PROCEDURAL – foreseeability – whether there was a causal relationship between the act or omission and the risk - measures to guard against a risk to safety that are reasonably practicable – guard against inadvertence to fullest extent practicable – not always possible to foresee inadvertence by a disobedient worker   OTHER – unforeseen behaviour of worker – no one could have foreseen operation of the excavator in that location, in that fashion – worker had been instructed to perform other tasks, not to operate excavator on rocky slope – no breach in failing to risk assess potential for excavator to overturn on rocky slope – risk unknown and therefore unforeseen   OTHER – ROPS – Roll Over Protective Structure – excavators not on list of vehicles on which ROPS were required to be fitted – equipment not covered by ROPS standards must be the subject of a Risk Assessment – no ROPS required if excavator used on a flat area – risk of earthmoving machines overturning increases as variables increase – risk of excavators rolling over in mines and quarries

Catchwords:

CRIMINAL LAW – sentence – aggravated dangerous driving occasioning death – plea of guilty – driving with high range blood alcohol concentration – collision with pedestrian – failed to stop or render assistance – driving over considerable distance

Catchwords:

MENTAL HEALTH — criminal proceedings — fitness to be tried — “Presser” principles — accused unfit to be tried

Catchwords:

CORPORATIONS — Members’ rights and remedies — Oppression — Where conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory against minority — No issue of principle   CORPORATIONS — Voluntary administration — General matters — Whether administrators validly appointed

Catchwords:

APPEAL AND REVIEW – application for leave to appeal – amount in issue below threshold – whether alleged error more than merely arguable – whether issue of principle or public importance – likely disproportion between the costs of an appeal and amount in issue   GUARANTEE AND INDEMNITY — novation of uncompleted contract for sale of part of land when whole land sold to third party – third party required to indemnify vendor for claims arising “as a result” of the first contract – legal costs incurred by vendor because of his failure to execute deed of novation – whether indemnity covered vendor’s legal costs

Catchwords:

EVIDENCE — Privilege — Client legal privilege — Documents produced in answer to Notice to Produce shortly before hearing — Admissibility of affidavit evidence in support of privilege claim — Applicability of s 75 of the Evidence Act — Leave to adduce further evidence in support appropriate in circumstances — Whether Court should inspect documents — Whether issue waiver — Relevance of statutory requirement of good faith in s 237 of the Corporations Act — No issue waiver — Claim upheld.

Catchwords:

PRACTICE AND PROCEDURE – the Court’s first judgment directed the parties to bring in short minutes of order to give effect to the Court's reasons in the first judgment – short minutes of order were prepared and made by consent – plaintiffs/cross-defendants consented to the short minutes of order under a misapprehension as to the effect of the directions of the Court – orders made include declarations as to the liability of the second, third and fourth cross- defendants – Uniform Civil Procedure Rules 2005, rr 36.15 and 36.16(3) – whether the declaratory orders can and should be set aside – whether consequential relief can be claimed based on declaratory orders. DAMAGES – assessment of the quantum of various claims for damages for trespass or nuisance – no question of principle.

Catchwords:

COSTS — Security for costs — Relevant factors – application for security for costs of motion by judgment debtors to set aside consent orders made in October 2018 for the entry of judgment in favour of the plaintiffs and other relief – applications for payment into court or for security to be provided for the judgment debt and indemnity costs orders – jurisdiction to make orders sought – consideration of discretionary factors raised against the grant of security – security for the costs of the set aside motion ordered to be provided – otherwise applications in relation to judgment debt and security for costs orders deferred to the hearing of the set aside motion.

Catchwords:

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

Catchwords:

AWARDS – interpretation – entitlement to meal allowance when working overtime

Catchwords:

ADMINISTRATIVE LAW – workers compensation – decision of Approved Medical Specialist – decision of Medical Appeal Panel of the Workers Compensation Commission – decision of Arbitrator of the Workers Compensation Commission – where Arbitrator found error but did not set aside Panel decision – 15 grounds of review – procedural fairness – whether error of law on the face of the record – whether jurisdictional error – whether an extension of time should be granted

Catchwords:

CIVIL PROCEDURE — Subpoenas — application by defendants for access to documents produced on subpoena by tenth cross-defendant’s former solicitors – legal professional privilege claimed – whether implied waiver of privilege – orders made for access to certain documents on basis that affidavits filed in the proceedings by tenth cross-defendant disclose communications giving rise to implied waiver

Catchwords:

CIVIL PROCEDURE — Parties — Joinder — Of defendants – whether a third-party seeking to be joined as the fourth defendant is a necessary party to the proceedings – whether the third party had an interest potentially affected by the monetary judgment or declaratory relief that had been granted – application dismissed

Catchwords:

PRACTICE AND PROCEDURE — Application to vary asset preservation orders and orders restraining party dealing with proceeds of sale of property – variation sought to permit sale of property and use proceeds to fund legal representation in proceedings – whether party in breach by dealing with alleged traceable proceeds of property – “rule” against hearing a party where prima facie in contempt – whether “rule” discretionary – Civil Procedure Act 2005 (NSW), ss 55-64.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – damage to vehicle – compensation sought – orders for pruning

Catchwords:

CRIMINAL – conviction appeal – possession of identification information to commit, facilitate, commission fraud – unauthorised possession of a prohibited firearm – circumstantial evidence – credit of witnesses.

Catchwords:

CRIMINAL – sentencing – aggravated dangerous driving occasioning death to one victim – aggravated dangerous driving occasioning grievous bodily harm to two victims – combination of drugs impaired capacity to drive – relevance of asserted social anxiety disorder in offender – consideration of principles in R v Whyte – subjective matters – mental health of offender.

Catchwords:

CRIMINAL – sentence – cultivate large commercial quantity of cannabis by enhanced means – consume electricity without authority – special circumstances – offender of assistance to police.

Catchwords:

PRACTICE AND PROCEDURE – stay of proceedings under Civil Procedure Act 2005, s 67 – the plaintiffs and the defendant are registered proprietors as joint tenants of real estate held under Real Property Act 1900 – defendant concedes that he holds his interest as joint tenant on trust for the plaintiffs – plaintiffs seek transfer of the defendant’s interests as joint tenant to them – plaintiffs and defendant accept that the plaintiff must indemnify the defendant in respect of his holding of the trust property – transfer of the trust property by the defendant to the plaintiffs may cause the defendant to incur capital gains tax (“CGT”) liability – defendant seeks private binding ruling from Commissioner of Taxation and seeks a stay of proceedings until the ruling is available – plaintiffs say proceedings should continue and that trust property be transferred to them – whether or not the proceedings should be stayed pending receipt of the private binding ruling.

Catchwords:

SUCCESSION — Family Provision — Claim by adult child for provision from the deceased’s estate — Proceedings not commenced within time — Whether sufficient cause shown to extend time — Principles upon which relief granted   SUCCESSION — Wills and Estates ­— Notional estate — Restrictions on out of time or additional applications — Where property of the estate distributed — Whether order designating property as notional estate should be made

Catchwords:

SENTENCING – Young offender – Child sex offences – Whether no other penalty than imprisonment appropriate – Where ICO is not an available penalty even where offender is a young person

Catchwords:

CIVIL PROCEDURE – expert reports – late filing and service of expert reports – whether determination of admissibility of expert reports should be made prior to, or at, trial – not appropriate to give a ruling or make a finding about the admissibility of first report – plaintiff not entitled to use second report without obtaining leave from trial judge

Catchwords:

APPEAL – costs

Catchwords:

CRIMINAL PROCEDURE – Subpoena – Application for short service -

Catchwords:

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

Catchwords:

LANDLORD AND TENANT---Termination of tenancy for non-payment of rent---Rent rebate cancelled by landlord---Jurisdiction of Tribunal   LANDLORD AND TENANT---Termination of tenancy for non-payment of rent---Leave to appeal---Whether decision not fair or equitable or against the weight of evidence

Catchwords:

ADMINISTRATIVE LAW - FIREARMS – public interest – whether a risk to public safety

Catchwords:

CONSUMER LAW – misleading or deceptive conduct – adequacy of reasons - representation as to material – no question of principle

Catchwords:

HIGH RISK OFFENDERS – application for interim supervision orders – where the defendant is a high risk terrorist offender – convicted NSW underlying terrorism offender – where the defendant has made threats of violence to advance cause of legalising prohibited drug use – no history of violence – where the defendant has failed to comply with conditional liberty – interim supervision order granted

Catchwords:

INSURANCE – double insurance – contribution between insurers – “other insurance” clauses – one policy contained an “excess” clause and the other an “escape” clause – whether there was double insurance on proper construction of policies – whether rule in Weddell v Road Transport and General Insurance [1932] 2 KB 563 applied

Catchwords:

CRIMINAL PROCEDURE – Trial – Case management – calling of witnesses – adjournment

Catchwords:

Sexual assault of child under 16 years; 2 counts; aggregate sentence; special circumstances

Catchwords:

JUDICIAL REVIEW – validity of complying development certificate titled “Masterplan CDC” for land zoned industrial – whether proceedings statute barred – staged development cannot be subject of complying development certificate – development subject of Masterplan CDC impermissibly designated development – failure to comply with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means not complying development   JUDICIAL REVIEW – validity of two modifications of Masterplan CDC – failure to comply with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means not complying development   CIVIL ENFORCEMENT – deposition of fill without development consent – unauthorised deposition of fill in neighbouring council reserves – inadequate or no sediment and erosion control measures in place for fill deposition   CIVIL ENFORCEMENT – operation of resource recovery facility on land without development consent   CIVIL ENFORCEMENT – water pollution – fill and sediment deposited in creeks in neighbouring council reserves – respondent owner was occupier and arranged for fill to be placed   CIVIL ENFORCEMENT – substantial remedial orders sought – exercise of discretion whether to make declarations and remedial orders where substantial delay in commencement of enforcement proceedings by council

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Catchwords:

CRIME – confiscation – forfeiture order – application to exclude interest in property from forfeiture order – application to exclude value of innocent interests from forfeiture order – whether plaintiff has “interest” in forfeited property – question of statutory construction – plaintiff’s “interest” in property has not been forfeited by forfeiture order – applications dismissed on the basis of incompetence   CRIME – confiscation – forfeiture order – application for payment of amount from proceeds of sale of interest on basis of hardship – whether plaintiff is a dependent of the person whose interest has been forfeited – neither plaintiff nor children were dependents at the time that forfeiture orders first sought and made – hardship that can be ameliorated by payment not made out on the evidence

Catchwords:

CRIMINAL LAW – proceeds of crime – production of property tracking documents

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Catchwords:

MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee – default on mortgage – whether mortgagee entitled to possession of land – leave granted to issue writ of execution   CONTRACTS —cross-claim — general contractual principles — harsh, unconscionable or oppressive contracts and statutory remedies – whether higher interest rate under loan agreement amounted to a contractual penalty – whether contract unjust for purposes of s 9(1) of the Contracts Review Act– no relief granted

Catchwords:

CIVIL ENFORCEMENT – use of land as a place of public worship – existing use – characterisation of use – place of public worship – whether use has been expanded, enlarged or intensified – enlargement of use

Catchwords:

CRIMINAL PROCEDURE - Trial - Sexual offence proceedings — Adjournment - unfitness to be tried - issue genuinely raised   MENTAL HEALTH - Practice and procedure - unfitness to be tried issue genuinely raised - procedural fairness

Catchwords:

FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim parental responsibility order to the Minister – application to return child to parent’s care   CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where imminent proceedings in specialist Court – where no seriously arguable error – leave refused

Catchwords:

PRACTICE – NSW Trustee and Guardian Act – Managed person – Private managers – remuneration – Regulatory regime – Report of NSW Trustee and Guardian

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – view obstruction

Catchwords:

DEVELOPMENT APPLICATION – residential dwelling – amended design – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing (townhouses) – amended plans- conciliation conference – agreement between the parties – orders

Catchwords:

CRIMINAL LAW – sentence appeal – dangerous driving causing death – whether sentence manifestly excessive – guideline judgment of Whyte – strong subjective case - elderly driver

Catchwords:

ADMINISTRATIVE LAW – privacy – health information – purpose of collection – use or disclosure – whether purpose of use was the same as the purpose for which the information was collected

Catchwords:

Costs –special circumstances established

Catchwords:

PRACTICE AND PROCEDURE – costs dispute – whether successful plaintiff entitled to costs where amount recovered did not exceed $500,000 – factors relevant to consideration – conclusion that commencement and continuation of proceedings in the Supreme Court was warranted – plaintiff entitled to an order for costs.

Catchwords:

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court – application by the defendants for transfer of the proceedings to the Federal Court – in circumstances where the proceedings engage the jurisdiction in bankruptcy within the meaning of s 27 of the Bankruptcy Act 1966 (Cth) – whether there are “special reasons” under s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) for the proceedings to be determined in the Supreme Court – held that the financial position of the plaintiff and her difficult financial circumstances constitute special reasons for the matter to be determined in the Supreme Court

Catchwords:

CIVIL PROCEDURE – application for extension of time to file summons seeking leave to appeal and summons seeking judicial review – application refused – no issue of principle

Catchwords:

CRIME – sentence appeal – where applicant pleaded guilty to reckless wounding – where applicant sentenced to imprisonment of 4 years and 3 months with a non-parole period of 2 years and 3 months – where offence of stalk/intimidate on a Form 1 also taken into account on sentence – whether sentence manifestly excessive – appeal allowed – re-sentence

Catchwords:

CRIME – dealing with money suspected of being proceeds of crime – restraining order on property – Proceeds of Crime Act 2002 (Cth), s 44 – where applicants purchased real property using money alleged to be proceeds of crime – restraining order under s 19 made in respect of the property – applicants apply under s 44 for exclusion of the property from the restraining order upon their undertaking to use their best endeavours to obtain money from a particular bank account and pay it to the liquidator of the company from which they had received the alleged proceeds of crime – that bank account given “post credits only” status by bank – the application for the loan facility under which the money in the account was obtained from the bank was shown to contain material misstatements – no evidence from the applicants establishing that the bank would allow drawing on the account – whether primary judge erred in finding the undertaking not satisfactory and in refusing to make s 44 excluding order

Catchwords:

ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work

Catchwords:

COSTS – Order for payment of professional costs under Criminal Procedure Act 1986 (NSW), s 213 to be “just and reasonable” – Order for costs under Crimes (Appeal and Review) Act 2001 (NSW), s 28 to be “just”   PROCEDURAL FAIRNESS – Primary judge failed to inform applicant that summary nature of the proceedings and fact that a party is not entitled to recover all of its costs would be taken into account – Whether this constitutes denial of procedural fairness   JUDICIAL REVIEW – Whether exercise of discretion by primary judge to reduce costs by 30% constituted jurisdictional error – Whether any difference between “fair and reasonable” and “just and reasonable” – Whether primary judge addressed wrong question such that jurisdiction conferred by the provision was not properly exercised

Catchwords:

EQUITY – trusts and trustees – application by plaintiffs for an order that the trustees of a statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW) be directed to distribute proceeds of sale in a particular manner by making various adjustments – where the orders recording the terms of the statutory trust for sale required the trustees to distribute the proceeds of sale to the plaintiffs and the defendant in equal shares, subject to any adjustments that should be made in favour of either side – held that the orders should not be construed so as to require the trustees to make the adjustments sought by the plaintiffs – trustees not bound to decide that the adjustments should be made – proposed adjustments not adjustments between the plaintiffs and defendant in their capacity as co-owners – inappropriate to direct trustees to make distribution as sought by the plaintiffs   EQUITY – trusts and trustees – judicial advice – application for judicial advice brought by trustees of a statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW) – where plaintiffs and defendant are beneficiaries under the statutory trust for sale – where the defendant previously entered into contract with trustees to purchase the property – where that contract was terminated by trustees – where property subsequently sold to third party – where defendant foreshadows potential claims against trustees in relation to the termination of the contract – whether trustees are justified in retaining some or all of the proceeds of sale to protect their right of indemnity in relation to the potential claims – trustees justified in retaining some of the proceeds of sale – judicial advice given

Catchwords:

APPEAL - proposed medium density residential development - impact of development on views - amendment to proposed development provides appropriate amelioration of view loss from one potentially impacted dwelling - view impacts from other potentially impacted dwellings acceptable - impact on critically endangered ecological community known as Eastern Suburbs Banksia Scrub - protection of connectivity of endangered community with other remnant vegetation - redesign of development to improve conductivity - rehabilitation of portion of the site to re-establish endangered ecological community - balancing present loss of endangered ecological community with future increase in area through re‑establishment on portion of the site - future protection of endangered ecological community by public positive covenant in favour of the Council requiring Revised Vegetation Management Plan and Fire Management Plan - future benefits for endangered ecological community outweigh immediate impact - revised development appropriate to be approved subject to settlement of relevant documents including public positive covenant in favour of the Council - directions given to permit preparation of settled plans and documents as a basis for giving of development consent.

Catchwords:

DEVELOPMENT APPLICATION – concept plan and Stage 1 of a shopping centre – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – boarding houses – traditional housing design – neighbourhood residential density – conciliation conference – agreement between the parties – orders

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION – boarding house – whether the proposal is compatible with the character of the local area – the proposal does not meet the parking standard – overshadowing of adjoining property – impact on views across the site – amenity of boarding rooms – vicinity of heritage conservation areas and impact on setting – management of tandem car parking

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to dwelling house – neighbourhood shop – conciliation conference – agreement between the parties – orders

Catchwords:

PRACTICE AND PROCEDURE – application to set aside decision – whether decision made in absence of party – whether absence resulted in party’s case not being adequately before the Tribunal – discretion

Catchwords:

PROFESSIONS AND TRADES – psychology – multiple boundary violations with two patients – personal, sexual and employment relationship with one former patient – personal, residential, employment and business relationship with another former patient – sexual harassment – failures to make and keep adequate clinical records – impairment – personality disorder

Catchwords:

CONTRACTS – performance – discharge by performance – valid termination of cleaning services contract – express term prohibiting use of unauthorised subcontracted labour – where unauthorised subcontractors undertook 90 per cent of cleaning services – whether cleaning obligation could be performed vicariously – consideration of personal contracts – no claim for quantum meruit

Catchwords:

CIVIL PROCEDURE - cross-vesting - transfer to other Supreme Court – medical negligence claim – both plaintiff and defendant residing in Victoria – cross-vesting order made

Catchwords:

CONTRACTS – formation – agreement – enforceability – uncertainty and incompleteness – where parties entered into heads of agreement at mediation – where heads of agreement provided for entry into settlement deed and transfer documents – where agreement provided for parties to have regard to taxation and structuring advice prior to entry into settlement deed and transfer documents – where dispute as to settlement deed and transfer documents – where settlement deed and transfer documents not entered into – whether heads of agreement are certain and complete and enforceable – whether other ancillary orders should be made.

Catchwords:

COSTS – party/party – percentage apportionment of costs – where plaintiff has had ultimate success in the application – where plaintiff had success on less than half of arguments advanced – where proceedings could have been conducted in a quicker and cheaper manner – determination of apportionment of costs.

Catchwords:

EQUITY- trusts and trustees- rectification of trust deed   EQUITY- trusts and trustees- judicial advice

Catchwords:

EQUITY- trusts and trustees- judicial advice

Catchwords:

LAND LAW – possession of land – application for defendant for stay of execution of writ – late application – no basis shown for stay

Catchwords:

CORPORATIONS – scheme of arrangement – application for orders approving scheme of arrangement – where scheme of arrangement involves shareholders in target company transferring their shares to acquirer – where votes cast satisfy statutory majorities – whether scheme of arrangement should be approved.

Catchwords:

ADMINISTRATIVE LAW – adverse security determination –Tattooist’s licence – fit and proper person – public interest

Catchwords:

TORTS – negligence – where plaintiff was competing in a campdraft competition – where there is dispute about the defendant’s Rules required by way of ground preparation – where plaintiff’s horse fell to the ground causing the plaintiff serious injury – whether the defendant breached any duty of care owed to the plaintiff – whether the plaintiff’s injuries were due to the materialisation of an obvious risk of a dangerous recreational activity – whether the plaintiff’s injuries were the result of the materialisation of an obvious risk – whether the risk of injury was the subject of a risk warning given to the plaintiff by the defendant – effects of ss 5M and 5N of the Civil Liability Act in the context of a signed waiver – volunteers defence under s 60 of the Civil Liability Act   CONTRACT – whether there was a contract between the plaintiff and the defendant – whether statutory guarantees should be imported into the alleged contract – the effect of s 275 of the Australian Consumer Law and s 139A of the Competition and Consumer Act in circumstances where the defendant has established a defence under ss 5L, 5H and 5M of the Civil Liability Act

Catchwords:

HIGH RISK OFFENDER – interim supervision order – whether condition in s 10A(b) met – evidence persuasive – purpose of legislation – safety of the community and protection from serious offenders