Browse decisions Displaying 1 - 200 out of 102885 results

Catchwords:

COSTS – interlocutory costs – costs thrown away by reason of amendments to the plaintiff’s statement of claim – applications by defendants for immediate payment of sums on account and for a stay of the proceedings until payment is made – alleged stultification – Rozenblit v Vainer – defendants’ applications successful, but stay refused – leave to amend conditional upon payment of costs

Catchwords:

LICENSING - real estate agent – disciplinary proceedings - failure to provide audit – conduct conceded – penalty only issue

Catchwords:

DEVELOPMENT APPLICATION – 2x3 Storey and 1x2 Storey Townhouses – Hearing – agreement between the parties

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APPEAL – appeal against refusal of application to remove vegetation in critically endangered ecological community – whether DA approval is valid – whether evidence provided substantiates that the trees present a genuine risk of damage and/or injury – whether sufficient relevant information has been provided by applicant to support appeal

Catchwords:

APPEALS – order made by Tribunal unexplained – reasons failing to state the basis upon which the order for payment of monies was made – monetary calculations not conforming to the Tribunal’s order

Catchwords:

NOTICE OF MOTION - Applicant files Further Amended Notice of Motion seeking imposition of extensive additional pre-trial production of documents from the Second Respondent - Applicant also seeks orders for verification by the First and Second Respondents of the completeness of past satisfaction of requirements to produce documents - Applicant seeks leave pursuant to r 7.3 of the Uniform Civil Procedure Rules 2005 to issue subpoena to potential witness for the Respondents - Applicant seeks leave to issue subpoenaed to NSW Police concerning complaint made by the Second Respondent about a witness proposed to be called in the Applicant's case - extensive prior interlocutory hearings requiring preparation and publication of five judgements and consideration of claims of privilege over more than a thousand pages of material produced by the Second Respondent - objections from the Second Respondent to compliance with the terms of Notice to Produce to the Court No 4 served on her by the Applicant - matter set down for five day hearing in early February 2022 - pre-trial obligation on the Respondents to file and serve their evidence for the substantive hearing by 21 January - consideration of new matters pressed by the Applicant having regard to the provisions of Div 1 of Pt 6 of the Civil Procedure Act 2005 (the Civil Procedure Act) - imposition of extensive further requirements proposed to be imposed on the Second Respondent and proposed subpoenas all contrary to the overriding objective for civil litigation contained in Div 1 of Pt 6 of the Civil Procedure Act - separately, proposed subpoena to the Respondents’ witness involved matters appropriate to be addressed at the substantive hearing rather than on a late interlocutory basis - proposed subpoena to NSW Police contrary to the public interest during COVID-19 pandemic - proposed subpoena to NSW Police also inappropriate as an abuse of process - rulings on limited matters appropriate for pre-trial disposition - orders made on 14 January with reasons to be provided subsequently - this decision constitutes the reasons for those orders - costs reserved

Catchwords:

CIVIL PROCEDURE – Interlocutory orders – Ex parte – application for summary judgment under Uniform Civil Procedure Rules 2005, r 13.1 – where plaintiff brings proceedings against the first and second defendants in March 2021 by Statement of Claim – where the first and second defendants have not filed a defence and have not taken an active part in the proceedings – whether summary judgment should be granted. EQUITY – Fiduciary duties – Breach – Rule in Barnes v Addy – knowing receipt of trust property – where the plaintiff entrusted certain publicly listed securities to the first and second defendants to be held on his behalf – whether the first and second defendants held the securities on a common intention trust for the plaintiff – where by the actions of the first defendant, the second defendant disposed of the shares without the plaintiff’s knowledge or consent – whether in breach of trust – what liability of the second defendant for breach of trust in the first defendant for knowing involvement in the first defendant’s breach of trust – what is the measure of equitable compensation payable by the first and second defendants to the plaintiff.

Catchwords:

CONTRACTS – construction – interpretation – contract for the redevelopment of a commercial property – contract gave the plaintiff a right to a transfer of a share of the property – contract also entitled the plaintiff to distributions of the net income derived from the property proportionate to its share of the property – dispute as to the amount of the plaintiff’s share under the contract – admissibility of evidence said to form part of the “matrix of fact” CORPORATIONS – reinstatement – Corporations Act, s 601AH – plaintiff company deregistered at the time of entry into the contract – all parties unaware of the plaintiff’s deregistration until after the proceedings had commenced – plaintiff seeks validation order – dispute as to form of order – cross-claim by defendant for misleading and deceptive conduct – whether the validation order should be conditional upon the plaintiff abandoning its limitation defence to the cross-claim

Catchwords:

CONTRACTS – construction – interpretation – contract for the acquisition of a 45% shareholding in the defendant – plaintiff made an advance payment of $6 million pursuant to the contract – contract required delivery of an audited set of accounts by a specified date – parties under joint obligation to work in good faith to procure the delivery of the audited accounts – accounts not provided in time – purported termination by the plaintiff – claim for repayment of the advanced payment – validity of the plaintiff’s notice of termination – whether the plaintiff complied with its obligation to act in good faith

Catchwords:

PRACTICE AND PROCEDURE – Application for costs – applicability of r 38 of the Civil and Administrative Tribunal Rules where challenge to an award for damages is withdrawn but appeal continues in respect of other relief – partial success in appeal – allowance in respect of successful challenge concerning transfer of common property

Catchwords:

OCCUPATIONS – Medical practitioners – Misconduct and discipline – Unsatisfactory professional conduct – Professional misconduct

Catchwords:

VEXATIOUS PROCEEDINGS – application for leave to commence proceedings – amended summons - proceedings vexatious - no prima facie case for proceedings – application dismissed

Catchwords:

ADMINISTRATIVE LAW - Firearms Act – issue of Category H licence

Catchwords:

OCCUPATIONS — auctioneers and agents — licences and registration – restoration of licence – whether failure to renew due to inadvertence – whether just and equitable to allow restoration of licence

Catchwords:

ADMINISTRATIVE LAW – administrative review of a reviewable decision – decision to refuse access to information – redaction of name of person who made a ‘customer request’ (complaint) to a local authority – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure – prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (Table to s 14 clause 1(d)) – prejudice the effective exercise by an agency of the agency’s functions (Table to s 14 clause 1(f)) – reveal an individual’s personal information (Table to s 14 consideration 3(a)) COSTS – whether there are special circumstances that justify an award of costs

Catchwords:

ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure

Catchwords:

ADMINISTRATIVE REVIEW – licensing – firearm licence – revocation – the public interest – provision of false or misleading information – traffic offences – criminal history

Catchwords:

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

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – incentive clause to provide additional floor space – whether a design competition has been held in relation to the development -whether value of community infrastructure is sufficient – whether development exhibits design excellence – whether clause 8.2 of Penrith Local Environmental Plan applies to the development

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – alterations and additions – accessible roof terrace – heritage conservation area – desired future character – orders

Catchwords:

DEVELOPMENT APPLICATION – seniors living development – development exceeds access, height and FSR development standards in SEPP Seniors and Willoughby LEP - consideration of written requests under cl 4.6 of WLEP – amended plans – costs pursuant to s 8.15(3) of the EP&A Act.

Catchwords:

APPEAL – refusal of development content - industrial development- conciliation conference-agreement between parties- orders

Catchwords:

CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae – Dispute over COVID-19 vaccination of child subject to family law proceedings — Extraordinary circumstances for exercise of jurisdiction not demonstrated when specialist COVID-19 list available in Federal Circuit and Family Court of Australia

Catchwords:

CRIME – charge of murder – pre-trial hearing listed to determine evidentiary issues – trial pending – plea of guilty entered on arraignment without notice to legal representatives – application to vacate plea of guilty – applicant with some level of cognitive impairment – principle of finality

Catchwords:

TAXES AND DUTIES — land tax — liability — exemptions – whether principal place of residence exemption or former principal place of residence exemption applies

Catchwords:

ADMINISTRATIVE LAW — Reviewability — Jurisdiction — no identified enabling legislation – dismissal

Catchwords:

LEASES AND TENANCIES – Residential (Land Lease) Communities Act – sale of residence – meaning of home owner – death of resident – rights of personal representative – interference with sale by operator – damages – causation

Catchwords:

GOVERNMENT INFORMATION - Government Information (Public Access) Act 2009 - disclosure of information – legal professional privilege

Catchwords:

APPEALS - Standing of lot owners to bring appeal on behalf of Owners Corporation where strata manager appointed by Tribunal with plenary powers LAND LAW – Strata Title – Strata managing agent – Compulsory appointment of strata managing agent – Strata managing agent appointed with plenary powers

Catchwords:

PROFESSIONS AND TRADES – health care professional - dentist – where practitioner admits he is guilty of unsatisfactory professional conduct and professional misconduct – appropriate protective orders

Catchwords:

DEVELOPMENT CONTROL ORDERS– stop use – demolish - erection of secondary dwelling not in accordance with approval – conciliation conference – agreement between the parties – orders

Catchwords:

ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – jurisdictional error – power to order a party to pay money to a person specified in the order, whether by way of debt, damages or restitution, under the Retail Leases Act – power dependent upon the existence of a cause of action giving rise to a claim for debt, damages or restitution – the absence of a cause of action amounts to the absence of a jurisdictional fact needed to exercise the power

Catchwords:

ADMINISTRATIVE LAW - Firearms Act - firearms licence - refusal of licence - contrary to the public interest

Catchwords:

COSTS – Offers of settlement made inclusive of costs – Whether effective Calderbank offers – Appellant successful on some but not all issues – Whether costs should be apportioned by reference to the parties’ relative success

Catchwords:

APPEALS – whether special circumstances exist warranting an order for costs, proceedings and claim lacked a jurisdictional basis.

Catchwords:

ADMINISTRATIVE LAW - refusal of working with children check clearance – applicant charged with intent to cause grievous bodily harm – found not guilty by reason of mental illness - factors to be considered – correct and preferable decision

Catchwords:

LOCAL GOVERNMENT – where councillor breached the Local Government Act 1993 (NSW), the Local Government (General) Regulation 2005 and the Council's Code of Conduct – appropriate protective order.

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of new boarding house – amended plans – agreement between the parties – orders.

Catchwords:

COSTS – Lack of utility in notice of motion becomes apparent during course of argument – No issue of principle

Catchwords:

ADMINISTRATIVE LAW – Firearms – Revocation of firearm licence – Whether it is contrary to the public interest for applicant to hold a licence

Catchwords:

COSTS – Special Circumstances – no special circumstances warranting an award of costs PRACTICE AND PROCEDURE – application for an order to prohibit the publication of solicitors charge rates provided in evidence in support of an application for costs – principle of open justice

Catchwords:

COSTS – Special Circumstances – no special circumstances warranting an award of costs PRACTICE AND PROCEDURE – application for an order to prohibit the publication of solicitors charge rates provided in evidence in support of an application for costs – principle of open justice

Catchwords:

ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 – restraint order preventing unmeritorious access applications - application for approval to make an access application – whether there is jurisdiction to deal with the application – where notice of the application was not given to the Information Commissioner prior to the application being made – whether such notice is a jurisdictional fact – whether proposed access application is misconceived – whether the apparatus or delivery system of a decommissioned web site is government information – whether proposed access application is for a wrongful purpose – where the objective of the access application is to require the agency to make a policy decision concerning the re-enlivening of a decommissioned web site – whether the proposed access application is lacking in substance – where there are no reasonable grounds to believe the information sought by the proposed access application exists – where web site was built by a third party under license – whether an order should be made prohibiting the applicant from making any further application for approval to make an access application

Catchwords:

ADMINISTRATIVE REVIEW – application for extension of time in which to seek administrative review – factors relevant to the exercise of that discretion – extension of time refused

Catchwords:

ADMINISTRATIVE REVIEW – application for extension of time in which to seek administrative review – factors relevant to the exercise of that discretion – extension of time refused

Catchwords:

UNFAIR DISMISSAL – medical retirement pursuant to s 94B of the Police Act – applicant capable of performing part-time work for five hours per day three days per week – reasonable adjustments – whether it is practicable for the Commissioner of Police to employ the applicant on a part-time basis ongoing

Catchwords:

RESIDENTIAL TENANCIES – Break lease fee – Amount of compensation – s.187 Residential Tenancies Act 2010

Catchwords:

CIVIL PROCEDURE – Probate and administration of estates – Court of Appeal upholds prior decision of trial judge to approve the substitution by the administrator of an estate of specific real property (the George Street property) for other real property (the Cleveland Street property), the latter of which had been specifically gifted to named beneficiaries but which had been sold to satisfy some of the estate’s substantial debts – of six remaining issues, one has been resolved and two are determined by this judgment – what costs order should be made in respect of the costs of the Cross-Claim – can and should Declaration (3) of the 2020 judgment be revisited – three other issues are not ready for argument and are deferred for later determination.

Catchwords:

DEVELOPMENT APPLICATION – change of use from poultry farm to two depots – use of fill unlawfully brought onto site – contamination – remediation and re-use of contaminated fill – removal of contaminated fill – relevance of Protection of the Environment Operations Act licensing provisions – impact on existing and desired character of the area – loss of land for agriculture – visual impact – protection of scenic and cultural landscapes – conditions filed in accordance with reasons – orders made

Catchwords:

DEVELOPMENT APPLICATION – subdivision – flooding – whether adequate safeguards in place; whether site is suitable for proposed development

Catchwords:

DEVELOPMENT CONTROL ORDER – cease use of premises for unauthorised use – development application made for unauthorised use – development consent for use now granted – order revoked

Catchwords:

DEVELOPMENT APPLICATION – restricted premises – formerly restaurant and bar – adjacent to residential premises – application of locality controls in development control plan – character of the street in terms of uses – hours of operation – impacts from patrons – findings made – conditions filed in accordance with reasons – orders made

Catchwords:

CIVIL PROCEDURE – Interim preservation – Freezing orders – Whether there is a good arguable case that damage caused by fire to property of plaintiff was due to actions of second defendant – Whether there is a danger assets of second defendant will be disposed of, dealt with or diminished in value in circumstances where second defendant liquidated first defendant and transferred assets to other entities to which he was a beneficiary

Catchwords:

EQUITY – interlocutory injunctions – application for freezing order – the plaintiff, the beneficiary of a trust, brings proceedings for the alleged misapplication of trust funds by the third defendant trustee, allegedly orchestrated by the first and second defendants, who controlled the third defendant – the first and second defendants are alleged to have benefited from the alleged misapplication of funds – first and second defendants propose the sale of their residential property – whether the circumstances are such that there is a danger of the defence absconding or of their assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with so that there is a danger that the plaintiff, if successful, will not be able to have his judgment satisfied – whether an injunction may be granted restraining the first and second defendants from disposing of the proceeds of sale of the residential property on any other basis – whether the plaintiff can establish an equitable interest in the residential property as a result of the defendants application of the proceeds of sale of certain trust assets to pay off liabilities.

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing structures and construction of a residential flat building with basement parking – conciliation conference – agreement between the parties – orders

Catchwords:

OBJECTION TO VALUER GENERAL’s DETERMINATION OF LAND VALUE – conciliation conference – agreement between the parties – orders

Catchwords:

EQUITY – principles on equitable assignment at [64] – Statute of Frauds at [67] – fraud on statute at [74] – part performance at [76] – assignment of loan and mortgage security between related entities – formal documentation not executed.

Catchwords:

OBJECTION TO VALUER GENERAL’s DETERMINATION OF LAND VALUE – conciliation conference – agreement between the parties – orders

Catchwords:

PRACTICE AND PROCEDURE — s 66(4) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) — application for the cancellation or reduction of interest — no power to vary final order —discretion not exercised — Notice of Motion dismissed

Catchwords:

APPEAL – development application – alterations to approved health consulting rooms and existing dwelling – conciliation conference – agreement reached – orders made

Catchwords:

PRACTICE AND PROCEDURE — Prosecutorial obligation to disclose — s 247E of Criminal Procedure Act 1986 (NSW) — confidentiality of mediation — exceptions to confidentiality — disclosure required

Catchwords:

LICENSING – firearms – revocation - withdrawn provisional domestic violence order – licence participation requirements- safe storage - public interest

Catchwords:

LICENSING – firearms – history of domestic violence – unsafe handling of firearm - public interest

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – carport in front setback – agreement between the parties – orders

Catchwords:

MODIFICATION APPLICATION – dwelling house and garage – seeking to regularise work carried out otherwise than in accordance with consent – modification determined after earlier hearing and judgment required further amendment to modification application and amended conditions – modification application amended – dispute over conditions determined – conditions filed and orders made

Catchwords:

DEVELOPMENT APPEAL – residential flat building - modification application – multiple modifications – whether substantially the same – view impacts from the public domain – solar impacts on adjoining neighbouring property – reasons for the original consent – relevant merit assessment – orders

Catchwords:

DEVELOPMENT APPLICATION -hardstand parking space – impact on heritage item – design response and impact on streetscape in heritage conservation area

Catchwords:

DEVELOPMENT APPLICATION – motel – amenity impacts – plan of management

Catchwords:

DEVELOPMENT APPLICATION – boarding house – local heritage item – impact on the heritage significance of the heritage item – impact on the heritage significance of the conservation area on the opposite side of the street

Catchwords:

MERITS REVIEW - LICENSING – real estate agent – class 1 licence – class 2 licence - transitional provisions - mandatory requirements – pathways – inadvertence – just and equitable.

Catchwords:

APPEAL – Appeal from orders made by Guardianship Division – decision to confirm financial management order – appellant held genuine belief that despite evidence to the contrary he was not present at 2005 hearing when order was first made and unsafe conclusions reached – no basis for leave to appeal - appeal dismissed.

Catchwords:

ADMINISTRATIVE LAW – Victims rights and support - Recognition – assault – Failure to apply for internal review – Jurisdiction – Whether the applicant suffered grievous bodily harm – factors for not approving the giving of victims support or reducing the amount of support approved

Catchwords:

ANTI-DISCRIMINATION – Discrimination on the ground of age – Application to amend complaint made at final hearing – Whether to exercise power to amend complaint – Whether respondent discriminated against applicant on the ground of age in determining who should be offered employment - Whether respondent discriminated against applicant on the ground of age in denying him access to transfers or promotions – Whether respondent or employee of respondent victimised applicant

Catchwords:

ADMINISTRATIVE LAW – merits review – Victims Rights and Support – restitution order against person convicted of relevant offence – alleged financial hardship

Catchwords:

LAND LAW – Strata Schemes Management Act – validity of by-law - harsh, unconscionable or oppressive – without power - severability

Catchwords:

LAND LAW – caveats – lapsing notice – application to extend caveats

Catchwords:

DEVELOPMENT APPLICATION: Residential apartment development – residential flat building – State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development – character of the local area – conciliation conference – agreement between parties – orders

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — where Crown relied on evidence of informer witness who had twice earlier been found by the Court of Criminal Appeal to be a witness who lacked credibility CRIME — appeals — appeal against conviction — unreasonable verdict — unreliable witnesses — whether on all of the evidence it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt

Catchwords:

DEVELOPMENT APPLICATION – mixed-use – residential apartment development – cl 4.6 written request – agreement between the parties – orders

Catchwords:

CRIME – appeal against sentence – applicants pleaded guilty to one count each of aggravated break and enter dwelling and commit a serious indictable offence – whether sentencing judge made erroneous findings of fact – finding made contrary to unchallenged evidence – whether sentencing judge erred in finding that extra-curial punishment applied to self-inflicted injury – whether sentencing judge erred in finding the applicant lied to forensic psychologist – adverse inference drawn against the accused – resentence – no lesser sentence warranted in law – appeal dismissed

Catchwords:

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

Catchwords:

MODIFICATION APPLICATION – residential development – modification to remove consent condition requiring deletion of dormer window – impact on heritage conservation area – compatibility with desired future character of the area

Catchwords:

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

Catchwords:

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Whether to depart from ordinary position — Where orders made by consent — Where no determination on the merits

Catchwords:

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied. CORPORATIONS – Managed investments – Judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – Whether to convene meetings of unitholders – Whether responsible entity would be justified in treating consequential constitution amendments as within power.

Catchwords:

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved. CORPORATIONS – Arrangements and reconstructions – Application under s 63 of the Trustee Act 1925 (NSW) for judicial advice with respect to the implementation of trust scheme

Catchwords:

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411(6) of the Corporations Act 2001 (Cth) for orders approving amended scheme of arrangement – Where formal requirements satisfied – Whether amended scheme of arrangement should be approved.

Catchwords:

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

Catchwords:

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

Catchwords:

CORPORATIONS – statutory demand – based on non-payment of judgment debt under Building and Construction Industry Security of Payment Act 1999 (NSW) – offsetting claim – development manager engages superintendent for a development – superintendent approves payment claims for work not undertaken with knowledge and approval of development manager – purpose was to extract payment to finance development – superintendent issues statutory demand for its unpaid fees – development manager claims superintendent breached Superintendent Agreement by approving the payments – quantum of offsetting claim not established.

Catchwords:

ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) – Trustee and Guardian - interests and welfare of protected person – whether to refund expenses related to a motor vehicle.

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APPEAL – modification application – conciliation conference – agreement reached – orders made

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HEALTH — Professional registration and discipline — Breach of conditions — Enrolled nurse — Failure to notify employer of conditions — Failure to notify National Board of employment

Catchwords:

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

Catchwords:

OCCUPATIONS — Dentists — Misconduct and discipline — reasons for non-publication order varied to reflect discretion in National Board to determine whether health conditions should be available on public register – principles – non- publication order affirmed

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COSTS — Informal offers of compromise — Whether offers to settle were genuine offers of compromise — Whether plaintiffs had sufficient time to consider the offers

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HEALTH - professional registration and discipline – imposition of disciplinary sanction following finding of unsatisfactory professional conduct

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OCCUPATIONS – medical practitioners – misconduct and discipline – where practitioner no longer registered – powers of Tribunal to suspend or cancel registration and to impose conditions

Catchwords:

DEVELOPMENT CONTROL ORDER – permissibility of use for transport depot – conciliation conference – agreement between the parties – orders

Catchwords:

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

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DEVELOPMENT APPLICATION – dual occupancy – integrated development – conciliation conference – agreement between the parties – orders

Catchwords:

APPEAL – objector appeal under s 8.8 of the Environmental Planning and Assessment Act 1979 – State significant development – intermodal facility and rail link – development consent continues to operate during the course of the proceedings – whether development impacts can be adequately mitigated or managed – modifications to approved development consent – power under s 4.55(2) not relevant to present application – whether the consent in its current modified form is a consent that the Court should grant

Catchwords:

CONTEMPT — Civil contempt — Breach of injunctions — Arrest

Catchwords:

CIVIL PROCEDURE — Registrars — Review of Registrar’s decision to issue orders for production in connection with liquidator’s examinations — Application for extension of time for review — Where there is no prejudice in delay. CORPORATIONS — Winding up — Public examination of directors, officers and others — Application for leave to inspect liquidator’s affidavit — Where no persons to whom examination summonses have sought to set them aside or challenge their propriety — Where several recipients for orders for production sought access to the liquidator’s affidavit in application to set aside the orders for production.

Catchwords:

DEFAMATION – settlement – offer of amends – plaintiff accepts offer – whether agreement procured by plaintiff’s fraud EQUITY – remedies – specific performance – settlement agreement – defamation proceedings – offer of amends – plaintiff accepts offer – apology – enforceability – unclean hands

Catchwords:

COST – Specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – lengthy estate administration – review of Registrar’s decision under Uniform Civil Procedure Rules 2005, r 49.19 – claim for executors’ commission – the Registrar awards commission under Probate and Administration Act 1898 – the beneficiaries allege maladministration of two estates by the executors – Registrar’s decision upheld and costs orders made against the beneficiaries in two prior judgments of the Court – parties agree that the Court should make a specified gross sum costs order instead of assessed costs in respect of these costs orders – whether general cost discounts should be made when making a specified gross sum costs order in relation to any order for indemnity costs – whether any executors’ costs have been unreasonably or improperly incurred – what specified gross sum, instead of assessed costs, should be fixed in respect of the categories of costs in dispute.

Catchwords:

LAND LAW – possession of land – writ of possession – stay sought pending hearing of appeal – where no notice of appeal filed – where time for filing had expired - application dismissed

Catchwords:

MENTAL HEALTH — Management of estate — Person incapable of managing her affairs — Approval of transfer of management of incapable person’s interest in a Special Disability Trust to a protected estate management regime EQUITY — Trusts and trustees — Variation of trusts — Revocation of Special Disability Trust — Inherent and statutory jurisdiction — Trustee Act 1925 NSW, s 86A

Catchwords:

PARTNERSHIP – scope of business undertaken in partnership – allegation that director of one partner received partnership monies in which partners were entitled to share equally – claim by other partner against director of first partner for money had and received – whether director unjustly enriched by receipt of partnership monies – recipient liability for breach of partner’s fiduciary duties not an established category of unjust enrichment - claim for taking of accounts of the partnership which came to an end in 2003 – where order sought for the purpose of accounting for two assets – where impossible to identify, quantify or value one of those assets – where other asset was not an asset of the partnership – whether taking of accounts would serve any useful purpose – whether claim for an order for the taking of accounts time barred CONTRACTS – oral agreements – whether alleged oral agreements entered into and on what terms – alleged repudiation – damages claimed – whether evidence provided rational basis to estimate damages

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ADMINSTRATIVE LAW -privacy – whether an executor/executrix of a deceased individual’s Will is able to apply to amend the personal information and health information about that deceased person held by an agency

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – exemptions from hotel quarantine - whether overriding public interest against disclosure – refusal deal – unreasonable and substantial diversion of resources

Catchwords:

CRIMINAL PROCEDURE – application to amend Summons – adequate explanation – unfair prejudice – fair trial – stage of proceedings – costs

Catchwords:

CRIME — murder — partial defences — substantial impairment CRIMINAL PROCEDURE — trial — case management — pre-trial hearing — advance ruling on whether s 23A of the Crimes Act 1900 (NSW) applies in its current form or in the form it had prior to amendments by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — where trial commenced prior to commencement of amendments — where earlier form refers to substantial impairment by abnormality of mind arising from an underlying condition while current form refers to mental health impairment or cognitive impairment STATUTORY INTERPRETATION — amendment and repeal — retrospectivity — Interpretation Act 1987 (NSW), s 30 — absence of express transitional provisions or other express legislative intention regarding application of current form of s 23A of the Crimes Act 1900 (NSW) to proceedings on foot prior to commencement of amendments by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — preferred construction requires application of earlier form of statutory provision

Catchwords:

CRIME — murder — partial defences — substantial impairment CRIMINAL PROCEDURE — trial — case management — pre-trial hearing — advance ruling on admissibility of audio-visual recording of interview with deceased in hospital EVIDENCE — exclusion of prejudicial evidence in criminal proceedings — where accused objects to visual component of audio-visual recording of interview with deceased in hospital — where deceased’s evidence could rationally affect to a significant extent the assessment of the existence of facts in issue — where assessment of the reliability and credibility of the deceased is enhanced by visual non-verbal communication — whether video likely to cause an emotional response affecting the judgment of the jury — interviewee bruised and bandaged but generally articulate and not in any apparent significant discomfort — no significant danger of unfair prejudice — probative value of video not outweighed by danger of unfair prejudice — evidence admissible

Catchwords:

CRIME — murder — partial defences — substantial impairment CRIMINAL PROCEDURE — trial — case management — pre-trial hearing — advance ruling on admissibility of tendency and coincidence evidence EVIDENCE — tendency and coincidence evidence — criminal proceedings — where tendency evidence and coincidence evidence overlap because prosecution seeks to rely on coincidence evidence to establish that accused had particular tendency — whether the evidence has significant probative value — where probative value is lacking in the particular circumstances of the present case because tendency expressed at a high level of generality — whether probative value of the evidence is outweighed by danger of unfair prejudice — danger that jury may be clouded by an emotional response to the evidence — danger that jury may fail to allow that a person with a particular tendency to act or think a certain way did not act or think that way on the occasion in question — danger occasioned by requiring accused to answer a raft of uncharged conduct — evidence inadmissible

Catchwords:

LICENSING - firearms – revocation of licence - false or misleading information - fit and proper person – public interest

Catchwords:

HEALTH — professional registration and discipline — finding of professional misconduct — whether to make an interlocutory order pending Stage Two proceedings

Catchwords:

CRIME – CROWN APPEAL – alleged errors of fact – alleged mistake as to momentary inattention – alleged error in finding accident as distinct from deliberate running of red light – moral culpability – manifest inadequacy – no error of fact disclosed – no error of conclusion – sentence within range and within judge’s discretion given subjective circumstances and otherwise good character – appeal dismissed.

Catchwords:

PRACTICE AND PROCEDUREAL – denial of procedural fairness – no question of principle

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APPEAL – appellant contested validity of termination notice of residential tenancy agreement – held termination notice valid – appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Whether open to jury to find “serious physical disability” — Whether use of more specific definition required — Quintessential jury question CRIMINAL PROCEDURE — Trial — Directions to jury — Misdirection — Whether direction necessary as to definition of “serious physical disability” — Whether miscarriage of justice established

Catchwords:

EQUITY — General principles and maxims — They who seek equity must do equity — Equitable estates and interests — Accounting — Rental income and outgoings — Loan repayments — Occupation fees EQUITY — General principles — Equitable estates and interests — Nature of equitable interests and ownership — Beneficial ownership — Property purchased in the name of defendant alone — Joint loans applied to purchase of property

Catchwords:

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Cost plus contract – repudiation by owner – measure of damages

Catchwords:

DEVELOPMENT APPLICATION – mixed-use – residential apartment development – cl 4.6 written request – agreement between the parties – orders

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – apprehension of damage and injury –– application dismissed

Catchwords:

APPEAL – development application – multi dwelling housing – conciliation conference – agreement reached

Catchwords:

MENTAL HEALTH – application for extension of status as forensic patient – whether defendant poses an unacceptable risk of causing serious harm to others that cannot be managed by less restrictive means – index offending involved a number of break, enter and steal offences in circumstances of aggravation – defendant suffering from intellectual disability, schizophrenia, antisocial personality disorder, substance abuse disorder – no proposal for management by less restrictive means – no opposition to extension

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – unfair dismissal – application to strike proceedings out “for want of due despatch”

Catchwords:

CORPORATIONS — Receivers and managers — Appointment by court — Application by voluntary administrators of certain companies for appointment as receivers and managers of the assets and undertakings as to which those companies are or were trustees — Where such appointment is necessary for dealing with or realising relevant assets — Where trust beneficiaries seek appointment of new trustees to realise assets — Where appointment of voluntary administrators as receivers and managers would protect rights of indemnity and creditors interests.

Catchwords:

EQUITY – Trusts and trustees – Judicial advice under s 63 of the Trustee Act 1925 (NSW) – where proposed amendments to trust deed of industry superannuation fund give trustee power to be paid and retain remuneration – where amendments sought to enable trustee to meet potential liabilities against it and its directors – where trustee is not-for-profit company with nominal capital – where trust deed contains existing remuneration power – whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee

Catchwords:

BUILDING AND CONSTRUCTION – building contract – adjudication – first defendant builder now in liquidation – payment claim by first defendant under Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication determination in favour of defendant – judgment entered – garnishee order served on plaintiff’s bank – adjudicated amount paid to first defendant – whether first defendant had already been paid amounts claimed in payment claim – whether claims in payment claim were payable by plaintiff to the first defendant under the building contract CONTRACT – oral agreement made at February 2013 Meeting – subject matter of the 2013 Agreement – whether October Letter accurately set out contents of 2013 Agreement CORPORATIONS – directors and officers – resolution by directors of the first defendant to pay a dividend immediately after first defendant received adjudicated amount following adjudication under Building and Construction Industry Security of Payment Act – first defendant now in liquidation – where liquidator has assigned certain of first defendant’s rights to the plaintiff – whether by paying the Dividends the first defendant contravened s 254T of the Corporations Act 2001 (Cth) – whether directors procured that contravention – whether first defendant’s assets exceeded its liabilities at the time of paying the Dividends – whether payment of Dividends materially prejudiced first defendant’s ability to pay its creditors – whether plaintiff was then a creditor of the first defendant CORPORATIONS – whether payment of the Dividends was an alienation of property with intent to defraud creditors for the purposes of s 37A of the Conveyancing Act 1919 (NSW) CORPORATIONS – whether directors acted in breach of their duties to the first defendant – whether plaintiff has suffered a loss by reason of the payment of the Dividends – whether directors liable to compensate plaintiff for any such loss CORPORATIONS – whether the payment of the Dividends was an undue preference for the purposes of s 588FA of the Corporations Act, an uncommercial transaction for the purposes of s 588FB of the Corporations Act, an insolvent transaction for the purposes of s 588FC of the Corporations Act, an uncommercial director-related transaction for the purposes of s 588FDA of the Corporations Act and a voidable transaction for the purposes of s 588FE of the Corporations Act CORPORATIONS – whether writing off of shareholder loans was an unreasonable director-related transaction for the purposes of s 588FDA of the Corporations Act CORPORATIONS – whether orders should be made under s 588FF of the Corporations Act EQUITY – tracing – whether plaintiff able to trace proceeds of Dividends into the hands of non-director defendants

Catchwords:

CORPORATIONS – application to set aside statutory demand – cross-examination – Graywinter principle – whether costs assessment application made out of time renders bills not due and payable. WORDS AND PHRASES – “in accordance with”.

Catchwords:

MORTGAGES — remedies of the mortgagee — agreement to grant mortgage of Real Property Act 1900 land — jurisdiction of court to make order for sale EQUITY — unconscionable conduct — bridging loan

Catchwords:

Administrative Law – Local Land Services Act – Jurisdiction of Tribunal – whether applicant has standing to bring review – merits of decision

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW –

Catchwords:

Administrative Law –access to government information – access application – prejudice supply of confidential information - prejudice effective exercise of agency's functions - personal information - confidential material - false or unsubstantiated allegations about a person that are defamatory - applicant's personal factors - whether public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure

Catchwords:

APPEAL – Civil and Administrative Tribunal (NSW) – set aside application – termination application under s 91(1)(a) Residential Tenancies Act 2010 – social housing tenancy – evidence as to undue hardship and disability – evidence as to tenant’s knowledge of the presence of drugs – vicarious liability – failure to take account of relevant considerations – whether to remit proceedings to the Consumer and Commercial Division or substitute decision of the Appeal Panel – whether to extend time for lodgement of set aside application.

Catchwords:

APPEAL – development control order – deck erected without required development consent – demolish works order – conciliation conference – agreement – substituted order

Catchwords:

APPEAL- whether leave to appeal should be granted-inadequate reasons-assessment of damages-whether allowance to be made for betterment-remittal of claim for variations.

Catchwords:

HIGH RISK OFFENDERS – extended supervision orders – definition of eligible offender – advocating support for “terrorist act” or “violent extremism” – carrying out violent acts not sufficient – delivery of letters threatening member of State Parliament – threat visible to staff who received letters – transient delusional disorder not sufficient to negate intention – nature of double intention required – Terrorism (High Risk Offenders) Act 2017 (NSW), s 10(1)(c)(i) HIGH RISK OFFENDERS – extended supervision orders – assessing “unacceptable risk” of committing a “serious terrorism offence” – questioning of expert witness as to effect of delusions denied by offender – basis for rejection of opinion of court-appointed experts – reliance on failure of offender to give evidence – Terrorism (High Risk Offenders) Act 2017 (NSW), s 20(d)

Catchwords:

DEVELOPMENT APPLICATION – boarding house development – contentions resolved – consideration of objector submissions - orders by consent.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage – neighbouring bamboo – whether the bamboo has caused damage to the applicant’s property – Pt 2A application concerning obstruction of sunlight – whether sunlight to a window is obstructed – benefits of the bamboo – balancing interests of the parties – orders for pruning bamboo and installing a root barrier

Catchwords:

APPEAL – development application – seniors living – independent living units in form of residential flat building – proposal does not meet criteria for density and scale – breach of floor space ratio development standard – whether proposal is of excessive scale –requirements for access to facilities and services – whether suitable access pathway – whether gradients acceptable – absence of communal open space – view loss – overshadowing – stormwater management

Catchwords:

CRIME – appeal against sentence – sentence on guilty plea – failing to report commission of child abuse offence – Form 1 offence of failing to provide a child with necessities of life – six-week old child of applicant mistreated by mother – severe brain injury resulting in permanent deficits – denial on oath of agreed facts – subsequent withdrawal of denial – whether applicant traversed plea – reduced utilitarian discount – discount for assistance – adequacy of reasons

Catchwords:

DEVELOPMENT APPLICATION – boarding house development – development on a narrow lot – development on an isolated lot - whether proposed development is compatible with the character of the local area – whether proposed side setbacks are acceptable – whether proposed breach of side boundary envelope control is acceptable - application of cl 4.15(3A) of the EP&A Act – reasonable alternative solutions.

Catchwords:

CRIME – appeal and review – further offences taken into account – offences listed on a Form 1 – procedural irregularities – Form 1 not signed by the Director of Public Prosecutions – Form 1 failed to identify which principal offence the further offences were in respect of – failure of trial judge to directly ask the offender if she wanted the further offences to be taken into account – no evidence of prejudice to offender

Catchwords:

OCCUPATIONS — Heath practitioners — Misconduct and discipline — Disciplinary proceedings — Where interim non-publication order made to protect physical safety of practitioner in protective custody — Whether non-publication order should be discharged or continued until practitioner released from prison

Catchwords:

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

Catchwords:

BUILDING INFORMATION CERTIFICATE - MODIFICATION APPLICATION– conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – shop top housing – building height contravention – character compatibility – objections

Catchwords:

ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Whether decision-maker took into account mandatory relevant consideration — Consideration of the reasons given for original grant of development consent — Statutory construction of “the reasons given” ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Jurisdictional precondition to exercise of power — Whether decision-maker formed the required state of satisfaction — “Substantially the same development” test

Catchwords:

OCCUPATIONS — Heath practitioners — Misconduct and discipline — Disciplinary proceedings — Where practitioner convicted of transmitting child pornography, possessing child abuse material and attempting to procure a child for unlawful sexual activity — whether established that practitioner unfit to practise medicine — whether practitioner’s registration should be cancelled to protect public health and safety — whether practitioner should be prohibited from providing health services or applying for re-registration as a health service provider for period of up to five years

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay –appropriate sentence OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)

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 – previous convictions - appropriate sentence OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)

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 – previous convictions - appropriate sentence – strong subjective case – capacity to pay – Fines Act 1996 (NSW) OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)

Catchwords:

EQUITY – unconscionable conduct – where sublessor issued notices of default and purported to terminate subleases – whether amounts said to be owing to sublessor were in fact owing – whether sublessor acted unconscionably or in abuse of power in terminating subleases – whether purpose of termination was to seek to recover unrelated sums said to be owing to director of sublessor by husband and father of sublessees LEASES AND TENANCIES – subleases – default and termination – whether notices of default were valid – whether termination of subleases was valid – whether amounts said to be owing to sublessor were in fact owing - whether sublessor acted unconscionably or in abuse of power in terminating subleases – whether purpose of termination was to seek to recover unrelated sums said to be owing to director of sublessor by husband and father of sublessees

Catchwords:

TORTS – Negligence – motor vehicle accident – plaintiff’s father injured due to negligence of the driver of a motor vehicle owned by the second defendant – plaintiff suffered psychological injury – damages for mental harm – Pt 3 of Civil Liability Act 2002; DAMAGES – assessment of claimed heads of damage

Catchwords:

CRIME – Appeals – Appeal against sentence – Recklessly inflict grievous bodily harm in company – Affray – Where sentencing judge did not consider applicant’s deprived background to have materially contributed to his offending due to his prior good character – Whether the sentencing judge erred in her consideration of applicant’s moral culpability – Application of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Catchwords:

CIVIL - Claim brought by (former) wife against husband for damages in respect of alleged sexual abuse during their relationship – Sexual intercourse without consent – Whether rape in marriage actionable. CREDIBILITY –whether wife’s allegations should be accepted over husband’s denials – wife’s pattern of disclosure. INTENTIONAL TORT – whether governed by Civil Liability Act 2002. DAMAGES – entitlement to aggravated and exemplary damages – assessment of damages. DELAY – whether claim brought out of time.

Catchwords:

SUCCESSION — Contested probate – Elderly will-maker - Validity of Wills - The Plaintiff is the executor named in the duly executed Will of the deceased made on 29 October 2016 – Last Will of the deceased in time – Alleged lack of testamentary capacity, lack of knowledge and approval, and suspicious circumstances alleged by the Defendants at the time the deceased made the 2016 Will - Whether onus on the Plaintiff, as propounder of the 2016 Will, has been discharged - Agreement of the parties that if the 2016 Will is not the subject of a grant, Probate in solemn form of a Will made by the deceased on 3 May 2013, the penultimate Will, should be made.

Catchwords:

CONTRACTS — loan agreement — where deed of amendment varied date for repayment — whether condition precedent to that deed satisfied CONTRACTS — loan agreement — where Lower Rate of interest of 2.5% per month — where Higher Rate of 5% whilst event of default subsists — whether event of default occurred — whether clause imposing Higher Rate unenforceable as penalty MORTGAGES AND SECURITIES — mortgages — where mortgagee purportedly exercised power of sale — whether mortgagee authorised to exercise power of sale — whether mortgagee breached equitable and statutory obligations in that exercising power

Catchwords:

TORTS – negligence – motor vehicle accident – claim against the Nominal Defendant – unidentified motor vehicle – whether due inquiry and search established – whether ownership of the vehicle established – whether the driver of the motor vehicle was negligent in the circumstances in which the plaintiff was injured – whether the plaintiff was contributorily negligence; DAMAGES – assessment of the plaintiff’s claimed heads of damage

Catchwords:

CIVIL PROCEDURE — Pleadings — Amendment — Where substantial delay in seeking to amend the pleadings — Close proximity of the hearing — Where amendment would not allow sufficient time for defendants to lead evidence or require vacation of the hearing date. CIVIL PROCEDURE — Pleadings — Amendment — – matters required for defendants to plead defence under business judgment rule. EVIDENCE — Expert evidence — Whether to grant leave under UCPR r 31.28 to rely upon late expert report — Whether exceptional circumstances exist — Where defendants delayed in retaining experts and serving the expert reports — Where reliance on expert reports would require vacation of hearing date.

Catchwords:

CRIME – appeals – appeal against sentence – aggregate sentence - extension of time in which to appeal – robbery in company – whether sentence manifestly excessive – parity – lessor role – record – Form 1 offence – extension of time granted – appeal granted – appeal allowed – resentenced

Catchwords:

ADMINISTRATIVE LAW – particular administrative bodies – New South Wales Civil and Administrative Tribunal – Occupational Division – subject matter of power or decision – disciplinary decisions – legal practitioners – barristers – misconduct and discipline – professional misconduct – where respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – where the Tribunal found that the respondent had not engaged in professional misconduct – whether the Tribunal erred in failing to find that the respondent’s conduct would justify a determination that the respondent was not a fit and proper person to engage in legal practice – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – disciplinary proceedings – professional misconduct – where respondent is a practising barrister – respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – New South Wales Civil and Administrative Tribunal found that the respondent had engaged in “unsatisfactory professional conduct” – respondent alleged to have said the words “suck my dick” to the female clerk – where immediate verbal complaint made by female clerk to a colleague – where the events of the dinner were recorded by closed circuit television cameras – where the Court was in as good a position as the Tribunal to determine questions of fact – whether the respondent said to H the words “suck my dick” OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where professional misconduct is defined in s 297 of the Legal Profession Uniform Law (NSW) – where that definition is expressed to be “inclusive” of the traditional definition of “professional misconduct”’ at common law – where the Court has inherent jurisdiction to supervise members of the legal profession in New South Wales – where the admission, suspension or removal of legal practitioners in exercise of that jurisdiction considers whether a person is a “fit and proper to engage in legal practice” – where the applicant contended that Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 created a distinct category of “professional misconduct” at common law – whether there is a distinct category of professional misconduct at common law beyond that which is incorporated into s 297 of the Legal Profession Uniform Law (NSW) OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where s 297 of the Legal Profession Uniform Law (NSW) defines “professional misconduct” as including conduct “that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice” – where conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding – where unfitness is not measured by the objective circumstances of the conduct alone but also by consideration of character – whether the respondent’s conduct would justify a finding that he was not a fit and proper person to engage in legal practice OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – grounds for disciplinary orders – where respondent said the words “suck my dick” to a female clerk – where the respondent’s conduct and words warranted severe condemnation – where the Court has and will have no tolerance for conduct of legal practitioners that does not recognise and meet appropriate standards in respect of the treatment of women – where the objective of disciplinary orders is protective and not punitive – where the Tribunal found that the respondent’s conduct was an isolated instance of departure from accepted norms – where the respondent has suffered significant personal, emotional and financial cost as a result of his conduct – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand STATUTORY INTERPRETATION – definitions – “means” and “includes” – definition of “professional misconduct” in Legal Profession Uniform Law (NSW), s 297 – where that section was intended to incorporate “the traditional common law definition” of professional misconduct

Catchwords:

APPEAL – failure to provide transcript of proceedings with reference to evidence in the proceedings under appeal and the reasons of the Member – difficulty in considering the appeal – new evidence allowed – held appellant landlord did not discharge onus of proof that respondent tenants had caused damage – leave to appeal refused – appeal dismissed.

Catchwords:

APPEALS - Land law - Strata titles - Owners corporation - Duty to repair common property - Whether duty breached - Whether decision fair and equitable

Catchwords:

ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — untested allegations of child sexual assault — witnesses not made available for cross-examination — whether the applicant poses a risk to the safety of children — the correct and preferable decision

Catchwords:

CRIME – appeal and review – appeal against sentence from Local Court to District Court – District Court dismissed appeal – where District Court judge decided not to order that full-time custodial sentence be served by way of intensive correction order – judicial review – limited to review for jurisdictional error by privative clause in s 176 of District Court Act 1973 (NSW) – where assessment contemplated by s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) not undertaken – whether failure to conduct assessment amounted to jurisdictional error JUDICIAL REVIEW – jurisdictional error – applicant pleaded guilty to various offences under Firearms Act 1996 (NSW) – applicant sentenced on basis of agreed facts – Local Court imposed full-time custodial sentence of three years – appeal to District Court pursuant to s 11(1) of Crimes (Appeal and Review) Act 2001 (NSW) – applicant raised submission that sentence of imprisonment should be served by way of intensive correction order – District Court dismissed appeal – whether District Court fell into jurisdictional error when rejecting submission seeking intensive correction order – where s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) required District Court judge to assess whether making an intensive correction order or ordering full-time detention was more likely to address applicant’s risk of reoffending – whether District Court judge conducted assessment as required by s 66(2) – where s 66(1) expresses that community safety is paramount consideration in deciding whether to make an intensive correction order – whether failure to conduct assessment contemplated by s 66(2) amounted to jurisdictional error SENTENCING – penalties – intensive correction orders – proper approach to exercise of discretion – mandatory considerations – Crimes (Sentencing Procedure) Act 1999 (NSW), s 66(2) – whether failure to conduct assessment contemplated by s 66(2) amounted to jurisdictional error – where community safety is paramount consideration in exercising the discretion to make intensive correction order

Catchwords:

ADMINISTRATIVE LAW – access to government information – access application – review of decision that information not held by agency – review of decision that there overriding public interest against disclosure – legal professional privilege – sections 111 and 112 of the GIPA Act

Catchwords:

COSTS – application for indemnity costs – offers of compromise – Calderbank offers – scope of Defamation Act 2005 (NSW) s 40 – whether offers were reasonable when made – whether non-acceptance reasonable – whether offers genuine offers of compromise – offers made no provision for existing legal costs – application dismissed COSTS – claim for interest – claim for interest to be back-dated to date costs paid – scope of Civil Procedure Act 2005 (NSW), s 101(5) – whether variation of existing costs order – application of UCPR r 36.16(3A) – if applicable, variation sought out of time – whether order should be made

Catchwords:

CRIME – applicant convicted of conspiracy to rob – indictment confined conspiracy to rob a person in a particular street in particular suburb – Crown conducted its case on that basis – unreasonable verdict – sufficiency of evidence to demonstrate object of conspiracy was to rob someone in that street – sufficient of evidence to demonstrate that applicant was a participant in conspiracy – whether miscarriage of justice arising from trial judge’s direction in response to jury question about proposed location of robbery – held – verdict unreasonable because of strength of evidence said to demonstrate object of conspiracy was to rob a person in particular street – other grounds rejected – acquittal entered.

Catchwords:

CRIME – Sentence appeal – assessment of respective roles of co-offender – parity – no justifiable sense of grievance – appeal dismissed

Catchwords:

PROFESSIONS AND TRADES — appeals from decision of Pharmacy Council of NSW — nature of appeal under s 159 of Health Practitioner Regulation National Law (NSW) — Power to make orders under s 150 of Health Practitioner Regulation National Law (NSW)

Catchwords:

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

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — manifest excess — applicant with significant intellectual disability — principles in Bugmy v The Queen enlivened — sentence not outside the range of sentences reasonably available — leave to appeal granted — appeal dismissed CRIME — sexual offences — sexual assault

Catchwords:

CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – where cl 50.1 required the business to be conducted in its “usual and ordinary course” – the meaning of “usual and ordinary course” – whether the phrase refers to the usual and ordinary course of hotel businesses generally or to the particular business – whether the business was required to be carried on in an identical manner to the way it was carried on pre-contract – objective intention of the parties – purpose of the transaction CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – COVID-19 pandemic – restrictions on trading – where risk passed on completion not on contract – whether such risk would include the significant restriction on trading resulting from the Public Health Orders – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – COVID 19 pandemic – restrictions on trading – severability – where cl 63.7 dealt with severance – whether cl 63.7 operated to sever cl 50.1 in the contract of a temporary supervening illegality – whether the Public Health Order rendered cl 50.1 unenforceable – whether cl 50.1 formed part of an indivisible whole by which the hotel and business was to be transferred as going concern – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) CONTRACTS – implied terms – terms implied in law – contract for the sale of a hotel and associated business – whether there was an implied term to the effect that the obligation in cl 50.1 of the contract was limited to the extent permitted by law – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) CONTRACTS – termination – repudiation of contract – wrongful termination – contract for the sale of a hotel and associated business – COVID-19 pandemic – restrictions on trading – whether the respondent was entitled to issue a notice to complete and a notice of termination – whether the conduct of the respondent amounted to repudiation of the contract – whether the conduct of the respondent was such as to convey to a reasonable person in the position of the appellants renunciation either of the contract as a whole or a fundamental obligation under it CONTRACTS – termination – frustration – supervening illegality – contract for the sale of a hotel and associated business – COVID-19 – restrictions on trading – whether compliance with cl 50.1 was illegal because of the operation of the Public Health Order – where the effect of the temporary supervening illegality of cl 50.1 rendered the sale of the business not as a going concern – whether the respondent was entitled to demand completion in circumstances where it was not able to deliver possession of the hotel as a going concern – whether cl 50.1 of the contract made it a condition that the business be sold as a going concern – whether cl 50.1 was an essential term in that a purchaser would not have entered into the contract without the business being sold as a going concern – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW)

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – valuation and buy-out orders made by consent – other prayers for relief remain on foot – orders limited materials to be provided to valuer – party subsequently suggests material to the valuer contrary to agreed regime – that party seeks to enforce consent orders – other party seeks vacation of consent orders – orders vacated.

Catchwords:

COMPENSATION APPEAL ARISING FROM MINE SUBSIDENCE – conciliation conference – agreement between the parties – orders

Catchwords:

COSTS – party/party – appeals – whether the respondent should pay its costs of the proceedings in the court below – whether there should be no order as to costs – where the primary judge’s conclusions in favour of the respondent on some issues was upheld

Catchwords:

PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was an accessory to breaches of fiduciary obligations owed to the respondents – where the appellant caused the third respondent to fail to account to the second respondent for one half of the profits derived from the acquisition and subsequent sale of three contiguous parcels of land – where primary judge did not refer to two essential matters to establish accessorial liability under the second limb of Barnes v Addy – where the appellant knew of facts and circumstances which would indicate the fact of the breach on the part of a fiduciary to an honest and reasonable person PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was liable to the first respondent or the second respondent PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – interpretation of agreement – oral agreement – where there was an agreement to enter into a partnership to acquire and resell three contiguous parcels of land and share expenses and profits equally – whether the agreement was subject to a sunset condition – where the first respondent’s evidence of oral agreement accepted – where the third respondent was a vehicle entrusted to hold assets on behalf of the partnership

Catchwords:

CRIME – federal offences – dishonesty offences – where accused charged with two counts of dishonestly representing to a public official that he did not control certain companies – where particulars of the charges included that the accused made false representations during a compulsory examination about his involvement with the companies – Criminal Code (Cth), s 135.1(7) STATUTORY INTERPRETATION – principle of legality – criminal proceedings – application of accusatorial principle and companion rule to answers compelled under taxation legislation – where accused compulsorily examined under s 264 of the Income Tax Assessment Act 1936 (Cth) 12 years prior to the laying of charges – whether dissemination and use of transcript of examination by investigative and prosecuting authorities lawful pre- and post-charge CONSTITUTIONAL LAW – Commonwealth Constitution – general principles – whether fair trial values constitutionally entrenched – whether accusatorial principle and companion rule constitutionally entrenched so as to invalidate any legislative provision said to be in breach of the principle or the rule

Catchwords:

CIVIL PROCEDURE - summary disposal - dismissal of proceedings - abuse of process - no reasonable cause of action disclosed - statement of claim filed by plaintiff against six defendants including State of NSW, Court of Appeal judges, Chief Justice, Attorney-General and High Court judges - plaintiff seeks compensation for mental harm from negligence or intentional or reckless act - prior proceedings under Succession Act for family provision - Deed of release approved by Court - attempt by plaintiff to re-litigate earlier proceedings - finality principle - judicial immunity - where State of NSW not vicariously liable for acts or omissions of a judicial officer - powers and duties of the Attorney-General – proceedings dismissed

Catchwords:

MODIFICATION APPLICATION – dwelling house and garage – seeking to regularise work carried out otherwise than in accordance with consent – modification determined after earlier hearing and judgment required further amendment to modification application and amended conditions – modification application amended – dispute over conditions

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – external review – application for stay of decision under review

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – external review – application by union official to be joined as a party to the proceedings – whether applicant on the motion had demonstrated a real and sufficient interest in the proceedings

Catchwords:

CORPORATIONS — Members’ rights and remedies — Whether winding up on just and equitable ground should be ordered.

Catchwords:

EQUITY – Trusts and trustees – judicial advice under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and cross-vesting legislation – where proposed amendments to trust deed of superannuation fund give trustee power to levy fee on members and accumulate trustee capital – where amendments sought to enable trustee to meet potential liabilities against it and its directors – where superannuation fund operates under profit-to-member structure with nominal capital – where trust deed contains existing remuneration power – whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee

Catchwords:

LAND LAW – leases – options to renew – defendant lessee purported to exercise option to renew lease – plaintiff lessor served a notice under section 133E of the Conveyancing Act 1919 (NSW) – notice not served until seven months after date of expiry of lease – notice alleged breaches that existed at that date and continued thereafter – held that regardless of whether breaches are continuing, only breaches occurring up to date of expiry of lease can preclude lessor from exercising option – notice held invalid because not given within time – defendant not precluded from exercising option – declaration made that the defendant validly exercised option to renew and is entitled to a new lease LAND LAW – leases – termination of leases – plaintiff lessor served a Notice of Termination for the defendant’s failure to pay $117,702.94 in rent and operating expenses – COVID-19 pandemic special provisions – where defendant an “impacted lessee” under Schedule 5 to the Conveyancing (General) Regulation 2018 (NSW) – Regulation prohibits lessors terminating leases in certain circumstances – Regulation prohibited plaintiff from terminating lease for failure to pay rent during “prescribed period” unless plaintiff complies with requirement to renegotiate in good faith rent payable under lease – plaintiff fails to comply with requirement and is not deemed to have complied due to a failure of defendant to provide information – plaintiff’s termination of lease invalid – declaration made that termination invalid and of no effect

Catchwords:

SUCCESSION — Construction — Where wills silent as to date of valuation of property in estate subject to testamentary option exercisable by beneficiaries — Where executors had not implemented the process for determination of value required by the wills — Where the parties had nonetheless implemented part of the valuation process — Where the Court has suggested a pragmatic approach to the determination of the valuation date resulting from the parties’ conduct — Where no point of principle COSTS — Where plaintiffs and defendants are both beneficiaries and executors under wills — Where the proceedings were required to determine the proper construction of the wills in circumstances where that issue was uncertain — Where the Court has ordered that the costs incurred by the parties are proper testamentary expenses— Where the Court has ordered that the costs of all parties be paid out of the estates of the testators on the indemnity basis COSTS — Where plaintiffs propose to discontinue part of proceedings — Consideration of the principles

Catchwords:

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where plaintiff successful in attaining orders sought — Where plaintiff sought costs of proceedings from defendant on indemnity basis — Where defendant raised special rule pursuant to s 66G of Conveyancing Act 1919 (NSW) that parties costs’ be paid out of net proceeds of sale of property — Where Court made orders for parties’ costs of application on that basis COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Where defendant filed cross claim and resisted orders sought by plaintiff — Where at commencement of hearing defendant discontinued cross claim and agreed to orders substantially in terms sought by plaintiff — Where plaintiff sought costs of proceedings from defendant on indemnity basis — Where Court ordered defendant to pay plaintiff’s costs of cross claim on ordinary basis

Catchwords:

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Where offer of compromise not served until after office hours on Friday before hearing and open for acceptance only until an hour before commencement of hearing COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Costs of proceedings below — Where appellant successful on appeal — Where issue on appeal “separable” and “dominant” — Where respondent substantially successful on factual issues below — Where costs of issues on which respondent succeeded below would vastly have exceeded costs on issues on which it failed

Catchwords:

COSTS – special circumstances – whether costs should be awarded on the indemnity basis

Catchwords:

CRIMINAL LAW – appeal against sentence – applicants pleaded guilty to manufacturing large commercial quantity of prohibited drug – whether error in finding applicants to be “principals” – whether error in determining discount for guilty pleas – significance of lengthy sentencing proceedings on contested issues of fact, resolved adversely to applicants – whether error in failing to find special circumstances – whether sentence manifestly excessive – all grounds save last dismissed – appeal allowed and applicants resentenced

Catchwords:

COSTS – Family Provision – Costs-capping – competing claims by two adult children for further provision out of the estate of their deceased mother – where the plaintiff had success in the proceedings in claiming on behalf of the estate an interest in property in the name of the defendant and was given further provision out of the estate with a legacy of $75,000 – where the deceased’s estate is minimal, as a result of the conveyance of her principal asset to the defendant in which the defendant was living – whether it is appropriate for the Court to make costs-capping orders – when such an order may be made. COSTS – Party/Party – Payable out of fund – Deceased estate – where the deceased’s estate is minimal – consideration of who is to bear costs – plaintiff successful on behalf of the estate but the defendant had a strong family provision claim – balancing the Court’s need to recognise the plaintiff’s success in the aspect of the case that took more than half the time in the proceedings, namely setting aside the property transfer to the defendant and the defendant’s otherwise strong family provision case – whether or not the defendant’s solicitor should recover costs more than a specified amount pending the outcome of any investigation by the Law Society into the matters referred by the Court in the first judgment.

Catchwords:

ADMINISTRATIVE REVIEW – Education and Care Services National Law – early learning childcare centre – educator - prohibition notice – risk of harm to children

Catchwords:

HEALTH – Professional registration and discipline – Professional misconduct – Unsatisfactory professional conduct – Complaints established with respect to personal and financial relationships between medical practitioner and patient, standard of medical care provided to patient, inadequate records of patient care and treatment, and medications prescribed, including drugs of addiction – Findings of unsatisfactory professional conduct sufficiently serious to constitute professional misconduct – General practitioner in practice forty years with no prior breaches of professional standards – Practitioner’s registration cancelled – Practitioner prevented from applying for re-registration for period of five years

Catchwords:

APPEAL – development application – alterations and additions to existing child care facility – conciliation conference – agreement reached – orders made

Catchwords:

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