Browse decisions Displaying 1 - 200 out of 87456 results

Catchwords:

Nurse-allegations of professional misconduct-admissions by respondent-impairment by reason of polysubstance abuse disorder-finding of professional misconduct and impairment-order for cancellation of registration if the respondent had remained registered-consequential orders – costs order made.

Catchwords:

ADMINISTRATIVE LAW- freedom of information- government information public access-public interest considerations-open access information s6 Government Information (Public Access) Act 2009 (NSW)

Catchwords:

CIVIL PROCEDURE – leave to appeal – interlocutory orders – orders working out orders in principal judgment – whether parties should be left to exercise of liberty to apply – form of orders dependent on circumstances of case – effect of orders explained in reasons   TRUSTS – trust documents – right of incoming trustee to delivery up of trust documents by outgoing trustee – documents held by third parties – nature of property in documents

Catchwords:

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Judgment debt subject of demand arose by filing of adjudication certificate under Building and Construction Industry Security of Payment Act 1999 (NSW) — Amount of debt described in judgment not equal to amount claimed in demand at time of service — Judgment retrospectively amended to match amount claimed in demand — Whether error in demand “some other reason” to set aside — Whether setting aside ought to be conditional on debtor paying in to court the amount of debt

Catchwords:

DEVELOPMENT APPLICATION: Attached dual occupancy development – variation to minimum lot width control – whether the development is a reasonable alternative solution that achieves the objects of the standard – appeal upheld.

Catchwords:

CONTRACT – construction – conflict between contractual powers – conditional contract for sale of land – vendor had right to rescind if conditions precedent not satisfied – contract amended so as to confer right upon purchaser to “step-in” to attempt to achieve satisfaction of conditions precedent – whether vendor’s contractual right qualified by purchaser’s right   CONTRACT – frustration – conditional contract for sale of land – land contaminated – whether amendment to State Environmental Planning Policy preventing subdivision until remediation conditions satisfied amounted to frustration

Catchwords:

CRIME – judicial review – prosecutions brought without requisite consent of Attorney General – effect of failure to obtain consent – jurisdictional error – convictions and sentences set aside

Catchwords:

COSTS –– application by the plaintiff for review of assessment notices issued by the defendant –– proceedings run by both parties on issues that ultimately did not arise for determination –– consent orders agreed and notices revoked –– no order as to costs –– parties each to bear own costs –– misapprehension by both parties as to the issues for determination

Catchwords:

COSTS – indemnity costs – Uniform Civil Procedure Rules 2005, r 20.26 – offer of compromise and alternative Calderbank offer issued before trial – whether or not it was unreasonable for the plaintiff to have not accepted the offer of compromise and Calderbank offer at the time – whether an offer of compromise and Calderbank offer was a basis for awarding indemnity costs in the third defendant’s favour

Catchwords:

DEVELOPMENT APPLICATION: boarding house – weight to proposed environmental planning instrument – character compatibility – amenity – parking – landscaping – noise nuisance condition – costs thrown away

Catchwords:

CONSUMER CLAIM---Procedural fairness---Adjournment ---Late service by party of voluminous documents---Whether adjournment should have been offered to other party---Whether error of law established CONSUMER CLAIM---Failure to consider parts of claim---Whether error of law established. CONSUMER CLAIM---Adequacy of reasons---Whether error of law established

Catchwords:

Home Building – Date of Completion of residential building work – major defect – proof of elements – limitation periods

Catchwords:

COSTS – retail lease proceedings – orders as sought by tenant made by consent at first directions hearing except as to costs – merits of landlord’s attempt to terminate occupancy - special circumstances – indemnity costs

Catchwords:

LEASES AND TENANCIES – retail and commercial tenancies legislation - retail shop lease – water ingress – breach of covenant of quiet enjoyment – proof of loss – hearsay evidence in expert’s report - leasing next door premises to a competitor – alleged unconscionable conduct by lessor–– no error of law – no appellable error of fact

Catchwords:

Motor vehicle consumer claim – allegation of failure to exercise due care and skill in carrying out repair and in failing to do so within a reasonable time – held necessary to bring evidence from an expert with respect to these matters – in absence of expert evidence claims failed – appeal dismissed

Catchwords:

NEGLIGENCE – professional negligence – legal practitioners – duty of care where solicitor represented husband in family law proceedings – where solicitor retained by husband to act on sale of jointly held property – whether there was a solicitor-client relationship between the solicitors and the wife, and therefore whether they owed her a duty of care   AGENCY – authority – ostensible authority – whether husband had wife’s actual or ostensible authority to direct payment of proceeds of sale   TORT – negligence – concurrent liability – whether the husband was a concurrent wrongdoer, such as to reduce the solicitors’ liability

Catchwords:

APPEAL – development application – seniors living – breach of development standards – impact on neighbours

Catchwords:

LAND LAW – conveyancing - two contracts for sale – off-the-plan purchase – alleged representations by the plaintiff vendor’s agent as to the size of the properties – defendant purchaser paid part of the deposits upon exchange and the balance was due upon expiration of the cooling off period – where the balance was not paid by that date and thereafter – purchaser repudiated the contracts – vendor seeks payment of the balance of the deposits – whether the vendor is entitled to recover the deposit – judgment for the vendor   LAND LAW - conveyancing – deposit - discretionary power to order relief against forfeiture of a deposit under s 55(2A) Conveyancing Act 1919 (NSW) – whether power can be exercised in favour of the purchaser where the vendor is suing to recover deposit and purchaser does not cross-claim – power extends to such a situation to avoid circuity of action – factors relevant to the exercise of the discretion – where the purchaser was an experienced buyer with a significant property portfolio – in the absence of a finding as to a misrepresentation or some other unconscionable conduct no basis for the exercise of discretion   CONSUMER LAW – misleading or deceptive conduct – whether the vendor breached ss 18 and/or 30 of the Australian Consumer Law – whether the vendor made a representation as to the size of the properties – vendor denied making such a representation – assessment of the relative credibility of representor and representee – fallibility of human memory – reliance upon contemporaneous documents to resolve dispute – where the contemporaneous documents pointed strongly to the representation not being made – where, in any event, the purchaser was on notice within the cooling off period that no such representation was being made – claim unsuccessful   CONSUMER LAW – unconscionability – where the purchaser alleged that the vendor was aware of new plans affecting the size of the properties – where such knowledge was purported to have been acquired during the cooling off period - whether the vendor indeed had such knowledge – paucity of evidence in support – purchaser under no special disadvantage – claim unsuccessful   CONSUMER LAW – harassment and coercion under s 50 Australian Consumer Law – unsuccessful settlement conference after the commencement of proceedings – purchaser given three options including continuing with court proceedings – whether this amounted to coercion – meaning of coercion – no negation of choice or freedom to act – claim entirely misconceived.

Catchwords:

LAND LAW – leases – rent – provision for review of rent – appointment of valuer to determine market rent for a sub-lease of premises located at King Street Wharf, Sydney – valuer required to have regard to certain market rents of “comparable premises in the vicinity of the Premises” – where valuer had regard to rents for premises not in the vicinity of the Premises – valuer’s determination not carried out in accordance with the terms of the sub-lease – declaration made that determination is not binding

Catchwords:

APPEAL: appeal against conviction and sentence from Local Court – alleged breach of noise abatement direction – in the court below the prosecutor did not adduce sufficient evidence to prove beyond reasonable doubt the elements of the offence –offence not proved beyond reasonable doubt – appeal upheld and conviction and fine set aside.   COSTS: inadequacy of evidence adduced by the prosecutor in the Court to prove beyond reasonable doubt the elements of the offence – whether this constitutes exceptional circumstances sufficient to warrant a costs order in the appellant’s favour – whether appellant entitled to a costs order under the relevant legislation for travel expenses and interpreter fees – appellant not entitled to travel expenses but entitled to interpreter fees.

Catchwords:

CONTRACTS — Construction — Interpretation — Agreement to settle proceedings — Not for Court to review application of principles of Hindu religion

Catchwords:

COSTS - appeal withdrawn - whether special circumstances exist for an award of costs

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement

Catchwords:

CIVIL PROCEDURE –– Court administration — Non-party access to court files –– probate and administration of estate proceedings –– application for access to probate file including alleged affidavit(s) made in support –– allegations of fraud –– unnecessary joinder of second respondent by applicant –– orders regarding access deferred and applicant directed to make submissions regarding costs

Catchwords:

CONTRIBUTION – cross-claimant sued incorrect cross-defendant – leave granted to discontinue – costs – both cross-claimant and cross-defendant labouring under same mistaken belief about identity of employer - power to otherwise order – Rules 12.1, 42.19 Uniform Civil Procedure Rules 2005   CONTRIBUTION – additional of cross-defendant – not appropriate to substitute added cross-defendant for cross-defendant wrongly sued - Rules 6.23, 6.24, 6.29 Uniform Civil Procedure Rules 2005

Catchwords:

DEVELOPMENT APPEAL against deemed refusal - conciliation conference – modification application - agreement between the parties - orders

Catchwords:

PRACTICE AND PROCEDURE - Pleadings - Summary dismissal - Statement of claim – Whether the plaintiff failed to prosecute the proceedings with due despatch – Whether no reasonable cause of action disclosed   TORT - Negligence - Negligent advice - Failure to warn – Obvious risk – Whether risk of loss was obvious   TORT - Negligence —- Negligent advice - Failure to warn – Causation – Whether the advice caused the plaintiff’s loss

Catchwords:

INJUNCTION: urgent ex parte application for interim injunctive relief – legal principles to be applied – appropriate to proceed on an ex parte basis – serious question to be tried – potential for real harm to the environment and human health – usual undertaking as to damages given – balance of convenience favours granting of interim injunction for limited period of duration.

Catchwords:

PRACTICE – application to vacate – no prejudice to appellant – delay by appellant in filing and prosecution of appeal – appellant has benefit of stay of execution – grounds of appeal limited to questions of law – hearing date vacated – appropriateness of appointment of counsel to appear as amicus curiae

Catchwords:

PRACTICE – appeals – stay of execution – order for payment to respondents out of moneys in court – whether applicants had made out proper basis for a stay – where respondents held assets including real property and proffered undertakings – stay refused

Catchwords:

CRIME – prosecution – work health and safety – duty of persons with management or control of a workplace– risk of serious injury – workers injured   WORK HEALTH AND SAFETY – whether defendant had knowledge of the risk – whether reliance on specialist contractor reasonable – whether defendant had knowledge of the need for a major inspection of the building maintenance unit – whether cost involved was disproportionate to the risk – causation   OTHER – work at heights – window cleaning – building maintenance unit – load bearing bolts fractured – building maintenance unit fell 25 metres – landed on awning

Catchwords:

COSTS – Party/Party – Exception to general rule that costs follow the event – apportionment – whether issues on which successful party was unsuccessful were clearly dominant or separable   COSTS – Party/Party – Bases of quantification – Indemnity basis

Catchwords:

CIVIL – interlocutory proceedings – discovery – interrogatories – failure to comply with court orders

Catchwords:

CRIME – prosecution – work health & 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 SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty – rehabilitation COSTS – prosecution costs OTHER – leaking chemicals – contact with skin causing severe burns – failure to report incident

Catchwords:

ENVIRONMENTAL OFFENCES – contravention of Minister’s direction – taking water during embargo – taking water when metering equipment not working – sentence – objective circumstances – undermining statutory object to provide for sustainable and integrated management of water sources – undermining statutory scheme regulating distribution, sharing and taking of water – harm or likely harm to environment not proven – control over causes of offences – two offences committed during water shortage – offence of taking water during embargo committed recklessly – unlikely to reoffend – offences not committed for financial gain – medium objective seriousness of offence of taking water during embargo – low objective seriousness of offences of taking water when metering equipment not working – subjective circumstances – no prior convictions – prior good character – late guilty plea – remorse for offences – assistance to authorities – totality principle – monetary penalties imposed – payment of costs

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – unrepresented accused – serious drug offence, and other offending – whether sentence manifestly excessive – whether error in assessment of objective seriousness – whether misapplication of principle with regard to criminal record of applicant – whether absence of pleas of guilty in the Local Court due to incompetent representation of applicant – proposed grounds devoid of merit – leave to appeal refused

Catchwords:

CONTRACTS – formation – acceptance of offer – knowledge of offer – terms contained in attachment to email – whether terms brought to attention of offeree – whether a legally binding agreement giving rise to an obligation to make payments alleged to be owing under the agreement – acceptance cannot occur if offeree is ignorant of the offer

Catchwords:

APPEAL — whether the Tribunal misapplied s 17 of the Guardianship Act 1987 (NSW)   WORDS AND PHRASES — meaning of phrase “able to exercise the functions conferred or imposed by the proposed guardianship order” in s 17(1)(c) of the Guardianship Act 1987 (NSW)

Catchwords:

JUDICIAL REVIEW - development consent issued for Wallarah 2 Coal Project - development consent issued by Planning Assessment Commission (PAC) Panel - Applicant challenges the validity of development consent on 10 pleaded grounds JUDICIAL REVIEW - Grounds 1 to 3 together - whether consent invalid by reason of failure to consider downstream greenhouse gas emissions - whether consent invalid by reason of failure to consider cl 14(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 - whether consent invalid by reason of failure to consider principles of ecologically sustainable development - adequacy of PAC reasons concerning greenhouse gas emissions - adequacy of PAC consideration of ecologically sustainable development concerning greenhouse gas emissions - PAC’s Determination Report discloses proper consideration of downstream greenhouse gas emissions - no obligation on the PAC to impose conditions on the project to address downstream greenhouse gas emissions - no failure to give adequate consideration to ecologically sustainable development - Grounds 1 to 3 rejected JUDICIAL REVIEW - alleged failure to consider the impacts of a future Central Coast water supply pipeline (the pipeline) - necessity for the pipeline would arise to provide compensatory water to the Central Coast water supply only after mining progresses to Longwall 6N and beyond - development consent granted by the PAC does not approve mining of Longwall 6N and beyond - route of the pipeline (if required) not certain, although two options identified over land owned by the mine or by public authorities - other potential pipeline routes possible over private land but not identified - not possible to identify with any precision any pipeline route capable of being assessed due to the uncertainty of either the necessity for such a pipeline or the location of a preferred route - separate future application required to be made for a pipeline if mining is proposed to continue into Longwall 6N and beyond - condition valid - Ground 4 rejected JUDICIAL REVIEW - failure to consider flood impacts - ground pleaded on four bases, two of which were abandoned - alleged failure to consider risks to the livelihoods of private property owners or of such owners being forced to sell their properties - degree of particularity to which the PAC was required to assess issues - matters remaining pressed of too greater degree of particularity to be considered beyond the extent to which the PAC addressed flooding impacts - Ground 5 rejected JUDICIAL REVIEW - error of fact in relation to flooding impacts - PAC comment that development proponent had agreed to acquire flood-affected properties where remediation or amelioration was not possible - PAC misled by assertion to this effect in departmental project assessment report - flooding impacts condition of consent addresses basis for landholders to seek compensation for flooding impacts but does not impose any requirement concerning property acquisition - error of fact did not mandate the PAC to address the erroneous finding in the flooding impacts condition of consent - flooding impacts condition of consent delegates to the Secretary resolution of any issues which might arise concerning flooding impact compensation - flooding impact compensation issues will arise to be considered on the particular facts and circumstances of any specific compensation claim pursuant to the condition - no uncertainty invalidating the condition as a consequence - Ground 6 rejected JUDICIAL REVIEW - Grounds 7 and 8 not pressed JUDICIAL REVIEW - alleged failure to consider the risk to private water supplies - two elements pleaded in support of the ground abandoned - alleged failure by the PAC to consider the two bases remained pressed - allegation that consideration of the matters had been impermissibly deferred to determination by the Secretary - PAC did consider the complained of matters - condition sets out the framework for affected landholders seeking to claim compensation - flooding impact compensation issues will arise to be considered on the particular facts and circumstances of any specific compensation claim pursuant to the condition - no uncertainty invalidating the condition as a consequence - Ground 9 rejected JUDICIAL REVIEW - alleged invalidity of water supply compensation condition - pleading that the condition impermissibly constrained landowners rights to compensation pursuant to other statutory entitlements not pressed - allegation of absence of power to impose a water supply compensation condition - pleading of Wednesbury unreasonableness of compensation condition - consideration of power to impose condition - power existed to impose condition - no submissions made in support of Wednesbury “unreasonableness” assertion - condition said not to relate reasonably to the development (second Newbury test) - condition reasonably relates to the development - Ground 10 rejected

Catchwords:

HIGH RISK OFFENDER – Section 13 Application for variation of existing ESO for violent offending – anti-social personality disorder – query unacceptable risk of committing serious sex offence – general sexual preoccupation – conditions appropriate to risk of sex offending

Catchwords:

PRACTICE & PROCEDURE – leave to continue criminal proceedings against a company in liquidation required by s 471B of Corporations Act 2001 (Cth)

Catchwords:

COSTS — Application for indemnity costs — consent to summary dismissal — plaintiff surrendered and acted unreasonably — indemnity costs awarded for a period

Catchwords:

APPEAL – development application – golf club redevelopment and seniors living – serviced self-care housing – site compatibility certificate required - whether the existing site compatibility certificate certified that development of the kind in the development application was compatible – whether the Court has the power to amend the site compatibility certificate

Catchwords:

CRIME – prosecution – work health & 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 SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty – rehabilitation COSTS – prosecution costs OTHER – hot cooking oil – contact with skin causing severe burns

Catchwords:

CRIME – prosecution – work health & 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 SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty – rehabilitation COSTS – prosecution costs OTHER – leaking chemicals – contact with skin causing severe burns – failure to report incident

Catchwords:

CORPORATIONS — Winding up — Commencement of Court-ordered winding up — Where company previously in administration — Application of Corporations Act 2001 (Cth) s 468(1) — Whether transaction made on section 513C day void — Transaction on section 513C day not void.   CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — Contested point of law — Narrow factual compass not in dispute — Whether appropriate to determine point of law on summary application — Determination made — Pleadings struck out.   WORDS AND PHRASES — “Commencement of the winding up by the Court” — “section 513C day” —“disposition of property of the company … void”.

Catchwords:

Deal with proceeds of crime; judge alone trial

Catchwords:

BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – application for recovery of “claimed amount” as a debt due – validity of payment claim – available reference date – whether termination gives rise to statutory entitlement to payment – validity of supporting statement – supporting statement substantially compliant with required form – application to recover part of amount claimed – judicial evaluation of “claimed amount” neither sought nor appropriate.

Catchwords:

ADMINISTRATIVE LAW - judicial review - grounds of review - whether the Panel failed to give reasons -whether the Panel failed to consider issues afresh

Catchwords:

SUCCESSION – PRACTICE & PROCEDURE – Claim for family provision order by former spouse of the deceased – Probate granted to Defendant, who was one of the named executors, one of three children of the deceased, and a beneficiary equally, with her two siblings, entitled to share the whole of the deceased’s estate – No provision made for Plaintiff – Application for summary dismissal by Defendant – UCPR rule 13.4 – Submitted that the Plaintiff is unable to establish factors warranting the making of her application – Whether the proceedings are frivolous or vexatious – Documents tendered at the hearing resulted in Defendant applicant conceding that notice of motion must fail – Argument on costs – Court administration – Case management

Catchwords:

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

Catchwords:

COSTS – party/party – general rule that costs follow the event – proceedings discontinued or dismissed –defendant company deregistered – defendant’s insurer paid costs of defending proceedings – defendant’s insurer continued to incur costs not knowing of deregistration – insurer joined as defendant – plaintiff discontinued against insurer on sixth day of hearing – whether insurer should have costs incurred prior to its joinder as defendant

Catchwords:

PRACTICE AND PROCEDURE – lodgement of documents under s 58 of the Administrative Decisions Tribunal Act 1997 (NSW); application for order that Commissioner of Police not be required to lodge documents relevant to the determination of the application for administrative review – whether appropriate to make an order prohibiting disclosure of the documents because of the confidential nature of those documents or for any other reason

Catchwords:

Arson; Bugmy principles applied

Catchwords:

ADMINISTRATIVE LAW — health practitioner — appropriate disciplinary orders where person is found guilty of professional misconduct   PRACTICE AND PROCEDURE — relationship between an order made under s 149C(4)(b) and a non-publication order made under cl 7 of Sch 5D of the National Law

Catchwords:

LICENSING-liquor licence removal-overall social impact-balancing process- state of definite satisfaction of decision maker-role of licensing authority- s48(5) Liquor Act

Catchwords:

ADMINISTRATIVE REVIEW –decision by Public Guardian as guardian under guardianship order – identification of the reviewable decision- place of accommodation of subject person –Obligations of decision maker under Guardianship Act 1987- principles in section 4- finding that decision maker correctly applied those principles; decision under review remained the correct and preferable decision.

Catchwords:

ADMINISTRATIVE LAW- Education and Care Services National Law – review of a decision to refuse to cancel a prohibition notice under section 182 National Law – Objects and Principles of National Law – Children – Childcare Services – Administrative review jurisdiction – correct and preferable decision - whether the Tribunal should uphold the decision or substitute a decision – correct and preferable decision is to confirm the decision of the Regulatory Authority.

Catchwords:

LICENSING – paintball guns – revocation of permit – threats of harm and self-harm – fit and proper person – public interest – expert evidence – weight – duty of tribunal.

Catchwords:

APPEALS: approved affordable rental housing dwellings – unauthorised works to dwellings sought to be regularised – modification application to amend existing consent to retain some unauthorised works – approved use now prohibited but has existing use rights – whether modifications result in substantially the same development – whether compatible with character of local area – compliance with the National Construction Code – capacity to be used as additional dwellings – amenity impacts – building information certificate to issue to reflect approved modification – neighbour objections

Catchwords:

CORPORATIONS — Winding up — Liquidators — Remuneration — Application for approval of liquidator’s remuneration — Short period of liquidation before winding up terminated — Whether remuneration reasonable — Whether solicitors’ fees may be approved as liquidator’s disbursements — Determination made.

Catchwords:

HIGH RISK OFFENDER – Preliminary application – Where plaintiff sought an Interim Detention Order for a period of 28 days – Defendant’s history of violent offending – History of non-compliance with conditions of parole – Evidence of possible schizophrenic condition – Where such condition not formally diagnosed and thus untreated – Interim Detention Order made

Catchwords:

TORTS – negligence – motor vehicle accident –whether fact finding process of primary judge miscarried – segmentation of decision-making process impermissible   COURTS – whether fact finding process of primary judge miscarried – segmentation of decision-making process impermissible

Catchwords:

CRIMINAL LAW - Sentence - Using a Carriage Service to Cause Offence - Using a Carriage Service to Solicit Child Pornography Material - Using Carriage Service to Procure Persons Under 16 years of age - Using a Carriage Service to Transmit Indecent Communication to Persons Under 16 years of age - Using Carriage Service to Person Under 16 years of age with Intention of Making it Easier to Procure them to engage in sexual activity (groom) - Fail to Comply with Reporting Obligations – committed while subject to conditional liberty - early plea - remorse

Catchwords:

DE FACTO RELATIONSHIP – next of kin – whether subsisting de facto relationship – burial rights – deceased intestate

Catchwords:

FAMILY LAW - Children – Parens patriae jurisdiction – Orders authorising Secretary to permit medical treatment of child under the parental responsibility of the Minister

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – Judges of Appeal – Appointment, tenure and remuneration – Whether Court of Appeal invalidly constituted so as to invalidate orders – Whether s 72 Commonwealth Constitution governs the maximum permissible age of judges of State Supreme Courts

Catchwords:

EVIDENCE – witness evidence – re-examination – scope of re-examination – whether cross-examination of expert witness meant that tender of previously disallowed evidence could be tendered – tender allowed

Catchwords:

LAND LAW – Conveyancing Act 1919 (NSW), s 66G – orders consequent on appointment of trustees for sale – costs and disbursements.   LAND LAW – co-ownership – incidents – accounting between co-owners – orders for adjustment and apportionment of proceeds consequent on sale of property.

Catchwords:

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

Catchwords:

FAMILY LAW — Children — Adoption – Adoption order –requirement for report pursuant to Adoption Act 2000 (NSW), s 91.

Catchwords:

CRIMINAL – sentencing – manslaughter – single stab wound – subjective features - remorse

Catchwords:

CONTRACT LAW – Contract to do residential building work – Sham – Unenforceability of contract under Home Building Act 1989 – “just and equitable” to recover on a quantum meruit basis   ADMINISTRATIVE LAW – Adequacy of reasons – failure to provide analysis of evidence – failure to make relevant findings.

Catchwords:

LAND LAW – Strata title – By-laws – validity of by-law restricting the use of a lot LAND LAW – Strata title – owners corporation – liability of owners corporation – no cause of action lies for breach of statutory duty in respect of passage of invalid by-law WORDS AND PHRASES – “dealing”

Catchwords:

COSTS – security for costs – relevant factors – impecuniosity – delay – risk of stultification – plaintiff’s impecuniosity attributable to the defendant’s conduct   COSTS – security for costs – plaintiff strata corporation – liability of members

Catchwords:

PRACTICE AND PROCEDURE: Notices of Motion by each party against the other seeking to set aside “disclosure documents” – application for leave to “narrow” some of the categories of documents sought – principles to be applied.

Catchwords:

CIVIL PROCEDURE — Originating process — Expiry before service — Extension of time for service of statement of claim granted — statement of claim not served within extended time — successive extensions — statement of claim still not served — deliberate delay by the plaintiff in effecting service of the originating process in order to conduct the proceedings as he chose — leave for further extension refused

Catchwords:

CIVIL PROCEDURE — Application pursuant to r 13.4 UCPR for summary dismissal of cross-claim as against second cross-claimant –– application dismissed with costs –– pleadings taken at their highest –– not established that cause of action against second cross-defendant is untenable or doomed to failure   COSTS — Application for indemnity costs —Calderbank offers –– whether genuine offer of compromise and whether unreasonable for second cross-defendant not to accept the offer –– costs of the summary dismissal application ordered on an indemnity basis

Catchwords:

CRIMINAL LAW – conviction appeal – trial involving three defendants charged with five counts of aggravated sexual assault and two counts of aggravated indecent assault – verdicts of acquittal entered in all the sexual assault matters – applicant convicted of the two aggravated indecent assault counts – whether written and oral directions given by trial judge correctly stated the mental element required for the aggravated indecent assault counts – whether evidence available to establish the “in company” element of the aggravated indecent assault counts – whether verdicts of guilty were unreasonable and inconsistent with the verdicts of acquittal – error in judge’s directions established – applicant entitled to a retrial of the aggravated indecent assault counts – whether verdicts of acquittal should be entered in respect of the aggravated indecent assault counts.

Catchwords:

CRIMINAL PROCEDURE – suppression and non-publication orders – variation – whether Bar Council had standing to bring an application for review – whether denial of procedural fairness

Catchwords:

LAND LAW – possessory title – claim made over area of land between two residential lots – qualified title – claimed land subject to right of way benefitting plaintiff’s adjoining property – where the plaintiff and his tenants used parts of the claimed land for parking, storage and a garden – where the plaintiff undertook paving works on parts of claimed land – whether acts exceed those authorised by right of way – whether acts sufficient acts of possession showing an intention to exclude all others – where acts not done on a pathway area – possessory title established over part of the claimed land

Catchwords:

APPEAL – whether Tribunal failed to make relevant findings of fact – whether Tribunal breached the rules of procedural fairness

Catchwords:

Section 371 Notice – breach – professional misconduct

Catchwords:

Appeal – costs – special circumstances – proportionality – lump sum order.

Catchwords:

TRADES AND PROFESSIONS – nursing – mental health nursing – failure to properly observe and attend to patient in an acute inpatient facility

Catchwords:

APPEAL: boarding house; character of local area; design excellence;

Catchwords:

STRATA SCHEME – legal test for an owners corporation not functioning satisfactorily pursuant to s.237(3)(a) of the Strata Schemes Management Act – legal test for an owners corporation failing to perform one or more of its duties pursuant to s.237(3)(c) of the Strata Schemes Management Act   APPEAL – whether findings that the Scheme was functioning satisfactorily, that agreements were not harsh or unconscionable or for an improper purpose were manifestly unreasonable and against the weight of evidence – whether the Tribunal failed to consider facts, submissions and matters put forward so as to deny the appellants procedural fairness

Catchwords:

Administrative Law – revocation of a firearms prohibition order – application out of time – extension of time

Catchwords:

CRIMINAL LAW – trial by judge alone – single count of murder – elements of offence admitted by accused – reliance upon defence of mental illness – ancillary reliance upon partial defence of substantial impairment – discussion of elements of defence of mental illness – consideration of whether proven on balance that, at time of fatal act, accused did not appreciate its wrongfulness – discussion of elements of partial defence of substantial impairment – consideration of whether proven on balance that impairment suffered by accused was so substantial as to warrant reduction in liability from murder to manslaughter – verdict of guilty of murder returned

Catchwords:

ADMINISTRATIVE LAW – tattooist licence – adverse security determination - fit and proper person – public interest

Catchwords:

LIMITATION OF ACTIONS – TORT – MOTOR ACCIDENT – “full and satisfactory explanation” – explanation not satisfactory from after July 2013 – summons dismissed.

Catchwords:

DEVELOPMENT APPLICATION: Dual occupancy; tourist accommodation; whether unlawful use due to characterisation; whether DCP component part “replaced”; precedent; development standard; cl 4.6 written request.

Catchwords:

DEVELOPMENT CONTROL ORDER: conciliation conference – agreement between the parties – orders

Catchwords:

CRIME - Appeals - Crown appeal against sentence - aggravated sexual intercourse with a child without consent - effect of the complainant’s consequent pregnancy - pregnancy was a circumstance of aggravation - whether the sentencing judge erred in assessing the objective seriousness of the offending - whether the sentence was manifestly inadequate

Catchwords:

Administrative Law – refusal of firearms licence - safe storage – unregistered firearm - firearms stolen – public interest.

Catchwords:

MODIFICATION APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

CIVIL PROCEDURE – no question of principle

Catchwords:

CRIMINAL LAW – appeal against sentence – where appellant sentenced for manufacturing commercial quantity of prohibited drug, supplying commercial quantity of prohibited drug, and knowingly dealing with proceeds of crime – where appellant sentenced to aggregate sentence of 14 years imprisonment with a non-parole period of 10 years – whether in determining the aggregate sentence the sentencing judge erred in the application of the totality principle – whether the sentence imposed upon the applicant resulted in double punishment – whether sentence manifestly excessive – appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against conviction – trial for sexual assaults of adult complainant – whether complainant answered question in cross-examination about other sexual contact with applicant non-responsively – whether defence counsel subsequently addressed jury inappropriately – whether trial judge misdirected jury about final address of defence counsel – appeal against conviction dismissed   CRIMINAL LAW – appeal against sentence – aggregate sentence – whether trial judge adopted inappropriate implicit cumulation between indicative sentences – whether trial judge failed to consider question of implicit concurrence adequately – appeal against sentence dismissed

Catchwords:

CRIME – appeal against conviction – murder – admissions by appellant – whether verdict unreasonable – whether reasonable hypothesis consistent with innocence of murder available on the evidence – whether miscarriage of justice by failure by trial judge to direct the jury that if the admitted blows were the traumatic cause of death, appellant was to be acquitted of murder – Rule 4 – whether appellant had lost real chance of acquittal

Catchwords:

COAL MINERS WORKERS COMPENSATION – CLAIMS FOR LUMP SUM COMPENSATION – 7 different claims under s66 of Workers Compensation Act 1987   At age 17 plaintiff joined the Army – Saw active service in Vietnam (“war service”) – 6 years enlistment – Plaintiff a coal miner 13 December 1978 to 9 March 2001 – Conflicting claims to DVA for pension benefits and to employers for workers compensation   No reports from treating doctors on causation – Opinions of qualified doctors based on incorrect, incomplete or erroneous histories – Need for experts to explain their opinions and the factual basis on which those opinions based

Catchwords:

EQUITY — Fiduciary duties — Breach — Rule in Barnes v Addy — Whether claim for knowing assistance in fraudulent and dishonest design adequately pleaded

Catchwords:

EQUITY – trusts and trustees – resulting trusts – presumption of advancement – whether son held property on trust for mother – where son received benefit of first home owner’s grant and stamp duty concession

Catchwords:

ENVIRONMENTAL OFFENCES: plea of guilty by a company to offence of contravening a condition of its environment protection licence – sentencing principles – determination of the objective seriousness of the offence – consideration of the subjective circumstances of the defendant – use of and weight to be given to the good character of an environmental offender - examination of comparable cases – purpose of a publication order – manner and extent of publication notice – publication order made – monetary penalty imposed.

Catchwords:

LAND LAW — Conveyancing — Contract for sale — Deposit — Application for relief from forfeiture of deposit pursuant to Conveyancing Act 1919 (NSW) s 55(2A) — Whether unjust or inequitable — Factors relevant to exercise of the Court’s discretion — improvements to land between exchange and termination – lengthy pre-contractual negotiations between parties — Significant funds expended to obtain finance — Vendor’s right to terminate exercised after several extensions — Purchaser conferred benefit and detriment on Vendor by works undertaken on land — Purchaser caused modest increase in value of land — Order for return of deposit.

Catchwords:

PRACTICE AND PROCEDURE – application to transfer defamation matter from District Court to Supreme Court – application of Public Interest Disclosure Act 2013 (Cth) – operation of Act not previously considered by the Court – application of Act gives rise to complex issues of law – transfer of proceedings should take place.

Catchwords:

BUILDING AND CONSTRUCTION – Home Building – cost plus contract – repudiation – misleading and deceptive conduct – adequacy of reasons

Catchwords:

Appeal and leave to appeal from Consumer and Commercial Division-principles on appeal-held no appellable error demonstrated-leave to appeal refused and appeal dismissed – costs reserved.

Catchwords:

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

Catchwords:

CRIMINAL PROCEDURE – Notice of motion to stay trial until legal representation is arranged – successful application for, and grant of, legal aid – counsel briefed - notice of motion dismissed for reason that representation has been arranged

Catchwords:

EVIDENCE – admissibility of expert evidence regarding handwriting comparison – whether the expert relied upon a flawed methodology in arriving at conclusions – whether the expert weighed up both similarities and dissimilarities in the handwriting - whether the expert had a duty to disclose the documents which had been relied upon - whether the evidence was unfairly prejudicial to the accused – whether the expert has failed to comply with a subparagraph of the Expert Code of Conduct – expert opinion is relevant, has probative value and is admissible

Catchwords:

SUCCESSION ACT – family provision order – 61 year old adult son – solicitor – born of brief first marriage – no provision made – widow and three half-siblings from testator’s second marriage – no basis for disturbing will

Catchwords:

CRIMINAL LAW – appeal against sentence – applicant pleaded guilty to two offences of supply a large commercial quantity of a prohibited drug – two additional offences taken into account on a Form 1 – applicant a middle man in drug supply chain – applicant supplied methylamphetamine and MDMA to various persons including undercover police agent – applicant had a long criminal history involving drug and dishonesty offences and was on parole when he committed the present offences – whether the sentencing judge correctly assessed the objective seriousness of both offences – assessment not confined to purity or quantity of drugs supplied – whether the applicant was denied procedural fairness – where the applicant submitted that the sentencing judge made erroneous findings in relation to the applicant’s motivation for the offences and prospects of rehabilitation – inconsistent evidence in reports tendered by applicant as to motivation for committing offences – applicant not denied an opportunity to clarify inconsistencies - whether the sentence was manifestly excessive – no finding of manifest excess – whether the applicant had a justifiable sense of grievance given disparity between his sentence and that imposed upon co-offender – co-offender sentenced by another judge after applicant sentenced - where the co-offender’s sentence was not unduly lenient – significant disparity in sentence giving rise to justifiable sense of grievance – appeal allowed and applicant resentenced

Catchwords:

WORDS AND PHRASES – “contested matter”; STATUTORY CONSTRUCTION – Legal Profession Uniform Law Application Regulation 2015 – clause 24 – where regulation fixes costs payable for obtaining judgment in matters which are not contested matters – meaning of term “contested matter”; PRACTICE AND PROCEDURE – application for default judgment in proceedings commenced by summons; HELD: Judgment for the plaintiff for $A9,980,425 plus costs, which are not fixed under the Legal Profession Uniform Law Application Regulation 2015 (NSW)

Catchwords:

CONTRACT – construction – uncertainty – matter left for determination of one party – interest rate – times and periods – requirement of reasonableness – no uncertainty

Catchwords:

LEASES AND TENANCIES – retail and commercial tenancies legislation – retail shop lease - whether lease had a minimum term of five years or was a month to month lease – claim for compensation brought out of time - whether the appellant suffered a substantial miscarriage of justice through the dismissal of application

Catchwords:

ENVIRONMENTAL OFFENCES - two offences arising from a single pipe failure causing a spill of marine fuel oil into Gore Bay on Sydney Harbour - offences of water pollution and breach of an environment protection licence condition - guilty pleas entered at earliest opportunity - whether deficiencies in clean-up activities constitute a factor of aggravation - aggravation not established - extent of environmental harm - defendant’s subjective factors - licence breach offence more serious than water pollution offence - no need for specific deterrence - need for general deterrence - breaches to be characterised as being toward the top of the lower end of the range - principle of totality engaged as both offences arose from the same course of conduct – payments ordered to be made to the Environmental Trust ENVIRONMENTAL OFFENCES - publication order - no dispute between the parties about the appropriateness of a publication order - disagreement as to terms of proposed notice - determination of appropriate terms - disagreement as to publications in which to publish - appropriate to require defendant’s conduct and results of prosecution to be drawn to a wide business audience - appropriate to include requirement to publish in the Australian Financial Review in addition to other agreed publications

Catchwords:

CIVIL PROCEDURE – whether threshold requirements in the Civil Procedure Act 2005 for constitution of a representative proceeding have been complied with - whether the group members are precisely defined and identified – whether the group members advance sufficient common questions of law or fact – whether there is a reasonable cause of action as against all sixteen defendants – held there was substantial common questions to be determined – not an embarrassing pleading

Catchwords:

TORTS – negligence – plaintiff slipped on metal telecommunications pit lid resulting in fracture to left leg   TORTS – negligence – duty of care – whether there was a duty of care in relation to installation only or also a duty in relation to inspection and repair – failure to take reasonable precautions – s 5B Civil Liability Act 2002   TORTS – negligence – causation – s 5D(1) Civil Liability Act 2002   TORTS – damages – non-economic loss – past out-of-pocket expenses – future out-of-pocket expenses – domestic assistance and care – past and future economic loss

Catchwords:

CONTRACTS – particular parties – principal and agent – undisclosed principal – building contract – where licensed supervisor contracted as agent for builder – identity of contracting parties – agent personally liable in circumstances where reasonable person in position of the parties would conclude agent was contracting party

Catchwords:

HIGH RISK OFFENDER – application for further extended supervision order – dependence on deviant pornography – persistent rape fantasies – diagnoses of various psychotic disorders – unacceptable risk to the community

Catchwords:

DAMAGES – Motor Vehicle Accidents – Subsequent Motor Vehicle Accident – Non-Compensable GENERAL DAMAGES – Motor Accidents Insurance Act (Qld) 1994 – Civil Liability Act (Qld) 2003

Catchwords:

CRIMINAL – sentence – Sexual intercourse child under 10 - groom child under 14 – aggravated act of indecency child under 16 - step-father – Form 1 matters - admission of unknown guilt - Ellis discount - immediate admissions - very early guilty plea - assessment of objective serious - victim impact - mental illness – remorse - aggregate sentence

Catchwords:

SENTENCING – Dangerous driving occasioning grievous bodily harm – two victims – assessment of moral culpability – number of people put at risk – length of the journey during which others were exposed to risk - prior traffic offences – remorse established – whether media scrutiny amounted to extra-curial punishment that could be taken into account

Catchwords:

PRACTICE AND PROCEDURE – defamation – transfer of proceedings to District Court – proper approach – relevant factors.

Catchwords:

CRIMINAL LAW – appeal against conviction – evidence – identi fication and recognition evidence – whether convictions unreasonable or not supported by evidence – whether it was open to the jury to find beyond reasonable doubt that the appellant was guilty of discharging a firearm in a public place and causing grievous bodily harm to the victim   CRIMINAL LAW – appeal against conviction – where appeal does not involve a question of law alone – where appellant failed to seek leave to appeal – grant of leave not a formality

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; exceedance of the height of buildings development standard.

Catchwords:

ADMINISTRATIVE LAW – application to use a recording device to record hearing – application for McKenzie friend to sit at the Bar Table – summons for witness to give evidence set aside.

Catchwords:

CIVIL PROCEDURE – security for costs – whether primary judge’s discretion miscarried – relevance of delay in bringing application for security for costs where delay not shown to have caused prejudice – whether incurring of legal costs generates a presumption of prejudice – effect of Green v CGU Insurance Ltd [2008] NSWCA 148

Catchwords:

DEVELOPMENT APPLICATION: subdivision into two Torrens Title lots; minor alterations and addition to the existing dwelling identified as contributory to the heritage significance of the heritage conservation area; impact on the heritage significance of the heritage conservation area; impact on the heritage significance of adjoining heritage items.

Catchwords:

TRADES AND PROFESSIONS – nursing – mental health nursing – sexual relationship with former patient – impairment – recurrent psychotic condition

Catchwords:

EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Entitlement to be repaid contribution — Entitlement to equitable charge over property to secure repayment of contribution   EQUITY — Trusts and trustees — Constructive trusts — Family and domestic relationships — Failure of joint endeavour in acquisition or improvement of property, in circumstances of unconscionability and of no attributable blame — Whether the appropriate remedy involves return of contributions made or proportionate share of beneficial interest in property   EQUITY — Trusts and trustees — Resulting trusts — Presumption of advancement — Whether the presumption applies when a mother gives moneys to her daughter and son-in-law jointly

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – dead trees – fire – orders for removal

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – orders for pruning

Catchwords:

COSTS APPLICATION – unfair dismissal application dismissed – whether the applicant unreasonably failed to agree to settlement offers from the respondent – consideration of all relevant circumstances – application for a costs order dismissed

Catchwords:

CIVIL PROCEDURE – Re-opening – tender of further experts reports in response to leave granted to plaintiff to re-open – whether basis for allowing re-opening allows other parties to revisit decisions not to file evidence in response to plaintiff’s expert – tender disallowed.

Catchwords:

PROCEDURE – separate question – terms of question unclear on their face – terms of question uncertain and disputed by parties – hearing of separate question conducted without evidence or agreed facts – whether question appropriate to answer – whether different question should be determined on appeal

Catchwords:

CIVIL PROCEDURE – Court of Appeal – leave to appeal – whether to revoke leave to appeal – application to set aside– application made outside the time prescribed by s 459G – Corporations Act 2001 (Cth)

Catchwords:

LAND LAW — Easements — Whether easements created by conveyances in 1839 bind present-day registered proprietors   CIVIL PROCEDURE — Court administration — Court powers — Whether successor in title can reopen ex parte proceedings in which orders were made that affect property succeeded to

Catchwords:

CIVIL PROCEDURE – summary dismissal – strike out – unincorporated association – mutual self-insurance scheme – indemnity under contracts of insurance – whether cause of action pleaded – proper person to sue – principal under the self-insurance scheme – parties to the self-insurance scheme – membership of the self-insurance scheme – join association by deed with moving party – contract with many parties – whether moving party has management and control of the self-insurance scheme – defects in pleadings – whether cure by legitimate amendment – action not untenable that cannot succeed – debatable questions of law – mixed questions of fact and law – costs – orders

Catchwords:

Torts – negligence – motor vehicle accident – liability not in issue – extent of plaintiff's injuries and restrictions – future out-of-pocket expenses – need for future commercial care in dispute

Catchwords:

SUCCESSION – FAMILY PROVISION - The Plaintiff, an adult child of the deceased, makes a claim for a family provision order - No dispute as to the Plaintiff’s eligibility as a child of the deceased - Written statement going to testamentary intention, which provided reasons for the lack of any provision being made for the Plaintiff made by the deceased - Contents of parts of the statement disputed by Plaintiff - Nature of relationship of the Plaintiff and the deceased - Modest actual estate (and property sought to be designated as notional estate) in value – Competing claim of the major beneficiaries, being the only two grandchildren of the deceased - Nature of the relationship of each of the major beneficiaries and the deceased – Whether a family provision order should be made, and if so, the nature and quantum of the provision to be made and how the burden of the provision, if any, made should be borne.   NOTIONAL ESTATE – Whether a relevant property transaction – Whether part of the proceeds of sale of the deceased’s home given to the Defendant within 3 years before the date of the death of the deceased was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased for the maintenance, education or advancement in life of the Plaintiff.

Catchwords:

Buccal Swab - Non Intimate Forensic Procedure - Young Person - Appeal from Local Court - Suspicion can arise from material not admissible as evidence at trial

Catchwords:

CONTRACTS – formation – where commercial lease provided a landlord’s incentive for fit-out – whether tenant acted as agent of landlord in entering a contract with contractor to fit-out leased premises – where factoring arrangement provided financing to contractor – where creditor advanced funds to contractor in exchange for unpaid invoices being assigned to its special purpose vehicle – whether valid contract between tenant as agent for landlord and the contractor – whether contract ratified – whether landlord liable to pay creditor as disclosed agent for tenant   CIVIL PROCEDURE – application by defendant for judgment for want of evidence – Uniform Civil Procedure Rules 2005 (NSW), r 29.10 – whether judgment for the creditor “could not be supported” – Hunt v Watkins (2000) 49 NSWLR 508; [2000] NSWCA 229 – no findings of credit

Catchwords:

MORTGAGES AND SECURITIES – mortgages – mortgagee’s duties, rights and remedies – entitlement to possession – whether default established – effect of requirement for notice under National Credit Code – whether mortgagee can rely on a default not referred to in default notice.   CONTRACTS – terms – construction – whether “condition” was a condition of retaining possession or a contractual obligation.   EVIDENCE – proof – evidentiary certificates – minimum requirements.

Catchwords:

COSTS — application for indemnity costs in respect of costs occasioned by non-compliance with court orders

Catchwords:

CRIMINAL LAW – appeal against sentence – dealing with money reasonably suspected of being proceeds of crime – Criminal Code (Cth) s 400.9(1) – whether sentencing judge failed to have regard to utilitarian benefit of guilty plea – whether error in determination of objective criminality – whether sentence manifestly excessive – appeal dismissed

Catchwords:

JUDGMENTS AND ORDERS – foreign judgments registered as a judgment of the Court under the Foreign Judgments Act – application by the defendant/judgment debtor to have registration order set aside on multiple grounds – whether the defendant had agreed to submit to the jurisdiction of the courts of Singapore – whether the defendant received notice of the proceedings in Singapore in sufficient time to enable him to defend those proceedings – whether the foreign judgments were obtained by fraud – whether the proceedings in Singapore were an abuse of process – consideration of public policy ground for setting aside registration of a foreign judgment

Catchwords:

CIVIL PROCEDURE – representative proceedings – representative parties – costs order against representative party for unsuccessful anti-suit injunction application   COSTS – party/party – costs orders in interlocutory proceedings – plaintiff representative party applied for anti-suit injunction – application not pressed and ultimately dismissed by consent

Catchwords:

APPEAL: development control order – removal of structures – conciliation conference – agreement between the parties – orders

Catchwords:

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

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – driveway – concrete grinding

Catchwords:

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

Catchwords:

WILLS AND ESTATES – Trusts and Trustees – Accounts – Disputed items - Rulings

Catchwords:

COSTS – Whether special circumstances exist warranting an award of costs – Where proceedings settled prior to a hearing – Where respondent provided applicant with access to all information sought – Whether common law approach to the allocation of costs of proceedings which do not proceed to hearing, because they have been settled or rendered futile before determination, is applicable

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed   COSTS — Indemnity basis— Bases of quantification — No circumstances to justify special order for costs

Catchwords:

COSTS – s 60 Civil and Administrative Tribunal Act, 2013 – special circumstances – new evidence first produced on appeal – no conduct of parties responsible for failure to provide evidence at original hearing – parties raising irrelevant and unnecessary issues.

Catchwords:

COSTS – dismissal of contempt charges – where the party bringing the charges sought leave to have them dismissed – commencement of contempt charges entirely justified – charge abandoned after the publication of a related Court of Appeal judgment and further orders made restraining the subject of the charge - where the defendant acted reasonably in withdrawing contempt charge – where plaintiff had disobeyed court order on a large number of occasions - no costs order made to the intent that each party bear its own cost

Catchwords:

COSTS – appeal from first instance costs decision –where Appeal Panel partially set aside the first instance principal decision after the first instance costs decision had been made – where parties agreed that the issue of costs should be remitted to the Tribunal and re-determined in light of the Appeal Panel’s decision – whether Appeal Panel should address grounds of appeal or whether there was no utility in doing so   COSTS – application for costs of the appeal from the first instance costs decision – whether appellant had been ‘successful’ on appeal – whether builder entitled to costs ‘wasted’ because homeowner withdrew ‘stay’ application

Catchwords:

COSTS – costs on appeal – where homeowner successful on one ground of appeal – whether Tribunal should order that builder pay 100% of the homeowner’s costs – whether homeowner has failed on a separable issue – whether there are factors that militate against awarding 100% of homeowner’s costs

Catchwords:

PRACTICE AND PROCEDURE – Summary dismissal – plaintiffs file Amended Statement of Claim in February 2017 – defendants apply under Uniform Civil Procedure Rules 2005, r 14.28(1) to dismiss proceedings against them, on the basis that there is no real question to be tried – defendants propose to field a defence under Limitation Act 1969 – plaintiffs plead that the otherwise applicable limitation period was extended under Limitation Act, s 55 on the basis that the defendants concealed their cause of action from them until after the otherwise applicable limitation period expired – in reply, the defendants contend that uncontestable facts establish that the plaintiffs were well aware of the existence of their cause of action long before the applicable limitation period – whether or not the plaintiffs’ pleading raises a “real” issue for trial.

Catchwords:

PRACTICE AND PROCEDURE – sentencing for special executive liability charge – evidence of fraudulent behaviour cannot be relied on as not relevant to element of special executive liability charge

Catchwords:

Interim Supervision Order – eligible offender – supervision expiry before proceeding end – Commonwealth charges

Catchwords:

JOINDER: Application for joinder – Statutory tests

Catchwords:

Appeal – error of law – breach of guarantee of acceptable quality – Australian Consumer Law (NSW)

Catchwords:

BUILDING AND CONSTRUCTION – security of payment – where successive adjudicators expressed inconsistent findings as to proper construction of the building contract – subcontractor did not challenge second determination and instead resubmitted payment claim – contractor contended third determination void because construction issue determined by unchallenged second determination – subcontractor belatedly sought to challenge second determination by cross-summons

Catchwords:

LICENSING – tattoo parlours – operator licence – fit and proper person – public interest – whether links with an OMCG – stay order.

Catchwords:

COSTS – whether plaintiffs entitled to all or part of their costs – effect of offer of compromise – whether plaintiffs should be entitled to partial costs order – whether parties should be indemnified by estate for any of their costs   JUDGMENTS – calculation of judgment amounts – whether plaintiffs entitled to pre-judgment interest

Catchwords:

DEVELOPMENT APPLICATION: residential apartment building; contravention of the height of buildings development standard; volume of excavation; height of front fence.

Catchwords:

MENTAL HEALTH — Intellectual disability – Mental Health (Forensic Provisions) Act 1900 (NSW) — Forensic patient — Extension order

Catchwords:

UNFAIR DISMISSAL – misconduct – reason for termination – procedural unfairness – misconduct not sufficient to warrant dismissal – dismissal harsh – reinstatement impracticable – re-employment not ordered – compensation ordered

Catchwords:

CRIMINAL LAW - trial - conspiracy to do acts in preparation for terrorist act - alternative count of knowingly taking part in supply of firearm - jury retired to consider verdict - applications by media interests for access to trial exhibits to permit publication and broadcast after verdict delivered - objections by Crown and Accused to release to media of certain exhibits - rulings made that media access would be granted to certain exhibits after delivery of verdict - Court indicates provisional rulings refusing media access to certain exhibits - media interests to have opportunity to appear to press any application concerning those exhibits

Catchwords:

ADMINISTRATIVE LAW – liquor licensing – overall social impact of granting licence - whether detrimental to wellbeing of local or broader community

Catchwords:

LEASES AND TENANCIES – residential tenancies – social housing – dismissal of application for termination of tenancy – whether Tribunal’s reasons for dismissing application were adequate

Catchwords:

Duties Act 1997 – transfer duty – dutiable value – aggregation of dutiable transactions - apportionment

Catchwords:

BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – challenge to adjudication determination – entitlement to progress payment – whether payment claim supported by valid reference date – whether reference dates may arise following termination of the relevant contract – operation of ss 8(2)(a) and 8(2)(b) – whether existence of a reference date is a jurisdictional fact – whether validity of a termination is a jurisdictional fact – review of adjudication determination.

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – application for Interim Supervision Order

Catchwords:

PRACTICE AND PROCEDURE – suspension of final orders pending appeal to Court of Appeal

Catchwords:

CONTRACTS – mistake – agreement as to amount of costs to be paid under orders for costs “as agreed or assessed” – where party in whose favour costs were awarded was under a mistake as to the total amount of costs incurred – agreed amount of costs paid “in full and final settlement” – whether common mistake or unilateral mistake – no unconscionable conduct and no sharp practice – no other basis for equitable intervention – agreement not liable to be set aside – relief not refused on discretionary grounds

Catchwords:

PUBLIC ASSEMBLY – proposed public protest against the Adani coal mine – application by Commissioner of Police under s 25(1) Summary Offences Act 1988 (NSW) – where the protest followed a major thoroughfare and would disrupt traffic and emergency services – where the proposed procession coincided with the heavily-attended Mardi Gras Fair Day – where the defendant refused to accept alternative routes offered by the Commissioner – prohibition order made   COSTS – discretion – general principles – where the plaintiff was successful in its application – where the defendant argued for a costs order based on concepts of public interest – effect of public interest considerations generally

Catchwords:

CIVIL PROCEDURE — Hearings — Adjournment application — Where party did not appear to press application — Adjournment application dismissed   COSTS — Party/Party — General rule that costs follow the event — Whether costs should be ordered on an Indemnity basis   COSTS — Party/Party — Orders when proceedings involve multiple parties — Interveners — Where applicant’s costs increased as the result of intervention

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of a delegate of the Registrar of the Workers Compensation Commission as to whether appeal to Appeal Panel should be allowed to proceed – whether error of law – whether jurisdictional error – whether delegate failed to consider submission that “Approved Medical Specialist” took into account irrelevant considerations and failed to take into account relevant considerations – whether delegate erred in deciding that which matters were relevant to the categories in the Psychiatric Impairment Rating Scale (PIRS) was a matter of discretion rather than an application of the Workers Compensation Guidelines

Catchwords:

CONTRIBUTION – cross-defendant wishes to challenge assessment of damages in primary proceedings

Catchwords:

LAND LAW – possession of land – licence agreement between father and son – licence terminated – proceedings seeking possession – defence filed discloses no defence to the claim – defence struck out

Catchwords:

PRACTICE AND PROCEDURE – application of slip rule – no basis for change to final orders under Uniform Civil Procedure Rules 2005 r 36.16

Catchwords:

CRIMINAL PROCEDURE – suppression and non-publication orders – appeal against decision not to make non-publication order – leave granted on grounds that court below materially misconstrued s 8(1)(c) of Court Suppression and Non-Publication Orders Act 2010 (NSW) by adopting probable harm test – calculus of risk approach adopted   CRIMINAL PROCEDURE – suppression and non-publication orders – rehearing under s 14(5) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) – evidence of risk of physical harm to the applicant – evidence of significant psychological harm to applicant and applicant’s family – order necessary to protect the safety of the applicant – circumstances of misreporting by media and threats to applicant – orders made

Catchwords:

CRIMINAL LAW – sentence – sexual offences against children – vulnerability as an aggravating factor – whether the judge treated as an aggravating factor an element of the offences charged – whether factors of aggravation taken into account so that offender sentenced for offences not charged – whether abuse of trust and abuse of authority distinguished – The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 discussed   CRIMINAL LAW – sentence – pleas of guilty – whether sentencing judge required to indicate the discount applicable to the aggregate sentence – whether judge erred in applying a uniform discount to indicative sentences – whether discount failed to allow for early offers to plead, but pleas entered later   CRIMINAL LAW – sentence – whether individual indicative sentences manifestly excessive – whether aggregate sentence manifestly excessive

Catchwords:

Contract – breach of contract – whether defendant had breached obligation to establish branches of a company in mainland China – whether defendant had provided financial documents of company to plaintiff – whether contract had terminated by force of a term in the contract – whether rights had accrued

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Court Suppression and Non-publication Orders Act 1970 (NSW) – Violation of non-publication orders - Whether the Magistrate erred by not dismissing the charges against the plaintiff – Failure to provide evidence – Abuse of process – Interim order – Whether the interim non-publication order could not have been violated because it was expired

Catchwords:

ESTOPPEL – collision of two semi-trailers - two sets of proceedings - earlier proceedings for property damage resulted in liability apportionment – current proceedings for personal injury to one of the drivers – neither plaintiff nor defendant in personal injury proceedings was a party to property damage proceedings – whether parties in current proceedings bound by apportionment findings in earlier proceedings – determination of separate question - whether the apportionment findings give rise to any of the following: issue estoppel, Anshun estoppel or abuse of process – whether legal system brought into disrepute

Catchwords:

SUCCESSION – FAMILY PROVISION – Succession Act 2006 (NSW) ss 59(1), 59(2) and 60 – necessity for applicant to make full and frank disclosure of her financial and material circumstances – where applicant deliberately fails to make that disclosure – application to reopen to adduce evidence deliberately not led earlier – application to reopen refused – HELD: proceedings dismissed.

Catchwords:

LAND LAW – possession of land – implied licence agreement for defendant to occupy land – licence withdrawn – defence struck out and no further defence filed – plaintiff entitled to possession

Catchwords:

EQUITY — Trusts and trustees — Court’s supervision of — Appointment and removal of trustees –– Circumstances where the original trustee wishes to retire and there will be adverse stamp duty consequences to the Trust if the alternate trustee named in the Will is appointed –– Order that defendant be appointed as trustee of the residuary estate under the Will in place of the original trustees

Catchwords:

CRIMINAL LAW – sentencing – manslaughter – where offender partner of principal offender – killing of ex-husband – principal seeking to extract confession of mistreatment of children – planned but chaotic joint criminal enterprise – brutal assault – victim dies of asphyxiation – body dumped by side of road – aggravating and mitigating features – parity of sentencing – offer of plea rejected – motivation unclear – something in the nature of love

Catchwords:

ENVIRONMENTAL OFFENCES: plea of guilty by a director of a company to offence of operating a waste facility without lawful authority – sentencing principles – determination of the objective seriousness of the offence – consideration of the subjective circumstances of the defendant – examination of comparable cases – monetary penalty imposed.

Catchwords:

CIVIL PROCEDURE – Service outside Australia – whether service of originating process should be set aside – whether local proceedings should be stayed on ground that New South Wales is inappropriate forum CONTRACT – breach of contract – whether partnership agreement existed – whether dispute falls within schedule 6 of UCPR – whether leave to serve outside Australia should be granted CORPORATIONS – Directors – claim based on breach of duties said to be owed by persons who were shadow directors – whether leave to serve outside Australia should be granted EQUITY – Contribution – whether court should refuse to assume jurisdiction over claim for contribution