Browse decisions Displaying 1 - 200 out of 127613 results

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

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

Catchwords:

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

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

Catchwords:

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

Catchwords:

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

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

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

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

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

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

Catchwords:

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

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

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

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

Catchwords:

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

Catchwords:

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

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

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

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

Catchwords:

TRUSTS AND TRUSTEES — discretionary family trust — claim for unpaid distributions of trust income framed as debt or money had and received — trustee's admission of unconditional obligation to pay — whether account balances in financial statements bind trustee or beneficiary — effect of payment into jointly held bank account — validity of distribution resolutions — fraud on a power — claim for unadmitted entitlements as "equitable debt" — claim to make good loss to trust estate by equitable compensation — Barnes v Addy — removal of trustee. CIVIL PROCEDURE — leave to amend statement of claim — futility as ground for refusing leave — limitation defence not to be pre-empted in a statement of claim — reconstitution of proceedings — children removed as plaintiffs and joined as defendants — joinder of Family Law s 79A claim inconvenient — consequential relief sought against trustee not a party to the settlement.

Catchwords:

BUILDING AND CONSTRUCTION – breach of contract – defective workmanship and materials – breach of statutory warranties under Home Building Act 1989 (NSW) – breach of statutory duties under Design and Building Practitioners Act 2020 (NSW) – misleading and deceptive conduct – contravention of Australian Consumer Law – unlicensed builder – rectification of defects – remedies – assessment of damages – measure of damages

Catchwords:

RECEIVERS – application to vary orders regarding distribution of proceeds of sale of assets – where receivership entities operated unincorporated joint venture for property development – where receivership entities borrowed moneys secured by mortgage over development properties – where related parties made payments into bank account from which interest and loan fees were paid – where receivers have formed view that payments gave rise to right by way of subrogation – where dispute has arisen regarding existence and extent of any such right – whether Court should amend orders to permit Receivers to pay any amounts they determine to be owing to related parties and secured by development properties prior to payment of surplus proceeds into Court

Catchwords:

COSTS — whether the circumstances justify making orders other than the “usual order” — costs to follow the event

Catchwords:

INDUSTRIAL LAW — threatened dismissal — application under Pt 6 of the Industrial Relations Act 1996 (NSW) — ministerial driver — alleged disclosure of confidential ministerial information — case dependent substantially on circumstantial evidence and inference — no direct evidence of disclosure to journalist — disclosure allegations not established — findings of deliberate concealment, dishonesty and record deletion not established — failures to comply with media contact reporting requirements established — conduct established materially narrower than misconduct relied upon by employer — trust and confidence — threatened dismissal harsh, unjust and unreasonable — order preventing dismissal pursuant to s 89(7).

Catchwords:

STATUTORY INTERPRETATION — statutory construction of Health Privacy Principles, Sch 1 of the Health Records and Information Privacy Act 2002 (NSW) — legislative purpose and context of the Act — whether the words “in the public interest” qualifies “the use of the information for a secondary purpose” or “research” associated with the health information ADMINISTRATIVE LAW — statutory construction — appeal from NSW Civil and Administrative Tribunal Appeal Panel COSTS – general rule that costs follow the event – judicial determination of issue of statutory construction in the public interest – unsuccessful party entitled to order for costs from successful party where role as contradictor of assistance to Court

Catchwords:

APPEALS — leave to appeal — interlocutory decisions — whether leave to appeal ought be granted — where applicant relies on a misapprehension as to order for default judgment — where no issue of principle, question of public importance or reasonably clear injustice shown

Catchwords:

Appeal – further modification application of a consent granted by the Court – deemed refusal – conciliation conference – onsite view – agreement between the parties – substantially the same development as that for which consent was originally granted – orders made

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ENVIRONMENT AND PLANNING — consent — appeal — conciliation conference — s 34 agreement — conditions of consent — cl 4.6 written request

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CIVIL PROCEDURE – hearings – where original trial judge disqualified himself when part-heard and matter now assigned to a different judge to hear the proceedings – where trial ran for eight days before original judge – where matter involves significant disputed questions of fact about which two witnesses have already been extensively cross-examined – whether the proceedings before new judge should be heard de novo or proceed from where they left off – whether use of transcript of previous evidence from witnesses by new judge capable of producing a fair trial

Catchwords:

MODIFICATION APPLICATION — residential flat building and town house development — conciliation conference — agreement reached — orders made

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

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CRIMINAL LAW — SENTENCING — Accessing and possessing child abuse material — Transmitting indecent material to a child under the age of 16 — Video streaming encounter with underage person — History of child sex offending — Fail to report per obligations under a Registerable Person Order — Guarded prospects of rehabilitation — Medium to high risk of reoffending — Registerable Persons Order for life SENTENCING — PRE-RELEASE PERIOD — Approach to sentencing for a combination of Commonwealth and State offences SENTENCING — NON‑PAROLE/PRE-RELEASE — Sentence structure of by setting shorter fixed term State sentence to commence prior to commencement of longer aggregate sentence for Commonwealth offences SENTENCING — PRE-RELEASE PERIOD — Appropriate to consider in a practical way the “effective aggregate” sentence for both the State and Commonwealth offending when determining an appropriate pre-release period for the Commonwealth offending in circumstances where as a matter of law there is no such “effective aggregate sentence” SENTENCING — Disconformity between Commonwealth and State sentencing regimes causes practical difficulties and confusion

Catchwords:

PRACTICE AND PROCEDURE – interlocutory injunction – application to restrain slashing works pursuant to s 13.14 of the Biodiversity Conservation Act 2016 (NSW) – potential breach of s 2.4(1) of the Biodiversity Conservation Act – similar matter running concurrently in Federal Court – no prima facie case – balance of convenience against the applicant – application dismissed

Catchwords:

ADMINISTRATIVE LAW – administrative review of decision not to renew contractor licence – application for stay or interim order – contractor licence expired – ability of Tribunal to make the order sought – order otherwise affecting the operation of the decision – application of s 42(3) of the Home Building Act 1989 (NSW)

Catchwords:

PROCEDURE — compulsory acquisition — Notice of Motion seeking leave to amend contentions on determination of compensation — expert evidence — motion dismissed

Catchwords:

COSTS — Security for costs — Relevant factors —Where first plaintiff’s place of residence is out of jurisdiction — Where second plaintiff is an impecunious corporate trustee of a self-managed superannuation fund COSTS — Security for costs — Quantum and form — Where amount claimed is disproportionate to the importance and complexity of the issues and solicitor’s estimate of costs is unrealistic

Catchwords:

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

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LICENSING - firearms – Firearms Prohibition Order - Apprehended Violence Order – s 11 Firearms Act 1996 - s 75 Firearms Act 1996 - disqualified person - want of jurisdiction - dismissal

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PRACTICE AND PROCEDURE – non-disclosure and non-publication orders – principles governing the power to make orders under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) – whether Tribunal should make an order prohibiting disclosure of applicant’s name – whether Tribunal should make an order prohibiting publication or some or all of the evidence – whether Tribunal should make an order prohibiting publication of the reasons for its decision to dismiss the applicant’s application for interim orders

Catchwords:

CONSTRUCTION — contractor engaged to engineer, procure and construct power station in remote WA for $78 million — small site nestled between two existing power stations operated by Alinta and BHP — principal says it will move existing underground services before the contractor starts, to avoid problems with neighbours — extensive delay until underground services are removed, ultimately with the assistance of the contractor — contractor serves extension of time (EOT) claim on principal but omits to copy superintendent — contractor required to undertake work on Alinta’s existing power station — principal obliged to, but fails to, perform electrical isolations for the contractor to undertake works — contractor asked to perform work near live cables — refuses — delay while isolations done — COVID-19 border restrictions and quarantine interrupt interstate fly-in fly-out (FIFO) workers getting to remote site — local labour hired but less productive, causing delay — complex commissioning and testing process for new power station — principal required to, but fails to, make electricity network available during this process, causing delay — when was practical completion achieved — is contractor entitled to EOTs and delay costs — yes. SUPERINTENDENTS — parties agree that superintendent’s determinations may be challenged in Court — how Court to approach its task at [12]-[18] — principal to ensure superintendent “acts honestly, fairly and reasonably and arrives at reasonable determinations” — role of superintendent at [19]-[21] — superintendent “overwhelmed” and makes no determination —replaced — second superintendent privately indicates to principal that inclined to issue certificate of practical completion — superintendent immediately replaced — private communications between superintendent and one contracting party undermines role of superintendent — removing a superintendent to stop them giving a determination that you do not want effectively destroys the role. EXTENSIONS OF TIME — time impacted analysis at [407]-[408] — programs — who ‘owns’ the float at [130]-[134] — whether change of logic in subsequent program may indicate baseline program should not be used — yes, at [832] — whether it matters that the work was ultimately done differently — no, at [834] — whether EOT should include loss of ‘activity float’ — no, at [524]-[526]. DELAY COSTS — “reasonable additional costs and expenses directly incurred … as a result of that delay” includes usual margin — contractor not obliged to provide goods and services without gain, absent clear words at [536]-[538] — contractor entitled to overheads and profit margin, at [544]-[547] — whether delay costs include lost days of ‘activity float’ — no, at [528]. VARIATIONS — was an email a variation order — consideration at [289]-[291]. CONTRACTS — proper construction, at [84]-[85] — resolving inconsistencies, at [399] — whether removal of underground services formed part of contractor’s scope of work — no — whether contractor’s acceptance of Site Conditions included the site as later excavated by the principal to remove underground services — no — whether principal obliged to backfill and compact the land disturbed by removal of such services to Site Conditions as at the date of the contract — yes. IMPLIED TERM — duty to cooperate — principles at [270] — principal had “sole discretion” to give a notice to proceed — issue of notice fixed Date for Practical Completion and commencement of contractual provisions for liquidated damages — principal obliged to give contractor access to site “to perform the Work” within 10 business days of the notice — duty to cooperate obliged principal to be satisfied that it would be in such a position when issuing the notice. ‘PREVENTION PRINCIPLE’ — implied obligation to cooperate — whether contract excluded prevention principle — case law review at [259], [867]-[871] — Growthbuilt Pty Ltd v Modern Touch Marble & Granite Pty Ltd [2021] NSWSC 290 considered — prevention principle not excluded. WAIVER — principles at [761] — impact of ‘no waiver’ clause at [762] — case law review at [763]-[766] — principal relies on contractor’s failure to provide EOT claim to superintendent in time as basis to reject claim entirely — process for determination of EOTs not followed — principal later content for third superintendent to determine claim substantively — principal chooses between inconsistent rights — principal waives reliance on failure to comply with conditions precedent. AUSTRALIAN CONSUMER LAW — whether representation made, principles at [63] — implications of entire agreement and no reliance clauses at [73] — representation as to future matter — whether misleading or deceptive, at [882]-[883] — had proper basis when made. ESTOPPEL — whether representation made, principles at [64] — principal represented that it would remove underground services prior to contractor arriving on site — whether principal should be estopped from denying entitlement to EOT — elements of estoppel at [294] — principal did not represent that it would not rely on contractual regime in respect of EOTs — estoppel not made out.

Catchwords:

PRACTICE AND PROCEDURE — Pro Bono referral — Uniform Civil Procedure Rules 2005 (NSW), r 7.36

Catchwords:

CORPORATIONS – voluntary administration – creditors’ meeting – application for extension of time fixed by s 439A of the Corporations Act 2001 (Cth) for convening of the second meeting of creditors – where administrators have been appointed to 542 companies that operated a property development business – where numerous development projects were incomplete at time of appointment – where administrators seek extension to allow time to complete developments and to carry out investigations – extension granted – further relief sought to ensure the orderly and efficient administration of the Companies

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EQUITY — injunctions — ex-parte interim injunction — where Plaintiff seeks ex-parte interim injunction restraining the Defendant from taking steps to enforce against third parties rights arising out of an Invoice Finance Facility Deed (the Facility) entered into between the Plaintiff’s company and the Defendant under which the Plaintiff’s company sold to the Defendant debts owed by those third parties to the Plaintiff’s company — HELD — injunction refused, amongst others, because (a) Plaintiff has not demonstrated a serious issue to be tried — he has no standing to seek the relief, not being a party to the Facility — (b) the third parties have a direct interest in the relief and have not been joined — the Defendant is relying on statutory rights against the third parties; (c) no basis established for ex-parte relief as opposed to relief on notice; (d) Court not satisfied that a usual undertaking for damages from the Plaintiff could be met; (e) Plaintiff delayed in bringing his application — otherwise no issue of principle CIVIL PROCEDURE — general observations about the operation of the Duty Judge list

Catchwords:

CIVIL PROCEDURE — application for leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) — claim for damages following alleged abuse — leave granted nunc pro tunc — no question of principle

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APPEAL: development control order – development application for dwelling house development in R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders

Catchwords:

COURTS AND JUDGES — ACTUAL AND APPREHENDED BIAS — Application for recusal —On multiple grounds — Combination of actual and apprehended bias — Application refused — Suggestion in Re Green Estate Australia Pty Ltd [2026] NSWSC 1028 that because of application itself and threats of appeals and complaints that a reasonable lay observer might think the Judge might be biased in favour of the moving party not applied or followed CIVIL PROCEDURE — ADJOURNMENT — Application dismissed

Catchwords:

SENTENCE – Supply a prohibited drug not less than the large commercial quantity

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SENTENCE – Attempt to possess a commercial quantity of an unlawfully imported border controlled drug

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SENTENCE – Attempt to possess a commercial quantity of an unlawfully imported border controlled drug

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CIVIL PROCEDURE – Summons seeking leave to appeal Magistrate’s decision to set aside default judgment – Where the defendants were in negotiations with the plaintiff about his pleading – Where the plaintiff sought default judgment without notifying the defendants – No issue as to principle

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COSTS – Appeal from costs decision – s 60 Civil and Administrative Tribunal Act 2013 (NSW) - r 38(2)(b) Civil and Administrative Tribunal Rules 2014 (NSW) – parties successful on different issues – proportionate costs order – exercise of discretion

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CRIMINAL LAW – sentencing – manslaughter – excessive self-defence – single stab wound – history of domestic violence – where victim of domestic violence kills perpetrator – childhood trauma and dysfunction – psychiatric conditions – diminution of moral culpability CRIMINAL LAW – sentencing – dismembering of corpse and dumping body parts – application of authorities – whether relevant to objective seriousness of offence – distinction from murder cases – impact on family victims

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CRIMINAL LAW – non-publication order – names of adult children – where six of eight children provided affidavits – exposure to ongoing domestic violence – important evidence in sentencing hearing – where facts include salacious features – dismemberment and disposal of corpse – test of necessity – public interest in open justice – public interest in witnesses providing important information – minimal interference with open justice – order made

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REAL PROPERTY – RETAIL LEASES – urgent interlocutory application - re-entry and demolition of premises after alleged non-compliance with notice of breach and associated contests – whether ought to be treated as having altered to final hearing by reason of parties’ submissions on matters characterised as final relief when no formalisation of that course – Retail Leases Act 1994 (NSW) s 72 COSTS – unsuccessful application to vary order reserving costs of successful interlocutory application

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DEVELOPMENT APPLICATION: shop top housing development in E1 Local Centre – whether adequate arrangements have been made – vehicular access – car parking

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CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By prosecutor on a question of law alone — where ADVO provides respondent must not “harass” protected person — knowledge and intent in respect of prohibition on behaviour that has a proscribed character — whether prosecution must prove that a defendant knows or intends that their conduct amounts to harassment STATUTORY INTERPRETATION — meaning of “harass” in ss 7 and 36(b) of Crimes (Domestic and Personal Violence) Act 2007 (NSW) and in ADVO — mental element in s 14(1) of Act — whether Act requires only that defendant intends their conduct and has knowledge or intention as to alleged circumstances or effect of conduct, or whether defendant must know or intend that their conduct amounts to “harassing” the protected person

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SENTENCING — appeal against sentence — manifest excess — use of statistics — where the sentenced imposed is the highest recorded in statistics for offences under s 112(3) of the Crimes Act 1900 (NSW) — where the next highest sentence imposed was for significantly more serious offending than that for which the applicant was convicted — sentence imposed wholly disproportionate to offending — error found and applicant re-sentenced

Catchwords:

SENTENCING — appeal against sentence — where applicant pleaded guilty to two counts of the same offence — whether sentencing Judge erred in elevating the objective seriousness of the second count by the fact of the first count having been committed earlier that day — error found — whether error could have affected the reasoning which led to the ultimate sentence imposed SENTENCING — resentencing — sentence arrived at not lower than that imposed by the sentencing Judge — appeal dismissed

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CIVIL PROCEDURE — representative proceedings — damages of lead plaintiff determined — next stage of proceedings involving determination of claims of sample group members — application to strike out defendant’s responses to various claims of sample group members — whether defendant’s responses are an abuse of process

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APPEAL – Question of law –where the Appeal Panel is exercising administrative power when determining an appeal under the GIPA Act; whether the Appeal Panel is confined to conducting a merits review of the primary decision --. Effect of the Supreme Court’s decision in Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191 COSTS – where appeal has no tenable basis in law and appellant has failed to comply with procedural directions requiring two compliance hearings – whether special circumstances exist justifying an award of costs

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LOCAL GOVERNMENT – misconduct by councillor – orders made suspending councillor for three months set aside by Tribunal – whether Tribunal misconceived its function – whether misapplication of principle of totality – whether orders made by Tribunal manifestly inadequate – whether proceedings should be remitted to Tribunal for determination in accordance with law

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COSTS – dispute concerning lease of residential premises – where principal issues centred around tenants’ entitlement to abatement of rent and termination of the lease for non-payment of rent – where tenants sought reinstatement of possession following termination – where status quo restored by decision of Walton J in September 2025 – where no practical utility in maintaining the proceedings which had effectively become spent – where costs of the proceedings the only remaining issue following plaintiffs’ proposal to discontinue – whether the plaintiffs should pay the costs of the proceedings – whether the Court should otherwise order

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CRIMINAL PROCEDURE – costs – application for certificate under Costs in Criminal Cases Act 1967 (NSW) – acquittals – where the Crown case was dependent upon the credibility of a witness whom the police investigation had proven to be unreliable in respect of key matters – otherwise vague circumstantial case based on suspicion – institution of proceedings unreasonable

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PRACTICE AND PROCEDURE – application in Court of Appeal proceedings for judgment based on two certificates of determination obtained under Legal Profession Act 2004 (NSW) – interest claimed on amounts of certificates – no basis on which to make the order sought – motion determined in the Common Law Division and dismissed

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CRIMINAL LAW — Work health and safety — Offences — Category 2 — Elevated working platform (EWP) inside of truck trailer tipped — Worker ejected from EWP — No risk assessment — No safe system of work for maintenance and repair of truck trailers SENTENCING — Relevant factors on sentence — Mid-range of objective seriousness — Aggravating factor — Serious injuries — Mitigating factors — Remorse — Early plea of guilty — Modest discount due to reduced capacity to pay a fine

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HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) — disability discrimination against an employee and in the provision of goods and services alleged — where President of Anti-Discrimination Board declined a complaint of disability discrimination — where Applicant has required the President of the Anti-Discrimination Board to refer a declined complaint to the Tribunal — whether Tribunal should exercise discretion to grant leave for the complaint to be the subject of proceedings under s 96(1) of the Anti-Discrimination Act.

Catchwords:

APPEALS – standing of party to bring an internal appeal where application for joinder refused – whether a “party to the proceedings” within the meaning of s 80(1) of the Civil and Administrative Tribunal Act 2013 PROCEDURE – standing to bring an internal appeal – applicant for joinder not a party to the proceedings in which the decision is made STATUTORY INTERPRETATION – meaning of “party to the proceedings in which the decision is made” in s 80(1) of the Civil and Administrative Tribunal Act 2013

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CRIME — Appeals — Interlocutory appeal — where prosecutor expressly disavowed argument at trial — whether prosecutor should be permitted to advance argument on appeal CRIME — Attempt — where absolute liability applied to physical element of offence allegedly attempted — whether proof of physical element required — whether proof of mental element as to existence of physical element sufficient CRIME — Child sex offences — Causing child to engage in unlawful sexual activity in presence outside Australia — where offence charged as attempt — whether proof of physical element of offence that child be under 16 when caused to engage in sexual activity required — whether proof of mental element as to existence of physical element sufficient CRIME — Criminal liability — Absolute liability — where absolute liability applied to physical element of offence allegedly attempted — effect of application of absolute liability to physical element of offence on liability for attempt to commit that offence

Catchwords:

SENTENCING — guideline judgment — dangerous driving offences contrary to Crimes Act 1900 (NSW), s 52A — whether Whyte guideline judgment should be revoked — where guideline judgment conflated concepts of moral culpability and objective seriousness — impact of sentencing developments including the statutory discount scheme and standard non-parole periods — guideline judgment revoked and replaced SENTENCING — guideline judgment — new guideline judgment for dangerous driving offences contrary to s 52A — statement of relevant sentencing principles — no numerical guideline — consideration of the purposes of sentencing — matters relevant to the objective seriousness of dangerous driving offences — findings of reduced moral culpability — role of past decisions and sentencing statistics SENTENCING — appeal against sentence — two offences of dangerous driving occasioning grievous bodily harm — assessment of objective seriousness — whether sentencing judge conflated matters relevant to the assessment of objective seriousness with those relevant to subjective case — error found — no lesser sentence warranted — appeal dismissed

Catchwords:

CIVIL – COSTS – Calderbank offers – Whether ‘walk away’ offer to have same effect as Calderbank offer – Whether respondent had enough information to reasonably be expected to accept any of applicant’s offers

Catchwords:

CIVIL PROCEDURE — application for pro bono referral under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) — judicial review proceedings — referral made for legal advice only — no question of principle

Catchwords:

CIVIL PROCEDURE – pro bono referral r 7.36 Uniform Civil Procedure Rules 2005 (NSW) – complex matter – barrister’s assistance needed for drafting amended statement of claim and leave to amend – entitlement to pro bono assistance established

Catchwords:

CRIME — murder — defence of mental health impairment — joint application of Crown and accused pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — whether evidence in the proceedings establishes defence of mental health impairment

Catchwords:

CIVIL PROCEDURE — admissions — admission of facts — withdrawal of admissions — where defendant’s pleadings admitted a condition precedent was satisfied — where no proper explanation for the admission was provided — whether leave should be granted to withdraw the admission under UCPR r 12.6 — leave refused

Catchwords:

SUCCESSION — Succession Act 2006 (NSW), Ch 3, ss 59-60, 100 — family provision — claim by 76 year old adult child for provision of $90,000 from his deceased father’s estate — Plaintiff’s party-party costs are approximately double the claim — the deceased left his house to another child (the Defendant) who had singlehandedly cared for him and who has lived there all his life — the will is accompanied by a written statement by the deceased explaining why he did so, being that the Defendant is on a disability pension and has otherwise devoted himself to looking after his parents and has not had the opportunity to acquire assets of any substance and where the deceased feels that his other children (including the Plaintiff) have established themselves in life and to varying degrees are in a reasonably comfortable financial position — where the Plaintiff claims that he is penurious and homeless and is presently sleeping on a mattress at his first ex-wife’s house — he has spent a significant amount of time living in Thailand, where he uses only cash — where he made no contribution to his father’s welfare or the estate — he seeks provision to enable him to pay rent for a residence in Victoria for the rest of his life but where the provision amounts only to two years of rent and the Court is not satisfied that he genuinely intends to live permanently either in Australia or in Victoria — he claims medical expenses for private healthcare but does not establish that he cannot obtain it in the public system and is unable to assist the Court in quantifying this claim — he claims provision for a motor car and he already has one in Thailand — HELD — claim dismissed — claim for rental is a contrivance — claim for private medical care is made where there is no suggestion that public medical care is not available — contingency claim not justified — Court not satisfied either that inadequate provision has been made for the Plaintiff or that the provision he seeks (or for that matter, any other provision) should be made

Catchwords:

CRIMINAL LAW — work health and safety — offences — category 2 — where a young worker’s arm became entangled in a conveyor belt of a mobile screen — high objective seriousness SENTENCING — relevant factors on sentence — circumstance of aggravation — vulnerable victim — avoiding double counting

Catchwords:

NOTICE OF MOTION — seeking leave to amend a development application — costs thrown away — seeking leave to consolidate proceedings — vacate hearing dates — dictates of justice — costs — fair and reasonable

Catchwords:

ADMINISTRATIVE LAW – home building — application for contractor licence — general building work — application of instrument — experience requirements — meaning of employee

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Reviews and appeals — Commission and Commissioner

Catchwords:

DEVELOPMENT APPEAL — residential development — rooftop terrace — justification of contravention of height of building development standard — merit assessment of impact on streetscape and local character — orders

Catchwords:

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

Catchwords:

HEALTH – professional registration and discipline – physiotherapist – pleaded guilty to sexual assault offence – fitness in the public interest to practise – appropriate protection orders – cancellation – non-review period – prohibition order – costs

Catchwords:

APPEALS — Leave to appeal — Principles governing – Leave to appeal refused BUILDING AND CONSTRUCTION – s 37 Design and Building Practitioners Act 2020 (NSW) – negligence – duty of care – statutory extension – breach of duty by nominated supervisor of works – nominated supervisor directed construction otherwise than in accordance with the approved plans and specifications – failure by builder to carry out works with due care and skill and in accordance with the plans and specifications set out in the contract

Catchwords:

HEALTH – where a medical practitioner's registration was cancelled in 2022 – application for a reinstatement order – where the medical practitioner has not satisfied the onus of establishing that he can be trusted to practise in a way that conforms to the expected professional standards and that he presents no risk to the safety of the public or their confidence in the profession – application dismissed – costs ordered

Catchwords:

APPEAL — costs assessment — appeal from decision of the Costs Assessment Review Panel pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) — where amount of costs in dispute below $100,000 — jurisdiction to hear appeal — leave to appeal — whether costs fair and reasonable

Catchwords:

Modification Application – amended plans – conciliation conference – agreement between the parties – orders

Catchwords:

ADMINISTRATIVE REVIEW – Privacy – personal information – exemption for agency – exemption where non-compliance is lawfully authorised or required

Catchwords:

WORKERS COMPENSATION – proceedings before Commission – appeal from presidential member – where appeal under s 353 of Workplace Injury Management and Workers Compensation Act 1998 (NSW) limited to error “in point of law” – where appellant seeks to reagitate grounds of appeal raised before presidential member – need to identify error in point of law on the part of the presidential member

Catchwords:

LEGAL PRACTITIONERS – application for readmission – decision by Legal Profession Admission Board to refuse to issue compliance certificate – where conflict of interest declared by member of the LPAB at relevant meetings – whether decision of LPAB vitiated by the conflict of interest or alleged deficiencies in its recording – whether LPAB failed to consider the applicant’s “law-related experience”

Catchwords:

PRACTICE AND PROCEDURE — persons under legal incapacity — cross-claim challenging validity of enduring power of attorney where principal purportedly lacked capacity at the time of execution — unrepresented litigant as cross-defendant — medical report in evidence — whether principal proceedings commenced in name of person lacking capacity and cross-claim to the extent brought against that person should be stayed pending appointment of tutor — proceedings stayed pending appointment of tutor — proceedings against other cross-defendants continuing

Catchwords:

COSTS — Exceptions to general rule that costs are to be assessed on the ordinary basis — Calderbank offer — no issue of principle

Catchwords:

ADMINISTRATIVE LAW — judicial review — Appeal Panel of Personal Injury Commission — whether Panel took into account irrelevant considerations — whether Panel exceeded the jurisdiction conferred by s 328(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) by providing a new diagnosis and reassessing whole person impairment — whether procedural fairness was denied by not giving the plaintiff an opportunity to respond to the new diagnosis and WPI assessment — whether the Panel failed to provide a collective decision

Catchwords:

COSTS — general rule that costs follow the event — where indemnity costs sought by the Plaintiff COSTS – whether to make a gross sum costs order

Catchwords:

BUILDING AND CONSTRUCTION – separate question – residential building work – where builder insolvent – insurance – where plaintiffs claim on a policy of insurance issued in accordance with the Home Building Act 1989 (NSW) – whether cover excluded because plaintiffs were developers within the meaning of s 3A of the Home Building Act – whether each plaintiff “will be” an “owner” of 4 or more dwellings – where plaintiffs executed a deed of partition – where plaintiffs will be registered proprietors of land when construction of 10 dwellings will be completed – ownership of dwellings at law sufficient within the meaning of s 3A of the Home Building Act irrespective of position in equity – each plaintiff was a developer – insurance cover excluded – proceedings dismissed

Catchwords:

ADMINISTRATIVE LAW - review of decision not to grant recognition payment – absence of discrete injury – applicant also suffered trauma from other events that have occurred throughout his life – claim for recognition payment based on former partner making a “false claim” he had breached an ADVO – is a psychological injury caused by the intimidatory behaviour of a former partner something for which an applicant can be given a recognition payment

Catchwords:

CONTRACTS — unjust contracts — Contracts Review Act 1980 (NSW) — whether deed of guarantee and indemnity is unjust — familial relationship between cross-claimant and third-party beneficiary — no real prospects of debtor fulfilling their obligations

Catchwords:

CIVIL PROCEDURE — application for stay of orders for possession pending determination of special leave application to the High Court — whether sufficient prospect of obtaining special leave — whether balance of convenience favours a stay — application for stay dismissed

Catchwords:

ANTI-DISCRIMINATION – TRANSGENDER DISCRIMINATION – HUMAN RIGHTS – transgender discrimination – where the applicant alleges unlawful transgender discrimination in in employment under sections 38A, 38B, 38C, and 53 of the Anti-Discrimination Act 1977 (NSW) – where an existing employee of the State operated health service applied for further position within the organisation but was required to disclose former names during recruiting process so as to expose him to a risk of disclosing his transgender status because of the gendered nature of his former names REMEDIES – DAMAGES – AGGRAVATED DAMAGES – APOLOGY – assessment of damages – whether the respondent’s conduct of the proceeding and warrants an award of aggravated damages – whether to order in injunction restraining discriminatory conduct – whether to order an apology

Catchwords:

CRIME — appeal against convictions — unreasonable verdict — where applicant convicted by trial judge of dangerous driving occasioning death and grievous bodily harm — where defence case was that applicant experienced an epileptic seizure at the time of collision — whether having regard to the whole of the evidence it was reasonably possible that the applicant’s driving could be explained by a seizure CRIME — alleged reversal of onus of proof by trial judge — whether trial judge erred by reversing the onus of proof by requiring the applicant to prove he experienced a seizure immediately prior to the collision — where trial judge made clear in the verdict judgment that the Crown bore the onus of proof CRIME — procedural fairness at trial — whether trial judge failed to accord the applicant procedural fairness by making particular findings of fact germane to the guilty verdicts — whether trial judge ought to have given a running commentary of the reasoning process during the trial

Catchwords:

CRIME – appeals – appeal against sentence – where sentencing judge found that aggravated sexual intercourse with child involved “unprotected sex” – whether finding “reasonably open” – whether finding made beyond reasonable doubt CRIME – appeals – appeal against sentence – manifest excess – whether aggregate sentence manifestly excessive by reference to indicative sentences or notional accumulation – reference to sentencing statistics

Catchwords:

APPEAL – appeal against restraint order made under s 110 of the Government Information (Public Access) Act 2009 (NSW) – whether Tribunal actually biased – whether reasonable apprehension of bias arose – whether Tribunal lacked jurisdiction to hear application involving multiple applicants and respondents – whether Tribunal’s jurisdiction affected by defect in an application - whether Tribunal was entitled to exclude the appellants from part of the hearing

Catchwords:

DEVELOPMENT APPLICATION — demolition of existing structures and construction of a residential flat building — Chapter 6 Housing SEPP — low and mid rise housing — whether in inner or outer area — walking distance

Catchwords:

CRIME — appeals — appeal against sentence — applicant sentenced to aggregate term of imprisonment for various enter and steal offences — where applicant contended specific errors on the part of the sentencing judge — where applicant failed to demonstrate alleged errors because substance of complaints were matters within the discretion of the sentencing judge — whether sentence otherwise manifestly excessive

Catchwords:

ADMINISTRATIVE LAW – Freedom of information – Access to information – Whether on balance the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure

Catchwords:

COSTS — claim and cross-claim — judgment on further amended statement of claim — mixed success — costs following event — identification of relevant event — where plaintiff failed on principal claims for substantial damages — plaintiff seeking monetary judgment notwithstanding dismissal of claim for repudiation — where defendant obtained judgment for outstanding rent but failed on substantial damages claim — broad brush apportionment — plaintiff ordered to pay defendant’s costs subject to 25% reduction — Calderbank offers — offers made to separate parties — interdependent offers — lack of clarity as to whether offers capable of separate acceptance — whether rejection unreasonable — indemnity costs refused

Catchwords:

APPEALS — Procedure — Adjournment — Various applications for adjournment of the hearing of summons seeking leave to appeal and notice of motion — Adjournment application by applicants refused — Separate adjournment application by first respondent granted

Catchwords:

COSTS – where both parties had some degree of success in relation to application to set aside a notice to produce and subpoenas

Catchwords:

CIVIL PROCEDURE – application for the transmission and distribution to the parties of any audio recording of court proceedings including when the Court was adjourned – where the plaintiff now seeks to set aside consent orders – where the plaintiff alleges that counsel had no instructions or authority to sign the short minutes of order – whether the Court must approve the transmission and distribution under the Court Security Act 2005 (NSW)

Catchwords:

APPEAL – Development application – co-living housing – conciliation conference – agreement between the parties – orders

Catchwords:

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

Catchwords:

LEGAL PRACTITIONERS — general lien — dispute over trust monies held in solicitor’s trust account — where primary judge found solicitor holds a general retaining lien over all trust monies in its possession — whether general lien is over all monies in trust account or only the portion of the monies payable pursuant to the costs judgment — whether general lien extends to enforcement costs or only to costs incurred on the instructions of the client LEGAL PRACTITIONERS — appeals — leave to appeal — where leave ought be granted as authorities are inconsistent and the appeal raises important matters of principle regarding scope of a solicitor’s general lien

Catchwords:

PROFESSIONS AND TRADES – health care professional – dentist – whether the practitioner has been convicted of a criminal offence in New South Wales – whether unsatisfactory professional conduct established – whether professional misconduct established – whether practitioner suitable to practise dentistry

Catchwords:

CORPORATIONS — Rectification of register maintained by ASIC — Where appointment of receivers and managers to property held by company on trust — Whether terminology “externally administered”, “external administrator” and “receiver manager appointed” used in forms and extracts on the register relating to the company was misleading — When regard had to the definitions in the Corporations Act 2001 (Cth) of the terminology used on the register, a reasonable reader would have no doubt that the appointments of receivers and managers related to property of the company and not the company itself — Sufficient information provided on the register to enable a reasonable reader to interrogate the register APPEALS — Leave to appeal — Whether leave required — Monetary threshold — Where relief sought has no readily ascertainable value — Relief sought by applicant not a claim or question amounting to a value of $100,000 or more — Leave to appeal required — No issue of principle — No issue of public importance — No reasonably clear injustice — Extension of time and leave to appeal refused

Catchwords:

REAL PROPERTY – possession of land – registered proprietor – entitled to possession against daughter who has lived with the registered proprietor for many years – registered proprietor goes into aged care – registered proprietor applies to NCAT for order terminating daughter’s residential tenancy – federal jurisdiction because registered proprietor and daughter now residents of different states – NCAT dismisses application for want of jurisdiction – registered proprietor makes same application to Local Court pursuant to s 34B of the Civil and Administrative Tribunal Act 2013 (NSW) – leave granted by Local Court – Local Court finds that there is no residential tenancy agreement – Local Court dismisses application to terminate – issue estoppel – whether registered proprietor precluded from seeking order for possession in these proceedings – no issue estoppel REAL PROPERTY – possession of land – registered proprietor – daughter claims mother represented to her that she could reside on the property until mother died – mother did not expect daughter to rely, nor would a reasonable person in mother’s position – no reliance – no detriment if mother now permitted to resile from representations – no estoppel

Catchwords:

PRACTICE AND PROCEDURE — persons under legal incapacity — capacity of a self-represented litigant to conduct proceedings — question to be determined separately under UCPR r 28.2 — opposing party also becomes self-represented — Court declines to read evidence of its own motion — presumption of capacity not displaced — comments on procedure — application for stay as an alternative — UCPR rr 7.14, 7.18

Catchwords:

NEGLIGENCE — Duty of care — Particular relationships — Duty of head contractor to employee of subcontractor — Personal injury — Damages — Where plaintiff injured by tripping over building materials after using unauthorised entry gate — Duty of care discharged — causation of ongoing pain not proven.

Catchwords:

CORPORATIONS – statutory demand – where statutory demand served on Plaintiff claiming judgment debt arising from adjudication determination – where Plaintiff has commenced proceedings against Defendant in Supreme Court of Queensland seeking damages for defective and incomplete construction work – whether statutory demand failed to specify the debt due – whether genuine dispute regarding the claim for post-judgment interest – where Defendant accepts there is a genuine offsetting claim arising from construction defects but disputes quantum of claim – where dispute regarding construction of provisions of contract – whether quantum of genuine offsetting claim is greater than admitted amount of debt – whether relief ought to be conditional of payment of adjudicated amount into Supreme Court of Queensland

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interpretation — Breach

Catchwords:

ADMINISTRATIVE LAW – privacy – information protection principles - personal information - exemptions – NSW Police Force - administrative and educative functions

Catchwords:

DEVELOPMENT APPLICATION – demolition – three-attached terraces – landscaping – subdivision – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION — residential apartment building development — low and mid rise housing — in-fill affordable housing — cl 4.6 written request — height of buildings — number of storeys — conciliation conference — agreement between the parties — orders

Catchwords:

LAND LAW – COMMUNITY SCHEMES – application for appointment of compulsory managing agent – proper parties - standing to make application – dismissal for lack of due despatch (want of prosecution) – inadequate explanation for delay of years in appealing – poor prospects of appeal – extension of time to appeal refused - Civil and Administrative Tribunal Act 2010 (NSW) s 41, Civil and Administrative Tribunal Rules 2014 (NSW) r 13 COSTS – special circumstances – exercise of discretion when extension of time refused – Calderbank offers – quarantining of successful parties

Catchwords:

DEVELOPMENT APPLICATION – adaptive re-use and addition to a local heritage item, the GIO Building – detrimental impact on the heritage significance of the heritage item

Catchwords:

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – termination of residential tenancy agreement for non-payment of rent after previous orders set aside - error on a question of law - denial of procedural fairness – constructive failure to exercise jurisdiction – leave to appeal – significant new evidence not reasonably available at date of the hearing

Catchwords:

APPEALS – residential tenancy – extension of time to file appeal not granted – inadequate evidence explaining delay – absence of transcript impacts upon assessment of merits

Catchwords:

APPEALS — Leave to appeal — Decision refusing leave to file amended statement of claim, summarily dismissing claim against second respondent and refusing referral to pro bono scheme — Significant deficiencies in proposed pleading — No issue of principle — No issue of public importance — No reasonably clear injustice — Leave to appeal refused

Catchwords:

Administrative Law – firearms licensing – refusal of permit to possess or use a prohibited weapon (silencer) – whether genuine reason for business/employment purposes – whether use of a prohibited weapon is necessary for applicant’s business

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — zoning of land — Pt 2 applications — two applications concerning the same neighbouring tree — one application concerns a second tree — whether the trees are likely to cause damage or injury — consideration of relevant matters — both applications refused

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — the trees have been removed — damaged retaining wall requires demolition and replacement — whether trees have caused damage to the applicants’ property — dividing fence — apportioning costs of works — orders for replacement of retaining wall and paling fence

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether the trees have caused damage — whether the trees are likely to cause damage or injury — insufficient evidence to demonstrate causal nexus — application refused

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Application for leave to appeal against interlocutory judgment or order — second respondent significantly ill — participation in court proceedings likely to aggravate medical conditions — primary judge made order under UCPR r 35.2(3) entitling parties to rely on second respondent’s affidavit without him being available for cross-examination — hearing adjourned until April 2027 and affidavit not yet read or tendered — applicant sought leave to appeal against order — no issue of principle — primary judge adequately considered alternative of cross-examination via audio-visual link — application premature in circumstances

Catchwords:

APPEAL – Modification application – conciliation conference – agreement between the parties – orders

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Orders pursuant to s 164A — Orders not made

Catchwords:

CRIMINAL PROCEDURE — application to vacate a criminal trial — right to a fair trial — Defendant seeking legal representation — previous pro bono assistance terminated by Defendant

Catchwords:

NOTICE OF MOTION — oppose access to subpoenas — costs thrown away — access to subpoenas — costs — fair and reasonable

Catchwords:

CIVIL PROCEDURE – parties – person under legal incapacity – application to remove plaintiff's tutor – evidence of plaintiff's restored capacity to weigh, evaluate and make decisions about the conduct of litigation – where proceedings are close to conclusion and many of the forensic decisions have already been made – application to remove tutor successful

Catchwords:

CIVIL PROCEDURE – stay of costs orders pending appeal – where applicant obtained judgment from filing costs certificates in the District Court – where primary judge set aside judgment – where primary judge has not yet made costs orders – whether balance of convenience favours the applicant CIVIL PROCEDURE – application for expedition of appeal – whether circumstances appropriate for grant of expedition – where bankruptcy proceedings commenced in the Federal Court – where Federal Court hearing forthcoming – heavy burden to justify convening a Court of Appeal bench – whether dictates of justice favour expedition

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Termination – Unfair Dismissal – whether dismissal of a teacher for misconduct was harsh, unjust or unreasonable – meaning of “misconduct” in s 93C of the Teaching Services Act 1980 – Dismissal harsh but not unjust or unreasonable

Catchwords:

TRUSTS AND TRUSTEES — application for judicial advice — discretionary family trust — amendment to definition of distribution date in trust deed — power of amendment excludes amendments extending the distribution date beyond the latest date provided by the deed — distribution date defined as earliest of fixed period, royal lives period and early termination period — variation extending fixed period from 50 to 80 years — as amended, distribution date will still not exceed royal lives period — amendment permissible — trustee justified in administering trust on footing that amendment valid

Catchwords:

CRIME — consent orders made under s 316 of the Proceeds of Crime Act 2002 (Cth) — no issue of principle

Catchwords:

EVIDENCE — public interest immunity — public interest immunity claims made by Commonwealth entities — no issue of principle

Catchwords:

APPEAL – development application – change of use to place of public worship – conciliation conference – agreement reached – orders made

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Quiet enjoyment — Unwarranted threat to list tenant on residential tenancy database not of itself a breach of quiet enjoyment

Catchwords:

ADMINISTRATIVE LAW – privacy – exemption – suitability for employment as a public sector official

Catchwords:

ESTOPPEL — Estoppel by representation — Detrimental reliance – Relief – the plaintiff and defendants acquire a residential property as tenants in common in March 2022 – the plaintiff is the mother of the first defendant, who is the life partner of the second defendant – the plaintiff and the defendants agreed to live together in the property – the plaintiff contributed approximately one third of the purchase price of the property – the defendants funded the other two thirds of the purchase price by borrowing and taking a mortgage over the property – unhappy differences arose between the parties after they moved in together – the plaintiff left the property in July 2023 – the parties agreed to sell the property – the plaintiff claimed she retained her one third of the property and now is entitled to its return – the defendants say that the plaintiff gifted her one third of the property to them as an “early inheritance” and that they relied upon her representation to that effect to acquire the property – whether the plaintiff is entitled to one third of the property or whether she is estopped from denying that she gifted one third of the property to the defendants – what equitable relief is appropriate in the circumstances.

Catchwords:

SENTENCING – Five counts of fraud on the National Disability Insurance Agency, and one money-laundering count

Catchwords:

TORTS — assessment of damages for trespass to land — damages sought by way of mesne profits — usual measure of market rent not adopted where defendants were paying a licence fee COSTS — application for gross sum costs order — defendants unlikely to take part in costs assessment — no issue of principle — gross sum costs order made

Catchwords:

TORTS — Trespass to the person – False imprisonment – detention by a police officer insisting on compliance with a power to seize the plaintiff’s firearms that the officer did not have – officer conceded that the plaintiff was not free to go until he complied with the officer’s unlawful requests – plaintiff detained by the presence of four officers and their directions in a public location at the apartment block where he lived in the view of multiple bystanders TORTS - Trespass to land – consent to entry to private property for the purpose of seizing firearms induced by threats by a police officer of forcible entry and damage to property that would be authorised by search warrant if the plaintiff refused to consent – plaintiff’s consent vitiated by the threats of forcible entry pursuant to a power that the officer did not have – unlawful search of and seizure of the plaintiff’s firearms and prohibited weapons from the plaintiff’s gun safe TORTS Trespass to the person – False imprisonment – detention pursuant to s 22 Mental Health Act 2007 – failure by the officer to hold the requisite belief to detain the plaintiff – deliberate submission of wrong information at the hospital in the s 22 Form for the improper purpose of justifying the earlier unlawful detention, unlawful entry to the plaintiff’s apartment and unlawful seizure – officer actively promoted the detention of the plaintiff by the medical practitioners under the Mental Health Act 2007 through the deliberate provision of wrong information designed to influence the decision of the medical practitioners TORTS – Malicious prosecution – whether the police officer commencing the criminal proceedings was the relevant prosecutor – were the proceedings commenced without reasonable and probable cause where the police officer knew the search and seizure was unlawful – were the proceedings commenced maliciously when they were commenced for an improper purpose of justifying the unlawful search and seizure DAMAGES – general damages – aggravated damages– exemplary damages

Catchwords:

CORPORATIONS – application to wind up on just and equitable ground – where Plaintiffs own 40% of shares in Defendant – where Defendant is special purpose vehicle incorporated for purpose of pursuing a specific residential property development – where Plaintiffs advanced $5m to Defendant to partly fund the development project – where Defendant’s controllers entered into Services Agreement with related entity – where development project has not yet obtained necessary planning approval – whether development project is commercially viable – whether there is a realistic probability of Defendant obtaining construction finance to complete development project – whether Defendant is insolvent – whether it is just and equitable that the Defendant be wound up – whether there is an alternative remedy available

Catchwords:

SUMMARY DISMISSAL – application refused

Catchwords:

LEASES AND TENANCIES – where relief against forfeiture previously granted – application to pay judgment debt and outstanding monies due under the lease by instalments – whether instalment payments would put lessor in the same position it would have been in but for the lessee’s default

Catchwords:

CIVIL – negligence – psychological injury – liability of employer for criminal actions of a third party CIVIL – negligence – liability of employer to employee working in retail – employee injured as a consequence of customer aggression and violence – significant psychiatric injury CIVIL – duty of care – reasonable foreseeability of harm to employee arising from conduct of customer CIVIL – breach of duty of care – reasonable response to risk of injury – posting of static security guard at store CIVIL – causation – whether failure to post security guard caused or contributed to injury CIVIL – damages – future economic loss – assessment of future earning capacity – whether plaintiff has residual earning capacity capable of being exercised – defendant’s onus

Catchwords:

SENTENCING — Appeal against sentence — Sexual offending against two child nieces — Finding of reduced moral culpability due to dysfunctional background — No finding as to whether general and/or specific deterrence should be moderated as a result

Catchwords:

CIVIL PROCEDURE – where third defendant seeks verification of amounts expended by plaintiff in preparing the properties for judicial sale – where money in dispute is not significant – where fraud now alleged but not pleaded – where third defendant remains liable for unpaid costs of the plaintiff

Catchwords:

CRIME — sentence — manslaughter by excessive self-defence — offender stabbed deceased with knife once in the chest in a public place following verbal threat of the deceased — assessment of objective seriousness of offending having regard to the extent to which the actions of the offender in self-defence were unreasonable or excessive — consideration of offender’s subjective circumstances — deprived background — serious criminal history — chronic mental health issues — assessment of moral culpability involving Bugmy and De La Rosa factors — early plea of guilty — evidence of remorse — poor prospects of rehabilitation — risk of institutionalisation — finding of special circumstances

Catchwords:

SENTENCING — murder — domestic violence — stabbing of former partner after she made allegations of sexual assault and domestic violence to police —assessment of objective seriousness — planning — motive of retribution for police report — element of public justice — no callousness after murder — objective seriousness in high end of the range SENTENCING — murder — domestic violence — consideration of subjective case — reduction in moral culpability due to depressive illness and adverse childhood events — breach of bail conditions and apprehended domestic violence order — reasonable prospects of rehabilitation — genuine remorse — reduction of discount for early guilty plea — hardship in custody — reference to comparative cases — finding of special circumstances

Catchwords:

ADMINSTRATIVE LAW — jurisdictional error — error on the face of the record — where third defendant made a decision about an issue already determined — where original decision was not referred in accordance with the statutory regime in Motor Accident Injuries Act 2017 (NSW) — where as a result subsequent decisions lacked jurisdiction — whether relief ought be refused on discretionary grounds — acquiescence ADMINISTRATIVE LAW — extension of time to commence proceedings — Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Catchwords:

GUARDIANSHIP — revocation of financial management order — whether Tribunal misapplied s 25P(2)(a) of the Guardianship Act 1987 (NSW) by requiring the appellant to discharge an evidentiary burden ADMINISTRATIVE LAW — onus of proof — burden of proof — whether applicant bears an onus of proof in proceedings under the Guardianship Act PROCEDURAL FAIRNESS — bias — actual and apprehended bias EVIDENCE — whether findings made in absence of evidence WORDS AND PHRASES — meaning of phrase “is capable of managing his or her affairs” in Guardianship Act 1987 (NSW), s 25P(2)(a)

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – commercial premises – light industry – shops – supermarket – food and drink premises – clause 4.6 variation requests for height and floor space ratio – easement for drainage over adjoining property – conciliation conference –agreement between the parties – orders made

Catchwords:

APPEAL – appeal remitted from Supreme Court one one ground – whether new evidence should be permitted in appeal – whether Appeal Panel should exercise powers under s 81(2) of the Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

APPEAL — Development Application — residential flat building — low and mid rise housing near identified centres —sufficiency of landscaping — character compatibility — neighbour objections — visual massing

Catchwords:

CRIMINAL LAW — Work health and safety — Offences — Category 3 — Mobile scaffold blown from rooftop by high winds and fell onto glass roof of neighbouring building — Deficient installation of the mobile scaffolds — Governance failures SENTENCING — Relevant factors on sentence — Mid-range of objective seriousness — No aggravating factors — Mitigating factors — Remorse — Plea of guilty — General deterrence — Application for order pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) — Order not appropriate given seriousness of offending — Insufficient evidence for offender to make a capacity to pay submission

Catchwords:

DEVELOPMENT APPLICATION — s34AA conciliation conference — jetty and pontoon — potential damage to seagrass meadow — agreement reached — orders made

Catchwords:

JUDICIAL REVIEW – review of Council’s decision to grant development consent for food and drink premises comprising a pub, restaurant and ancillary brewery – whether Council failed to consider proposed instrument pursuant to s 4.15(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 – whether Council was required to consider proposed development as integrated development pursuant to Div 4.8 of the EPA Act – whether a development being integrated development within the meaning of s 4.46 of the EPA Act is a jurisdictional fact – whether provisions of Div 4.8 are optional – whether Council purported to grant consent for consent that was prohibited – whether brewery component was an ancillary or independent and prohibited use – whether Council misdirected itself in its application of Pt 3.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 – whether the land was core koala habitat – whether Council failed to consider public submissions – whether Council’s decision was legally unreasonable – proceedings dismissed

Catchwords:

DEVELOPMENT CONTROL ORDER – fire safety order – conciliation conference – agreement between the parties – orders

Catchwords:

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

Catchwords:

HEALTH — Professional registration and discipline — reinstatement — psychology

Catchwords:

CONTRACTS — formation — intention to create legal relations — informality of arrangement CONTRACTS — collateral contracts — whether inconsistent with main agreement

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — whether it was open for the jury to find beyond reasonable doubt that the applicant knew, or believed, he was aiding or abetting an offence of the type that the co-offenders committed SENTENCING — appeal against sentence — co-offenders — disparity between sentences — where co-offenders sentenced on different factual basis

Catchwords:

APPEALS — application for leave to appeal — where proceedings stayed until payment of costs of earlier proceedings raising same claims of wrongdoing — where primary judge held it was an abuse of process to pursue current proceedings for so long as costs orders remained unsatisfied — no issue of principle, question of public importance or reasonably clear injustice identified — leave refused COURTS AND JUDGES — bias — application for disqualification of the presiding judge for apprehended bias — where junior counsel and the son of the General Counsel of the respondent had previously worked as researchers at the Court with the presiding judge — whether reasonable apprehension of bias by reason of past professional relationship — application dismissed

Catchwords:

HIGH RISK OFFENDERS — preliminary hearing — application for Interim Supervision Order — index offences relating to violent extremist material — whether defendant poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under a supervision order

Catchwords:

INTEREST – calculation of pre-judgment interest – whether interest should run from the date the cause of action arose or from the date it was first pleaded – no issue of principle COSTS – party/party costs – general rule that costs follow the event – whether there should be an apportionment of costs in respect of issues on which the Plaintiffs failed – no issue of principle

Catchwords:

SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for removal — Whether it is in the interests of the due administration of the deceased’s estate for the defendant to be removed as executor — Where defendant executor did not appear — Where executor residing in estate property beyond expiry of 12-month right of residence — Where communication between executor and beneficiaries infrequent — Whether executor delayed sale of estate property — Whether evidence indicates executor may not intend to sell and distribute estate assets

Catchwords:

STATUTORY CONSTRUCTION — plaintiff seeking to quash a notice under s 62(1) of the Combat Sports Act 2013 (NSW) made by the NSW Combat Sports Authority — plaintiff is organiser of an event scheduled to be held on 12 September 2026 — whether the event involves a “combat sport” and is therefore a “combat sport contest” — whether the event would be excluded from the definition of “combat sport” by operation of clause 5(1)(d) of the Combat Sports Regulation 2014 (NSW) — whether the activity could properly be construed as being an “strike” or “hit” — consideration of the primary objective of the activity — summons dismissed

Catchwords:

PROCEDURE – working out orders in tree dispute judgment – orders partly complied with – orders pursuant to r 40.8 UCPR made

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Termination – Resignation – Leave – Long service leave – Whether the effluxion of an employment contract avoids the operation of section 4(2)(a)(iii) of the Long Service Leave Act 1955 (NSW) EMPLOYMENT AND INDUSTRIAL LAW – Termination – Resignation – Leave – Long service leave – Whether stress can constitute an illness within the meaning of section 4(2)(a)(iii) of the Long Service Leave Act 1955 (NSW)

Catchwords:

CIVIL PROCEDURE – Abuse of Process – Where prior application for the same relief dismissed – Whether present application is an abuse of process CIVIL PROCEDURE – Irregularity – Where defendant alleges statement of claim not served – Where irregularity established – Where Court satisfied defendant was on notice of proceedings prior to entry of default judgment – Application of UCPR r 14(3) and CPA s 63(3) – Order that statement of claim be taken to have been served on the defendant CIVIL PROCEDURE – Default judgment – Application to set aside – Consideration of discretionary factors – Application refused

Catchwords:

CIVIL PROCEDURE — Pleadings — Pleading material facts — Effect of alleged representation must be pleaded — Actual words alleged to have been spoken are evidence and should not be pleaded ESTOPPEL — Estoppel by representation — Detrimental reliance SUCCESSION — Construction — General principles — “Principal place of residence” as at the date of death — Property over two lots and multiple dwellings

Catchwords:

ADMINISTRATIVE LAW – administrative review - application for tattooist licence – fit and proper person – public interest.

Catchwords:

COSTS – payment out of security for costs – whether entitlement to security established – whether special costs order should be made – gross sum costs order – proportionality of costs

Catchwords:

CIVIL PROCEDURE — application of defendant to dismiss proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) — where plaintiff’s pleading previously struck out twice because the pleading did not articulate or formulate a properly pleaded cause of action — whether the proceedings are frivolous or vexatious or otherwise an abuse of process of the court

Catchwords:

DEVELOPMENT APPLICATION – pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) for development consent granted by the Court