Browse decisions Displaying 1 - 200 out of 125584 results

Catchwords:

CORPORATIONS – voluntary administration – whether Corporations Act 2001 (Cth) s 440B applies – whether notice under s 260‑5 of Schedule 1 to the Taxation Administration Act 1953 (Cth) creates security interest – whether passive receipt constitutes enforcement – statutory charge – no enforcement – power under s 447A to modify operation of Pt 5.3A – relief to be granted under s 447A

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Applications for new awards for nurses, midwives, and assistants in nursing — Finalisation of awards — Awards made

Catchwords:

CIVIL PROCEDURE — Application to take evidence by video link — whether permissible under Chinese law — Held permissible to take evidence by video link from Hong Kong PRIVATE INTERNATIONAL LAW — Enforcement of judgment at common law — Judgment on loan agreement — Defence of fraud — Alleged sham document — Defence of fraud fails PRIVATE INTERNATIONAL LAW — Enforcement of judgment at common law — Judgment on loan agreement — Natural justice — Whether defendant had actual notice or due notice of foreign proceedings — Service effected through public service announcement under Chinese law — Authority cautioning against foreign modes of service not involving personal notification being sufficient notice — Defendant failed to prove absence of actual notice

Catchwords:

CRIMINAL LAW — work health and safety — offences — category 3 — mobile scaffolds blown from rooftop by high winds and fell onto glass roof of neighbouring building — failure to manage hazards and/or risks associated with scaffolds — director’s failure to exercise due diligence — failure to make enquires, provide supervision or conduct site inspections — mid-range of objective seriousness SENTENCING — relevant factors on sentence — objective seriousness — no aggravating factors — mitigating factors — remorse — plea of guilty — general deterrence — lack of capacity to pay a fine — s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) — offender’s character — offender’s health — other matters proper to consider — offender’s ability to travel overseas

Catchwords:

OCCUPATIONS — Legal practitioners — Solicitors — Professional negligence — Where solicitor acted for client in special leave application and ultimately appeal to the High Court — Whether solicitor negligent in failing to advise client that appeal bound to fail — No question of principle OCCUPATIONS — Legal practitioners — Retainer — Whether solicitor should have acted for the client in matters outside the retainer agreement — No question of principle ESTOPPEL — Res judicata — Merger — Finality NEGLIGENCE — Damages — Exemplary, punitive and aggravated damages JUDGMENTS AND ORDERS — Declaratory relief — Where client seeks declarations that solicitor has breached various provisions of the Legal Profession Uniform Law (NSW) — Whether client has made out the basis for seeking declaratory relief — Whether any utility in making such declaration — No question of principle

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction

Catchwords:

WORKERS COMPENSATION — damages for personal injury — Workers Compensation Act 1987 (NSW) ss 151A and 151Z — past medical expenses excluded from damages against third party tortfeasor as no loss suffered by plaintiff — whether damages should be adjusted in accordance with the formula from Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 — whether employer tortfeasor able to recover from third party tortfeasor under s 151Z WORKERS COMPENSATION — interest on damages against first defendant under Civil Liability Act 2002 (NSW) s 18 — whether plaintiff entitled to interest on damages against second defendant under Workers Compensation Act 1987 (NSW) s 151M — where plaintiff’s dishonesty prevented assessment of a reasonable offer TORTS — contribution between joint tortfeasors — must relate to the “same damage” COSTS — Uniform Civil Procedure Rules 2005 (NSW) r 42.34 — where plaintiff has obtained judgment less than $500,000

Catchwords:

EQUITY – Where plaintiff sought interim injunction prohibiting defendant from acting on its letter to the plaintiff terminating or purporting to terminate a Sub-Aggregator Agreement between the plaintiff (as Sub-Aggregator) and the defendant (as Aggregator) – Where plaintiff established serious questions to be tried – Consideration of balance of convenience – Interim injunction granted.

Catchwords:

HIGH RISK OFFENDER – final hearing – application for extended supervision order (ESO) – application for ESO is not opposed by the defendant – where the defendant had been subject to a previous ESO – where the defendant has a history of non-compliance with supervision – where there is a relationship between drug use and the risk posed by the defendant – where the court is satisfied that the defendant poses an unacceptable risk of committing a serious violence offence if not supervised – ESO granted

Catchwords:

ADMINISTRATIVE LAW – administrative review - silencer permit – whether necessary in the conduct of the applicant’s business

Catchwords:

DEVELOPMENT CONSENT – Building height – wall height – number of storeys – FSR – foreshore – desired future character

Catchwords:

HIGH RISK OFFENDER – revocation of extended supervision order – variation of extended supervision order – where risk profile remains unchanged – where defendant has spent significant time in custody due to breaches of extended supervision order – lack of stability in the community – conditions interfering with rehabilitation

Catchwords:

APPEAL – Modification Application – whether development substantially the same – Development Control Order – utility – orders

Catchwords:

PROFESSIONS AND TRADES – pharmacy – application for reinstatement

Catchwords:

OCCUPATIONS — Heath practitioners — Health Practitioner Regulation National Law (NSW) — application for re-instatement of registration — registration cancelled by NCAT — whether appropriate now for practitioner to be registered

Catchwords:

DEVELOPMENT APPEAL — meditation facility as community facility — dwelling house — conciliation conference — agreement between the parties — orders

Catchwords:

CRIME – Sentence – murder – wound with intent to cause grievous bodily harm – offences committed with the use of a knife – unplanned impulsive conduct – intention to inflict grievous bodily harm – where a plea of guilty to manslaughter was rejected – facilitation of the administration of justice – young Aboriginal offender – significant reduction in moral culpability

Catchwords:

CRIME — appeals — appeal against sentence — murder and wounding with intent to cause grievous bodily harm — whether the primary judge erred in the application of a 15% utilitarian discount instead of the statutory 25% discount

Catchwords:

SUCCESSION – Family Provision – Claims by adult children – Estrangement not absolute bar to the making of a family provision order – Respect nevertheless due to testamentary intentions of the deceased

Catchwords:

CONTRACTS – Construction – Master Franchise Agreement – Renewal clause of Master Franchise Agreement – Directors’ decision not to renew – Whether the requirements under agreement were satisfied CONTRACTS – Interpretation – Whether each of the directors formed an “honest and reasonable” opinion that renewal of the Master Franchise Agreement would not be in the best interests of sub-franchisees – Appropriate interpretation of “honest and reasonable” – Whether that opinion was the “substantial grounds” for deciding non-renewal – Where the contemporaneous record of meeting did not detail the reasons or decision-making process – Where report prepared by COO for the board meeting was considered by the directors – Where conduct of the master franchisee was in breach of the Master Franchpise Agreement CONTRACTS – Remedies – Damages – Calculation of damages for breach of contract – Relevant principles for determining damages for loss of a valuable commercial opportunity – Appropriate calculation of damages based on the parties’ competing expert evidence CIVIL PROCEDURE – Inappropriate provision of unrequested supplementary submissions

Catchwords:

TORTS – Negligence – Motor accident – Whether collision between pallet loading machines caused injury – Whether concession of permanent impairment greater than 10% for the purposes of s 4.11 Motor Accident Injuries Act 2017 (NSW) gives rise to issue estoppels – Assessment of damages – Determining nature and extent of injuries caused by collision in light of competing factual and medical evidence – Appropriate reduction of future economic loss having regard to pre-existing degenerative changes

Catchwords:

HIGH RISK OFFENDER – final hearing – serious violence offender – application for extended supervision order (ESO)

Catchwords:

LOANS – whether single or multiple loans – where evidence goes beyond documents – Manzi v Smith distinguished – whether agreed contractual interest – whether payments appropriated to principal or interest EVIDENCE – credibility and reliability – whether signature authentic LIMITATION OF ACTIONS – whether payment confirmed cause of action – confirmed

Catchwords:

CONTRACTS – contract for sale of land – recission for innocent misrepresentation

Catchwords:

ADMINISTRATIVE LAW — Personal information — Accuracy of information — Request for amendment PROCEDURE — whether entitled to call Respondent for cross examination

Catchwords:

CRIMINAL PROCEDURE – application for leave to appeal from decision refusing to vacate trial – where applicant unrepresented due to his dismissal of three sets of counsel and solicitors before trial – where neither submitted nor shown that conduct of legal team was incompetent or otherwise warranted termination of services

Catchwords:

DEVELOPMENT APPEAL – residential development Lot 3 – orders DEVELOPMENT APPEAL – residential development Lot 2 – orders

Catchwords:

APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing – Leave to appeal refused APPEALS — Procedural fairness — Failure to give reasons - Reasons satisfy applicable standard APPEALS — Procedural fairness — Hearing rule – No failure LEASES AND TENANCIES — Retail leases — NSW Civil and Administrative Tribunal — Jurisdiction and power - Permitted use of the premises is “massage and beauty” - Whether the use of the premises is a prescribed business under the Retail Leases Act 1994 (NSW) – What is the predominant use of the premises

Catchwords:

COSTS — no question of principle

Catchwords:

CONTEMPT – consent orders agreed between neighbours for construction of new brick boundary fence not complied with by applicant – whether multiple non-compliances established to be contempt of court orders – whether orders pursuant to r 40.8 UCPR should be made – costs

Catchwords:

Appeals – Whether there was authority to commence legal proceedings – strata approval of works to an individual lot – different legal approval regimes – denial of procedural fairness – no error of law or other appellable error established.

Catchwords:

APPEAL — multi-dwelling housing — conciliation conference — agreement reached — orders made

Catchwords:

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

Catchwords:

CIVIL LAW – costs – high risk offender – where application for interim supervision order dismissed – where summons not dismissed and experts appointed – mixed outcome on preliminary hearing – identifying the “event” for the purpose of applying general rule as to costs – whether costs of preliminary hearing should be paid “forthwith”

Catchwords:

APPEALS — Appeal on question of law — Principles governing APPEALS — Leave to appeal — Principles governing — Leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Claims by owner against builder — Whether owner is entitled to remedy against each builder who breached statutory warranties — Whether terms implied in building contract — Whether owner is entitled to damages for increased costs due to delay — Whether owner is entitled to damages for loss of rent due to delay

Catchwords:

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

Catchwords:

CIVIL PROCEDURE — Evidence by audio visual link — Where plaintiff applied for direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to give evidence by audio visual link (AVL) from the Russian Federation — Applications dismissed by Local Court Magistrate on the basis of “no power” to do so — Parties agreed that Local Court erred in finding “no power” to permit plaintiff to appear via AVL — Local Court decisions set aside

Catchwords:

JUDGMENTS AND ORDERS – slip rule – whether earlier judgment should be varied to continue stay of order dismissing proceedings by way of enforcement of settlement agreement pending determination of new proceeding proposed to be commenced by plaintiff to set aside settlement agreement – whether limitation period expired in respect of causes of action in existing proceedings LEGAL PRACTITIONERS – solicitor’s lien over settlement funds – no question of principle COSTS – applications for gross sum costs orders – where costs assessment would be protracted and expensive - whether evidence provides a sufficient basis for the court to determine an appropriate sum fairly between the parties COSTS – application for indemnity costs – construction of indemnity clause in Deed of Release and Indemnity – whether court should exercise costs discretion in a manner that reflects successful party’s contractual right of indemnity FREEZING ORDERS – no question of principle

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Application 566 days late — Application not accepted

Catchwords:

CIVIL PROCEDURE — damages — calculation of future economic loss — disputed assumptions — amount of discount for vicissitudes

Catchwords:

STRATA TITLE — contracts — mixed-use building — strata management statement — building management committee — scope of authority delegated to strata manager — whether strata manager validly convened meetings — whether secretary could override strata manager — construction of strata management statement and agency agreement — declaratory relief — whether declarations retained practical utility — meetings and resolutions valid

Catchwords:

COSTS – partial success on appeal – significance of late offer of compromise – broad brush approach – partial costs order

Catchwords:

COSTS – interlocutory appeal from Local Court to Supreme Court – appeal allowed – whether proper basis to depart from usual rule – significance of respondent to motion offering additional security in this Court – significance of inflated costs asserted by application on motion

Catchwords:

CRIMINAL LAW — work health and safety — offences — category 2 — worker positioned forward of the Jumbo’s jacks — designated high-risk task — worker’s left arm entangled on the rotating drill steel — worker sustained serious injuries — common practice for workers not to use the boom immobilisation switches — poor implementation of safety procedures — deficiencies in training — no adequate supervision of work SENTENCING — relevant factors on sentence — objective seriousness — foreseeability of risk — safety systems and procedures were entirely dependent on worker compliance — systems routinely ignored by workers — aggravating factors — life-changing injury — mitigating factors — eight years since prior conviction — change in management resulted in overview of safety systems and processes — good character — remorse — acceptance of responsibility — plea of guilty — general deterrence

Catchwords:

COSTS – whether costs of unsuccessful application for leave to appeal from interlocutory decision of District Court should be ordered to be paid forthwith – where application for leave to appeal was misconceived and related to a discrete issue – order made

Catchwords:

APPEALS – competency – appeal from summary dismissal of claim – leave required APPEAL – leave to appeal – summary dismissal of claim – primary judge found proceedings to be abuse of process – application for leave to appeal – no issue of principle – no issue of public importance – no reasonably clear injustice – leave refused

Catchwords:

COSTS – security for costs – where appeal has reasonable prospects of success and raises an issue of public importance – excessive estimate of costs of appeal – where undertaking provided by director of appellant – no question of principle

Catchwords:

CRIME - appeals - appeal against conviction - jury returned guilty verdict on one count of sexual intercourse without consent - applicant and complainant gave evidence - contemporaneous complaint evidence - contemporaneous text messages between applicant and complainant - conceded incorrect statements by applicant in police interview - whether misconduct by police - whether misconduct by barrister appearing for applicant at trial - significance of failing to call flatmate present during some of the time complainant was in the flat - whether misconduct by prosecutor - significance of inconsistencies in complainant’s evidence - whether trial judge had directed jury correctly as to consent - whether jury’s verdict unreasonable - allowance given to unrepresented litigant concerning submissions after judgment reserved and allegations unsubstantiated in evidence - appeal dismissed

Catchwords:

NEGLIGENCE – breach – where respondent distributed refrigerators manufactured by parent company in South Korea – where model of refrigerator purchased by appellants was the subject of a voluntary recall after two instances of refrigerators catching fire – where refrigerator purchased by appellants caught fire – serial number of appellants’ refrigerator not included in list of affected refrigerators provided by parent company to the respondent – whether the respondent ought to have made inquiries of parent company concerning affected refrigerators – whether the primary judge erred in concluding that the respondent did not breach its duty of care and that factual causation was not established EVIDENCE – onus of proof – where respondent did not call evidence from parent company about how the parent would have responded to the inquiries contended for by appellants – whether evidence adduced by appellants sufficient to discharge their onus of proof

Catchwords:

APPEAL – District Court – severity of sentence – intentionally/ recklessly damage or destroy property – accessory before the fact – knowingly participate in criminal group, by directing activities of the group, knowing or being reckless as to whether the participation contributes to the occurrence of criminal activity – parity

Catchwords:

CORPORATIONS – winding up – insolvency – time limit of six months for determination of proceedings – whether the Court should extend period within which winding up application must be determined nunc pro tunc – whether slip rule applies

Catchwords:

SENTENCING – offences and penalties – failure to comply with court order – order to cause removal and disposal of asbestos waste – plea of guilty – non-compliance with court order due to impecuniosity – not intentional – no additional environmental harm proven – no practical measures to prevent harm beyond compliance with court order – no control to comply with court order due to impecuniosity – low objective seriousness – mitigating subjective factors – plea of guilty – limited means to pay fine – no order as to costs

Catchwords:

COSTS – gross sum costs order – application after proceedings summarily dismissed – no question of principle

Catchwords:

CIVIL PROCEDURE – variation of interlocutory orders – where previous hearing dealt with “liability issues” – where issue has arisen regarding scope of referral to a referee – whether scope issues are “liability issues”

Catchwords:

WATER ACCESS LICENCE – assignment of water – conciliation conference – agreement between the parties – orders

Catchwords:

CONTRACTS – variation – the assessment of evidence where a party to the alleged varied contract is deceased – onus of demonstrating variation upon the defendant – whether an oral variation of a contract was effective − whether fulfilling an existing obligation is sufficient consideration

Catchwords:

LICENSING – combat sports combatant registration – fit and proper person - public interest

Catchwords:

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

Catchwords:

COSTS – whether costs thrown away should be ordered payable after decision to allow vacation of hearing dates has been determined – each party to pay own costs

Catchwords:

CONTRACTS — sham — arrangement for the payment by the plaintiffs of Australian dollars to the second defendant in return for an equivalent payment by the second defendant to a nominee of the first plaintiff in China of Chinese Yuan — creation of facility, security and guarantee deed and an unregistered mortgage in Australia — creation of a loan contract, mortgage contract and mortgages in China — where those documents a sham — where common intention of parties to the sham documents to deceive third parties — identifying the true transaction — relief giving effect to the true transaction CONTRACTS — illegality — whether the true transaction made in furtherance of purpose frustrating the operation of the Proceeds of Crime Act 2002 (Cth) MORTGAGES AND SECURITIES — mortgages — equitable mortgage

Catchwords:

PRACTICE AND PROCEDURE – notices to produce – whether legitimate forensic purpose

Catchwords:

PRACTICE AND PROCEDURE – separate determination of questions – plaintiff’s application that questions of liability and damage be heard and determined separately and prior to questions of quantum – whether separate determination appropriate – where plaintiff makes claims under the Copyright Act 1968 (Cth) for alleged infringement of copyright, alleged misleading or deceptive conduct in contravention of the Australian Consumer Law and alleged passing off – where significant overlap of issues between the proposed first hearing and the proposed second hearing – where at least one witness would be likely to give evidence twice – where efficiencies of time and cost contended for by the plaintiff are likely illusory – application refused

Catchwords:

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

Catchwords:

APPEAL – residential tenancy – whether time to file notice of appeal should be extended – whether appellant demonstrated error on a question of law or on any other ground

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance – enabling order – applicant a disqualified person by reason of his conviction of a disqualifying offence – whether the applicant has discharged his onus to rebut the presumption that he poses a real and appreciable risk to the safety of children

Catchwords:

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

Catchwords:

APPEALS – Appeal from a termination and possession order for non-payment of rent - apprehended bias – failure to recuse – denial of procedural fairness – failure to consider evidence and mandatory provisions – failure to give adequate reasons – no error on a question of law established - costs

Catchwords:

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

Catchwords:

VALUATION APPEAL — land valuation — conciliation conference — agreement between the parties — orders

Catchwords:

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

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APPEAL — development control order — conciliation conference — agreement reached — order modified

Catchwords:

CONTRACTS — commercial lease — where fire originating on leased premises destroyed structures on leased and adjacent premises — proper construction of indemnity clause — whether causation in indemnity clause satisfied — whether reinstatement provision includes rebuilding not just repair — whether lease provisions imposing liability negatived implied covenant under s 84 of the Conveyancing Act 1919 (NSW)

Catchwords:

DEVELOPMENT APPLICATION- demolition of existing dwelling and construction of a co-living development – conciliation conference – amended plans and documents – agreement between the parties – orders made.

Catchwords:

CORPORATIONS – arrangements and reconstructions – scheme of arrangement – where demerger and scheme are inter-conditional – where demerger will not be implemented unless the scheme becomes effective – application under s 411 Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – whether requirements to order scheme meeting satisfied – orders convening scheme meeting and ancillary orders made

Catchwords:

CRIME — bail —psychologist’s report — sch 7 to the Uniform Civil Procedure Rules 2005 (NSW) —conflict of interest — lack of independence — not treating psychologist — financial gain — report given limited weight

Catchwords:

JUDGMENTS AND ORDERS — application to set aside default judgment pursuant to Uniform Civil Procedure Rules 2005 (NSW) rr 36.15 or 36.16 — whether judgment was entered irregularly or against good faith — admissions made by defendant — exercise of discretion would be futile — not satisfied of a defence on the merits

Catchwords:

CIVIL PROCEDURE — Parties — Vexatious litigants — Leave to institute proceedings — Proceedings commenced in contravention of order and injunction of Supreme Court of NSW — Plaintiff experienced litigant in person — Proceedings dismissed

Catchwords:

COSTS — security for costs — third application for security — whether material change in circumstances since earlier applications — where no new material that could not reasonably been advanced earlier — relevance of arbitral award registered as judgment but stayed pending challenge — alleged concession on inability to pay judgment debt — increased costs assessment not separated between defence and cross-claim — security refused

Catchwords:

CRIMINAL LAW – trial procedure – application to discharge individual juror – where juror interacted with detective in charge of the case sitting in public gallery – conduct immediately after ballot to reduce jury numbers and as “verdict jury” invited to retire – interaction observed by counsel – counsel’s observation confirmed by in-court CCTV – a nod and a smile – where action required juror to turn 180 degrees to catch detective’s attention – reasonable apprehension of bias – application of might/might test – consideration of earlier authorities – decision to continue trial with reduced number of jurors – no risk of substantial miscarriage of justice

Catchwords:

COSTS — gross sum costs order — interlocutory cost orders — whether material enabled fair assessment of gross sum — requirement for logical, fair and reasonable basis for quantification — generic invoice narrations — insufficient explanation of allocation of costs to orders — motion dismissed

Catchwords:

DEFAMATION – practice and procedure – application for early determination of separate harm – where defendant seeks early determination of serious harm in relation to some, but not all, publications – permissibility of aggregation in establishing serious harm – considerations in granting or refusing such applications

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COSTS — Party/Party — Payable out of a fund — Deceased estate — No issue of principle

Catchwords:

Meaning of foreign person, enduring ties to Australia, concepts of fairness and justice in the Land Tax Act 1956

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BUILDING & CONSTRUCTION - appeal from interlocutory decision to refuse application to amend defence – leave refused

Catchwords:

COSTS – cost application by Applicant following findings of Respondent breaching information privacy principles – whether there are special circumstances warranting the making of a costs order

Catchwords:

ADMINISTRATIVE REVIEW – government information (public access) – conclusive presumption against disclosure – public interest considerations against disclosure - balancing the public interest

Catchwords:

APPEALS – question of law – denial of procedural fairness – failure of the Tribunal to inform an unrepresented litigant of their right to cross-examine the other parties’ expert

Catchwords:

Practice and procedure – Security for costs – Application for security for costs – whether third defendant’s conduct was causative of plaintiff’s impecuniosity – whether an order for security for costs would stultify the proceedings – approach to quantum where proceedings at an early stage and role of the third defendant in proceedings unclear

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CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors — Whether tutor should be relieved from personal liability for costs

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CRIMINAL PROCEDURE — suppression and non-publication orders — whether satisfied that non-disclosure orders are in the interests of justice — non-disclosure orders made

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CORPORATIONS – receivership – application for judicial advice by receiver – receiver justified in proceeding on basis that financial reports truly and fairly record the financial position

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CORPORATIONS – Winding up – Liquidators – Application by liquidators to determine remuneration – Whether work performed by liquidators was necessary and was properly performed – Whether the cost of the work performed is proportional to the value of the services provided

Catchwords:

EQUITY — Trusts and trustees — Trust instruments — Trust powers — Plaintiff is trustee of a charitable trust and operator of a maritime museum — Principal property of the trust is collection of historically significant scientific instruments, navigational objects and other memorabilia related to maritime history — Trust deed prohibits loans of trust property — Plaintiff applies under s 81(1) Trustee Act 1925 (NSW) for order conferring power upon it to loan trust property to other museums — Trust deed prohibits removal of trust property from specified museum premises — Plaintiff applies under s 81(1) Trustee Act 1925 (NSW) for order conferring power upon it to relocate trust property within other parts of the building in which the trust property is housed — Whether proposed actions are transactions in the management and administration of trust fund — Whether proposed actions are expedient in relation to the management and administration of trust fund — Whether proposed actions cannot be effected by reason of absence of any power for that purpose — Consideration of whether express denial of power in trust deed constitutes an absence of power under s 81(1) Trustee Act 1925 (NSW)

Catchwords:

NEGLIGENCE – causation – medical negligence – where plaintiff alleges delayed diagnosis of syphilis – whether evidence sufficient to establish causation between breach of duty and harm suffered EVIDENCE – where defendants apply for judgment at close of plaintiff’s case – UCPR r 29.10 – “jury test” to be applied – whether plaintiff’s evidence taken at its highest could support a judgment

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SENTENCING — Manslaughter by unlawful and dangerous act — plea of guilty — substantial provocation

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CIVIL PROCEDURE — Discontinuance — Leave to discontinue proceedings under UCPR r 12.1(2) — long-running proceedings involving interlocutory injunctions — whether leave should be conditioned on compensation for loss caused by interlocutory orders — no undertaking as to damages originally given — compensation confined to proven loss referable to interlocutory injunctions and recoverable only on separate application — rejection of claim for “equitable damages” absent recognised cause of action COSTS — UCPR r 42.19 — prima facie entitlement of defendants to costs on discontinuance — whether indemnity costs warranted by alleged misconduct of plaintiff — no order as to costs except to extent previously dealt with.

Catchwords:

PROCEDURE – pleadings – application for leave to file amended statement of claim – self-represented plaintiff – proposed amended statement of claim not disclosing viable cause of action – whether leave to replead should be granted – held: leave refused – proceedings summarily dismissed CONSUMER LAW – misleading and deceptive conduct – unfair contract terms – contractual relationships between buyer, platform operator and payment processor – whether payment processor owed direct contractual or representational obligations to buyer – held: no viable cause of action against payment processor

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APPEALS — appeal from Local Court — whether Court has power to set aside Local Court judgment or order under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) — ss 39 and 40 of the Local Court Act 2007 (NSW) — errors of law established, including denial of procedural fairness — appeal upheld — challenged judgments and orders set aside

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CIVIL ENFORCEMENT — failure to comply with order given under the Local Government Act 1993 (NSW) to remove items on property — prohibited use of land — whether declarations should be made in the public interest in addition to enforcement orders — declarations and enforcement orders made

Catchwords:

OCCUPATIONS — application for approval as lay associate under s 121 of the Legal Profession Uniform Law (NSW) — whether NSW Civil and Administrative Tribunal (NCAT) has jurisdiction to determine application — whether applicant is a person who has been convicted of a serious offence — whether applicant’s criminal conviction is spent for purposes of s 121 of the Uniform Law — approval granted by NCAT subject to conditions — continuing non-disclosure orders made

Catchwords:

CIVIL ENFORCEMENT — interpretation of planning instruments — complying development — alleged inconsistency of planning instruments — telecommunications facility — heritage item — declaration of invalidity of complying development certificate

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VICTIMS SUPPORT – Administrative law – act of violence – sufficiency of evidence – whether medical evidence verifies injury

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STATUTORY INTERPRETATION – Legislative purpose – Strata Schemes Management Act 2015 (NSW) – nature of the Secretary’s function under ss 209 and 209A STATUTORY INTERPRETATION – Internal review – Strata Schemes Management Act 2015 (NSW) – nature of the reviewer’s function under s 213 ADMINISTRATIVE LAW – Jurisdictional error – whether decision-maker erred on numerous overlapping grounds – whether Secretary or reviewer required to weigh up competing evidence or make findings with precision as to estimated costs – finding that reviewer erred only in narrow respects – declaratory relief granted – Secretary’s delegate’s decision quashed and remitted to reviewer for redetermination according to law

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MEDICAL PRACTITIONERS – whether applicant should be granted extension of time to appeal decision of Medical Council – whether extending time to appeal would have any utility where applicant has pending appeal against later decision of Council – whether refusing to extend time to appeal could prejudice applicant

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APPEAL – development application – amending application – change of use to residential flat building – conciliation conference – agreement reached – orders made

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DEVELOPMENT APPEAL – tennis court - conciliation conference - agreement between the parties - orders

Catchwords:

NEGLIGENCE – recreational activities – competitive sailing – whether competitive sailing is a recreational activity – whether plaintiff was engaged in a dangerous recreational activity – where obvious risk of collision between yachts racing eventuated NEGLIGENCE – recreational activities –– where SailPass temporary membership obtained for plaintiff via QR code accessed on plaintiff’s behalf – whether risk warning and disclaimer of liability incorporated into SailPass and other documentation – whether plaintiff became party to a contract between Cronulla Sailing Club and other race participants NEGLIGENCE – assessment of damages

Catchwords:

ADMINISTRATIVE LAW — administrative review — access to information — whether legal professional privilege applies — dominant purpose — whether provision of information to Respondent by third parties waives privilege — whether information provided to Respondent by third parties in confidence — whether common interest privilege applies — whether considerations against disclosure apply — functions of the Respondent — considerations in favour of disclosure — passage of time — public interest test — whether document is in scope — whether scope is a reviewable decision

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to a service station – conciliation conference – agreement between the parties – orders

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VALUATION APPEAL – land valuation – conciliation conference – agreement between the parties – orders

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VALUATION APPEAL – land valuation – conciliation conference – agreement between the parties – orders

Catchwords:

APPEALS — leave to appeal — principles governing — obligation under lease to rectify flood damage — question of construction — points of principle identified — no reasonably clear injustice going beyond something that is merely arguable — costs grossly disproportionate to amounts in issue — special interest in finality where small sums at stake — leave to appeal refused

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DEVELOPMENT APPEAL – modification application roof digital advertising sign – change limited to dwell time - agreement between the parties - orders

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APPEALS – Leave to appeal – notation to orders not reasons nor reasoning – no error nor substantial injustice established – leave refused – appeal dismissed

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CIVIL – TORTS – NEGLIGENCE – OCCUPIER’S LIABILITY – Hotelier, Security Guards – P was injured at D1’s Hotel when she sought to assist a security guard who was being assaulted by another guest of the hotel (“POI”). D1 had an arrangement with D2 for it to provide security guards for its hotel. D2 supplied security guards who were employees of D3 but wearing D2’s uniform. Security guard being assaulted was an employee of D3. Hotel managers and security guards linked by radio. D1’s system required those on the radio link to listen for calls and respond promptly. Between Security Guard’s call for assistance and the assault there were 1min and 27 seconds. Slowest response time calculated by the Court was 17.3 seconds. If there were adequate response the guard who was assaulted could have been accompanied by one or more other guards. In those circumstances it was unlikely that P would need to come to his assistance. P unable to succeed against D1 as case not properly pleaded against it. P could not succeed against D2 as it was not vicariously liable for the negligence of D3’s employees. P proceeded against D1 and D2 but not against D3. P was 31 years old at time of injury to her right ankle (fractured). Graphic designer at time. Subsequently became a flight attendant. Damages assessed at $211,000.

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CRIME - SENTENCE - discharged firearm with intent to cause grievous bodily harm - possess a shortened firearm without being authorised - possess a pistol without being authorised.

Catchwords:

CRIME — appeals — appeal against conviction — judge alone trial — unreasonable verdict — where applicant found guilty of seven counts and acquitted of four counts — whether on all of the evidence it was open to the trial judge to be satisfied of the applicant’s guilt beyond reasonable doubt — where many of the trial judge’s findings of fact are contested — where there is an active challenge to a witness’s credibility — where there is a risk of contamination, inconsistencies and contradictory evidence EVIDENCE — Court invited to review recorded material — whether trial judge had an advantage in viewing recorded interviews — whether advantage capable of resolving doubt

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage - Application for variation of Contract Determinations to capture, amongst other things, “expansion contracts” as defined in the Industrial Relations Amendment (Transport Sector Gig Workers and Others) Act 2025 – concurrent proceedings in Fair Work Commission for employee-like worker minimum standard orders under s 536JZ of the Fair Work Act 2009 (Cth) – s 321A of the Industrial Relations Act 1996 (NSW) – meaning of “application”, “reasonable likelihood”, and “same” in s 321A(1)(b) of the Industrial Relations Act - adjournment of NSW proceedings ordered for a reasonable period

Catchwords:

PRACTICE AND PROCEDURE – notice of motion to set aside a notice to produce – apparent relevance – legitimate forensic purpose – gross sum costs order – whether costs of opposing party relevant to assessment of successful party’s costs – notice to produce set aside – plaintiff to pay costs

Catchwords:

COSTS – Preliminary discovery – where application for preliminary discovery resolved without need for contested hearing – where defendant sought costs based on alleged capitulation by plaintiffs – where plaintiffs sought costs based on alleged unreasonableness of defendant’s conduct – No order as to costs made

Catchwords:

APPEALS — Leave to appeal — Principles governing — Teacher who was medically retired — Unfair dismissal — Insufficient doubt to warrant reconsideration on appeal — Re-litigation of matters raised at first instance — Leave to appeal refused

Catchwords:

CRIME – where the offender drove a person away from the crime scene and organised for the car to be cleaned – assessing the objective seriousness of a contravention of s 315 of the Crimes Act 1900 (NSW) – where an offender has guarded prospects of rehabilitation – whether conditional bail amounted to quasi-custody – commencement of sentence backdated to accommodate time spent in pre-sentence custody

Catchwords:

EQUITY – equitable estoppel – claim for a constructive trust and other equitable relief – the plaintiff farms a property held in the name of his father and mother, the defendants – all three conducted a three-way farming partnership on the property – the son alleges that the father and the mother made representations to the son, or caused the son to assume, that the son would have the benefit of the property upon the father’s retirement from farming the properties, or alternatively upon the father’s death – the son claims he acted upon the representations to his detriment or that he acted upon assumptions the father induced him to hold – the son claims that the father and mother now hold the properties on constructive trust for him to make good either the promises made or the assumptions – whether the representations were made or the assumptions held – whether the father and mother were aware that the son was relying upon the representations, or was acting on the assumptions – whether the son suffered detriment as a result of the representations or the assumptions – whether it would be inequitable if the father and the mother did not make good the representations relied upon or the assumptions made by the son – whether the son’s claim is statute barred – whether any discretionary defences apply – what if any is the appropriate remedy and how should it be moulded.

Catchwords:

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

Catchwords:

COSTS – costs inter partes – general rule that costs follow the event – competing interlocutory applications determined in plaintiff's favour – remaining claim in proceedings undetermined whether costs of entirety of proceedings should be determined – held: costs of entirety of proceedings not appropriate for determination prior to final disposition – interlocutory costs order made for competing applications only – costs to run from date applications foreshadowed to Court – order not assessable or enforceable until final disposition of proceedings COSTS – costs out of estate – executor seeking indemnity from estate on indemnity basis – identity of beneficiaries not yet determined pending separate probate proceedings – whether beneficiaries should have opportunity to be heard – held: no order at this stage; question of indemnity deferred until remaining proceedings completed

Catchwords:

CIVIL PROCEDURE – application for orders to allow testing and inspection of land per UCPR r 23.8 – identification of matters in question in the proceedings – to be determined having regard to pleadings and evidence on the Motion

Catchwords:

LICENSING – prohibited weapon permit - “silencer”- whether necessary for Applicant’s business

Catchwords:

DEVELOPMENT APPEAL — centre based child care facility — conciliation conference — agreement between the parties — orders

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government Information – access – correct and preferable decision – public interest considerations against disclosure – public interest considerations in favour of disclosure – balancing exercise

Catchwords:

DEVELOPMENT APPLICATION – secondary dwelling – lot size – private open space – setbacks – character

Catchwords:

PRACTICE AND PROCDURE – summary dismissal of proceedings – whether complaint is misconceived or lacking in substance or the conduct alleged would not disclose a contravention. HUMAN RIGHTS – racial vilification – religious vilification.

Catchwords:

COSTS – special circumstances – exercise of discretion to award costs

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION — residential apartment building development — in-fill affordable housing — cl 4.6 written request — height of buildings — floor space ratio — agreement between the parties — orders

Catchwords:

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

Catchwords:

CONSUMER LAW — False or misleading representations — Representations about goods or services CONSUMER LAW — Enforcement and remedies — Action for damages — Assessment of damages AGREEMENT – Breach COSTS — Gross sum costs orders

Catchwords:

COSTS — application for portion of costs to be awarded on an indemnity basis – application for gross sum costs order INTEREST – application for pre-judgment interest on judgment sum

Catchwords:

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Where plaintiff presently lacks legal capacity — Proceedings stayed pending the appointment of a tutor or further order

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Police – review of order made under s 173 of the Police Act 1990 – disciplinary transfer

Catchwords:

APPEAL – question of law – no question of law identified by legal representatives – LEAVE to appeal – considerations – leave to appeal granted – failure by the Tribunal to engage with clearly articulated argument

Catchwords:

ADMINISTRATIVE LAW – Revenue – surcharge land tax − foreign person −absence from Australia – use and occupation – principal place of residence – need for physical presence – exemption based on residence requirement – discretion where exceptional circumstances − brief absence – how measured

Catchwords:

APPEAL – COSTS – rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 – costs follow the event – effect of Calderbank letter

Catchwords:

Sentence – Sexual Intercourse Without Consent – historical sexual offending - Offending in 1991 – offender recently arrested – DNA match – Whether sentencing practices at time of offending or time of sentence should apply – serious examples of Sexual Assault.

Catchwords:

SENTENCING – murder – offender set fire to his mother’s house – he then poured petrol onto his mother and set her alight – assault occasioning actual bodily harm of a young person present – moral culpability – personality disorder born of childhood emotional and physical abuse – post traumatic stress disorder – role of personality disorder as a contributor to exaggerated anger and sense of grievance – some reduction in moral culpability – separate and distinct from “Bugmy” factors – self medicating with cannabis to manage symptoms – substance abuse disorder

Catchwords:

APPEAL – Residential development application - conciliation conference – agreement between the parties - orders

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether tree has caused damage — orders for tree removal and replacing damaged section of boundary wall

Catchwords:

DEVELOPMENT APPEAL — conciliation conference — agreement between the parties — centre based child care facility — orders

Catchwords:

OCCUPATIONS – legal practitioners – solicitors – misconduct and discipline – disciplinary proceedings – whether conduct amounts to unsatisfactory professional conduct or professional misconduct.

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of multi-unit housing – conciliation conference – amended plans and documents – agreement between the parties – orders made.

Catchwords:

APPEAL – development application – subdivision of land – conciliation conference – agreement reached – orders made

Catchwords:

MODIFICATION APPLICATION DIRECT TO THE COURT – modification to conditions of consent - conciliation conference – agreement between the parties - orders

Catchwords:

ADMINISTRATIVE LAW – victim of crime – recognition payment – settlement of civil claim – no entitlement to recognition payment where the subject matter of a civil claim and recognition payment overlap – s43(7) Victims Rights and Support Act 2013 does not give the Commissioner the power to undertake a merits review after serving a notice approving a recognition payment

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – whether neighbouring trees have damaged the applicant’s property – whether trees are likely to cause damage or injury NOTICE OF MOTION – motion for dismissal pursuant to rr 13.4 and 14.28 of the UCPR – res judicata – issue estoppel – Anshun estoppel – whether proceedings frivolous and vexatious – whether no reasonable cause of action disclosed

Catchwords:

APPEAL — development application — conditions finalised

Catchwords:

DEVELOPMENT APPLICATION — residential apartment development — residential flat building in R4 High Density Residential zone — affordable housing — objectives of the Apartment Design Guide are considered — easement for stormwater — owners consent

Catchwords:

CIVIL PROCEDURE — Medical examinations — Whether examination should be ordered — No issue of principle

Catchwords:

MENTAL HEALTH — Criminal proceedings — Special hearing — Long unsatisfactory process of determining fitness to stand trial — Defendant in custody for two and a half years awaiting trial — Result is Defendant found to have committed offences and released immediately pursuant to s 10A EVIDENCE — Exclusion of evidence — Criminal proceedings — Ballistics Report served a week before trial in breach of mandatory pre-trial disclosure — No explanation for delay — Significant unfair prejudice to Defendant — Report excluded

Catchwords:

REAL PROPERTY — co-ownership — application for appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) — partnership to be wound up — whether plaintiff’s costs should be paid from proceeds of sale — whether defendants conduct justified departure from usual costs order — no basis for departure

Catchwords:

CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts – Civil Procedure Act 2005 (NSW) s 144(2) – transfer from District Court to Supreme Court

Catchwords:

COSTS — apportionment of costs referrable to before and after 5 May 2021

Catchwords:

APPEALS — Application for Leave to Appeal following a plea of guilty in the Local Court

Catchwords:

COSTS — Review of decision of Manager, Costs Assessment to extend time to make a costs assessment application — Legal Profession Uniform Law Application Act 2014 (NSW), s 93B(3) and Uniform Civil Procedure Rules 2005 (NSW), r 49.19(1) — Where Manager, Costs Assessment allowed extension — Exercise of Court’s discretion CIVIL PROCEDURE — Extension of time for r 49.19 application — Uniform Civil Procedure Rules 2005, r 49.20(4) — Where alternative application made within time pursuant to Supreme Court Act 1970 (NSW), s 69

Catchwords:

DEVELOPMENT APPEAL – residential development – alterations and additions - conciliation conference – agreement between the parties - orders

Catchwords:

WORKERS COMPENSATION — disease injury — aggravation, acceleration, exacerbation, or deterioration in the course of employment — employment main contributing factor — Workers Compensation Act 1987 (NSW), s 4(b)(ii) — employee suffered from post-traumatic stress disorder and major depression — employer conceded aggravation of injury for which employment was a contributing factor — employer argued employment not main contributing factor in light of pre-existing psychological condition — member finds employment main contributing factor — certificate of determination upheld on appeal to presidential member APPEALS — appeal from Personal Injury Commission — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353(1) — whether error in point of law — no error in presidential member’s construction and application of Workers Compensation Act 1987 (NSW), s 4(b)(ii) — no error in evaluation of psychological condition before and after commencement of employment — no failure to take into account evidence of prior symptoms and treatment regime — no reversal of onus of proof — no error in point of law

Catchwords:

ADMINISTRATIVE LAW - government information - whether government information held - reasonable searches - legal professional privilege

Catchwords:

TAXES AND DUTIES – Land tax – Liability – Whether trust deed amendments sufficient to satisfy the criteria for a fixed trust TAXES AND DUTIES – Land tax – Liability – Fixed trust – present entitlement to income

Catchwords:

TAXES AND DUTIES – Land tax – Surcharge land tax – Foreign person

Catchwords:

MODIFICATION APPLICATION – residential apartment development – agreement between the parties – orders

Catchwords:

APPEAL — alterations and additions to an approved residential flat building — conciliation conference — agreement reached — orders made

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 – roof damage caused by falling deadwood – apprehension of further damage – consent orders proposed – pruning program ordered

Catchwords:

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

Catchwords:

INTERIM HERITAGE ORDER — dwelling house — likely heritage item — local heritage significance — orders

Catchwords:

COSTS – Interlocutory costs orders – Defendants’ application for costs of dismissed portion of plaintiff’s claim COSTS – Interlocutory costs orders – Where defendants seek costs be determined prior to final hearing but do not seek costs be payable forthwith – Where alleged duplication and wasted costs incurred by plaintiff

Catchwords:

CRIMINAL — Notice of motion — motion for witnesses to appear by audio visual link — granted by consent for one witness — otherwise refused

Catchwords:

CIVIL PROCEDURE – Commencement of proceedings – leave to commence action – plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted

Catchwords:

CIVIL PROCEDURE – Commencement of proceedings – leave to commence action – plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted

Catchwords:

CIVIL PROCEDURE – Commencement of proceedings – leave to commence action – plaintiff in custody serving a sentence for the commission of a serious indictable offence — leave may be granted where there is no abuse of process and there is a prima facie ground for the proceedings — leave granted

Catchwords:

ESTOPPEL — Proprietary estoppel — Encouragement — Testamentary promise — Relief — Proportionality — Whether relief ought to be confined to successful plaintiff’s estimate of the size of the estate — Whether relief ought to take into account existing liabilities and expenses of the estate — Principles to be applied COSTS — Party/Party — Payable out of a fund — Deceased estate — Where defendant administrator was the sole beneficiary of the estate under the rules of intestacy — Where substantive proceedings, if successful, would result in the plaintiff becoming entitled to the overwhelming majority of the estate —Whether defendant administrator’s running of proceedings was in substance for her own benefit — Whether defendant administrator therefore disentitled to an indemnity costs order payable out of the estate — Principles to be applied

Catchwords:

COURTS AND JUDGES – bias – application for disqualification for apprehended bias – where application founded on complaints of matters determined against the applicant in previous hearing – application refused JUDGMENTS AND ORDERS – application to set aside orders dismissing claim – where applicant seeks to relitigate proceedings already determined – application refused

Catchwords:

[RESTRICTED]

Catchwords:

VICTIMS Support – Administrative law – act of violence –- whether related act of violence – sufficiency of evidence – whether medical evidence verifies injury

Catchwords:

OCCUPATIONAL — application for renewal of contractor licence — electrical wiring— liquidation —relevant person — s 33B Home Building Act 1989 — s 33C Home Building Act 1989

Catchwords:

ADMINISTRATIVE LAW – child protection – out of home care – application for review of decision to deauthorise and authorised carer - application for review of decision to remove children from care of authorised carer – placement principles – restoration of child – Jones v Dunkel inference - costs

Catchwords:

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

Catchwords:

LOCAL GOVERNMENT APPEAL — poultry orders — restriction on number of poultry on site — chickens and roosters — impacts on neighbours — nuisance — noise — legitimacy of complaints — due process — improper purpose

Catchwords:

COSTS — Security for costs — alternatives to payment into court offered

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government Information - access – correct and preferable decision – balancing the public interest - reasonable searches

Catchwords:

ADMINISTRATIVE LAW – gambling regulation; Gaming Machines Act 2001 (NSW); application for increase in gaming machine threshold; whether local impact assessment (LIA) should be approved; whether gambling activities in the relevant venue will be conducted in a responsible manner; whether the proposed increase in the gaming machine threshold will provide a positive contribution to the local community; whether it is otherwise appropriate that the LIA be approved; scope of statutory discretion; relevance of Ministerial Direction and Ministerial Statement of Expectations to interpretation of statute

Catchwords:

LAND LAW — Caveats — Extension of operation of caveat — Constructive trust alleged by reason of failed joint endeavour — No issue of principle

Catchwords:

CORPORATIONS – arrangements and reconstructions – schemes of arrangement – application under s 411 Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – whether requirements to order scheme meeting satisfied – orders convening scheme meeting and ancillary orders made

Catchwords:

CRIME — Break, enter and commit serious indictable offence — Offence being robbery SENTENCING — Aggravating factors — Elderly victim at home alone — Unnecessary and gratuitous violence — Significant planning and premeditation — Information as to Victim obtained by co-offender as serving police officer from exercise of a warrant searching the Victim’s home — Reaction of people on social media caused harm to victim over and above what ordinarily expected treated as an aggravating factor — Mitigating factors — Good character — Good prospects of rehabilitation and low likelihood of reoffending SENTENCING — Observation that analogy to concepts in equity of people knowingly involved in breach of trust being treated as a defaulting trustee is not appropriate when considering levels of culpability for the purpose of sentencing SENTENCING — Parity — Involvement in crime and subjective factors substantially different between co-offenders justifying disparity in sentences

Catchwords:

CRIME — Violent offences — Demanding property with menaces — Joint criminal enterprise — Role of offender — Objective seriousness — Subjective case — Offers to plead guilty on certain facts SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Comparison of involvement in joint criminal enterprise and level of culpability — Co-offenders sentenced on different facts and circumstances — Co-offenders received very lenient sentences, one of which can be explained, the other cannot — Application of parity principle in such circumstances

Catchwords:

CRIME – Appeal and review – application to Supreme Court under Part 7 Crimes (Appeal and Review) Act 2001 – where applicant convicted of twenty-eight counts of domestic violence-related offending – whether there is a doubt or question for the purpose of Part 7 – no such doubt or question – application dismissed

Catchwords:

CONTRACTS — Formation — Consideration — Part payment of debt

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty – prospects of rehabilitation TOTALITY PRINCIPLE – whether proceedings in a different court against a different entity but arising out of the same events ought be considered COSTS – capacity to pay – onus of proof – prosecutor’s costs

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs

Catchwords:

CIVIL PROCEDURE – procedural requirements under UCPR – where applicants seek to be excused from requirements to plead matters – where applicants pursued by respondent for breaches of Corporations Act 2001 (Cth) – overlap in civil proceedings and criminal investigation – privilege against self-incrimination – where admissions already made – privilege not enlivened

Catchwords:

BUILDING AND CONSTRUCTION — contract — payment claim – requirements of a payment schedule — whether a response to an invoice constituted a payment schedule

Catchwords:

CIVIL PROCEDURE – proceedings commenced by tutor on behalf of person under legal capacity – settlement application – best interests of person under legal incapacity – settlement approved – no issue of principle

Catchwords:

CONTRACTS — sale of land and business — hotel property and business sold on an “as is, where is” basis — business sale agreement and contract for sale — purchases required to rely on own inquiries — purchasers refusing to complete — temporary unavailability of hotel rooms — whether plaintiffs entitled to return of deposits – exercise of discretion under s 55(2A) of the Conveyancing Act 1919 (NSW) – whether circumstances justify return of deposits paid CONSUMER LAW — alleged misleading or deceptive conduct in pre-contractual representations — alleged misrepresentation in emails and information memorandum — silence and non-disclosure — alleged misrepresentations concerning conditions of hotel including presence of mould and water ingress — whether statements made in trade or commerce PRACTICE AND PROCEDURE — application to reopen case — plaintiffs sought subpoena to call opposing witness after closing case — whether adverse inferences available from defendants’ election not to call receivers or other witnesses – tactical forensic decisions — lack of notice of proposed evidence — fairness to opposing party — risk of adjournment