Browse decisions Displaying 1 - 200 out of 86495 results

Catchwords:

CRIME – Permanent stay of proceedings – issue estoppel – constitutional inconsistency between Drug Misuse and Trafficking Act (NSW) and Criminal Code (Cth).

Catchwords:

DEVELOPMENT APPLICATION - strata subdivision - dual occupancy - existing dwellings - consistency with Masterplan - character - precedence

Catchwords:

DEVELOPMENT APPLICATION: proposal to create dual occupancy (attached; affordable rental housing; whether inconsistency between provisions of Ryde Local Environmental Plan and State Environmental Planning Policy (Affordable Rental Housing) 2009; compatibility with character of the local area

Catchwords:

DEVELOPMENT APPLICATION: Boarding house; traffic and parking; whether the character of the proposed development is compatible with the local area; whether sight lines for vehicles exiting the site are acceptable.

Catchwords:

PROFESSIONS AND TRADES-PROFESSIONAL DISCIPLINE- Solicitor- failure to comply with notice under Legal Profession Uniform Law (NSW) 2014, s 371 and to assist investigator- expert evidence as to Solicitor’s mental health – extent of the causal link between his mental illness and conduct- found that his mental health partially excused, but did not fully excuse, his failure to comply with notice and to assist investigator – importance of s 371 Notices and of assistance to investigators- finding of unsatisfactory professional conduct- no finding of professional misconduct. Solicitor reprimanded, fined $2,000 and ordered to pay costs.   PRACTICE AND PROCEDURE-call by the Respondent for documentation from Applicant’s records regarding receipt and treatment of the expert medical opinion given on behalf of the Respondent and of documentation which had been tabled before the Professional Conduct Committee of the Respondent-call refused-refusal upheld by the Tribunal-consideration of Legal Profession Uniform Law (NSW) No.16a, sections 273, 277, 316, 319 (1), 467 and 478 and Legal Profession Uniform Law Application Act 2014 No , sections 138 and 147.

Catchwords:

DEVELOPMENT APPLICATION: Boarding house; whether the character of the proposed development is compatible with the local area; whether Northern Beaches Hospital Precinct Structure Plan merits weight in evaluation of a development application; whether implementation of the Northern Beaches Hospital Precinct Structure Plan is certain and imminent.

Catchwords:

PROCEDURE – civil – application for review of provisional improvement notice – whether application made out of time – whether order made by Commission in other proceedings later found to be a nullity can be relied on to permit filing of application

Catchwords:

SENTENCING – multiple offences – wounding with intent to murder – guilty verdicts following trial – mental illness – moral culpability – special circumstances

Catchwords:

LICENSING – disciplinary action against holder of contractor licence – improper conduct – fit and proper person – officer of company found to have contravened legislation – appropriate disciplinary action

Catchwords:

APPEAL – Leave to adduce fresh evidence in circumstances where default in compliance with directions - Challenge to dismissal of the adjournment application in circumstances where company failed to appear, medical evidence insufficient and no explanation provided why another representative would not appear – Extension of time to appeal – inadequate and inconsistent explanation of why appeal not lodged in time – evidence before the Tribunal sufficient to justify conclusions reached.

Catchwords:

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

Catchwords:

ADMINISTRATIVE LAW – judicial review of decision by NCAT confirming refusal to grant a "working with children check clearance" – where person seeking clearance had been tried for sexual offences against a child and found not guilty of all offences – finding by NCAT that the child’s allegations were proved on the balance of probabilities – whether decision entailed legal error – application of so-called Briginshaw standard – alleged failure to afford procedural fairness – alleged failure to consider the plaintiff’s sworn evidence – whether reasons revealed prejudgment – whether the finding was unreasonable – adequacy of reasons

Catchwords:

UNFAIR DISMISSAL – classroom teacher – unsatisfactory teaching performance – informal support program – Teacher Improvement Program – failure to meet the level of performance required for the position of proficient classroom teacher – protection of children the paramount consideration – dismissal not harsh unreasonable or unjust – application dismissed

Catchwords:

SENTENCE - contempt of court – failure to comply with terms of consent orders to remove scrap materials from premises – plea of guilty – whether contempt wilful or contumacious – in circumstances of intentional and ongoing offending, disregard of Council, amenity impacts and health risk of offence, and contemnor’s deceptive behaviour to Court and counsel, contempt characterised as contumacious - custodial sentence appropriate but for the contemnor’s age and infirmity- ability to pay fine – fine imposed – additional monthly penalty until contempt purged – costs on an indemnity basis

Catchwords:

LICENSING – security industry – security guard licence – assault conviction – revocation of licence- tribunal’s role – no discretion.

Catchwords:

APPEAL – procedural fairness – refusal of representation – apprehended bias – failure to address substantial submissions STATUTORY INTERPRETATION – Property, Stock and Business Agents Act – whether ss 36 and 55 applicable to unlicensed agents – whether appellant was acting as an agent within the meaning of the Act WORDS AND PHRASES – Real estate agent – on-site residential property manager

Catchwords:

ADMINISTRATIVE LAW – Access to government information – disclosure of personal information – consent of affected persons not sought – motive of applicant in seeking documents would not be advanced by production

Catchwords:

APPEAL – Guardianship Division – review of enduring guardianship – guardianship and financial management orders – no question of law identified – whether leave should be granted to appeal on questions other than questions of law

Catchwords:

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

Catchwords:

HIGH RISK TERRORISM OFFENDER – preliminary hearing – application for Interim Detention Order (IDO) and mandatory examinations – alternative application for Interim Supervision Order (ISO) - Sovereign Citizen Movement – discussion of statutory preconditions for making an order of any kind – discussion of whether IDO or ISO should be imposed

Catchwords:

SENTENCING – Multiple state offences – Dishonestly obtain financial advantage – guilty plea – objective seriousness – general deterrence – no prospect of repayment – gambling addiction – special circumstances

Catchwords:

APPEAL – question of law – denial of procedural fairness – whether a hearing was conducted

Catchwords:

COSTS – application of correct costs rule – Rule 38 of the Civil and Administrative Tribunal Rules 2014 does not apply – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) 2013 applies

Catchwords:

APPEAL – development application – child care centre – whether unreasonable impact on traffic or parking – whether simulated outdoor play area acceptable – whether outdoor play areas adequate – restraints in utilising play areas in order to control acoustic impact - whether plan of management can be complied with

Catchwords:

COSTS – special circumstances

Catchwords:

Administrative Law – Impounding Act – whether applicant has standing - whether impounding lawful – whether fees and charges properly charged - whether fees and charges excessive

Catchwords:

CIVIL - FORENSIC PATIENTS – Mental Health (Forensic Provisions) Act 1900 - application for an extension order – interim proceedings – question of whether qualified professionals should be appointed to examine defendant – question of whether an interim extension order should be imposed - Court satisfied to high degree of probability at interim stage that evidence if proved establishes the existence of unacceptable risk - risk cannot be adequately managed by less restrictive means at present time

Catchwords:

ADMINISTRATIVE LAW – review under section 27(1) Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work

Catchwords:

ADMINISTRATIVE LAW – Firearms licensing – Prohibited weapon – Silencer – Genuine reason – Whether recreational or sporting activity concerned requires the possession or use of the prohibited weapon – Whether this is an objective or subjective test

Catchwords:

ADMINISTRATIVE LAW – tattoo parlour operator’s licence – fit and proper person – public interest

Catchwords:

ADMINISTRATIVE LAW – Firearms Prohibition Order – disqualified person – offence “involving stalking or intimidation” – whether Tribunal has jurisdiction to review decision imposing Firearms Prohibition Order in relation to disqualified person

Catchwords:

EQUITY — Equitable remedies — Injunctions — Application for interlocutory injunction — whether an ex parte injunction prohibiting the first defendant from employing the plaintiff's former employee, the second defendant, should be extended until further order of the Court on an interlocutory basis following an inter partes hearing — prima facie case — balance of convenience — impact of expedition and delay on evidence in applications for injunctive relief — the outcome of the interlocutory application is not likely to have the practical effect of finally determining the rights of the parties — the plaintiff has demonstrated a sufficiently strong case to justify the Court in deciding that the existing interlocutory injunction should be continued until further order of the Court   RESTRAINT OF TRADE — General principles governing enforcement of restraint of trade provisions — whether the alleged breach infringes the terms of the restraint — whether the restraint is contrary to public policy — whether the restraint is prima facie invalid at common law

Catchwords:

ADMINISTRATIVE LAW – no reviewable decision – no point of principle

Catchwords:

TAXES AND DUTIES – land tax – principle palace of residence exemption – registered owner of land a company which held the land on trust – whether trust a special trust   Land tax – land tax assessment notices sent to the former registered address of the owner of the land and the owner of the land not aware of its liability for land tax for a number of years – whether it was fair and unjust for the respondent to seek to enforce the liability for those years   Land tax – respondent determined to accept payment of tax by instalments – jurisdiction of the Tribunal to review this decision when not subject to an objection

Catchwords:

TRADES AND OCCUPATIONS – failure to declare pecuniary interest   PRACTICE AND PROCEDURE – dispensing with a hearing pursuant to s 470 of the Local Government Act 1993 (NSW)

Catchwords:

TRADES AND PROFESSIONS ─ Chinese medicine ─ appeal of immediate action ─ suspension ─ stay application

Catchwords:

CRIMINAL LAW – application to set aside orders granting leave to the NSW Crime Commission to examine a person charged with criminal offences – leave previously granted pursuant to s 35A Crime Commission Act 2012 (NSW) – significant delay following grant of leave without examination taking place – related proceedings taken in the Court of Appeal - asserted change of circumstances such that orders granting leave should be set aside – question of public interest in full investigation – criminal proceedings likely to be soon resolved – scope of rule 36.16(2)(b) Uniform Civil Procedure Rules 2005 (NSW) to allow evidence of events after the entry of challenged orders to be considered - asserted invalidity of s 35A under the Constitution – asserted abuse of process in agitating an argument previously advanced

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; approving a seniors housing development

Catchwords:

PRACTICE AND PROCEDURE – primary judgment found longstanding breaches of environmental and planning laws and issued injunctive relief, stayed for a period of three months - Notice of Motion to extend stay of orders to enable State Significant Development (SSD) process to be completed – SSD process unlikely to be completed by March 2020 at earliest – ongoing breach of planning and environment laws – importance of upholding planning and environment laws - impact on the community – inappropriate to stay until completion of SSD process in light of 2020 date - minimal further stay of two months granted to ameliorate impact of orders restraining offending conduct on employees and third parties

Catchwords:

JOINDER: Application for joinder; Statutory tests; Issues proposed to be raised by Applicants for Joinder; Interests of justice; Public interest; Application dismissed.

Catchwords:

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

Catchwords:

APPEAL – Leave to appeal – finding of misrepresentation in connection with agency agreement – failure to disclose relevant market conditions – decision available on the evidence

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; approving the development of a residential flat building and strata subdivision

Catchwords:

Solicitor – notice under s 371 requiring answers – insufficient or no answers to questions asked – professional misconduct

Catchwords:

APPEAL – Leave to appeal – Reconciliation of contract payments – Evaluation of evidence

Catchwords:

VALUATION OF LAND – valuation methodology - whether “piecemeal” or “before and after” approach is most appropriate – degree of flood affectation and effect on development potential – extent to which potential purchaser would seek advice on flood affectation– parameters of “public purpose for which the land was acquired” per s 56(1)(a) of the Valuation of Land (Just Terms Compensation) Act 1991 – whether statutory disregard in this instance requires that s 94 contributions plan, or SEPP or Council flood mapping, be disregarded – statutory disregard of public purpose applies only to the land that has been acquired – whether changed access arrangements constituted injurious affection – whether any betterment offset injurious affection

Catchwords:

COSTS – special circumstances – order where proceedings dismissed prior to final hearing as appeal withdrawn

Catchwords:

APPEALS – Leave to appeal – miscalculation of award – challenge to findings concerning breach of residential tenancy agreement and assessment of loss.

Catchwords:

PRACTICE AND PROCEDURE – guardian ad litem appointed for applicant – withdrawal of applications – dismissal of proceedings

Catchwords:

PRACTICE AND PROCEDURE – guardian ad litem appointed for applicant – withdrawal of applications – dismissal of proceedings – restraint order

Catchwords:

HEALTH – privacy- Health Privacy Principles- jurisdiction of Tribunal- HPP 9 and HPP 11.

Catchwords:

REVENUE LAW – merits review - land tax – principal place of residence exemption – onus - evidence.

Catchwords:

DEVELOPMENT APPLICATION: modification application; additional fill material, conciliation conference; agreement between the parties; orders

Catchwords:

APPEALS-interlocutory decision - application filed out of time - discretion to extend time refused-leave to appeal required - residential tenancy matter-leave to file appeal out of time Civil and Administrative Tribunal Act 2013

Catchwords:

Residential tenancy – disposal of tenant’s goods by landlord - no error of law - no basis for leave.

Catchwords:

APPEAL – No question of law – no issue of principle

Catchwords:

VICTIMS Support – Administrative law – act of violence – whether deceased died due to the unlawful action of another or others – homicide – family victim – standing as family victim subject to act of violence - sufficiency of evidence - whether deceased primary victim a victim of an act of violence causing death

Catchwords:

ADMINISTRATIVE LAW - Working with Children Check Clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) - where disqualifying offence under section 91H(2) of the Crimes Act 1900 (NSW) disseminate child abuse material – assessment of risk posed by applicant - whether the applicant has proven he is not a risk to the safety of children - where onus of proof not discharged by applicant - where enabling order refused.

Catchwords:

ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance- where applicant charged in 2013 in relation to 2 counts of sexual intercourse with a child under 10 contrary to section 66A of the Crimes Act 1900 (NSW) and one count of aggravated indecent assault contrary to section 61M of the Crimes Act (NSW) – where applicant acquitted of all charges - where paramount concern is protecting children from child abuse - onus of proof in a review under section 27- whether finding on the balance of probabilities is able to be made that the alleged events occurred - whether there is an unacceptable risk of harm – whether a real and appreciable risk is posed by the applicant to the safety of children.

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; alterations and additions

Catchwords:

TAXES AND DUTIES- superannuation funds- transfer balance cap-transfer of dutiable property- concessional duty- interpretation- use of extrinsic materials- s. 61and 65(10) Duties Act 1997-s.34 Interpretation Act 1987

Catchwords:

TAXES AND DUTIES – Land Tax – principal place of residence exemption – strata lots in the same ownership – strata lots beneficially owned by the same persons

Catchwords:

CHILD protection – Working with children – Whether any real and appreciable risk – Acquitted at trial – No trial transcript available – No positive finding – Whether no hesitation in dismissing the charges as groundless - No lingering doubt or suspicion

Catchwords:

Medical practitioner engaging in conduct with patients – forwarding numerous text and Viber messages – seeking ‘emotional support’ from his patients – visiting patients at their homes – engaging in conduct of a sexual nature – patients treated for issues including mental health issues.   Medical practitioner – claims for Medicare reimbursement made by practitioner when there was no justification for making such claims

Catchwords:

Administrative Law –Government Information – access application – redaction of information concerning testing methodology – personal information - whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure

Catchwords:

PROFESSIONS AND TRADES – licensing and regulation – whether a fit and proper person to hold a contractor licence – whether convictions should be ignored because of passage of time

Catchwords:

TRUSTEE AND GUARDIAN – jurisdiction – decision to Institute proceedings in the Supreme Court – terms of settlement – approved by court – claim and cross-claim dismissed – whether tribunal ceased to have jurisdiction – whether change of circumstances renders the application vexatious – dismissal of application.

Catchwords:

ADMINISTRATIVE LAW- Firearms – Where respondent revoked applicant’s firearms licence and high calibre pistol permit – Where charges against applicant for obtaining a benefit by deception had been made in 2007 then withdrawn – Where applicant gave no evidence and made no submissions as to respondent’s evidence of underlying conduct – Where applicant admitted to making misleading applications for permits to acquire guns in 2012 – Where senior police officer provided positive evidence about applicant’s character – Where applicant found guilty of firearms offences committed in January 2017 which related to imitation firearms he was selling as toys – Where applicant found guilty of possessing a prohibited weapon

Catchwords:

ADMINISTRATIVE LAW – government information – public interest considerations against disclosure – prejudice to supply of confidential information – prejudice to effective exercise of policing functions – prejudice to detection, prevention or investigation of contraventions of the law – public interest in favour of disclosure where disclosure may show improper or illegal conduct - proactive policing - public interest in favour of disclosure of a person’s personal information – public interest in favour of informing the public about proactive policing

Catchwords:

PROFESSIONS: Registered Nurse- Professional Misconduct, Disqualification and Protective orders made.

Catchwords:

TAXES AND DUTIES – assessment for land tax – land used for primary production – whether applicants’ land is exempt from land tax under s 10AA(2) of the Land Tax Management Act 1956 – whether use of land for the applicants’ cattle business had a ‘significant and substantial commercial purpose or character’

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – Cabinet information – whether document would reveal or tend to reveal Cabinet deliberations or decisions – some information in public domain – the document not the information must have been approved for release   ADMINISTRATIVE LAW – administrative review - Government Information – Cabinet information – document that reveal or tends to reveal the position Minister is considering taking to Cabinet – no requirement that position actually taken to Cabinet - meaning of “the position” – not confined to “one” position   ADMINISTRATIVE LAW – administrative review - Government Information – legal professional privilege – privilege claimed by Department which was not Department to which legal advice or services provided – provision of advice etc is to the State not the individual administrative Department – sharing of legal advice between Department – question of waiver does not arise   ADMINISTRATIVE LAW – administrative review - Government Information – public interest considerations against disclosure – whether information provided in confidence – whether disclosure could reasonably be expected to found an action for breach of confidence – no requirement that entity likely to commence such an action – whether information has “competitive commercial value”

Catchwords:

COSTS – s 60 Civil and Administrative Tribunal Act, 2013 – Special circumstances.

Catchwords:

APPEAL – interlocutory decision – no issue of principle

Catchwords:

ADMINISTRATIVE REVIEW – appeal from decision dismissing an application under the Privacy and Personal information Protection Act 1998 (NSW) for want of jurisdiction – where Tribunal dismissed application for review of conduct by University of Technology Sydney in publishing a decision of the Victorian Civil and Administrative Tribunal to which she was a party – whether the Tribunal erred in law by dismissing the application STATUTORY INTERPRETATION – meaning of s 6 of the Privacy and Personal Information Protection Act 1998 (NSW)

Catchwords:

PRACTICE AND PROCEDURE – Leave to appeal – substantial delay – inadequate explanation of delay – no substantial prospects of success – fresh evidence – evidence reasonably available at time or original hearing.   EVIDENCE – dismissal of claim as evidence inadequate   CONTRACTS – finding of repudiation – no basis to set aside.

Catchwords:

COSTS – special circumstances established – lump sum costs order made

Catchwords:

PRACTICE AND PROCEDURE – whether Tribunal erred in failing to join a party, and subsequently dismissing proceedings

Catchwords:

Evidence relied upon at first instance – fresh evidence – mitigation

Catchwords:

PRACTICE AND PROCEDURE – Representation – applicable principles

Catchwords:

ADMINISTRATIVE LAW-government information-decision to defer access after granting access-power to decide to defer access- rights of internal review- sections 80(h), 78,88, 54(6) and (7) Government Information (Public Access) Act 2009

Catchwords:

PROFESSIONS AND TRADES - Solicitor - Professional Disciplinary Proceedings - Findings of Professional Misconduct and Unsatisfactory Professional Conduct - Misleading conduct in purporting to act for a company that had ceased to exist and where no valid instructions to act - falsely holding out being a director of a corporation

Catchwords:

Legal practitioner- deficiencies in trust account and other matters – admission that guilty of professional misconduct- Instrument of Consent-refusal to make orders sought by consent-protective orders made – costs order made Non-publication order- principles of open justice-application to suppress name of respondent refused-non-publication orders made limited to family and clients.

Catchwords:

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

Catchwords:

EQUITY – rectification – common intention and mistake – antecedent informal agreement – whether € 10 million hail limit contained in master policy for international programme of insurance was intended to be included in but mistakenly omitted from Australian local policy   INSURANCE – measure of indemnity – reinstatement – whether cost of replacement refers to costs actually incurred in replacement   INSURANCE – business interruption insurance – formula for assessment of insured loss of gross profit – whether accounting provisions that would have been made for depreciation of plant and equipment in fact destroyed are sums saved during indemnity period in consequence of insured damage in respect of charges and expenses payable out of such gross profit   INSURANCE – property insurance – industrial special risks – physical loss – whether proof that recovery of property is uncertain suffices to establish loss by deprivation of possession – meaning of uncertainty for constructive total loss under policies of marine insurance   COSTS – party/party – orders when proceedings involve multiple parties – Bullock and Sanderson orders – whether unsuccessful insurer under primary policy should pay costs of successful insurers under difference-in-limits/difference-in-conditions policy

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application to extend time for compliance with statutory demand for payment   JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal

Catchwords:

MODIFICATION APPLICATION AND DEVELOPMENT CONTROL ORDER: change roof cladding material and colour; impact on heritage significance of the heritage conservation area.

Catchwords:

PRIVILEGE – s 119 and s 125 of the Evidence Act 1995 (NSW) – communication by complainants to DPP – claim for malicious prosecution – whether DPP is “client” – furtherance of fraud – any privilege lost

Catchwords:

Electricity charges

Catchwords:

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

Catchwords:

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

Catchwords:

CONSENT ORDERS: Residential flat building; existing use rights; merits assessment; retention of affordable rental housing.

Catchwords:

ADMINISTRATIVE LAW-refusal of working with children check clearance-allegation of sexual assault-assessment of risk

Catchwords:

CRIMINAL LAW – sentence appeal – parity - where the applicant was sentenced with respect to one count of sexual intercourse with a child aged 15 while in company contrary to s 66C(4) of the Crimes Act 1900 (NSW) – where an additional offence contrary to s 66C(4) was taken into account on a Form 1 – whether sentencing judge made a material factual error in finding the applicant was in a position of leadership in relation to the offending conduct – whether the applicant had a justifiable sense of grievance when comparing his sentence to that of his co-accused

Catchwords:

CIVIL PROCEDURE — application seeking that a costs order be set aside on basis of a denial of procedural fairness or irregularity — where applicant was unsuccessful in the substantive proceedings and the usual order as to costs was made — Uniform Civil Procedure Rules 2005, r 36.15 — extensive delay of five years between entry of costs order and application — no denial of procedural fairness — no relevant public interest in the substantive proceedings — application dismissed   COSTS — specified gross sum costs order and indemnity costs sought by respondent — where cost and delay of assessment would not be warranted — reasonable amount sought — indemnity costs not appropriate — gross sum costs order made

Catchwords:

ADMINISTRATIVE LAW – judicial review – self-represented applicant – applicant convicted in Local Court on two counts of “produce child abuse material” and one count of “possess child abuse material”, Crimes Act 1900 (NSW) s 91H(2) – appeal to District Court dismissed – extension of time to file summons refused – no jurisdictional error established

Catchwords:

SUCCESSION – family provision – deceased left estate to widow with no provision made in will for his adult son (who was the widow’s step-son) – whether primary judge erred in holding that no provision should be made under s 59 of Succession Act 2006 (NSW) in favour of son – relevance of son not having sought financial assistance from father or step-mother – discussion concerning common practice of spouses making mutual wills – whether primary judge misunderstood relationship between appellant’s income and expenses – whether primary judge’s conclusions concerning respondent’s financial needs were erroneous

Catchwords:

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

Catchwords:

SENTENCING – appeals against sentence –law to be applied by court on resentencing – law amended after initial sentencing hearing so that standard non-parole period no longer applied to offender under 18 years of age – amendment favourable to offender – whether offender to be resentenced according to law at time of resentencing – relevance of principles concerning admission of evidence of post-sentence conduct – Criminal Appeal Act 1912 (NSW), s 6(3) – Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(3)   SENTENCING – appeal against sentence – prosecutor conceded Muldrock error – prosecutor withdrew concession that sentence appealed from required “adjustment” – extent to which regard should be had to sentencing judgment below when resentencing   SENTENCING – appeal against sentence – resentencing – murder –offender under 18 years of age at time of offence – stabbed victim 48 times in chest – no apparent motive for attack –offender suffered some form of mental disability at time of offence –no acceptance of responsibility for offence – particularly difficult experience of prison –whether lesser sentence warranted in law   SENTENCING – sentencing procedure – comparable cases – relevance of sentences in other cases and judicial commission statistics

Catchwords:

Medical Practitioner – disciplinary proceedings – prescribing drugs of addiction without authorisation – self-prescribing restricted substances contrary to guidelines – failure to adequately maintain medical records as required by regulation – unsatisfactory professional conduct – professional misconduct

Catchwords:

REAL PROPERTY – property at Alexandria, NSW purchased by plaintiff and defendant in equal shares as tenants in common in 1994 – mortgage taken out by plaintiff and defendant to fund the acquisition of the Alexandria property – plaintiff and defendant execute a deed in 1994 by which they agree to hold the Alexandria property in equal shares – Alexandria property leased from 2001 until its sale in 2016 – mortgage repayments made using the rent from leasing the Alexandria property – between 2012 and 2015 the defendant makes additional payments totalling $60,000 into a joint offset account of the plaintiff and defendant in relation to the Alexandria property, to reduce the interest payable on the mortgage – Alexandria property sold in 2016 – proceeds of sale deposited into a joint offset account – the same day, the defendant withdraws the proceeds of sale from their joint offset account and deposits them into her own bank account, to which the plaintiff has no access – plaintiff claims his prima facie legal entitlement to a half share of the proceeds of sale – freezing orders made in relation to the defendant’s bank accounts – defendant Cross Claims seeking declarations she has more than a half share in the Alexandria property – whether the Alexandria property the subject of a constructive or resulting trust – whether the parties made equal, or other than equal, contributions, both financial and non-financial, to the acquisition of the property.   REAL PROPERTY – in 1996 the plaintiff and the defendant purchase a separate property at Waterloo as joint tenants – plaintiff and defendant have lived in the Waterloo property with their son since then – plaintiff brings a claim for appointment of trustees for sale under Conveyancing Act 1919, s 66G – whether a s 66G orders should be made – whether or not parties made equal contributions to the acquisition of the Waterloo property – what are the parties’ respective shares in the Waterloo property – what orders should be made for the division of the proceeds of sale.   FAMILY LAW – whether amendments in 2009 to the Family Law Act 1975 (Cth) deprive this Court of jurisdiction to hear these proceedings between two former de facto spouses – whether these proceedings deal with property and financial matters arising out of the breakdown of a de facto relationship or whether they come under the “carve out” of jurisdiction conferred on this Court by Family Law Act 1975 (Cth), s 90RC(2).

Catchwords:

SENTENCING – Appeal against sentence – Powers of court – application for extension of time to apply for leave to appeal against sentence filed over nine years after sentence delivered – whether an extension of time should be granted   SENTENCING – Relevant factors on sentence – Co-offenders – Parity – applicant originally charged on indictment for conspiracy with other alleged co-offenders – applicant and another one of the alleged co-offenders later pleaded guilty to charges which did not allege conspiracy – whether applicant and the other person were co-offenders for the purpose of sentencing on those charges   SENTENCING – Appeal against sentence – Fresh or new evidence – applicant sought to rely upon evidence which was said to demonstrate error in the assessment of likely conditions of custody by sentencing judge – whether evidence admissible

Catchwords:

HUMAN RIGHTS — discrimination — factors relevant to power to amend complaint under s 103 of Anti-Discrimination Act 1977 (NSW)   INTERIM ORDERS — whether power to make interim orders under s 105 of Anti-Discrimination Act 1977 (NSW) should be exercised

Catchwords:

CONTEMPT – appeal against conviction and penalty – scandalising conduct in face of court – breach of court suppression orders – whether appellant’s conduct constituted exercise of implied constitutional freedom of political communication – whether suppression orders ambiguous or uncertain – whether suppression orders should be set aside – failure to comply with Uniform Civil Procedure Rules 2005 (NSW), r 40.7   CONTEMPT – power of committal – whether Crimes (Sentencing Procedure) Act 1999 (NSW) applied   CONSTITUTIONAL LAW – implied constitutional freedom of political communication – contempt of court – whether appellant’s conduct constituted exercise of that freedom – whether laws pursuant to which suppression orders were made incompatible with that freedom

Catchwords:

EVIDENCE – discretions – exclusion of evidence – civil proceedings – action for wrongful birth and nervous shock resulting from alleged negligence in screening for Down Syndrome – UCPR r 31.28 – whether there were exceptional circumstances that warrant the grant of leave to rely on expert opinion as new evidence in chief – prior guillotine order for service of expert evidence in chief – order permitting evidence in reply – time limit for reply evidence not complied with - discretionary considerations – where plaintiff repeatedly failed to comply with directions – where proceedings commenced five years ago – where second defendant prejudiced by death of alleged tortfeasor whose conduct was impugned by expert opinion on which plaintiff sought to rely

Catchwords:

INTERLOCUTORY ORDER – occupational licencing -application for a stay of decision to cancel a tattoo parlour licence – interests of the applicant and the public

Catchwords:

Dental practitioner-allegations of predatory sexual conduct-criminal conviction-held constituted professional misconduct-not a fit and proper person for registration as a dental practitioner-if had been registered, registration cancelled-exclusion period 10 years-prohibition against providing health services – costs order made

Catchwords:

Offences and penalties – sentence – knowingly harming an Aboriginal object – culturally modified scar tree – cutting down and removal of scar tree – restorative justice intervention in sentencing process – objective circumstances of the offence – undermining the statutory objects to conserve Aboriginal cultural heritage – significantly increased maximum penalty – substantial harm caused – practical measures to prevent harm – control over causes of offence – offence committed recklessly – medium objective seriousness – subjective circumstances of the offender – lack of prior convictions – early plea of guilty – remorse for the offence – assistance to authorities – unlikely to reoffend – retributive, preventative, reparative and restorative purposes of sentencing – monetary penalty directed to Aboriginal cultural heritage projects – publication and notification orders – order to establish training courses – payment of costs   Sentencing – restorative justice conference – process for – agreement reached – use of conference and agreement in sentencing

Catchwords:

ADMINISTRATIVE LAW – judicial review – adjudicator’s determination – jurisdictional error – scope of payment claim – duty to consider payment claim – scope of claim to be determined by adjudicator   BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s determination – whether error in construction of payment claim – respondent alleged adjudicator made allowances in award for amounts not contained in payment claim – whether adjudicator exceeded jurisdiction by determining claim other than that made by claimant – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 20, 22(2)

Catchwords:

TRADES AND PROFESSIONS – health practitioner – physiotherapist – treatment of work colleague – whether adequate history or assessment – failure to keep notes – whether treatment inappropriate – whether informed consent – failure to comply with chaperone condition – provision of false or misleading information to regulatory body – whether professional misconduct

Catchwords:

TORTS – negligence – personal injury – where remand inmate was assaulted by another prisoner – scope of duty of prison authority to protect inmates under its control – breach of duty of care – where prison authority had actual knowledge of assailant’s violent and unpredictable nature – where staff on duty at the time of the assault had no knowledge of assailant’s history and background – where earlier altercations between the plaintiff and the assailant had occurred on the same morning – where corrective staff failed to confiscate the weapon ultimately used in the assault – duty of care and breach of duty established   TORTS – causation – no question of principle   TORTS – defences – reliance upon Civil Liability Act 2002, s 54 – alleged that plaintiff’s injury was suffered at the time of or following conduct constituting a serious offence – where plaintiff and assailant were involved in an earlier altercation in another area of the prison on the same morning – consideration of context and purpose of that section – temporal limitation not satisfied – not proved that plaintiff’s conduct constituted a serious offence – defence not made out   TORTS – contributory negligence – no contributory negligence for failure to enter into protective custody   DAMAGES – offender in custody – application of Part 2A of the Civil Liability Act 2002 – damages for non-economic loss dictated by provisions of the Workers Compensation Act 1987   DAMAGES – economic loss – where plaintiff had variable income – entrepreneurial pursuits – application of s 26E of the Civil Liability Act 2002 – allowance made for damage to reputation through arrest and remand in custody

Catchwords:

PRIVACY – review of conduct of public sector agency – unlawful disclosure of personal information – remedies – recovery for psychological harm - causation – quantum of damages – other orders

Catchwords:

APPEAL – development applications to carry out works to repair sea walls – sea walls built on public beach – jurisdictional preconditions to the power to grant development consent not satisfied – Court not satisfied that the works will not unreasonably limit public access to or use of the beach – Court not satisfied that the works will not impede or diminish the right of access of the public to or along the coastal foreshore – appeals dismissed

Catchwords:

INSURANCE – accident and sickness insurance – where policy taken out by trustee of superannuation fund with insurer for benefit of its members – claim for “total and permanent disablement” (TPD) benefit – benefit for TPD payable if claimant provided proof to satisfaction of insurer that he or she was so incapacitated as to be “unlikely ever” to return to employment for which he or she was reasonably qualified by education, training or experience – onus on claimant to provide proof to satisfaction of insurer   INSURANCE – duties to act reasonably and in good faith – content of duties – effect of delay – where delay is the result of the claimant routinely serving new evidence on insurer – whether the insurer breached its duties by delaying the determination of the claim   PRACTICE AND PROCEDURE – separate questions – insurance – claim for TPD benefit – entitlement to benefit subject on proof to insurer’s satisfaction – “two stage” approach – discussion of whether the “two stage” approach is necessary in all cases – discussion of whether the Court can decide the second stage “on the papers”

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – tiger grass – obstruction of views

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of sunlight not severe

Catchwords:

CIVIL PROCEDURE — Protective jurisdiction — Procedure — Powers of court — Urgent application to revoke guardianship and financial management orders — No circumstances established to warrant revocation when review and appeal from orders to be heard in April and May 2019   CIVIL PROCEDURE — Hearings — Suppression and non-publication — Orders

Catchwords:

LANDLORD AND TENANT – Breach of residential tenancy agreement – discretion to terminate – factual findings regarding likelihood of future breach against the weight of evidence – leave to appeal

Catchwords:

COSTS – identification of the event – only issue determined by the Tribunal was a separate legal issue identified by the parties – case appropriate for an order that the unsuccessful party (the plaintiff) on that separate issue pay the costs of the successful party (the second defendant) attributable to that issue.

Catchwords:

COSTS – Calderbank offer – whether sufficient time allowed for consideration, having regard to time when crucial evidence was served – whether rejection of the offer was unreasonable given that there was a complex and novel legal issue in the case.

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; approving the development of two semi –detached dwellings and Torrens Title subdivision

Catchwords:

DEVELOPMENT APPLICATION: residential dwellings; subdivision; conciliation conference; agreement between the parties; orders

Catchwords:

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

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of delegate of Commissioner of Victims’ Rights – statutory compensation – domestic violence – whether the defendant’s finding that the plaintiff’s psychological injuries were not ‘severely disabling’ was unreasonable in view of the report of an Authorised Report Writer (“ARW”) – whether the defendant’s finding that the plaintiff’s psychological injuries were not severely disabling was the result of an error of law – whether the defendant unreasonable declined to rely on the ARW’s findings – whether the defendant’s finding that the plaintiff’s psychological injuries were not ‘a direct result’ of the act of violence was unreasonable – whether the defendant’s finding that the plaintiff’s psychological injuries were not a ‘direct result’ of the act of violence was an error of law – legal causation –scope of offenders conduct – whether the defendant’s finding that the plaintiff’s psychological injuries were not ‘a direct result’ of the act of violence was a result of an error of law in construing the question of fact to be answered

Catchwords:

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

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury   SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty   SENTENCING PRINCIPLES – totality – remorse – contrition – parity – appropriate penalty   COSTS - prosecution costs   OTHER – collision between forklift and worker – need for training and supervision – need to consult with company supplying workers to factory

Catchwords:

APPEALS - Appeal from an ancillary decision finding that there was no jurisdiction – s 22 Dividing Fences Act 1991 - error of law- inadequate reasons- appeal allowed-rehearing by Appeal Panel – dispensation with oral hearing - extension of time to file Notice of Appeal

Catchwords:

ADMINISTRATIVE LAW - privacy – personal information – conduct under review – exemptions to privacy provisions – whether conduct sanctions by law – whether absence of evidence provides for determination of facts – whether finding open to agency- s62 finding not available on available evidence

Catchwords:

CRIMINAL LAW – conviction and sentence appeal – three counts of aggravated indecent assault – one count of aggravated sexual assault – circumstance of aggravation – whether the verdicts of guilty are unreasonable and cannot be supported having regard to the evidence – verdicts are irrationally inconsistent – misuse or mistake in relation to the DNA evidence – the jury improperly rejected the evidence of the Crown expert witness in relation to the lack of significance of the DNA evidence – whether the conduct of the trial was attended with a number of significant errors and whether these ‘errors’ had the singular and cumulative effect of depriving the appellant of a fair trial according to law   CRIMINAL PROCEDURE – whether the trial judge erred in excluding the “False Complaints” evidence – the appellant contends he received a harsher sentence than that warranted in law

Catchwords:

Limitation periods – federal jurisdiction – transfer to a Court – summary dismissal

Catchwords:

CRIME – sexual assault communications privilege – interlocutory appeal – application for leave to appeal against a grant of leave to the accused to access documents counsellors had produced to Court under subpoena – whether primary judge was precluded by Criminal Procedure Act 1986 (NSW) from exercising independent discretion as to whether access to documents should be granted – discussion concerning operation of Criminal Procedure Act, Ch 6, Pt 5, Div 2   APPEAL – interlocutory appeal – sexual assault communications privilege – whether appellant in her capacity as a Principal Protected Confider, under the Criminal Procedure Act 1986 (NSW), Ch 6, Pt 5, Div 2, had standing to seek leave to appeal – Criminal Appeal Act 1912 (NSW), s 5F considered   WORDS AND PHRASES – “party” – Criminal Appeal Act 1912 (NSW), s 5F

Catchwords:

CIVIL PROCEDURE – pleadings – defence of truth in action for defamation – defence alleging plaintiff has frequently launched legal actions without reasonable grounds or for improper use – where defendant previously brought unsuccessful application against plaintiff under Vexatious Proceedings Act – whether defendant estopped from pleading defence – whether defence amounts to an abuse of process – whether defence raises the same issue as was determined in the Vexatious Proceedings Act application   CIVIL PROCEDURE – interrogatories – where self-represented litigant provided lengthy argumentative responses to defence in reply – utility of interrogatories in distilling issues and reducing court time   CIVIL PROCEDURE – subpoenas – application to set aside – where plaintiff suspected subpoena issued for improper purpose of curing impropriety in obtaining access to criminal record – suspicion unfounded   DEFAMATION – pleadings – application by plaintiff to amend imputations – multiple previous amendments – inappropriateness of allowing further amendment

Catchwords:

TORT – Misfeasance in public office – Whether employee responsible for the income taxation audit of the appellant unlawfully exercised power under s 167 of the Income Tax Assessment Act 1936 (Cth) by assessing a higher taxable income – Whether malice, bad faith or conscious maladministration were demonstrated by the employee – Whether Jones v Dunkel inference can be drawn from respondent’s failing to call the employee – Whether Deputy Commissioner of Taxation or Commissioner of Taxation was vicariously liable for alleged tort – Appeal dismissed

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the trees have caused damage – severity of damage – whether there is a risk of injury – what actions are required

Catchwords:

CRIME – sentence appeal – aggravated indecent assault of children – criticism of assessment of objective seriousness of offences – discussion of degree of precision required – no error in finding special circumstances and reducing non-parole period by six months – aggregate sentence not manifestly excessive – unhelpful reliance upon comparative cases and statistics – contradictory reasoning in Scales v R [2017] NSWCCA 293 disqualifies it as useful comparator

Catchwords:

APPEAL – modification application – residential flat building - conciliation conference - agreement between the parties - orders

Catchwords:

CONTEMPT – appellants found guilty of contempt for threatening second respondent with religious sanctions for failing to submit to jurisdiction of a religious court in respect of an alleged commercial dispute – whether primary judge’s findings of contempt were those that were charged – whether primary judge erred in finding appellants placed improper pressure on second respondent to desist from asserting the alleged commercial dispute be resolved in a civil court, which had a real tendency to interfere with the administration of justice generally   SENTENCING – criminal contempt – penalties – fine – whether penalties imposed were manifestly excessive   COSTS – party/party – bases of quantification – indemnity basis – whether primary judge erred in finding appellants should pay part of respondents’ costs on an indemnity basis

Catchwords:

APPEAL - modification applications – terraces - conciliation conference - agreement between the parties - orders

Catchwords:

CORPORATIONS – arrangements and reconstructions – application under s 63 of the Trustee Act 1925 (NSW) for judicial advice with respect to the implementation of trust scheme – whether scheme is fair and reasonable so that an intelligent and honest person who was a unitholder, properly informed and acting alone, might approve it.

Catchwords:

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders approving proposed scheme of arrangement – application under s 63 of the Trustee Act 1925 (NSW) for judicial advice with respect to the implementation of trust scheme – whether scheme is fair and reasonable so that an intelligent and honest person who was a member of the relevant class, properly informed and acting alone, might approve it.

Catchwords:

UNFAIR DISMISSAL - application made 7 months out of time – principles – matters to be considered in exercise of discretion

Catchwords:

PROFESSIONS AND TRADES – registered health practitioner – disciplinary proceedings – whether appropriate to order practitioner shall pay the whole or part the Health Care Complaints Commission’s costs.

Catchwords:

CONTRACTS- consumer law- repudiation of contract- copyright in architectural drawings- appeals-error of law- grant of leave to appeal

Catchwords:

APPEAL – leave to appeal – police officer retired pursuant to s 72A of the Police Act 1990 – Police Act is not exhaustive code for dismissal of police officers - s 218 of the Police Act leaves intact the power of the IR Commission to deal with industrial matters concerning police officers unless especially restricted by a provision of the Police Act - s 84 of the Industrial Relations Act available to medically retired officers – appeal upheld

Catchwords:

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

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the tree is principally on adjoining land – applicants directed to obtain a survey plan – who owns the tree – actions that have contributed to damage and risk of damage or injury – what orders are required – who should pay

Catchwords:

Modification of consent: conciliation conference; agreement between the parties; orders

Catchwords:

CRIMINAL LAW – appeal against sentence – assault with act of indecency – victim under 16 years – sexual intercourse with person under 16 years – intimidate with intention to cause fear of physical harm – whether the sentencing judge mistook the facts in relation to count 3 and thereby erred in assessing the objective seriousness of the offending – whether the sentences imposed in respect of counts 2 and 3 were manifestly excessive

Catchwords:

Costs

Catchwords:

DUTIES AND TAXES - payroll tax - grouping of entities - joint and several liability of members of a group where employer member does not pay tax - nature of the joint and several liability - whether jointly and severally liable group members other than the defaulting employer are liable to pay "tax" and are "taxpayers" - whether joint and several liability exists if not established by legal proceedings - power of Chief Commissioner to issue notice of assessment to person subject to joint and several liability - powers in relation to assessment generally - nature of assessment - whether notice of assessment issued to person subject to joint and several liability is conclusive evidence of liability

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions; existing heritage item; amended plans’ orders

Catchwords:

Appeal – Strata Schemes – Costs of the appeal- special circumstances

Catchwords:

DEVELOPMENT APPLICATION: Obstructions to views from public and private domains – privacy – alternative skilful designs – heritage conservation area – whether conditions require a restriction on title

Catchwords:

Multi dwelling housing, convenience of basement parking, streetscape, landscape, visual character compatibility, privacy

Catchwords:

STRATA SCHEMES – Common property – resolution to authorise work to alter common property – obligation to repair – s 106(3) of the Strata Schemes Management Act 2015 (NSW) – power to determine repairs and maintenance are inappropriate – circumstances in which demolition is authorised – unauthorised alterations.   MEETINGS – loss of records – presumption of regularity – available inferences of past conduct based on proven facts.

Catchwords:

CIVIL ENFORCEMENT – erection of fence – applicant claims that fence has been erected unlawfully – whether fence is exempt development pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 – whether restrictive covenant is set aside by planning instruments

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to an approved residential flat building – new development application – variation to floor space ratio sought – impact to adjoining neighbours to the rear – compliance with floor space ratio development standard not unreasonable or unnecessary – appeal dismissed.

Catchwords:

APPEAL – Leave to appeal – decision against the weight of the evidence – no question of principle

Catchwords:

ADMINISTRATIVE LAW - FIREARMS – public interest – whether a risk to public safety – mental illness – licensing and registration scheme – genuine reason.

Catchwords:

APPEALS- interlocutory matter-leave questions-error of law- proceeding in absence of party

Catchwords:

APPEAL – leave to appeal – no question of principle

Catchwords:

APPEAL – modification application – dual occupancy – application for roof terraces – whether visual and aural privacy impacts unreasonable – whether approval would create an undesirable precedent

Catchwords:

CIVIL PROCEDURE – summary disposal – judgment for plaintiff – striking out of defence sought in the alternative – whether no reasonable defence – where defendant relied on proprietary estoppel to defend proceedings for possession of real property – whether evidence capable of establishing detrimental reliance –necessary to make findings about representations and availability of relief sought by defendant at trial – no basis for summary disposal or striking out

Catchwords:

OCCUPATIONS – legal practitioners – discipline – judicial review proceedings - decision by Law Society to initiate proceedings against plaintiff solicitor in NCAT – Legal Profession Uniform Law (NSW) s 300 – complaint that solicitor falsely witnessed signature on passport application at request of another solicitor – whether Law Society failed to extend procedural fairness to plaintiff – where Law Society did not disclose statutory declarations of other practitioner thereby depriving plaintiff of opportunity to make submissions about credit – whether Law Society failed to consider alternatives to initiation of proceedings – whether Law Society asked itself the wrong question and misconceived its function - whether reasons for decision of Law Society were adequate – where no reasons for finding that conduct amounted to professional misconduct

Catchwords:

CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious sex offence – application for extended supervision order – whether the defendant poses an unacceptable risk of committing another serious offence – consideration of factors in s 9 – extended supervision order made for 3 years – conditions imposed – directions

Catchwords:

TORT – claim of fraudulent representation – claim against real estate agent – allegation that agent falsely represented to buyer the reason why vendor selling property – whether claim statute barred – whether Plaintiff established elements of cause of action – held limitation period expired so claim statute barred – s.55 Limitation Act 1969 not assist Plaintiff – claim failed on merits in any event – verdict for Defendant

Catchwords:

PROCEDURE – notice of motion to extend stay of final orders enabling removal of waste outside residential premises by council refused

Catchwords:

PRACTICE AND PROCEDURE – applications – security for costs order – general principles as to ordering security for costs against plaintiff liquidator – whether there is reason to believe that the liquidator will be unable to meet an adverse cost order – relevance of professional indemnity insurance – onus on party making the application to show there is a “reason to believe” the other party will not meet an adverse cost order   ESTOPPEL – issue estoppel – where first application for security for costs settled by consent orders – where consent orders provided for the plaintiff to furnish security – second application made for security for costs – whether an issue estoppel arose to preclude the plaintiff from denying “liability” in the second application to furnish further security   PRACTICE AND PROCEDURE – abuse of process – interlocutory applications – where first application for security for costs settled by consent orders – where consent orders provided for the plaintiff to furnish security – second application made for security for costs – whether such application an abuse of process – case management considerations

Catchwords:

COSTS – interest on costs – Civil Procedure Act 2005 (NSW), ss 98(3), 101(4) – where an order for interest on costs not included in the principal judgment which was delivered years earlier – whether court no longer has power to award interest on costs because the claim is either statute-barred or has merged in the principal judgment – whether an order for interest on costs under s 98(3) must be sought at time of judgment – consideration of the doctrine of functus officio   COSTS – interest on costs – Civil Procedure Act 2005 (NSW), ss 98(3), 101(4) – discretionary factors – delay – application of Limitation Act 1969 (NSW) by analogy – where delay justifies an award of interest at pre-judgment rate

Catchwords:

CHILD protection – Working with children – Whether any real and appreciable risk – Charges of assault dismissed at hearing – AVO granted – Reliability of complainant’s evidence - No positive finding – Whether no hesitation in dismissing the charges as groundless - No lingering doubt or suspicion

Catchwords:

SUCCESSION – Probate and administration – Revocation of will by destruction – Alleged destruction of photocopy of will - Dispute about intention to revoke will – Original will not destroyed –– No revocation by destruction of mere photocopy of will - Will admitted to probate   SUCCESSION – Probate and administration – Informal document – Draft will approved but not executed by testator – No intention that draft operate as will before execution – Disputed informal will not admitted to probate

Catchwords:

TORTS – negligence – duty of care – control – vulnerability – reliance – mere foreseeability of harm – whether duty to prevent occurrence   TORTS – negligence – public authorities – exercise, or non-exercise, of statutory and prerogative powers   TORTS – negligence – breach of duty – no breach arising in circumstances – no causation

Catchwords:

CIVIL PROCEDURE – Court of Appeal – extension of time to comply with statutory demand for payment   CORPORATIONS – statutory demand – claim for offsetting

Catchwords:

PROFESSIONS AND TRADES – Registered health practitioner - where practitioner practised while unregistered – falsification of registration certificate and document - where medical practitioner concedes he is guilty of professional misconduct – where practitioner prescribed in names of staff members to obtain stock for medical practice.

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; alterations and additions to an existing dwelling house; contravention of development standards; adjoins a local heritage item.

Catchwords:

DEVELOPMENT APPLICATION: Boarding house development; impact on heritage significance of the Heritage Conservation Area; bulk and scale; car parking

Catchwords:

TORT – negligence – breach of duty of care – where appellant tripped outside entrance to aged care facility operated by respondent – where 10-20mm height difference between edge of concrete slab and brick pavers – where height difference likely present since 2000 without incident or complaint prior to appellant’s accident in 2015 – whether primary judge erred in treatment of evidence – whether risk “not insignificant” – whether risk obvious – whether reasonable person in occupier’s position would have taken action to reduce the unevenness in question

Catchwords:

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

Catchwords:

COSTS – Calderbank offer made by successful appellants – where declaratory relief given as to distribution of fund – fund not distributed – quantum of future distribution uncertain – unresolved dispute about extent of priority creditors – receivers’ fees not determined – where offer related to only a small proportion of successful parties’ total costs – where unsuccessful respondent submitted that uncertainty should result in ordinary order as to costs – application remitted to single Judge of Appeal with a view to hearing parties further and awaiting further steps in distribution of fund

Catchwords:

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

Catchwords:

COSTS – application withdrawn before hearing – whether application had tenable basis in fact – whether proceedings, frivolous or vexatious and lacking in substance – dishonesty as a relevant matter – circumstances of award of indemnity costs – circumstances of award of gross sum

Catchwords:

NUISANCE – where the defendant obstructed the plaintiff’s ability to exercise a right of way over an access road appurtenant to her property – where common ground that the defendant’s conduct constituted actionable nuisance – DAMAGES – particular damage to the plaintiff as a consequence of the nuisance – damages awarded for inconvenience and stress

Catchwords:

COSTS – whether costs of three adjournments of draft stated case payable to defendants under Criminal Procedure Act 1986

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – leave to amend summons – where amendment will enable judicial advice under s 55 of the James Hardie Former Subsidiaries (Winding Up and Administration) Act 2005 (NSW)   CIVIL PROCEDURE — Stay of proceedings — Stay pending application for special leave to appeal to High Court – whether exceptional circumstances – where the order does not create rights and obligations – where the evidence does not establish that a stay is required to preserve the subject matter of the appeal

Catchwords:

PRACTICE – extension of time – judicial review proceedings – proceedings commenced years after decision – no basis for extension of time made out

Catchwords:

COSTS – application for indemnity costs and gross sum costs orders – whether application was to vary or set aside existing costs orders – whether application made in time – requirement to file notice of motion within 14 days – whether sufficient evidence to ground a well-informed exercise of discretion – absence of expert evidence – costs substantially too high – applications refused

Catchwords:

SUCCESSION — FAMILY PROVISION — The Plaintiff, an adult child of the deceased, makes a claim for a family provision order — No dispute as to the Plaintiff’s eligibility as a child of the deceased — Proceedings commenced within time prescribed by Act — Nature of relationship of the Plaintiff and the deceased — Lengthy estrangement and lack of any contact between the Plaintiff and the deceased for over 25 years — Estate comprises, at the date of hearing, primarily of the deceased’s home in which one son of the deceased has lived for many years — Right of residence given to that son for as long as he wishes to reside therein, or until his death, and thereafter, the estate divided between 5 of the deceased’s 6 children — No provision made for Plaintiff — Competing claim of each of the beneficiaries — Plaintiff, at the hearing, does not seek immediate provision but provision after right of residence is terminated — Reasonably large estate in value — Whether family provision order should be made, and if so, the nature and quantum of the provision to be made — Order that claim for family provision order be dismissed   COSTS — Offer of Compromise served about 7 months prior to the date for hearing — Defendant obtained order no less favourable than offer made — Whether Court’s discretion should be exercised to depart from UCPR and order the Plaintiff to pay the Defendant’s costs, calculated on the indemnity basis, from the day after the date of service of the Offer of Compromise — Whether overall justice of the case warrants exercise of the Court’s discretion

Catchwords:

ADMINISTRATIVE LAW – appeal from decision under Government information (Public Access) Act 2009 – appeal from decision that police officers pay part of the costs of the NSW Police Force – where police officers applied for access to government information held by NSW Police Force – where Tribunal upheld decision not to provide access to the withheld information – whether Appeal Panel should deal with the appeal by way of a new hearing – whether Tribunal made an error of law or other error justifying setting aside the Tribunal’s decisions

Catchwords:

REAL PROPERTY – possession of land – writ of possession – stay of writ – third application by defendants for stay on the basis of refinancing – reliance on same letter from broker as in previous application – no certainty that refinance will be forthcoming – prejudice to plaintiffs – delay in marketing of the land – application refused

Catchwords:

CIVIL PROCEDURE – pleadings – amendment – late application for amendment to third further amended cross-claim – hearing date at commencement of new law term - where proposed amendments raise new factual matters that are not clearly articulated and include claim for relief under different statutory regime – where no adequate explanation for late application   EVIDENCE – affidavit evidence in reply – whether evidence was responsive to evidence of cross-defendants – whether late admission of evidence would prejudice cross-defendants

Catchwords:

COMPULSORY ACQUISITION – residential land – compensation payable – market value of land – whether highest and best use is land banking or two individual dwellings – potential of land to be rezoned from medium density to high density residential land – potential of land to be redeveloped for purpose of residential flat building(s) – whether or not impact of draft planning strategy on land value to be disregarded because of nexus to public purpose of WestConnex – consequences of flood and easement constraints – whether climate change would exacerbate the flooding risks associated with the Acquired Land - valuation approach – whether “top-down” approach, “bottom-up” approach or conventional approach appropriate – disturbance – whether Applicants entitled to stamp duty for replacement property – whether Applicants entitled to development application costs

Catchwords:

APPEAL – challenges to findings of primary fact – whether adequate cross-examination to permit rejection of parties’ and witnesses’ evidence – whether primary judge grappled with competing evidence – challenges to findings of primary fact rejected   EQUITY – breach of fiduciary duty – enduring attorney instructed solicitor to make inter vivos gift of principal’s main asset to four of five children – attorney found to have done so on basis of what she considered to be “fair” – whether breach of duty – whether solicitor had knowledge of breach of fiduciary duty – whether solicitor’s knowledge imputed to four children – whether four children were knowing recipients of property – whether fraud exception to indefeasibility made out – whether children required to provide equitable compensation to estate – four children were knowing recipients of property for the value of which they had to account, but indefeasibility meant that the property was not held on constructive trust for estate   LEGAL PRACTITIONERS – solicitor – retainer – solicitor retained by enduring attorney on behalf of incapable principal – solicitor instructed to convey property to four of five children without consideration – whether solicitor acting for children – whether knowledge of solicitor imputed to children for purposes of Barnes v Addy liability of children – knowledge of solicitor imputed to children   NEGLIGENCE – duty of care – duty of solicitors retained by enduring attorney of incapable principal – attorney instructed solicitor to convey principal’s main asset to four children without consideration – whether duty of care owed by solicitor to testamentary beneficiary disappointed by inter vivos transaction – significance of testator being incapable – significance of retainer extending to estate planning – whether duty breached by solicitor – whether breach caused loss – duty, breach and causation established   PROCEDURE – whether appeal commenced within time – where issues as to liability and damages remained for determination – whether cross-appeals required leave – requisite extension of time and leave granted   SUCCESSION – wills – rectification – professionally drafted will – obvious error in failing to specify beneficiary of testator’s main asset – whether error by primary judge in rectifying will – challenge to rectification of will rejected

Catchwords:

APPEALS – nature – right of appeal conferred by Terrorism (High Risk Offenders) Act 2017 (NSW), s 53 – whether primary judge erred in not being satisfied respondent posed unacceptable risk of committing serious terrorism offence if not kept under supervision – applicable standard of appellate review – standard of correctness   CRIMINAL LAW – extended supervision order – Terrorism (High Risk Offenders) Act 2017 (NSW) – whether primary judge erred in dismissing State’s application – construction of legislation and of term “terrorist act” considered   WORDS and PHRASES – “terrorist act” – “convicted NSW terrorism activity offender” – “high degree of probability” – “unacceptable risk”

Catchwords:

MORTGAGES AND SECURITIES – personal property security interests – Personal Property Securities Act 2009 (Cth) (“PPSA”) – Purchase Money Security Interests (“PMSI”) – registration of financing statements – extension of time under PPSA, s 293 – relevant considerations – prejudice to other persons holding security interests – extension granted, reserving liberty to apply to set the order aside within a reasonable time

Catchwords:

RESTITUTION – unjust enrichment – defence of change of position – third defendant allows fraudster to use her identity to set up a bank account in a company name – fraudster arranges for funds stolen from the plaintiff to be paid into the bank account – fraudster directs the third defendant to pay monies out of the bank account to third parties and the third defendant complies – injunctions obtained to prevent further distribution of funds from the bank account – the funds paid to third parties are lost – plaintiff seeks restitution from the third defendant for the monies paid to the third parties – whether the third defendant has been unjustly enriched at the plaintiff’s expense by the funds into the bank account – whether as a result of paying the funds out of the bank account the third defendant can avail herself of a defence of change of position – whether any change of position defence is unavailable due to the third defendant’s participation in and knowledge of the fraudster’s illegality.   DECEIT – tort of deceit – whether the third defendant participated in conduct together with the fraudster which misled the plaintiff in circumstances amounting to the tort of deceit – what parts of the fraudster’s activities was the plaintiff aware.

Catchwords:

CORPORATIONS – voidable transactions – determination of separate question as to solvency of company – where the borrowing capacity of the company was never enough to meet all of its debts – where the company was not generating significant cash flow surpluses from which debts could be paid during the relevant period – whether company was insolvent during the relevant period.

Catchwords:

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