Browse decisions Displaying 1 - 200 out of 97242 results

Catchwords:

eeteryyry ytuyty uoouioiu

Catchwords:

APPEALS – leave to appeal – Local Court judgment in small amount – parties’ costs exceeded amount in issue – successful appeal would lead to retrial – no case of sufficient injustice to warrant grant of leave

Catchwords:

Fail to prove case. Double jeopardy

Catchwords:

Development Appeal Dangerous Tree

Catchwords:

Unfair Dismissal; Fail to meet conditions & clauses in contract, earnings >100k earnings <200k, the 'Placebo effect

Catchwords:

Substituted Service Proof of Contract

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child >16 <18 under special care HUMAN RIGHTS — Discrimination — Grounds — Gender discrimination (sexual harassment; equal opportunity; marital status; family responsibility and parental leave)

Catchwords:

Vexatious Litigant Stated case Public nuisance

Catchwords:

Copyright, Intellectual Property

Catchwords:

Judge alone trial, double jeopardy

Catchwords:

Substituted Service

Catchwords:

CRIMINAL LAW – extended supervision order – Terrorism (High Risk Offenders) Act 2017 (NSW) – whether appellant was a “convicted NSW terrorism activity offender” – whether primary judge applied heightened standard of satisfaction imposed by Act- ABCDABCD – whether appellant had made statement advocating support for any terrorist act or violent extremism – deeming provision extended statements advocating support to “using or displaying images or symbols” associated with organisation that supports terrorist acts or violent extremism – whether images or symbols excluded alpha-numeric images or symbols – whether appellant’s posting on Facebook concerning new nasheed from Islamic State’s Ajnad Media engaged deeming provision – whether deeming provision should be read down on basis of constitutionally implied limitation on legislative power to restrict political communication – appeal dismissed

Catchwords:

Fail to prove validity of contract

Catchwords:

SENTENCING-TEST-AUTOMATION – particular offences – supply prohibited drug – guilty plea prior to committal – statutory sentencing discount for guilty plea – mid-range objective seriousness- impact of prior criminal record as aggravating factor – deprived of leniency on sentence - relevant to prospects of rehabilitation – drug addiction – participation in treatment and rehabilitation programs – no other alternative than sentence of imprisonment – aggregate sentence – to be served by way of intensive correction order

Catchwords:

Double jeopardy, homicide

Catchwords:

APPEAL – development application – construction of dwelling house – conciliation conference – agreement reached – orders made

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – application for non-publication order – interlocutory decision – principles to apply

Catchwords:

CONTRACTS – construction – interpretation of an offset clause – no issue of principle CORPORATIONS – winding up – application to wind up two companies under s 461(1)(k) of the Corporations Act 2001 (Cth) – no issue of principle

Catchwords:

COSTS – party/party – where indemnity costs sought against unsuccessful party – whether it is appropriate to depart from the usual practice of making a costs order on the ordinary basis – whether there were no reasonable prospects of success – where success in the case depended on the preference for competing evidence – where claim was weak but not fairly unarguable COSTS – party/party – where indemnity costs sought against unsuccessful party – where order is discretionary– where imprudent to reject offer of compromise COSTS – party/party – whether indemnity costs should be awarded – where offer of compromise made in accordance with rule 42.15A UCPR – where indemnity costs ordered from date after the offer was made COSTS – party/party – orders against non-parties – where indemnity costs orders sought against solicitors of unsuccessful party – where indemnity costs sought pursuant to s 99 of the Civil Procedure Act and Schedule 2 of the Legal Profession Uniform Law Application Act – whether the legal services were provided without a reasonable belief by the solicitors that the claims had reasonable prospects of success – where conduct of the solicitors must demonstrate incompetence or unsatisfactory conduct to a high degree – where solicitors entitled to accept the evidence of their client – where relatively junior solicitors sought advice of experienced counsel – where weakness of the case does not equate to there being no prospects of success – where no cost order made against the solicitors

Catchwords:

COSTS – SUCCESSION – Family provision claim by spouse of extremely long marriage – Where Plaintiff largely successful in the claim – Whether the Plaintiff should pay the Defendants’ costs as he received, subject to conditions, the deceased’s interest in the only substantial asset of the estate, being the deceased’s one-half interest in the matrimonial home – No other asset out of which order for costs can be made although funds to be paid to Defendants – If funds not paid, property to be sold - Where Defendants defended the claim in their own self-interest – Defendants unsuccessful in defending proceedings and in prosecuting Cross-Claim –Application of general rule in family provision matters and whether discretion to be exercised – Whether basis for an order that the Defendants should pay, all or some, of their own costs of the proceedings

Catchwords:

APPEALS – orders on appeal – remittal – errors in trial judge’s conclusion on liability and contingent assessment of damages – case attended by significant and operative delays – conduct at issue occurred over 10 years ago – further trial pointless – Court of Appeal capable of resolving contested issues of fact PRACTICE AND PROCEDURE – expert evidence – joint report of experts – admission and tender versus weight – Uniform Civil Procedure Rules (NSW), r 31.26(3) TORTS – negligence – breach of duty – shopping centre – defect in perimeter security – gap above roller door – exposed entrance – previous break-in via the gap – awareness by owner of premises, security company, and employer of security guard of defect – no steps taken to rectify defect – Civil Liability Act 2002 (NSW), s 5B TORTS – negligence – causation – intruder enters shopping centre via gap – requirement to address gap – Civil Liability Act 2002 (NSW), s 5D TORTS – general principles – contributory negligence – security guard followed steps and was praised by management for conduct in securing premises against axe-wielding intruder which led to psychiatric injury – Civil Liability Act 2002 (NSW), ss 5R, 5S TORTS – negligence – damages – psychiatric injury – normal fortitude – whether person of normal fortitude might in the circumstances of the case suffer psychiatric harm – Civil Liability Act 2002 (NSW), s 32 TORTS – negligence – duty of care – security guard – duty of occupier of commercial shopping premises, security company, and company engaged by security company that employed the security guard TORTS – negligence – voluntary assumption of risk – security guard suffered psychiatric injury due to the approach of an axe-wielding intruder who approached him and threatened him with death – whether this risk was voluntarily assumed

Catchwords:

ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner under Health Practitioner Regulation National Law – power of Tribunal to order that a complaint be heard on the papers – where National Law required notice of time and place of inquiry to be given – where National Law entitled practitioner to attend the inquiry – where National Law applied despite any provision in Civil and Administrative Tribunal Act ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner under Health Practitioner Regulation National Law – where Tribunal did not afford practitioner procedural fairness – where Tribunal erred in relation to its consideration of certain complaints – where Tribunal failed to give adequate reasons for its conclusions concerning certain complaints

Catchwords:

INJUNCTIVE ORDERS – breach of planning law – declarations of breach – whether mandatory injunctive orders also needed COSTS – judicial review of council decisions – success on some but not all grounds of review – whether partial costs order justified

Catchwords:

COSTS — operation of r 38A of the Civil and Administrative Tribunal Rules 2014 — whether “the amount … in dispute” in the appeal exceeded $30,000 APPEAL— whether Appeal Panel has the power to award costs in relation to proceedings at first instance in circumstances where the Tribunal did not make a decision in relation to costs

Catchwords:

CHILD protection – Working with children –Indecent assault allegations – No sexual intent to physical contact with children - Acquittal at trial – Costs order in favour of applicant following criminal trial – Civil suit for malicious prosecution, wrongful arrest, false imprisonment settled in applicant’s favour – Relevance of Autism Spectrum Disorder to risk to safety of children – Neutral position adopted by Children’s Guardian.

Catchwords:

LEGAL PRACTITIONER - professional disciplinary proceedings - breach of trust account provisions - professional misconduct

Catchwords:

PROCEDURE – NCAT - Summary disposal — Dismissal of proceedings — want of prosecution

Catchwords:

APPEAL - no question of law - leave to appeal from decision of Consumer and Commercial Division of NCAT - leave to appeal refused RESIDENTIAL TENANCY - termination of residential tenancy agreement - loss of employment or income - non-payment of rent - whether a result of the impact of the COVID-19 pandemic - no evidence - s228B Residential Tenancies Act 2010 (NSW)

Catchwords:

EXTENTION OF TIME – whether the Appeal Panel should grant an extension of time within which to appeal LEAVE TO APPEAL – whether to grant leave to appeal NEW EVIDENCE – whether to permit new evidence on appeal RESIDENTIAL TENANCY – whether the Tribunal erred in finding that s 91(1)(a) of the Residential Tenancies Act was satisfied and in ordering the termination of the tenancy

Catchwords:

CRIMINAL LAW – appeal against sentence – appeal from the Drug Court – s 5AF of the Criminal Appeal Act 1912 (NSW) – where submitted the Drug Court did not determine the initial sentence and final sentence in accordance with the manner required by statute – where submitted that appellant’s background of social deprivation was not properly accounted for in sentencing – appeal allowed – appellant re-sentenced

Catchwords:

DEFAMATION – defamatory matter – where news report on termination of General Manager of Council – where report referred to allegations of bullying and intimidation – whether imputation conveyed that General Manager bullied and intimidated staff DEFAMATION – defences – statutory qualified privilege – reasonableness – relevance of propositions stated in Morgan v John Fairfax Ltd [No 2] (1991) 23 NSWLR 374

Catchwords:

CRIMINAL LAW – Challenge to conviction – where Crown case in relation to one count required the applicant to have scaled the external wall or descended on a fourth floor balcony of a five-storey apartment building – where no apparent means of applicant having accessed the balcony externally – whether conviction on this count unreasonable. CRIMINAL LAW – tendency evidence – where evidence of tendency related to conduct almost ten years prior to conduct the subject of the charges – whether tendency evidence of significant probative value – review of principles relating to tendency evidence. CRIMINAL LAW – where applicant on parole at time of hearing of appeal – where challenge to convictions in respect of multiple counts succeeds – whether new trial should be ordered. EVIDENCE – tendency evidence – where evidence of tendency related to conduct almost ten years prior to conduct the subject of the charges – whether tendency evidence of significant probative value – review of principles relating to tendency evidence.

Catchwords:

SUCCESSION – construction of will – gift of two shares to three children as tenants in common – will stated that if shares not divisible by three, daughter would receive more – whether daughter entitled to both shares under will – consideration of joint ownership of choses in action

Catchwords:

DEVELOPMENT APPLICATION – housing for older people or people with a disability – building height – setbacks – desired future character – streetscape – visual impact

Catchwords:

APPEALS – leave to appeal – whether leave required – monetary threshold of $100,000 under s 101(2)(r) Supreme Court Act – amount in issue $99,999 – strictly no right of appeal – closeness of sum in issue to the threshold relevant to discretion to grant leave CONTRACTS – remedies – damages – sub-contractor breached contract with builder by supplying and installing materials unfit for purpose – builder paid in full by proprietors and no prospect of it rectifying work – builder not exposed to risk of liability to proprietors – builder did not prove that it suffered loss

Catchwords:

DEVELOPMENT APPLICATION — residential flat building — conciliation conference — agreement between the parties — orders

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PROFESSIONS AND TRADES - health and professionals – medical practitioners – disciplinary proceedings – alleged indecent assault on patient – alleged breach of practising conditions

Catchwords:

PROFESSIONS AND TRADES -health and professionals – medical practitioners – disciplinary proceedings – medical practitioner prescribing medication without conducting adequate examination and/or to order appropriate investigations – medical practitioner issuing erroneous prescriptions

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between parties – orders

Catchwords:

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

Catchwords:

CIVIL PROCEDURE — Stay of proceedings pending appeal – where orders are made against two defendants that they pay the same amount of damages to the plaintiff –– where both defendants apply for a stay of execution of the judgment pending the determination of an appeal –– where one of the defendants is primarily liable to the plaintiff –– where that defendant was deregistered in the British Virgin Islands before the hearing commenced –– where the registration of that defendant was reinstated after judgment was given –– where the effect of reinstatement is that the defendant is deemed always to have existed –– where although reinstated that defendant was in the course of being wound up –– where the full amount of the judgment is paid into court on behalf of the defendant who is primarily liable as a condition of a stay of execution of the judgment against that defendant by consent of the plaintiff –– where the payment was not made from the funds of that defendant –– where the other defendant has reasonable prospects of success on appeal – where the financial circumstances of the plaintiff give rise to a real risk that a successful appellant will not be able to recover any amount of the judgment paid to the plaintiff –– unqualified stay of execution of judgment granted to defendant not primarily liable pending determination of appeal

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of trade — whether employee should be released from an undertaking provided to an employer on an interlocutory basis — where undertaking is inherently indefinite — where, regardless, it is appropriate that the Court allows for a replacement undertaking to be given.

Catchwords:

CIVIL PROCEDURE - application for Court endorsement of proposed §1782 application under Title 28 of the United States Code -

Catchwords:

CONTRACTS — MORTGAGES AND SECURITIES — Mortgages — Mortgage contracts — Whether certain monies were advanced to plaintiffs and intended to be secured by mortgage — Where contract contained an “all monies” clause — Construction of “all monies clause” CONTRACTS — MORTGAGES AND SECURITIES — Mortgages — Mortgage contracts — Covenants — Construction of convents concerning repayment of principal and interest — Where mortgagor liable to repay mortgage and accrued interest on demand for repayment CONTRACTS — Formation — Consideration — Where mortgagee promised mortgagor that she and her husband could live in property subject of the mortgage for as long as they wished and he would not call upon the mortgage until the property was sold — Whether mortgagor’s promise part of the consideration provided for mortgage contract ESTOPPEL — Promissory estoppel — Where mortgagee promised mortgagor that she and her husband could live in property subject of the mortgage for as long as they wished and he would not call upon the mortgage until the property was sold at the time mortgagor executed mortgage document — Whether mortgagee estopped from making demand under mortgage prior to conditions being fulfilled MORTGAGES AND SECURITIES — Mortgages— Whether demand made

Catchwords:

JUDGMENTS AND ORDERS – order for discovery made in accordance with plaintiffs’ application – proper construction of the order

Catchwords:

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Applications under s 411 of the Corporations Act 2001 (Cth) for orders approving proposed schemes of arrangement Single member schemes to obtain ancillary relief under s 413 of the Corporations Act – Where certain creditors wrote letters of objection but did not appear

Catchwords:

PROCEEDS OF CRIME – award of costs – whether “all costs” should be awarded to the appellants who succeeded in securing an order that certain property be excluded from a freezing order

Catchwords:

CONTRACTS — Construction — Interpretation – whether contract for sale of a vessel with an annexed marina berthing agreement form a single agreement – whether special condition to contract for sale imposes an obligation to rent a marina berth for a fixed term – whether special condition is inconsistent with an implied right to terminate on notice arising from the standard terms of the annexed marina berthing agreement – primacy between inconsistent terms

Catchwords:

APPEALS — Leave to appeal — parens patriae jurisdiction — where Secretary of the Department of Communities and Justice had assumed care responsibility for applicant’s child — care proceedings part-heard in the Children’s Court —finding by primary judge that the applicant had not established exceptional circumstances to justify interfering with orders made by Children’s Court — whether applicant established any issue of principle, question of general public importance or injustice such as to warrant a grant of leave to appeal

Catchwords:

CIVIL PROCEDURE — cross-vesting — transfer to Federal Court — relevant factors — proceedings touching upon trademarks and patents — whether Federal Court’s “experience” in intellectual property a sufficient factor

Catchwords:

HUMAN RIGHTS – Anti-discrimination – Complaint of race, sex and disability discrimination in the provision of services and by an Industrial Organisation – Direct discrimination – Indirect discrimination – Aiding and abetting

Catchwords:

APPEAL — no question of law - leave to appeal from decision of Consumer and Commercial Division of NCAT - leave to appeal refused RESIDENTIAL TENANCY - termination of residential tenancy agreement - non-payment of rent - loss of employment or income - whether a result of the impact of the COVID-19 pandemic - s 228B Residential Tenancies Act 2010 (NSW)

Catchwords:

STRATA TITLE- appeals from orders of Tribunal requiring appellants to remove work carried out by them on common property without authority and to pay legal costs of body corporate - finding that work was carried out on common property upheld-adverse costs order upheld- appeals dismissed

Catchwords:

DEVELOPMENT APPLICATION – short term rental accommodation – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – subdivision and dwelling house development – cl 4.6 variation to height – conciliation conference – agreement between the parties – orders

Catchwords:

CRIMINAL LAW – appeal – leave to appeal against conviction – convictions on four counts of acts of indecency on a child under 16 years and two counts of sexual assault on a child under 10 years – child aged between 5 and 8 years – incidents alleged to have occurred between 2013 and 2016 – first complaint in January 2016 and further complaint in May 2017 where child’s evidence displayed some uncertainty about timing of some incidents – whether trial judge erred in declining to give a forensic disadvantage direction – Evidence Act 1995 (NSW) s 165B – whether accused suffered significant forensic disadvantage because of the consequences of delay – significance of accused’s misconduct in making threats to the child

Catchwords:

Costs-dental practitioner successfully obtained stay of suspension of registration and successfully appealed against suspension – offers had been made to Dental Council suggesting terms of consent orders to be submitted to Tribunal – offers not accepted –application for indemnity costs – principles applicable to Calderbank offers in regulatory matters – indemnity costs orders refused – costs orders made on ordinary basis

Catchwords:

APPEAL - financial management application-procedural fairness-conduct of the hearing -reasonable opportunity to be heard - apprehended bias-application of law concerning incapability of managing affairs-no error of law-no plain error of fact

Catchwords:

DEVELOPMENT APPEAL – multi dwelling development in low density residential zone – conciliation conference – agreement between the parties - orders

Catchwords:

CRIMINAL LAW – sentence appeal – supply large commercial quantity of MDA and possession of firearms – whether sentencing judge applied the early plea discount to the indicative sentences – ambiguity in sentencing judge’s reasons amounting to error of law – appeal against sentence allowed – need to re-sentence.

Catchwords:

DEVELOPMENT APPEAL – boarding house – pedestrian access – streetscape – suitability of site – orders

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HEALTH – professional registration and discipline – complaints – dental practitioner – where delegates ordered suspension of practitioner – application for a stay of suspension pending hearing of an appeal under ss 159 and 159B of the Health Practitioner Regulation National Law No 86a of 2009

Catchwords:

PROFESSIONS AND TRADES- health practitioner- pharmacist- convicted of offence under Poisons Act UNSATISFACTORY PROFESSIONAL CONDUCT-cancellation of registration- protective orders

Catchwords:

PRACTICE AND PROCEDURE — stay of publication of prohibition order

Catchwords:

CRIMINAL LAW – appeal against sentence – dangerous driving occasioning death – fail to stop after vehicle impact causing death – whether sentencing judge erred in assessment of objective seriousness of failing to stop and assist – whether sentencing judge failed to accept applicant’s remorse – leave to appeal granted – appeal upheld and applicant resentenced

Catchwords:

PROCEDURE – cross-examination – respondent to application for costs reads affidavit – application for cross-examination – possibility of prosecution for contempt arising out of matters to be the subject of cross-examination – application refused.

Catchwords:

CIVIL LAW - order for possession of land - writ of possession - where defendant seeks to refinance - where one creditor does not oppose stay - not altruistic - whether attempt to refinance futile - not completely uninteresting legal argument - ostensibly bloody-minded approach tempered - where writ previously stayed on ground attempts to refinance continue - evidence suggests on cusp of refinance - relevance of hardship - medical emergency

Catchwords:

COSTS – application by director resident in Italy and minority shareholder for company records – substantive orders obtained by consent – whether plaintiff should obtain favourable costs order – whether second defendant had delayed unreasonably – whether non-production of documents other than inadvertent – plaintiff imminently to commence further proceedings – inappropriateness of determining issues on an application for costs – proceedings dismissed with no order as to costs.

Catchwords:

TORT – defamation

Catchwords:

TORT – defamation – imputations – form and capacity

Catchwords:

CORPORATIONS — Directors and officers — Authority and powers — whether assets may be accessed — where the allocation of shares is such that there is not enough voting power to do so. CIVIL PROCEDURE — Cross-vesting — Transfer to Family Court of Australia — Relevant factors — where interim relief has already been sought in the Family Court of Australia that would achieve the interlocutory outcome sought in this Court — transfer order refused.

Catchwords:

CRIME — Bail — Variation application

Catchwords:

COSTS – party/party – bases of quantification – assessment as a gross sum – no issue of principle

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – risk of death or serious injury PROCEDURAL – reasonable practicability – likelihood of risk – knowledge of the risks – what defendant ought reasonably to have known

Catchwords:

COSTS – public interest immunity – Cabinet document – Commonwealth sought to rely on evidence not provided to other side in order to support claim of public interest immunity – basis of claim not otherwise disclosed – other side promptly conceded claim of public interest immunity once basis disclosed – appropriate order as to costs

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs

Catchwords:

COSTS – variation to costs order sought by the defendant – resolution of separate question

Catchwords:

CRIME – work health and safety – risk of death or serious injury – duty of person undertaking business PROCEDURAL – reasonable practicability – likelihood of risk – knowledge of the risk – what the defendant ought reasonably have known OTHER – fall from height in unprotected void – risk of the dangers posed by the void were known – failure to adequately implement work health and safety management system plan – inadequate fall protection

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of a person undertaking business – risk of death or serious injury PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought to have known OTHER – unrestrained steel headstocks stored on barge – no adequate risk assessment of storing headstocks in an upright position unrestrained

Catchwords:

CIVIL PROCEDURE – proceedings commenced in Commercial List – whether proceedings should be transferred to the Corporations List – where issues in proceedings relate to other proceedings in the Commercial List – where Commercial List judge has ordered proceedings be managed together

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay – appropriate sentence OTHER – failure to notify SafeWork of a notifiable incident – failure to consult, co-operate and co-ordinate activities with other persons who had a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW)

Catchwords:

CRIMINAL LAW – sentencing – - fraud offences – solicitor misappropriation of clients’ monies in trust – multiple offences – additional offences on Form 1 – significance of offender’s Bipolar Disorder (1) which was undiagnosed at time of offending – whether causal nexus to offending – weight to usual sentencing considerations for offences of this kind, being general and personal deterrence – whether’ special circumstances’ arose

Catchwords:

BAIL – Terrorism offence – no threat subsisting – but circumstances not exceptional – bail refused.

Catchwords:

CIVIL PROCEDURE – advance ruling as to admissibility of evidence – s 192A Evidence Act 1995 (NSW) – whether material contained in defendant’s affidavit evidence is inadmissible under s 131 of the Evidence Act – whether exception in s 131(2) applies – whether impugned material amounted to an admission – held that whether or not material amounts to an admission the rights exception in s 131(2) is not invoked – material held to be inadmissible

Catchwords:

FAMILY LAW – Children – Adoption – Whether adoption in best interests of children and clearly preferable to any other action that could be taken – Whether consent of birth parents should be dispensed with – Change of name – Registration of adoption plan

Catchwords:

TORT – defamation – award to plaintiff of $125,000 damages for Facebook post – interest at 3% awarded on judgment sum – application for indemnity costs – plaintiff successful on first but not on second claim – degree of overlap between the matters complained of - s 40 Defamation Act 2005 - defendant fails to respond to, or to make, any offers – whether defendant’s conduct of the proceedings warranted the making of indemnity costs orders – defendant ordered to pay 90% of the plaintiff’s costs on an indemnity basis

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BAIL – Murder – Aboriginal offences – special considerations necessary – applicant not shown cause – unacceptable risk – bail refused.

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CHANGE OF USE – conciliation conference – agreement between the parties – change of use from shop top housing development to a child care facility

Catchwords:

CIVIL PROCEDURE – Application for summary dismissal – Proceedings brought against Sheriff of NSW for trespass following execution of writ of possession – Application of Sheriff Act s 7A – No arguable causes of action in trespass to land, person or goods disclosed in statement of claim or in the proceedings – Proceedings against second defendant dismissed

Catchwords:

JUDICIAL REVIEW – application to review numerous matters related to criminal prosecutions – need to identify decisions – need to identify grounds – repetition of grounds previously dismissed – abuse of process JUDICIAL REVIEW – application to review sentence imposed by district Court – operation of statutory stay – stay following grant of bail – Supreme Court Act 1970 (NSW), ss 69, 69A, 69C PRACTICE AND PROCEDURE – bail – pending application for special leave to appeal to the High Court – no evidence that application filed – special circumstances PRACTICE AND PROCEDURE – repeat application for judicial review – reopening dismissed application – whether frivolous and vexatious – Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Catchwords:

CIVIL PROCEDURE – subpoena – objection to production of documents – client legal privilege – section 41(3) Land Acquisition (Just Terms Compensations) Act 1991 – whether Valuer-General is entitled to protection afforded by legal privilege – Valuer-General is entitled to such protection – relevant documents are privileged – no implied waiver of privilege

Catchwords:

CRIME – appeals – application for leave to appeal against sentence – offences of dishonestly obtaining a financial advantage by deception – where applicant was aged between 23 and 26 years of age at time of offending – whether sentencing judge should have had regard to applicant’s youth and asserted immaturity – boundaries of youth and adult responsibility – whether offender acted as an “adult” – whether sentence was manifestly excessive

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Human Tissue – removal of sperm from deceased person for Invitro Fertilisation – storage of gametes – whether plaintiff entitled to possession of stored sperm for use in Invitro Fertilisation in ACT.

Catchwords:

COSTS – No issue of principle

Catchwords:

COSTS – partial success of appellants on appeal – determination of costs of appeal and re-exercise of discretion as to costs at trial – second appellant not originally joined to proceedings at trial – first appellant played no role in proceedings after hearing of principal appeal – successful point not raised until first day of trial – whether global order as to costs, or orders relating to particular aspects of the litigation, should be made

Catchwords:

CONTRACTS – construction – whether mistake in written agreement can be rectified by construction – inconsistency concerning right to terminate on face of document – primacy given to handwritten amendments COSTS – appeal books – unnecessary reproduction of thousands of pages already reproduced in appeal books – whether special order as to costs warranted DEEDS – delivery – whether deed restating terms of joint venture delivered to other side in escrow – whether terms of document precluded finding of delivery in escrow – whether deed even if not delivered effective as simple contract ELECTION AND WAIVER – where one party continued to perform work and incur expenses pursuant to joint venture after a contractual right of termination had accrued – absence of any reservation of rights – significance of “no waiver” clause EQUITY – ancillary liability – liability for procuring or inducing breach of trust or breach of fiduciary duty – whether requirement that third party be “dishonest” – whether separate bases of liability for procuring as opposed to inducing breach – whether director of company acting as such capable of procuring or inducing breach of trust by director's company EQUITY – rectification – whether contract should be rectified in equity if mistake incapable of being corrected by construction EQUITY – unconscionability – statutory unconscionability – joint venture to develop land for resale – offer made to one party to sell part of joint venture land at profit – offer communicated to other party with invitation to share profit – other party sought to persevere with joint venture – first party purported to terminate and sell land – finding that first party believed entitled to terminate – in fact first party not entitled to terminate – first party’s conduct not unconscionable contrary to s 21 of Australian Consumer Law

Catchwords:

COSTS – Offer of compromise made under Uniform Civil Procedure Rules r 20.26 – Calderbank offer – Whether offerees had access to enough information to properly consider the offer – Whether the offeree had a reasonable time to consider the offer – Where offer related to two interrelated proceedings and only one was successful – Whether costs order of freezing order made by consent should be set aside EQUITY – Apportionment of trust assets following tracing – Where successful plaintiffs found to have interests in trust property in different percentages - Held appropriate for the each successful plaintiff to select assets to be transferred to each of them in specie for an amount equivalent to the respective percentage rather than each plaintiff be allocated a share of each individual asset

Catchwords:

Unfair Dismissal - Interlocutory proceedings – Orders sought to stay application during the currency of any criminal appeal proceedings – relevant principles to apply – interests of justice – public interest - prejudice to both parties - stay ordered until Court of Criminal Appeal matter concluded

Catchwords:

JUDICIAL REVIEW – challenge to decision of Independent Planning Commission to refuse development consent for new coal mine – state significant development – construction and application of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 in assessment of greenhouse gas impacts of new coal mine – no failure to refer project to Minister for Regional Water for advice as required by State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 – no failure to apply State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 requirements in considering impacts on water resources – no failure to accord procedural fairness to proponent in relation to Aboriginal heritage protection, alternative sources of coal, groundwater, greenhouse gas emissions in Independent Planning Commission identifying that insufficient evidence – summons dismissed

Catchwords:

OCCUPATIONS – real estate salesperson – whether fit and proper person to hold certificate of registration

Catchwords:

CRIMINAL LAW – Case stated by a Judge of the District Court of NSW – Applicant convicted of recklessly damaging property by fire – Three questions submitted for the Court’s determination – Observations as to the purpose of the stated case procedure – Procedure does not confer a general right of appeal – Emphasis on the fact that the procedure is centred upon questions giving rise to consideration of matters of principle which are of general application – Lack of clarity in question posed – Attempt to challenge the ultimate determination which was made in the Court below – Appropriate case in which to invoke the discretion of the Court to decline to answer the questions asked

Catchwords:

APPEALS – Residential tenancy proceedings – Where tenant did not appear at hearing and Tribunal made orders terminating the residential tenancy agreement and for the payment of rental arrears – Where tenant claimed that the Tribunal did not telephone him at the time of the hearing – Whether evidence established that Tribunal failed to telephone the tenant – Whether leave should be granted to appeal on ground that finding about rental arrears was erroneous

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REAL ESTATE AGENTS – managing agent contract- compliance with Property and Stock Agents Act 2002 CONSUMER CLAIM – time limit on making claims LIMITATION OF ACTION- time for commencing proceedings for consumer claims

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CHILD CARE APPEAL – interlocutory application by appellant father seeking interim orders pending determination of his substantive appeal from the final orders made by the Children’s Court allocating parental responsibility for his child to the Minister

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APPEAL — principles applying to granting leave to appeal from decision made by Guardianship Division of the NSW Civil and Administrative Tribunal

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LICENSING - firearms licence – revocation – exercise of discretion - public interest

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DAMAGES – breach of duty of care admitted by defendant – credibility of plaintiff and his witnesses –witnesses not accepted unless corroborated by other evidence

Catchwords:

EVIDENCE – hearsay – s 65(2)(c) Evidence Act exception where maker not available – admission of electronically recorded interview with deceased complainant – approach to be taken in determining reliability of representations in interview – whether primary judge erred in taking “global approach” contrary to Sio v R (2016) 259 CLR 47 EVIDENCE – hearsay – s 65(2)(c) Evidence Act exception where maker not available – whether primary judge erred in finding that representations made in circumstances that make it highly probable they are reliable – relevance of prior inconsistent representations – whether matters relevant to credibility but not part of “circumstances” under s 65(2) EVIDENCE – s 137 Evidence Act exclusion of prejudicial evidence in criminal proceedings – unfair prejudice alleged to arise from inability to cross-examine complainant – whether primary judge took into account an irrelevant consideration in noting the “public interest” in prosecuting serious crimes – danger of unfair prejudice did not outweigh probative value CRIME – appeals – appeal against conviction – unreasonable verdict – sexual assault – whether Crown proved beyond reasonable doubt that complainant did not consent to Counts 2, 4, 5 – open to judge to hold no reasonable doubt as to Count 3 SENTENCING – re-sentence on appeal – offence of aggravated sexual assault – forcible anal rape of cognitively impaired and physically disabled complainant – need for general and specific deterrence

Catchwords:

LAND LAW — Strata title - Strata Schemes Management Act 2015 - use or enjoyment of common property and lot – video cameras installed by lot owner inside lot, not on common property - no finding that interference by appellant was unreasonable under s 153 (1) Strata Schemes Management Act 2015 - question of law - nuisance - absence of reasons.

Catchwords:

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

Catchwords:

CONTRACT – oral contracts concerning debt, joint venture to exploit inventions and rural properties – primary judge rejected claims in contract – no claim advanced in equity for partnership or breach of fiduciary duty – such claim renounced by senior counsel appearing at trial – no error in primary judge declining to address such claim – no error in rejection of oral contracts – appeal dismissed RESULTING TRUST – presumed resulting trusts – cross-appellant purchased rural lands and placed in joint names of him and first cross-respondent, or in sole name of second cross-respondent – primary judge found presumption of resulting trust rebutted – whether appellable error in so finding – testimonial evidence by cross-respondents – cross-appellant gave no evidence – one cross-respondent not cross-examined on her evidence of beneficial ownership – documents supported rebuttal of presumption – cross-appeal dismissed

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION – New garage at front to replace existing garage at rear – semi-detached pair – controls preference rear garages – loss of verge street tree – proposal will increase onsite open space and landscaping – streetscape impacts – application of s 4.15(3A) of the EPA Act – precedent

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant had pleaded guilty to an offence of causing grievous bodily harm with intent to cause grievous bodily harm – Where applicant asked the sentencing judge to take additional offences into account on a Form 1 – Where applicant had a severe psychotic mental illness which was causally related to his offending – Whether the sentencing judge erred in failing to give sufficient weight to the applicant’s mental illness – Whether the sentencing judge erred in failing to give sufficient weight to the evidence of the applicant’s childhood deprivation and exposure to alcohol abuse and violence – Whether the sentence was manifestly excessive – Objectively serious offending and an associated need to protect the community – Strong subjective case – Ground of appeal asserting manifest excess established – Special circumstances justifying adjustment of statutory ratio – Applicant re-sentenced

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Applicant seeking an extension of time in which to seek leave to appeal against sentence – Where applicant pleaded guilty to the supply of a large commercial quantity of a prohibited drug – Evidence of money derived from that supply – Whether sentencing judge erred in treating the applicant’s financial gain as an aggravating factor – Where sentencing judge made no express reference to that being an aggravating factor – Where sentence proceedings not conducted on that basis – No ambiguity in the sentencing judge’s reasons – Unwarranted parsing of reasons – Ground of appeal not made out – Extension of time refused

Catchwords:

CRIME — Appeal — Appeal against conviction — point not raised below – where expert evidence admitted in first trial was ruled inadmissible in second trial – where ruling of trial judge in second trial was upheld in Court of Criminal Appeal – where following second trial the applicant sought leave to appeal against conviction in first trial – where no objection was taken to evidence at first trial – leave granted under r 4 Criminal Appeal Rules (NSW) as admission of the evidence led to a miscarriage of justice CRIME — Appeal — Appeal against conviction — miscarriage of justice — where Crown relied on the complainant’s drawing depicting an “abnormal skin flap” on applicant’s penis – where Crown adduced expert evidence from a general practitioner that there was no “major abnormality” in the applicant’s penis but it was “moderately unusual” – where general practitioner did not have specialised knowledge of anatomy or urology based on relevant training, study or experience – where jury invited to make comparison of drawing and photograph based on expert evidence of abnormality – held, admission of evidence led to miscarriage of justice – appeal allowed, conviction set aside – verdict of acquittal entered

Catchwords:

CRIMINAL LAW – trial by judge alone – single count of murder – elements of murder established – whether partial defence of substantial impairment established – s 23A of the Crimes Act 1900 (NSW) – where there is evidence of the accused having a complex Post-Traumatic Stress Disorder, Foetal Alcohol Spectrum Disorder and an intermittent explosive disorder – where the accused’s capacity to control himself in the weeks leading to the incident deteriorated – accused found guilty of manslaughter

Catchwords:

CRIME — Serious crime prevention orders — Application – consideration of section 5(1) of the Crimes (Serious Crimes Prevent Orders) Act 2016 - defendants said to be members of the Hamze organised crime network – evidence of escalating violence with Alameddine organised crime network – each defendant previously convicted of a serious criminal offence - whether there is a real or significant risk that each defendant will be involved in serious crime related activity - whether reasonable grounds to believe order would protect the public by disrupting involvement of defendants in such activity – application of Vella v Commissioner of Police (NSW) [2019] HCA 38 - what is the appropriate content of such orders - order granted for term of 12 months

Catchwords:

CRIMINAL LAW - sentencing - guilt by association - association with member of terrorist group - first offence charged under provision - objective seriousness - factors relevant to assessment - first offender - no previous convictions - statutory constraints on sentencing discretion - whether imprisonment only appropriate sentence - unavailability of alternatives - where offender served 18 months on remand in harsh conditions - offender entitled to imminent release

Catchwords:

DEVELOPMENT APPLICATION – North Chatswood Heritage Conservation Area – driveway in front setback – orders by consent

Catchwords:

PRACTICE AND PROCEDURE – Application for summary dismissal – Where plaintiff sought to bring an action against his former lawyers – Where proceedings statute barred – Whether plaintiff under a disability for any relevant period – Whether appropriate to make an order for summary dismissal in circumstances where a limitation issue arose – Where evidence did not establish that the plaintiff was under a disability for the relevant period – Where there was objective evidence supporting the conclusion that the plaintiff was able to manage his affairs – Where causes of action clearly statute barred – Proceedings dismissed

Catchwords:

CRIME — appeal against conviction — murder by shooting — evidence that one of two men present at the scene shot the deceased — where Crown case put in the alternative that the applicant was either the shooter or in a joint criminal enterprise with the shooter — evidence in Crown case tending to exclude the applicant as the shooter — whether verdict unreasonable

Catchwords:

TORT – Application to discharge freezing order – application for indemnity costs payable forthwith in a gross sum costs order – no issue of principle

Catchwords:

CIVIL PROCEDURE - approval of settlement - legal incapacity - medical negligence - issues of liability - compromised settlement - whether in plaintiff’s best interests - approval granted - no question of principle

Catchwords:

CRIME – SENTENCE – guilty plea – manslaughter – fight between two armed men - excessive self-defence – use of weapon – relevance of drug addiction to sentence

Catchwords:

CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — Form and content

Catchwords:

BUILDING AND CONSTRUCTION — Contract – the Plaintiff (a landowner) and the Defendant (a developer) entered into a contractual arrangement by which the Plaintiff would sell her property to the Defendant for $3.5M of which $2.5M was payable in cash and which included an agreement that the Defendant would on completion of the development reconvey to the Plaintiff two lots (which later became three lots) with completed dwellings (a “House” and a “Duplex”) constructed on the lots (“the Reconveyance Contract”) – a “Sunset Clause” provided that the contract could be rescinded by either party “at any time” after 24 May 2017; registration of the relevant subdivision plans was achieved by May 2018. The parties then fell into a dispute concerning the dimensions of the residences required by the Reconveyance Contract to be constructed – issues which arose were: (1) whether the Defendant was in breach of the Reconveyance Contract in failing to complete the construction and reconveyance; (2) whether specific performance or an order for partial specific performance was available; (3) whether the Defendant had a contractual right of rescission pursuant to the Sunset Clause (cl 32.1.4 of the Reconveyance Contract); (4) whether the limitation on damages in cl 32 of the Reconveyance Contract was limited to rescission; (5) whether the reference in cl 30.1 of the Reconveyance Contract to 241.54m2 was a reference to the size of the Duplex or to the two residences forming part of the Duplex –Held: (1) the dimensions of 241.54m2 is a reference to the total area of the Duplex rather than a reference to each residence; (2) the Defendant was in breach of the requirement to provide a layout plan for the House and the Duplex but this breach was rectified in late 2018; (3) the Defendant was not otherwise in breach of the Reconveyance Contract. The long delay in registration of the relevant plans of subdivision was not the fault of the Defendant. The Defendant had not wilfully and deliberately failed to achieve completion of the contract and non-completion was a consequence of the dispute about dimensions; (4) the limitation on damages was not limited to rescission; (5) specific performance or partial specific performance not available because the Defendant by failing to complete was not in breach of the contract and is willing and able to complete the Reconveyance Contract. LAND LAW — Conveyancing — Contract for sale — Rescission – The Defendant cross claimed seeking permission pursuant to s 66ZS(6) of the Conveyancing Act 1919 (NSW) (“the Conveyancing Act”) to rescind the Reconveyance Contract and later amended its cross claim to rely on s 66ZS which is the successor to s 66ZL (see s 66ZU).There were long delays in registration of the relevant plans of subdivision. The Reconveyance Contract contained a “Sunset Clause” which permitted either party to rescind if various “Conditional Matters” had not been achieved by a particular date, i.e. 24 May 2017 – Held: (1) cross claim dismissed – rescission by the Defendant should not be permitted pursuant to s 66ZS of the Conveyancing Act because it was not just and equitable to permit the Defendant to rescind. EQUITY — Equitable remedies — Specific performance – whether an order for specific performance or partial specific performance was available – Held: specific performance or partial specific performance not available because the Defendant was not in breach of the contract and is willing and able to complete the Reconveyance Contract. EVIDENCE — Privileges — Without prejudice privilege – whether without prejudice correspondence should be admitted – Held: (1) correspondence allowed into evidence – the status of the letter was doubtful but, in any event, if privileged a misleading impression would be created if that content was excluded.

Catchwords:

CIVIL LAW - appeal from Local court to Supreme Court - denial of natural justice - self-represented litigant - interlocutory application - application for stay of judgment pending appeal - application for stay of writ of execution - whether refusal to stay judgment renders nugatory the proposed appeal -

Catchwords:

CRIME — Violent offences — Stalking or intimidation CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Property offences — Destroying or damaging property ANIMALS — Animal cruelty — Causing unnecessary pain and cruelly ill-treating CRIME — Violent offences — Common assault CRIME — Violent offences — Detain for advantage

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – workers injured

Catchwords:

BAIL – Show cause – proposed home detention – and electronic monitoring – risk sufficiently ameliorated.

Catchwords:

CIVIL PROCEDURE – Alternative dispute resolution – Court referral to referee – Court’s use of report – in a May 2019 judgment of the Court the first plaintiff and the first defendant were found to each hold a 50% interest in certain real property – the balance of the proceedings concerning the parties’ contributions to the improvement of that property was to be determined by a referee, pursuant to Uniform Civil Procedure Rules 2005, r 20 – the referee produced a report to the Court on 25 May 2020 – the defendants seek orders that this report be adopted – the first and second plaintiff resist the making of such an order – where the report does not consider the contributions made to the real property by the second plaintiff, a family trust – where other complaints are made about the report the first and second plaintiff seek an adjournment to put on further evidence.

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – workers injured SENTENCING – objective seriousness – deterrence - aggravating factors – mitigating factors – good prospects of rehabilitation – plea of guilty – assistance to law enforcement authorities – remorse – Work Health and Safety Project Order

Catchwords:

CIVIL PROCEDURE – application for interlocutory injunction – passing off – misleading or deceptive conduct – where defendant without authority using similar name to plaintiff – where serious question to be tried established – where balance of convenience favoured making order

Catchwords:

FAMILY AND CHILD WELFARE – parens patriae jurisdiction – Aboriginal young person under the parental responsibility of the Minister for all aspects except culture and religion – where orders previously made authorising medical treatment and confinement of the young person as an inpatient in a medical facility for the purposes of undertaking that treatment – where orders previously made authorising the confinement of the young person to secure premises outside the medical facility after discharge from the medical facility for the purposes of continuing medical treatment as an outpatient and rehabilitation and recovery and to protect the young person from risk to their safety – where young person has frequently absconded from the secure premises – whether appropriate to continue the previous orders – appropriate to continue previous orders pending the plaintiffs arranging a more suitable placement and otherwise subject to ongoing review by the Court

Catchwords:

APPEAL – application for leave to appeal – no issue of principle or question of public importance identified

Catchwords:

APPEAL – application for leave to appeal – no issue of principle

Catchwords:

PRACTICE AND PROCEDURE – application for adjournment – no persuasive reason or basis to adjourn – application dismissed.

Catchwords:

COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – special circumstances – complexity of proceedings – statutory construction - issue not previously decided by Appeal Panel

Catchwords:

EQUITY — Trusts and trustees — Proceedings between trustees and beneficiaries — Administration of trust — Access to trust documents CIVIL PROCEDURE — Stay — Pending proceedings in other court — Arbitration — Comity and other considerations

Catchwords:

Constitutional Law, Diversity jurisdiction, residents of different States, jurisdiction of the Tribunal.

Catchwords:

INSURANCE – strata insurance policy for damage to property – property damaged by fire – occupation of a unit within the strata by an “outlaw motorcycle gang” (‘OMCG’) for use as its clubhouse – proposal form for insurance referred to nature of occupation of the unit as an 'office' – whether fact of occupation by OCMG disclosed by Insured, by its insurance broker, to underwriting agent for Insurer prior to the policy being entered into – materiality of non-disclosure of occupation by OMCG – whether Insurer entitled to reduce liability to nil under Insurance Contracts Act 1984 (Cth), s 21(3) TORTS – negligence – whether insurance broker negligently failed to disclose fact of OMCG's occupation to Insurer’s underwriting agent – whether negligent failure to advise Insured of the risk of an unenforceable policy of insurance if OMCG's occupation not disclosed – whether broker’s negligent failure to advise client of alternative options – causation – scope of liability where only part of the loss claimed premised upon Insurer’s breach of contract of indemnity – proportionate liability defence – whether author of earlier proposal form and earlier broker were 'concurrent wrongdoers' TORTS – negligence – on contingent cross-claim whether insurance agent in breach of duty of care – whether negligence is said to be direct or vicarious DAMAGES – assessment of value of indemnity if insurer liable for breach of policy LIMITATION OF ACTIONS – Insurer's contingent cross-claim against underwriting agent – premise that OMCG's occupation was disclosed contrary to underwriter's representation to Insurer – concession that if OMCG's occupation was disclosed on the insured's behalf, there was breach by underwriter of strict contractual obligation – whether cause of action against underwriter in contract statute barred – whether cause of action fraudulently concealed – Limitation Act 1969 (NSW), s 55 – whether ordinary operation of s 14 may exclude period in which wrongful conduct prevents action being commenced ESTOPPEL – conventional estoppel EVIDENCE – common knowledge – whether occupation by OMCG of a tenancy was material fact requiring disclosure to Insurer PRACTICE AND PROCEDURE – Brokers and Insured argue that duty of disclosure waived or modified by disclosure of information – no pleading of the contention – Insurer and Agent argue Owners Corporation had no standing to claim for financial loss asserted by lot owners – no pleading of absence of standing – whether arguments should be considered by the Court

Catchwords:

CRIME - sentence - accessory after murder - "execution"-style shooting - offender married to co-offender - helped drive away co-offenders and organised escape from jurisdiction - lying to police - no criminal record - six children - good character - limited remorse - custodial sentence - discount for guilty plea - special circumstances

Catchwords:

APPEALS – reopening application by non-party – stay of orders pending determination of reopening application – extension of stay granted by court making orders – admissibility of further evidence PRACTICE AND PROCEDURE – stay – joinder of affected party – whether opportunity to be heard – whether arguable case to adduce further evidence – balance of convenience

Catchwords:

CRIME – bail – appeals bail - release application – whether special or exceptional circumstances exist justifying release on bail – where applicant relies on a combination of factors to satisfy the test – where appeal has reasonably arguable prospects of success – where applicant has been unable to access medical treatment in custody – where applicant is a good candidate for bail – conditional bail granted

Catchwords:

CORPORATIONS – winding up – approval of liquidator’s remuneration and internal disbursements – no issue of principle CORPORATIONS – winding up – distribution of surplus – Corporations Act 2001 (Cth), s 488(2) – grant of special leave to distribute surplus to contributories, subject to direction under Insolvency Practice Schedule (Corporations), 90-15 CORPORATIONS – winding up – application for release of the liquidator and deregistration of the company – Corporations Act 2001 (Cth), s 480(d) – where application is prematurely made – appropriate to adjourn application to later date

Catchwords:

ADMINISTRATIVE LAW – review of decision to cancel authorisation as a carer and decision to remove the foster child from the day-to-day care of the carer – whether carer no longer suitable to be an authorised carer - failing to notify the agency of being approached by police of a very serious risk of harm incident and then maintaining a relationship with the person who was a person of interest in that incident

Catchwords:

COSTS – application by plaintiff for indemnity costs following judgment; PRACTICE & PROCEDURE – refusal of defendant’s application for a stay

Catchwords:

ADMINISTRATIVE LAW – security industry – applicant convicted under s 316(1) of the Crimes Act of the offence of ‘conceal serious indictable offence of another person’ – whether that offence is an offence involving dishonesty – mandatory refusal ground WORDS AND PHRASES – ‘an offence involving fraud, dishonesty or stealing’

Catchwords:

COSTS - party/party – preliminary discovery – where Registrar ordered preliminary discovery against two parties – where review of Registrar’s decision sought by one party – where after hearing of review application defendant made offer to provide documents - whether offer amounted to surrender - where defendant did not provide any explanation of what changed to explain why offer was eventually made - where plaintiff’s position remained unchanged throughout - where plaintiff entitled to costs of the notice of motion to review the Registrar’s decision

Catchwords:

CRIMINAL LAW – appeal against conviction – jury verdict of guilty to an alternative count of recklessly causing grievous bodily harm – Crown concession of error by trial judge in refusing to admit a video into evidence – whether proviso should be applied – whether oral testimony contrary to the Crown case was obviously false – unnecessary to consider whether case was extreme – powerful prosecution case – credibility of witnesses was crucial – witness’ credibility undermined by evidence of police officer – witness credibility supported by the video – appellant denied fair chance of acquittal – new trial ordered

Catchwords:

COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers

Catchwords:

PROFESSIONS AND TRADES - health care professionals - medical practitioners – application to dismiss appeal

Catchwords:

CORPORATIONS – winding up – where company in liquidation – where assets available in liquidation sufficient to declare dividend to priority creditors – application by liquidators for directions concerning proposed distributions to priority creditors – Insolvency Practice Schedule (Corporations), Corporations Act 2001 (Cth), Sch 2 – Corporations Act s 556(1) CORPORATIONS – where secured creditor advanced moneys to administrators – whether administrators entitled to indemnity for monies borrowed – Corporations Act ss 443A(1) and 443D – whether administrators liability to the secured creditor is a priority claim – Corporations Act s 556(1)(c) CORPORATIONS – where receivers made payments to former employees after commencement of winding up – whether secured creditor entitled to be subrogated to priority position of employee creditors – Corporations Act s 556(1)(e) – where receivers failed to pay amounts owing to other employees under s 556(1)(e) – Corporations Act, s 433(3) – where secured creditor acknowledged liability to company for amounts not paid by receivers to other employee creditors – whether insolvency set-off available – Corporations Act, s 553C(1) – whether secured creditor had notice of fact of insolvency at time of receiving credit from the company – Corporations Act, s 553C(2) – whether equitable set-off available as alternative to insolvency set-off EQUITY – whether rule in Cherry v Boultbee available as alternative to insolvency set-off CORPORATIONS – where creditor made payment on account of employees’ wages at the direction of the company – whether creditor entitled to priority for payment – Corporations Act s 560 and s 556(1)(e)

Catchwords:

ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure – whether to refuse to deal with application on the basis of a previous application for the information concerned – whether information held by agency

Catchwords:

LICENSING – security industry – refusal of licence – previous revocation of licence – whether fit and proper person – public interest – scheme to circumvent the New South Wales system – earlier withdrawal of application to review decision – whether unchallengeable historical fact.

Catchwords:

ENVIRONMENT AND PLANNING — Fences and boundaries — “Dividing fence” – Definition of fence – Replacement of retaining wall and dividing fence - Whether retaining wall was “any foundation or support necessary for the support and maintenance of the fence” – Whether there was a constructive failure to exercise jurisdiction by not determining whether the tree or trees on or near the common boundary should be removed – Whether the contribution required from the adjoining owner includes engineering costs for the retaining wall

Catchwords:

CRIMINAL LAW – Sentence – Appeal against sentence – Whether sentencing judge erred in failing to give effect to finding of special circumstances – Sentencing judge plainly considered the effect accumulation would have on the overall length of time spent in custody – No error established CRIMINAL LAW – Sentence – Appeal against sentence – Where sentencing judge erred by one day in fixing commencement date for firearms offences – Minor error in calculation not a legal error requiring the exercise of sentencing discretion afresh – Application of Lehn v R (2016) 93 NSWLR 205 – Sentence adjusted by one calendar day

Catchwords:

COURTS AND JUDGES - bias - apprehended bias –appeal – judge-alone trial - where trial judge recognised a crucial Crown witness as a shop assistant with whom she had dealt over a lengthy period – where the credibility of the witness and the applicant were in issue - where judge should have disqualified herself - where new trial ordered CRIME - appeals - appeal against conviction - unreasonable verdict - where applicant found guilty of historical sex offences - whether findings of guilt were reasonably open - whether there had been substitution of the applicant for another perpetrator - where a number of other persons who worked at the home were convicted of sexual offences - where evidence does not disclose any basis for the submission that displacement had occurred - where trial judge did not find applicant to be reliable witness - where trial judge formed a favourable impression of complainants notwithstanding some shortcomings in their memories - where no reasonable doubt that the applicant was guilty

Catchwords:

CRIMINAL LAW – Sentence appeal – Offence of supplying not less than a large commercial quantity of methylamphetamine – Whether sentencing judge erred in characterising conduct as slightly above the mid-range of objective seriousness – Eschewing labels – Where applicant played trusted and integral role in large scale drug supply – No error in assessment CRIMINAL LAW – Sentence appeal – Manifest excess – Whether sentence was manifestly excessive in the circumstances – Statistic relating to sentences imposed for supplying large commercial quantity of drugs – Sentence not manifestly excessive in the circumstances

Catchwords:

APPEALS — Application for leave to appeal — principles to be applied in determining whether a person poses a risk to the safety of children under s 18 Child Protection (Working with Children) Act 2012 (NSW) – application of principles stated in M v M – whether allegations are to be assessed by three-step process – whether lingering doubt to count against applicant – whether Tribunal failed to consider accumulated weight of allegations – held, issue of principle raised – leave to appeal granted

Catchwords:

CIVIL PROCEDURE – advance ruling as to admissibility of evidence – s 192A Evidence Act 1995 (NSW) – parties enter into “Standstill Agreement” by which they agree to conduct without prejudice negotiations in relation to new agreement for lease –whether impugned material is within provisions of Standstill Agreement or subject of without prejudice privilege and inadmissible under s 131 of the Evidence Act – held that internal documents not created “in relation to” proposed new agreement for lease and not within terms of Standstill Agreement – internal documents held not to be communications between persons in dispute within meaning of s 131 – held that absence of material at trial may create misleading impression of inactivity in relation to status of new lease – ruling that most of impugned material not inadmissible.

Catchwords:

CIVIL PROCEDURE – stay of proceedings – applicant a medical practitioner facing disciplinary proceedings in Tribunal and pending criminal proceedings – both proceedings to deal with the same alleged misconduct – application of Zhao (2015) 255 CLR 46 – applicant would suffer prejudice if disciplinary proceedings not stayed until criminal proceedings resolved – applicant’s registration as a medical practitioner suspended – delay in resolving disciplinary proceedings a relevant but not critical factor

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing residential dwelling plus new carport and studio – excavation – consistency with character and streetscape – scenic quality – tree retention and protection – solar access

Catchwords:

DEVELOPMENT APPPLICATION – brewery and ancillary taproom/restaurant – conciliation – agreement – orders

Catchwords:

PROCEEDS OF CRIME – Proceeds of Crime Act 2002 – application for exclusion order – property including interest in bank account – deposits made to account by way of money laundering – “cuckoo smurfing” – whether property ceased to be proceeds of crime – whether circumstances were such that would not arouse a reasonable suspicion that the property was proceeds of an offence or an instrument of an offence

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – demolition – heritage conservation

Catchwords:

CRIMINAL LAW – appeal pursuant to s 5F – interlocutory decisions – whether error in refusing an application for separate trials – whether failure to properly construe and apply ss 97, 101 of the Evidence Act 1995 (NSW) in finding that the evidence with respect to each of the complainants was admissible as tendency evidence – whether error in not excluding evidence due to risk of unfair prejudice to applicant pursuant to s 101 of the Evidence Act.

Catchwords:

COMPULSORY ACQUISITION OF LAND – acquisition resulting in denial of services to residue lot, compensation, easement for services – conciliation conference – agreement between the parties – orders

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Applicant an unlawful non-citizen who pleaded guilty to offences arising from dishonestly obtaining a passport and associated offences of revenue fraud – Whether sentencing judge erred by taking into account the fact that the applicant was an unlawful non-citizen when assessing the objective seriousness of the fraud offences – Applicant’s unlawful citizenship status inextricably linked to the fact that he was not entitled to the benefits he obtained – Error not established CRIMINAL LAW – Offences – Sentence – Appeal – Applicant an unlawful non-citizen who pleaded guilty to offences arising from dishonestly obtaining a passport and associated offences of revenue fraud – Whether sentencing judge erred in finding that the fraud offences were well above the mid-range and moving towards the upper end of the scale of objective seriousness – Error not established – Observations as to the breach of trust inherently involved in offending of this kind

Catchwords:

SENTENCING - appeal against sentence - doing an act intending to pervert the course of justice - where applicant’s subjective circumstances revealed profound disadvantage and dysfunction - whether sentencing judge failed to find that the applicant’s moral culpability was reduced by reason of her disadvantaged background and mental health - where ample evidence of relationship between appellant’s circumstances and offending - where sentencing judge acknowledged personal subjective circumstances but did not take into account when sentencing - where merely referencing circumstances is insufficient - where sentencing judge ought to have mitigated the weight to be given to general deterrence

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – cl 4.6 variation to height – conciliation conference – agreement between the parties – orders

Catchwords:

COSTS — Party/Party — Whether costs should follow the event — Basis of quantification — Whether costs should be paid on an ordinary or indemnity basis — Where defendants’ motion seeking dismissal of plaintiffs’ claim or permanent stay dismissed — Where no conduct on the part of the plaintiffs that would disentitle them to their costs

Catchwords:

COSTS – application for indemnity costs based on Calderbank letters – application for a costs order against a third party director of the plaintiff

Catchwords:

TORT – defamation – rulings on evidence during jury trial

Catchwords:

DEFAULT JUDGMENT – $3M fraud by trusted employee – feigns wife’s suicide – both leave for Spain – substituted service by email and Facebook – leave to proceed against overseas defendants – unliquidated claim – 57 transactions analysed by forensic accountant – damages proved – gross sum costs order.

Catchwords:

TRUSTEES — jurisdiction to give judicial advice – whether to give advice in this case – litigious estate – appropriate to give advice to protect the estate and its trustee.

Catchwords:

CRIMINAL LAW – historical sexual offences – accused’s application for permanent stay – alleged abuse of process on account of oppression to accused – delay in bringing charges – prospective fourth prosecution against accused since Royal Commission – accused fit to stand trial, but suffers impairment in short term memory – whether accused may obtain a fair trial

Catchwords:

GUARDIANSHIP – application for a guardianship order – restrictive practices function – whether a guardianship order should be made – restrictive practices – residential aged care – right to freedom of movement and liberty – whether use of a coded keypad lock system constitutes a restrictive practice – chemical restraint – Quality of Care Principles 2014 (Cth) – subject person resides in memory support unit with coded keypad lock system – whether use of a coded keypad lock system could amount to ”total restraint” – whether restraint justified – tort of false imprisonment – guardianship functions – whether guardian should be appointed with an accommodation function or a restrictive practices function – whether subject person requires advance care planning – order made – guardianship order conditions – physical restraint function – chemical restraint function – consent to medical and dental treatment function – Public Guardian appointed.

Catchwords:

CIVIL PROCEDURE – pleadings – amendment – application to amend defence after proceedings fixed for hearing – partnership proceedings – claim for indemnity for alleged partnership expenses incurred by one partner – belated limitation defence – amendment permitted

Catchwords:

Judge alone trial

Catchwords:

COSTS – Costs assessment – Determination – the plaintiff solicitor formerly represented the defendant client in family law property proceedings – the defendant changed legal representation – the plaintiff claims $96,239 in legal fees – the defendant resists this quantum – the plaintiff lodged a caveat over the matrimonial home the subject of the defendant’s family law proceedings – by order of the Federal Circuit Court, the matrimonial home was sold and the plaintiff commenced these proceedings – by orders of this Court, $100,000 from the proceeds of sale of the matrimonial home is held in a solicitor’s trust account pending the resolution of these proceedings – the matter was referred to a costs assessor who reduced the fees to $13,860 – the plaintiff seeks a stay of these proceedings pending an appeal against this reduction in costs – the defendant resists this and seeks a final hearing or a dismissal of the proceedings – whether the proceeds held in trust should be reduced on account of the costs assessment report.

Catchwords:

EVIDENCE — Audio and audio visual links — Application for witnesses to give evidence by audio visual link — Special provisions for COVID-19 pandemic

Catchwords:

INTERLOCUTORY ORDERS – prosecution for offences – contravention of conditions of revocation of licence – pleas of guilty – sentence hearing yet to be fixed – application for adjournment of proceedings to allow for actions to mitigate environmental harm caused by commission of offences – adjournment granted

Catchwords:

CIVIL PROCEDURE – pleadings – application for leave to amend List Statement – construction contract – misleading or deceptive conduct – proposed plea that had representations not been made, plaintiff would have submitted higher tender and that “if” defendant accepted that tender plaintiff would have entered contract with a higher price – no allegation as to whether defendant would have accepted the higher tender – whether pleading maintainable CIVIL PROCEDURE – pleadings – application for leave to amend List Statement – construction contract – proposed pleading that the matters represented were terms of the contract or that contract should be rectified to include such terms

Catchwords:

EQUITY — Equitable remedies — Interlocutory injunctions — whether there is an arguable case — where the defendants’ case ignored the history and context of the transaction between the parties — where an interlocutory order should be made to preserve the status quo.

Catchwords:

COSTS – security for costs – where plaintiff a trustee with right of indemnity from trust assets – only current asset of trust an unsecured loan to another trust – whether plaintiff has shown it will have recourse to trustee property

Catchwords:

COSTS — Party/Party — Where one party successful — Where successful party prolonged proceedings — Whether costs awarded to successful party ought be discounted COSTS — Party/Party — Where proceedings discontinued by plaintiff — Where discontinuance not a result of settlement — Whether plaintiff ought pay costs of defendant

Catchwords:

COSTS – whether costs of an application for leave to appeal in relation to a question of discovery should be ordered to be paid forthwith – where application for leave to appeal unsuccessful – whether an “order otherwise” under Uniform Civil Procedure Rules 2005 (NSW) r 42.7 was necessary and, if so, criteria by reference to which it may be made.

Catchwords:

CIVIL PROCEDURE – judgment entered by consent – application to defer payment – application for leave to issue writ of sequestration

Catchwords:

CRIMINAL PROCEDURE – trial – case management – evidence – admissibility – whether evidence of acts or declarations of alleged co-conspirators are admissible other than as admissions