Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 4) [2018] NSWLEC 149

JUDICIAL REVIEW - requests for statements of reasons - document provided by Council not a statement of reasons - document provided by Department not a statement of reasons of the Minister’s Delegate - documents rejected 
JUDICIAL REVIEW - making of amendment of local environmental plan - provision of zoning map with application for gateway determination - complaint no zoning map provided - indicative layout plan provided - held plan provided sufficient detail to satisfy statutory provision - if plan did not do so, failure did not vitiate process for seeking of gateway determination - Ground 1 rejected 
JUDICIAL REVIEW - allegation of defective air quality report as part of public consultation process - ground seeks impermissible factual review of report’s conclusion - report’s conclusion not manifestly unreasonable - Ground 2 rejected 
JUDICIAL REVIEW - failure of Council to consider report lodged concerning desirable curtilage of items listed as local heritage items in LEP - holding out that report would be considered - circumstances of holding out limited - circumstances not satisfied - unnecessary to consider if power to waive requirement for timings of lodgement of submissions - community consultation process did not fail as a consequence of non-consideration of report - Ground 3 rejected 
JUDICIAL REVIEW - alleged failure to consider likelihood of state heritage listing of expanded curtilage - no basis to believe OEH would have advised expanded curtilage being considered - statutory heritage listing process not commenced prior to making of LEP amendment - expanded curtilage not necessarily in conflict with rezoning - three separate reasons to reject Ground 4 - Ground 4 rejected 

Instructed by the Department of Planning for the Greater Sydney Commission and the Minister for Planning (unled).

Athari v Wandell Builders Pty [2018] NSWSC 771

CIVIL PROCEDURE – appealing decision and seeking leave to appeal - Magistrate failed to decide a material issue - mixed questions of fact and law - failure to adhere to timetable - notice of ceasing to act filed - no appearance for plaintiff before Registrar - efficiency of the Court - attempts made to contact the plaintiff - adequate notice given - whether the matter should be dismissed for want of cause - no motion seeking pro bono referral - whether proceedings should be dismissed in the absence of the plaintiff - case not prosecuted with due dispatch - prejudice to the defendant - failure of the plaintiff to appear - appeal dismissed - costs awarded

Secretary, Department of Planning and Environment v Shoalhaven Starches Pty Ltd [2018] NSWLEC 23

ENVIRONMENT AND PLANNING - prosecutions for failure to disclose political donations - disclosure required when making applications for modifications to approved development - five charges - early guilty pleas - for four charges, failure to disclose multiple donations - disclosure made of corporate donations but not of reportable donations made by a director
SENTENCING - characterisation of offences - failures due to reckless indifference or negligence of the Defendant’s company secretary to be regarded as aggravating factor - Defendant’s prior environmental convictions not a factor of aggravation - very limited subjective factors in Defendant’s favour - approach to consideration of offences collectively - offences with multiple failures to declare being toward the upper end of the range - offences with single failure to declare being in the middle of the range - accumulation and totality where multiple offences - fines imposed
SENTENCING - publication orders - availability to be ordered when legislation providing for them came into force after commission of one of the offences - legislative prohibition on retrospective application of increased penalty - publication order made with respect to four of the five charges
CRIMINAL PROCEDURE - Prosecutor’s application for moiety of fines imposed - appropriate to make an order in present circumstances

Unled for the Department of Planning and Environment.  Shoalhaven Starches was fined $107,000 in total.

CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 (29 November 2017)

MIGRATION – whether primary judge erred in finding that the Immigration Assessment Authority (Authority) did not misconstrue or misapply the phrase “exceptional circumstances” in s 473DD(a) of the Migration Act 1958(Cth) and so made a jurisdictional error – Held: appeal allowed

Unled (pro bono) for the successful Second Appellant.

REW08 Projects Pty Ltd v PNC Lifestyle Investments Pty Ltd [2017] NSWCA 269; (2017) 95 NSWLR 458;

CONTRACTS – illegality – contracts contrary to public policy – whether contract was one to commit an unlawful act, namely to delay the payment of stamp duty – consideration of the circumstances in which a court may enforce a contract even if its formation or performance is associated with illegal purposes – Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 – Nelson v Nelson (1995) 184 CLR 538
EQUITY – equitable remedies – specific performance – whether respondent should be denied an order for specific performance of a contract for sale on the ground of illegality of the contract
EQUITY – defences – unclean hands – whether conduct disentitling respondent to relief – Dewhirst v Edwards [1983] 1 NSWLR 34 – respondent’s supposed impropriety was incidental or collateral to the contract – respondent’s impugned conduct had ceased – primary judge was correct in rejecting the defence

Led by Justin Doyle for the successful respondent,

Mohareb v Kelso [2017] NSWCA 98 (12 May 2017)

APPEAL – application for leave to appeal – interlocutory orders – application to add defendants – whether arguable cause of action – application to add further fresh claims – questions of practice and procedure – whether proposed new pleadings defective – whether error on part of trial judge – whether refusal of leave would cause substantial injustice

TORTS – duty of care – liability for criminal activities of third party – whether arguable that business directly liable for criminal acts of employee or independent contractor in circumstances where company had knowledge of criminal tendencies and created opportunity for third party to provide services to members of the public – whether claim reasonably arguable

PNC Lifestyle Investments Pty Limited v REW08 Projects Pty Limited [2017] NSWSC 27 (2 February 2017)

REAL PROPERTY – contracts for the sale of land – deposits – series of contracts – vendor terminates contracts on ground that purchaser failed to pay deposits – whether amount paid at time of entry into initial contract satisfied obligation to pay deposit under last contract

CONTRACTS – illegality – whether contract associated with or in furtherance of illegal purposes – series of contracts – last contract entered into as part of transaction designed to avoid an immediate liability for stamp duty and defer payment of duty – legislative regime does not provide for contract to be unenforceable – whether Court should nonetheless hold the contract to be unenforceable.

Led by Justin Doyle for the successful Plaintiff

Morris Finance Ltd v Brown [2016] NSWCA 343 (8 December 2016); (2016) 315 FLR 469; (2016) 93 NSWLR 551

COURTS – jurisdiction – proceedings against bankrupt – appeal from separate question regarding leave to commence proceedings in the Equity Division – Bankruptcy Act 1966 (Cth) s 58 – whether appeal lay to Court of Appeal – whether prohibition on instituting and determining appeal other than in a federal court in s 7(5)of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applied – whether appeal involved a matter for determination arising under the Bankruptcy Act – appeal dismissed.

I acted (unled) for a Trustee in bankruptcy who was the Respondent in an appeal, and the successful Applicant on a motion asserting that the appeal was incompetent by virtue of the operation of s 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).  The appeal arose in relation to the operation of s 58 of the Bankruptcy Act on a claim by creditor who claimed they enjoyed the benefit of an equitable charge.

In the matter of Jervois Mining Ltd [2016] NSWSC 1650 (23 November 2016)

CORPORATIONS – Membership, rights and remedies – Members’ remedies and internal disputes – Meetings – Calling of extraordinary general meeting chaired by independent Court-appointed chairman.  Unled.  I acted for a shareholder of a public company that was part of a group that had convened an extraordinary general meeting under s 249F.  

In the matter of Alsafe Security Products Pty Ltd atf the Alsafe Trust (in liquidation) [2016] NSWSC 575 (6 May 2016)

PROCEDURE — Costs — Order sought for costs on indemnity basis — where Plaintiffs’ sought indemnity costs on basis of unsuccessful Defendant’s rejection of offer of compromise or under Calderbank principles – where Plaintiffs’ offer included an amount as to costs – whether offer of compromise is valid where it included amount as to costs – whether Plaintiffs’ offer warrants indemnity costs under Calderbank principles – whether r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) has consequence that Plaintiffs should not be awarded costs.

In the matter of Alsafe Security Products Pty Ltd atf the Alsafe Trust (in liquidation) [2016] NSWSC 428 (14 April 2016)

CORPORATIONS — Voidable transactions — Unfair preferences - Application for orders under s 588FF of the Corporations Act 2001 (Cth) – where Defendant relied on defence under s 588FG(2) of the Corporations Act 2001 (Cth) – whether defence under s 588FG(2) of the Corporations Act 2001 (Cth) is established.