BUILDING AND CONSTRUCTION – Contract – Home Building Act 1989 (NSW) – Statutory warranties – whether contract confined to negotiated scope of works or expanded to include other works by virtue of the implied statutory warranties – whether building in breach of statutory warranties
Led by Justin Doyle for the appellant
Drafting the successful Special Leave application (led by CA Webster SC and with EC Graham). The sole ground of appeal concerns the application of the principles in S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; (2003) 216 CLR 473 when considering the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958 (Cth).
CIVIL PROCEDURE – Subpoenas – Notices to Produce – Application to set aside – adjectival relevance – fishing – objection dismissed – production required.
ENVIRONMENT AND PLANNING – judicial review – Part 5 Environmental Assessment – whether breach of duty to consider environmental impact – s 5.5(1) Environmental Planning and Assessment Act 1979 – s 5.1 Activity relating to the “use of land” – proposed action not exempt development – further consideration required as activity authorised by the plan – compliant with s 81 National Parks and Wildlife Act 1974
Led by P McDonald SC for the successful respondents.
CORPORATIONS – approval of deed of settlement under section 477(2A) – power of court to give creditors advantage over others – meaning of “over others” in s 564 of the Corporations Act – whether extends to general purpose liquidator –– consideration of risk assumed by indemnifying creditor – whether indemnifying creditor received a ‘windfall’ – importance of liquidator having funds to complete tasks – deduction for general purpose liquidator’s remaining costs of the proceedings and estimated costs to complete the winding up
MIGRATION – whether Court erred in dismissing applications for judicial review of decisions of Administrative Appeals Tribunal – where Tribunal found it had no jurisdiction to review applications made out of time – where letters notifying of refusal of visa by Minister sent either by prepaid post or email – whether refusal notifications ‘stated’ time in which applications for review may be made – consideration of principle in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64.
I acted unled for the successful appellant pro bono, after a referral from the Federal Court.
I appeared (unled) for an employee of Roads and Maritimes Services who had received a summons to appear at Operation Ember.
ENVIRONMENT AND PLANNING: Prosecutions for failing to disclose political donations – pleas of guilty entered – sentencing principles – totality in sentencing – moieties to the prosecutor – publication orders – principles to apply – costs.
MIGRATION – application for extension of time to appeal – refusal of temporary protection visa – no reasonable explanation for delay – whether arguable case that Immigration Assessment Authority erred by finding that complementary protection criterion not satisfied because applicant could modify behaviour to avoid harm – extension of time granted
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).
I appeared (instructed by Hall & Wilcox and led by Anthony Cheshire SC) for Club Plus Super in response to requests for witness statements. Club Plus Super was not called to give evidence after provision of the draft statements.
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
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.
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.
COSTS – Proceedings in which trustee in bankruptcy is a defendant – Ordinary rule or practice – Whether personal costs order should be capped by reference to the extent of the bankrupt’s assets vested in the trustee in bankruptcy in that capacity
COSTS – Indemnity costs – Calderbank offers
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,
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
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
PROTECTIVE JURISDICTION – Protected estate management order - Voluntary transfer determination made by ASIC under the Corporations Act 2001 Cth Part 5D.6 does not, of itself, displace an order made by Court for ongoing management of a protected estate – Remedial orders made on exercise of protective jurisdiction
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.