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The recent Supreme Court decision in Willis v Abraham (No 2) (2025) NSWSC 276 has cast adverse possession back into the spotlight, offering a sharp reality check on what is legally required to claim land through long-term, unauthorised occupation. The case centred on Yael Abraham, a former solicitor and self-described activist who once featured on ABC’s Australian Story for her work as a foster mother. Abraham attempted to claim ownership of a vacant $2 million home in Rozelle, Sydney, under the doctrine of adverse possession. Despite owning a $7 million home in Queensland and operating a property business, Abraham argued that her long-standing use of the Rozelle house entitled her to claim it as her own. The Court emphatically rejected that argument. Acting Justice Michael Elkaim delivered judgment in March this year, finding that Abraham’s occupation of the Rozelle house did not satisfy the strict legal criteria for adverse possession in New South Wales. The law requires that a claimant occupy a property for at least 12 continuous years without the owner’s consent, and crucially, without force or secrecy. That occupation must be overt and exclusive, much like how an actual owner would use the property.

On Abraham’s own evidence, her early interactions with the property were limited to sporadic visits and storage of belongings. While she asserted that she began cleaning and using the property from 2009, the Court found no persuasive evidence of occupation “in the nature of a residence” until 2016, when her eldest child began living there full time. Prior use as a storeroom or occasional place of study did not rise to the level of residential possession required by law. The judgment highlighted a range of factual inconsistencies and behaviours that undermined her claim. In one particularly damning detail, Abraham telephoned the Inner West Council and falsely identified herself as the registered owner in order to pay outstanding rates, which the Court interpreted as a strategic attempt to bolster her claim while legal proceedings were already underway. Rather than supporting her case, this conduct pointed to a deliberate concealment of her occupation, inconsistent with the openness required by the doctrine. Justice Elkaim also dismissed Abraham’s assertion that she had permission from the true owner, Mary Willis, to occupy the property. The law deems that any form of permission, even implied, defeats an adverse possession claim. Abraham’s shifting story, claiming at one point to have received the keys after an ABC program aired, further eroded her credibility. The Court found this alleged conversation had not occurred in 2011, as Abraham claimed, but years later. In any event, such permission would negate the central requirement that the occupation be without the owner’s consent.

Courts will not entertain claims for adverse possession based on stealth, sporadic use, or opportunistic attempts to exploit technical gaps. Abraham’s legal background and experience as a real estate agent did not help her cause; if anything, they placed her under greater scrutiny. While Abraham’s claim failed, it emerged that the property had been unoccupied and poorly supervised for extended periods.

Following months of speculation and a growing demand for clarity, the NSW Government has announced its plan to legalise e-scooters on public streets across the state. Under the proposal, riders aged 16 and over will be able to operate e-scooters at speeds up to 20km/h on local roads and shared paths, including segregated cycleways, provided the roads are signposted 50km/h or less. The move marks a significant shift in transport regulation and brings NSW into step with jurisdictions like Victoria. In theory, it legalises what has already become a familiar sight in many parts of inner Sydney: commuters riding down cycle lanes, or docked near transport hubs. The state estimates over 1.35 million e-mobility devices (including e-bikes and e-scooters) are now in NSW homes, signalling a shift in how Sydneysiders move through their cities.

But while the headlines celebrate progress, the legal and safety implications remain complex. Earlier this year, b + a examined the legal risks posed by lithium-ion batteries in strata buildings, particularly those powering e-bikes and e-scooters. That article highlighted the under-regulated fire risks these devices bring, especially in medium- and high-density housing. The rise in battery-related fires reported by Fire and Rescue NSW is not slowing, and while public infrastructure catches up to micromobility’s popularity, private property owners and investors are left exposed. This latest policy announcement makes no immediate changes to fire safety regulation or building codes. Nor does it resolve insurance uncertainties for strata schemes that may now see increased usage of these devices within residential complexes. Strata owners, developers, and managers should remain alert, as the legalisation of public e-scooter use is likely to encourage greater private use, which, in turn, raises fire risk and liability exposure in buildings not equipped to handle them.

What’s most striking is the government’s choice to increase the proposed speed limit for e-scooters beyond the parliamentary inquiry’s own recommendations; 20km/h rather than the suggested 15km/h. It’s a signal that convenience and modernisation are leading the policy charge, even as other risks remain unaddressed.

In Laundy Hotels v Dyco Hotels (2020) HCA 6, the Court drew a hard line on when, and whether, a party can claim that an unforeseen event “frustrated” a contract. During the COVID-19 pandemic, Laundy Hotels had agreed to sell a Sydney hotel business to Dyco. Just before completion, however, public health orders temporarily shut down operations. Dyco attempted to walk away, arguing the contract had been “frustrated” due to the government-mandated closure. The High Court unanimously disagreed. Chief Justice Kiefel, and Justices Gageler and Gleeson found that the government restrictions, while inconvenient, did not strike at the heart of the contractual purpose. The sale was of a business, not just a going concern. The risk of government intervention, the Court held, was foreseeable and did not destroy the fundamental basis of the agreement. Dyco’s attempt to rely on frustration failed because the contract, while impacted, remained performable.

This decision should sound a note of caution for anyone drafting or negotiating commercial contracts in uncertain times that force majeure and frustration are not get-out-of-jail-free cards, per se. The threshold is high. If your contract does not expressly contemplate certain contingencies, such as pandemics, trade embargoes, or regulatory intervention, you may find yourself forced to perform regardless. The High Court’s reasoning reinforces the commercial wisdom of well-drafted force majeure clauses, which remain the primary vehicle for managing unforeseen events. In an era of climate crises, cyberattacks, and geopolitical tension, the lesson from Laundy is blunt, in that one must anticipate and allocate risk effectively.

The redevelopment of the North Sydney Olympic Pool stands as a high-profile example of how flawed contract administration and unclear design responsibility can bring even the most ambitious developments to a halt. In early 2025, Icon Co (NSW) Pty Ltd commenced Supreme Court proceedings against North Sydney Council, seeking over $28 million in damages. At the heart of the dispute are allegations of systemic contractual breaches stemming from significant design failings and nearly 300 late-stage project variations. These changes, Icon contends, were disruptive and uncoordinated, leaving completed work dismantled. The Council disputes the allegations and has publicly maintained that the pool’s revised 2025 completion date remains on track. However, the project’s total cost has nearly doubled to an estimated $122 million. Other community upgrades have been deferred, and the Council is now facing intense public scrutiny following its proposal for an 87% rate increase over three years; designed, in part, to recover from the financial damage left by the redevelopment.

The blurred line between design responsibility and execution risk lies at the centre of this dispute. In design and construct arrangements, contractors are often forced to absorb the consequences of client-side design errors unless the contract draws a clear boundary around design liability. When that boundary is left vague, or when scope control is poorly managed, disputes like this are inevitable. Equally important are the clauses governing variations and extensions of time. Used properly, these mechanisms allow for flexibility without undermining delivery. But when instructions change late and often, and when approvals stall or conflict, they quickly become the flashpoints for litigation. Icon’s claim seeks not just compensation, but recognition that the contractual framework broke down in practice, and that the consequences should not fall solely on the contractor. The implications of this case extend well beyond this particular site. A judgment in favour of Icon may shift the expectations around risk allocation and variation tolerance in future contract drafting. Construction contracts are operational frameworks that determine how risk is shared, how scope is controlled, and how disputes are managed. When they are weak or ill-defined, the entire project becomes a liability. As this matter progresses through the NSW Supreme Court, the outcome will likely shape procurement and delivery strategies across the state.

An easement is a legally enforceable right that allows someone else to use part of your land, like a neighbour’s right to use your driveway, or a utility company’s authority to access buried infrastructure. While often perfectly legitimate, easements can severely restrict what you do with your property. Encroachments, on the other hand, involve a physical intrusion, where someone builds onto land they do not own. This might be a fence line that creeps across a boundary, or in more serious cases, a structure like a retaining wall that sits stubbornly and unlawfully on someone else’s title.

These issues have the potential to derail property sales and expose parties to unanticipated court-imposed obligations. The decision in Hickey v The Owners Strata Plan 78825 [2022] NSWLEC 135 is a prime example of this. In this case, a dispute erupted over a retaining wall that had been built by a strata complex years earlier but which extended onto the neighbouring land owned by Ms Hickey. This was a permanent, substantial, historically unchallenged encroachment which served a functional structural purpose for the strata development. When it came to light, Ms Hickey took legal action under the Encroachment of Buildings Act 1922 (NSW), a statute that gives courts the power to decide whether an encroaching building must be removed or whether compensation, and sometimes an easement, should be granted instead. The court questioned whether the encroachment had been innocent or deliberate, and assessed whether tearing down the wall would cause disproportionate damage to the strata owners.

Ultimately, the court found that the encroachment did exist and that it wasn’t merely technical. However, it declined to order the wall’s demolition, recognising the broader harm such a remedy would cause. Instead, the court granted an easement in favour of the strata complex and ordered compensation to Ms Hickey.

Since the Green Building Council of Australia first launched its Green Star rating system in 2003, the property industry has witnessed a marked shift toward more sustainable development practices. Initially developed to evaluate the environmental performance of commercial offices, Green Star ratings have, over the past two decades, expanded dramatically in both scope and ambition. Today, they encompass not only commercial offices but also infrastructure commonly built and operated by hospitals, universities, and entire precincts. With this expansion has come a corresponding increase in expectations: the criteria required to achieve high Green Star ratings have become significantly more rigorous, reshaping the very notion of sustainable construction in Australia. The latest iteration of the rating system, Green Star Buildings v1.1, is due to take effect in 2025 and reflects this growing ambition. This new version of the tool sets a higher bar for sustainability, placing increased emphasis on carbon minimisation, whole-of-life thinking, environmental stewardship, and occupant wellbeing. Developers seeking certification must now prioritise the use of low carbon materials and refrigerants, as well as eliminate fossil fuels from all core building services, including heating, cooling, cooking and power supply. Furthermore, assessments will no longer be confined to a structure’s operational performance; they will extend to its entire life cycle, from the feasibility of adaptive reuse and disassembly, to the ecological footprint of its construction site and its relationship with the surrounding environment.

Importantly, the new Green Star tool does not view sustainability through a purely environmental lens. Human experience plays a crucial role. Rating assessments will now account for features that promote occupant health and comfort, including natural light, ventilation, low-emission materials, and the ability of individuals to control temperature and air quality in different zones of the building. In this sense, sustainability is understood as a holistic concept that integrates both planetary and personal wellbeing. However, while the v1.1 tool rightly concentrates on the environmental credentials of new builds, it also brings renewed attention to the impact of building use and tenancy decisions, particularly in the context of commercial leasing. Tenants are not passive occupants; they actively shape the sustainability profile of a space through choices made during fitouts, refurbishments, and terminations of lease. One area under increasing scrutiny is the environmental cost of ‘make good’ obligations—clauses in commercial leases that compel tenants to restore premises to their original condition upon vacating. Though intended to preserve property value, these clauses often result in widespread waste, as perfectly usable materials and furnishings are discarded in favour of reinstating outdated or unused interiors.

The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66, has clarified a crucial question under the Home Building Act 1989 (NSW): when does a breach of statutory warranty become “apparent”, and how long do you have to take action? This decision will have serious implications for owners corporations and strata managers dealing with defects discovered late in the warranty timeline. It confirms that while the law offers a narrow window for commencing proceedings after a warranty expires, the onus lies on the claimant to prove they are entitled to it. Section 18E(1)(e) of the Home Building Act 1989 (NSW) offers a potential solution for claimants who discover a breach late. If a breach of warranty becomes apparent in the final six months of the warranty period, the law grants an additional six months after the expiry of the warranty period to bring proceedings. But what does it mean for a breach to become “apparent”, and to whom? The statute states that a breach becomes apparent when any person entitled to the benefit of the warranty becomes aware, or ought reasonably to have become aware, of the breach. This wording introduces both a subjective and objective standard. It’s not just what the person knew, it’s what they should have known, which is then judged against the standard of reasonableness.

In Raysons, the Owners Corporation commenced proceedings against the builder and developer over a range of common property defects, like concrete cracks, water ingress, and poor drainage. The building had been completed over six years earlier, pushing the claim beyond the standard six-year warranty period for major defects under the HBA. Initially, the NSW Civil and Administrative Tribunal (NCAT) found partially in the Owners’ favour and ordered rectification. But the builder, Raysons, appealed, arguing that the claim was out of time. The Appeal Panel agreed, dismissing the claim on jurisdictional grounds. The matter then landed in the Supreme Court, which took a closer look at whether the Owners could rely on the extension in s 18E(1)(e). The outcome? The Owners won their appeal. But their success turned on several key findings that will be instructive for future cases.

First, the Court made clear that “awareness” of a breach involves more than spotting a physical defect. A crack or leak might be obvious, but that doesn’t necessarily mean a breach of warranty is apparent. That conclusion often requires legal or expert analysis. As the Court put, a defect is a physical issue; a breach is a legal conclusion. Sometimes, further investigation is needed before the two can be connected. Then, the Court reaffirmed that the burden of proof lies squarely with the plaintiff. It is not the responsibility of the the builder or developer to prove the breach was apparent. Instead, onus lies on the claimant to prove it wasn’t, at least not until the final six months of the warranty period. Third, the evidence in Raysons showed the Owners were misled by expert advice they received during that six-month window. One letter suggested that the cracks weren’t serious or structural, giving the Owners no real reason to suspect a breach had occurred. That misunderstanding turned out to be critical. Because they lacked a reasonable basis to infer a breach at that time, the Court found they were entitled to the benefit of the extended timeframe under s 18E(1)(e).Raysons thus serves as a reminder that the difference between a mere defect and a legally actionable breach is not always intuitive.

In the significant probate ruling Estate of Mimi Milka Jaksic (Berger) [2025] NSWSC 253, the Supreme Court of New South Wales has granted probate of a copy of Mimi Milka Jaksic Berger’s 2015 will, together with an unwitnessed 2022 codicil, reviving the earlier instrument and rejecting an intestacy claim by a competing relative.

The late Ms Jaksic, a Sydney-based artist with a $24 million estate, died childless and unmarried in November 2022. While her original 2015 will could not be located, a copy confirmed that she left the residue of her estate to her niece and grandnephew, Bozica and Dusko Dundjerski. In 2022, she signed a codicil gifting a specific Surry Hills property to close friends, the Jankovics, while confirming the remainder of her will. Branka Jaksic-Repac, a niece of the deceased, argued that the original will had been revoked and that Mimi died intestate. However, Hammerschlag CJ in Eq rejected this, holding that the presumption of revocation was either inapplicable or rebutted. There was no evidence that the deceased destroyed the will, and multiple witnesses corroborated that she regarded it as operative until her death.

The codicil, though not formally executed, was found to satisfy s 8 of the Succession Act 2006 (NSW). It clearly expressed Mimi’s testamentary intention, referenced her will held by solicitor Marc O’Brien, and was signed in contemplation of future formalisation. The Court also found that her reluctance to have the codicil witnessed was driven by a mistrust of hospital staff, rather than absence of testamentary intent. Justice Hammerschlag granted probate in solemn form of the copy will and codicil to Dusko Dundjerski, confirming that both documents together reflected the deceased’s final wishes.

The District Court’s decision in Hill v Wirepa [2024] NSWDC 373offers a timely reminder of the legal and literal boundaries that dictate rural land ownership in New South Wales. At the heart of this dispute was a neighbour’s misuse of access rights, which evolved into repeated, unlawful trespass. This resulted in a permanent injunction, a stern judicial rebuke, and indemnity costs.

The Hills, cattle farmers west of Port Macquarie, inherited land used historically by their neighbour, Ms Wirepa, as a passageway to the public road. But what began as tacit consent for access to Lot 170 escalated into wide-ranging use of the Hills’ property, including storing goods, running a business, and even inviting third parties to use the land. When informal resolution failed, the Hills turned to the courts.After Ms Wirepa’s failed attempt to secure an easement under s 88K of the Conveyancing Act 1919 (NSW), the Hills’ cross-claim proceeded in the District Court. The Court had little trouble finding that trespass had occurred. The conduct went well beyond any implied licence for access. As the Court rightly noted, this was not a case of ambiguous boundaries, rather a matter of a landowner treating someone else’s land as her own. The Court granted a permanent injunction, restraining Ms Wirepa from entering the Hills’ land except for the limited purpose of reaching the public road.

Declaratory relief was declined, and was judged to be unnecessary given the strength and scope of the injunction. There was a reasonable proposal to settle the matter, which Ms Wirepa ignored. The Court held this refusal to be unreasonable, and indemnity costs followed. This case is a warning to neighbours who ignore clear property boundaries and a lesson in the strategic use of Calderbank offers.

In a decisive victory, the Supreme Court of NSW has ruled In the matter of Spring Street Property Group Pty Ltd [2025] NSWSC 422, affirming that the plaintiffs represented by baron + associates were entitled to the surplus proceeds of a receivership, and that competing claims lodged by third parties were without merit. The proceedings, which unfolded in the Equity Division, followed the sale of property owned by Spring Street Property Group Pty Ltd (“Spring Street”), a company in receivership. The dispute raised the question of who was entitled, in law and equity, to a significant sum of surplus fund. The Receivers approached the Court under section 424 of the Corporations Act 2001 (Cth) for judicial direction regarding the proper distribution of the funds. On one side stood our clients, Spring Street, asserting their clear entitlement to the balance remaining after the receivership obligations were fulfilled. On the other, two entities within the WholeCap Group (WholeCap Investment Management Pty Ltd (“WIM”) and WholeCap Securities Pty Ltd (“WSPL”)) advanced a number of claims grounded in two purported Term Sheets executed in October 2022. They sought to obtain from the surplus not only a “break fee” for a transaction that never came to fruition, but also reimbursement of expenses and enforcement costs, all premised on the alleged contractual effect of the Term Sheets.

The Court approached the matter by considering the absence of contractual privity in WSPL’s case. The Court noted that WSPL was not a party to either of the Term Sheets and had no contractual relationship with Spring Street. Under the well-established legal principle of privity, only parties to a contract can enforce its terms or be bound by its obligations. As WSPL had not signed the Term Sheets and there was no evidence to suggest it held rights under them, its claims were dismissed outright. Attempts to argue that WIM or WSPL were acting as nominees for another entity (WholeCap Funds Management Limited) also failed, with the Court finding no evidentiary basis for such a nomination. Next, the Court closely scrutinised the status and effect of the Term Sheets. Far from finding any binding agreement that gave rise to a debt or obligation, it was held that these documents did not impose enforceable liabilities upon Spring Street.

The Court determined that the Term Sheets were, by their own terms, dependent on a suite of conditions precedent. Chief among them was the requirement that financing documents be issued in an “agreed and executable form”, a step that was never reached. Not only did the parties fail to finalise the transaction, but they never settled its basic documentation. Accordingly, the “break fee” provision, triggered only upon certain defined failures to complete the financing, never became operative. It followed that there was no contractual basis for WIM or WSPL to claim compensation merely because negotiations fell through. The Court gave short shrift to the claims for reimbursement of expenses and enforcement costs. Both categories required proof that WIM and WSPL had “reasonably borne” the relevant costs. Yet neither entity could demonstrate that it had actually incurred or paid the sums in question. Indeed, the evidence fell short of establishing that these amounts were due or that the conditions for recovery under the Term Sheets had been satisfied. The Court noted this absence of proof and declined to indulge what were premature or speculative claims. Their attempt to claim a security interest over the surplus funds failed as the Court held that the alleged interest did not extend to funds in the Receivers’ possession, given the absence of an enforceable debt and the failure of the underlying transaction.

The Court directed the Receivers to do what they had always proposed to do: to pay the surplus funds to Spring Street, after deducting their own reasonable costs and expenses on an indemnity basis. The Court also made clear that there was no liability owed by Spring Street to WIM or WSPL under the Term Sheets. Costs between the parties were reserved, but the principal contest had been comprehensively resolved in favour of our clients. At b + a, we were proud to represent the interests of Spring Street in this matter, navigating a complicated commercial landscape and delivering a result that vindicated our client’s legal and equitable entitlements.