Nicolas KirbyCONTACT DETAILS
Phone: +61 2 8029 6375
Fax: +61 2 9221 7183
Email Nicolas KirbyContact the Clerk
NMAS accredited mediator: 2021
- Commercial, Equity & Trusts
- Wills & Probate
- Revenue & Tax
- Trade Practices
- Protective matters
- Professional Negligence
- Intentional torts
- Private International Law
- Corporations & Insolvency
Nicolas was admitted as a legal practitioner in New South Wales in 2004. In September 2009, Nicolas commenced practice at the NSW Bar.
He practices primarily in the areas of commercial law, equity, competition and consumer law, trusts, corporations, insolvency, wills and probate.
Selected cases in which Nicolas has appeared include:
Armada Balnaves Pte Ltd v Woodside Energy Julimar Pty Ltd  WASCA 69 – Contract – construction of services agreement – essential terms – time in the performance of contracts – repudiation: willingness and ability – credit findings: erroneous – rejection of evidence assessment of damages (with Walker SC).
Williams v Williams  NSWSC 711 – Succession – Family Provision – adult son – family farm – estrangement.
Cigno Pty Ltd v Australian Securities and Investments Commission  FCAFC 115 – Corporations – Financial services – Appeal concerning regulator’s use of Product intervention Orders in Pt 7.9A of the Corporations Act 2001 (with Walker SC & Free SC).
In the matter of Timor Sea Oil & Gas Australia Pty Ltd (in liq)  NSWSC 1832 – led by Kennett SC – Practice and Procedure – Notice to Produce – Claim for Public Interest Immunity – Court suppression and non-publication orders.
Dalati v Brown  NSWCA 322 – Appeal – Leave to appeal – Leave refused.
In the matter of Railway & Transport Health Fund Ltd  NSWSC 1435 – Corporations – Company constitution – Meetings of members – Inherent power of companies in general meeting (with Hutley SC).
Cigno Pty Ltd v Australian Securities and Investments Commission  FCA 479 – Corporations – Financial services and markets – Product intervention orders in Pt 7.9A of the Corporations Act 2001 (Cth) (with Walker SC and Free SC).
Armada Balnaves Pte Ltd v Woodside Energy Julimar Pty Ltd [No 2]  WASC 14 – Contract – Breach of contract claim – Service Agreement between parties (with Walker SC).
Special Commission of Inquiry into the Ruby Princess – Counsel Assisting.
Balzola v Passas (No 2)  NSWSC 1200 – Costs – General rule that costs follow the event – Whether indemnity costs should be allowed.
Balzola v Passas  NSWSC 896 – Defamation – Oral defamatory statement – Defences.
Mouin Junior Dalati v Shereen Rifat Brown  NSWSC 783 – Equity – Resulting trusts – Purchase money trusts.
In the matter of Coastal Beaches Pty Ltd  NSWSC 1691 – Civil Procedure – Pleadings – Application to strike out statement of claim
Pilotto v Cosoleto; Papi & Papi v Cosoleto and Cosoleto v Cosoleto  NSWSC 1454 – Succession – Family Provision – Four plaintiffs: former de facto partner, a previous former de facto partner, a daughter and a grandson.
David & Anor v Cohen  FCCA 70 – Bankruptcy – Service of bankruptcy notice – Meaning of “last known address”
Kaboko Mining Limited v Van Heerden (No 3)  FCA 2055 – Insurance – Construction of Insurance Policy – Whether exclusion applies.
Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd  NSWCA 282 – Contract – Real Property - Appeal on whether contract was assigned or novated.
Elizabeth Joan Paulsen as executor of the estate of the late Miriam Lesley Jean Douglass v Northern Sydney Local Health District  NSWSC 1473 – Judicial Advice – Application by executor concerning whether named trust in will had ceased to exist.
Gordana Smith & Anor v Colin Steingold  NSWSC 1390 – Corporations – Legal representatives – Application to restrain solicitor from acting for the defendants in connection with oppression claim.
Pearlman v The University of Western Australia  WASC 245 – Freedom of information – Application for judicial review of decision by Information Commissioner.
Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd  NSWSC 528 – Real Property – Contract – Whether contract novated – Whether contract assigned – Whether notices to complete and terminate contract valid – Requisitions.
Kaboko Mining Limited v Van Heerden (No 2)  FCA 706 – Insurance – Whether plaintiff should be given leave to join defendants’ (who were plaintiff’s directors and officers) insurer.
- Hurmz v R  NSWCCA 235 - Sentencing - Supply commercial quantity of cocaine - Whether sentence manifestly excessive (with Bret Walker SC).
Moorstone Financing Partners Pty Ltd v Stable Properties Pty Ltd  NSWSC 582 – Contract – Application for commission from finance obtained by defendant.
The Estate of Drummond; Drummond v Drummond  NSWSC 856 – Succession – Probate – Documents amending will – testamentary intention – Costs – applicability of offers of compromise in probate suits.
Haridemos, in the matter of ACT Builders Pty Ltd v ACT Builders Pty Ltd  FCA 25 – Corporations – Winding up – Whether writ returned unsatisfied – Whether writ returned unexecuted – Whether insolvency established – Whether otherwise just and equitable to wind up company.
In the matter of Ryde Ex-Services Memorial & Community Club Limited (subject to Deed of Company Arrangement)  NSWSC 916 – Deed of company arrangement — Application by deed administrator for orders under s 447D of the Corporations Act 2001 (Cth) and certain declarations – Application by deed administrator for correction of register of members of incorporated club under s 175 of Corporations Act.
Sydneywide Pipecleaning Pty Ltd v McGee  NSWSC 424 – Freezing orders sought against the defendant – Application dismissed.
Esposito v Commonwealth of Australia  FCAFC 160 – Constitutional law – Whether property acquired contrary to s 51(xxxi) – Administrative law – whether Minister empowered to prevent rezoning of land – Unjust enrichment.
Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (No 2)  FCA 527 – Corporations – declarations and injunctions.
Warner v Mayfair Limited, in the matter of the Personal Insolvency Agreement of Gore  FCA 441 per Farrell J – Bankruptcy – Personal Insolvency Agreement – Entitlement to dividends – Trustees costs.
Pearce & Heers v Liprini (No 2)  NSWSC 530 per Hidden J – Costs – Lump sum costs order.
Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq)  FCA 342 per White J – Corporations – Financial Services – SMSFs – Offshore funds – Misleading or deceptive conduct - Accessorial liability – Knowing concern.
Re R  NSWSC 1810 per White J – Mental health – Financial Management Order – NSW Trustee & Guardian.
ANZ Banking Group v Arapali  NSWSC 881 per McDougall J – Discovery and interrogatories.
Pearce & Anor (formerly Pascoe) v Liprini  NSWSC 1316 per Hidden J – Vexatious Proceedings Act – application to set aside vexatious proceedings order.
SPAR Licensing v MIS Qld  FCAFC 50 per Buchanan, Foster & Farrell JJ. Trade Practices – Franchise agreement. Breach of agreement. Whether misleading or deceptive conduct.
John v Toll North  NSWSC 152 per Button J – Appeal from Local Court decision concerning contract.
ASIC v ActiverSuper (No 2)  FCA 234 per Gordon J – Corporations – Appointment of Provisional Liquidators to trustee company (with Robins SC)
Snapperhead Productions Pty Ltd v Qantas Airways Limited  NSWLC 8 – Trade Practices – Misleading or deceptive conduct.
Product People (International) v Box Seat Company (in liq)  FCA 277 per Farrell J. Winding up. Statutory demand.
Product People (International) v Box Seat Company (in liq)  FCA 1437 per Farrell J. Costs award made against non-party funder.
Hyder v Commonwealth  HCATrans 194 – Special leave application in relation to powers of arrest; grounds for arrest. False imprisonment. (with D. Brogan)
Hung and Anor v Anthony John Warner and Steven Kugel in their Capacities as Joint & Several Liquidators of Bellpac Pty Ltd (Receivers & Managers Appointed) (in Liquidation)  HCATrans 280 – Special leave application concerning the beneficial ownership of bonds.
Tobin v Ezekiel  NSWCA 285 per Basten, Campbell & Meagher JJA – Wills and Estates – revocation of probate – suspicious circumstances – knowledge and approval – evidentiary presumptions – Family Provision Order.
Krecichwost v The Queen  HCATrans 294 – Special leave application – Criminal appeal – Crown alleged motive on the basis of arguably erroneous statement of the law in relation to the circumstances a dividend may be paid.
Shannessy v Beattie & Ors  NSWCA 88 per Basten JA and Sackville AJA– Appeal - civil - arguable case for appeal against primary judge's conclusions of law – leave refused where matter in issue $100,000 or less.
QBE Insurance (Australia) Limited v Gregory Robert Hotchin and Ors  NSWSC 681 per Bergin CJ in Eq – Anti-suit injunction (with Fagan SC).
Re Hegarty  NSWSC 1194 per Gzell J – Trusts. Acting for RSPCA. Non-charitable purpose trusts.
Smirski v Macander (No 2)  NSWSC 373 per Hallen AsJ. Succession – Property (Relationships) Act.
Goodridge v Macquarie Bank Ltd & Anor  HCATrans 154 – Special Leave Application – Contract - Margin Loans (with Rayment QC and Kennett SC)
Northern NSW Football Ltd v Chief Commissioner of State Revenue  NSWCA 51 per Allsop P, Handley AJA and Gzell J – Taxation - Charitable exemption from payroll tax.
QBE Workers Compensation (NSW) Ltd v BAe Systems Regional Aircraft Ltd,  NSWSC 82 per Latham J. Claim in relation to a certain class of aircraft. Summary dismissal, Abuse of Process (with R Williams QC).
Jammal v Emirates (Supreme Court, settled before hearing). Personal injury suit under Art. 17 of the Warsaw Convention (as amended). Acting for Emirates (with R Williams QC).
Fan v South East Sydney and Illawarra Area Health Service),  NSWSC 123 per Harrison J – Practice & Procedure, UCPR 31.36 and 12.7 (with K Connor SC).
Bondi Beach Astra Retirement Village Pty Ltd v Gora  NSWSC 81 per Bryson AJ – Strata title – Vendor and purchaser – Retirement Villages – Laches – Restraint on alienation of property.