Recent decisions for Court of Appeal

Catchwords:

APPEAL – leave to appeal – application for leave to appeal from judgment in Division on appeal from Local Court – appeal to Division limited to question of law – amount in issue below threshold in Supreme Court Act 1970 (NSW), s 101(2)(r) – disproportion between amount in dispute and costs – no more than arguable error of law – no issue of principle – applicant bore onus of proof at trial and failed to adduce evidence to support claim

Catchwords:

PRIVATE INTERNATIONAL LAW – foreign judgments and orders – statutory registration of judgments – setting aside registration of foreign judgments – where Singapore High Court entered default judgment against Applicant and subsequent judgment assessing damages – where both Singaporean judgments registered in New South Wales under Foreign Judgments Act 1991 (Cth) – application to set aside registration of Singapore judgments under s 7 of Foreign Judgments Act – whether foreign default judgment should be set aside in circumstances where judgment debtor knew of the existence of foreign proceedings but did not know the quantum of compensation claimed in those proceedings – whether registration contrary to public policy or should be set aside on basis that judgment debtor did not have sufficient notice of proceedings – whether judgment should be set aside on basis that judgment creditor had first sought to sue judgment debtor in Myanmar before commencing proceedings in Singapore – whether there was any “election” so as to deprive judgment creditor of benefit of non-exclusive submission to jurisdiction clause JUDGMENTS AND ORDERS – registration and enforcement – setting aside registration of foreign judgments – where Singapore High Court entered default judgment against Applicant and subsequent judgment assessing damages – where both Singaporean judgments registered in New South Wales under Foreign Judgments Act 1991 (Cth) – application to set aside registration of Singapore judgments under s 7 of Foreign Judgments Act – whether foreign default judgment should be set aside in circumstances where judgment debtor knew of the existence of foreign proceedings but did not know the quantum of compensation claimed in those proceedings – whether registration contrary to public policy or should be set aside on basis that judgment debtor did not have sufficient notice of proceedings – whether judgment should be set aside on basis that judgment creditor had first sought to sue judgment debtor in Myanmar before commencing proceedings in Singapore – whether there was any “election” so as to deprive judgment creditor of benefit of non-exclusive submission to jurisdiction clause

Catchwords:

COSTS – costs at first instance following different outcome on appeal – costs of appeal – whether costs should follow the event, or whether fractional costs order should be made

Catchwords:

APPEAL – leave to appeal – dismissal of motion to set aside registered judgment – order of dismissal interlocutory – effect of dismissal final in practical terms – amount in issue $323,000 – effect of costs disclosure agreement restricting circumstances in which counsel’s fees payable – non-compliance of costs estimate – agreement “void” – whether protections for party liable ineffective – whether costs assessor resolved issue – whether costs assessor had jurisdiction to resolve issue – whether alleged errors more than reasonably arguable – whether issues of principle raised

Catchwords:

NEGLIGENCE – Duty of care – Where subcontractor injured lifting heavy door on construction site – Apportionment of liability between head contractor and manufacturer of door – Insufficient evidence to conclude door-manufacturer owed any relevant duty of care to injured worker

Catchwords:

APPEAL — application for leave to appeal — no arguable basis for proposed appeal — no identification of a ground for challenging orders below

Catchwords:

CONTRACTS – contract for sale of land – termination – wrongful termination –– whether repudiation – vendor giving notice to complete had not provided land tax certificate – whether reasonable recipient of notice would understand vendor’s conduct as refusal to perform – vendor’s conduct to be understood in context – vendor communicated about settlement and extended settlement date – purchaser failed to reply or take steps to prepare for settlement – vendor purportedly relied on contractual right of rescission – mistaken failure to provide land tax certificate

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – public sector – police – medical discharge application –powers of State Authorities Superannuation Board delegated to Police Superannuation Advisory Committee – review of Committee’s decision by Board – whether Board had power to redetermine claim – whether Board validly notified claimant of decision ADMINISTRATIVE LAW – obligation to notify claimant of decision – notification contained advice about right of appeal to Industrial Commission – 30 years later Court of Appeal determined the correct forum for an appeal was a workers compensation commissioner – whether notification failed to commence limitation period for appeal to correct tribunal (now the District Court)

Catchwords:

CONSTITUTIONAL LAW — Commonwealth Constitution — Implied freedom of political communication — Section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) — Section 105 prohibits the publication or broadcasting of the name of a child only where connected to care proceedings or procedures under the State’s child welfare system — Relevant child or young person may consent to publication or broadcasting from 16 years of age onwards — Section 105 imposes a not insignificant but limited burden on the implied freedom — Purpose of s 105 of protecting privacy is legitimate — Burden on the freedom is justified — Section 105 not invalid for breach of the implied freedom COVID-19 — no discrimination in unvaccinated appellants having to appear by audio-visual link in circumstances where they had not sought exemption from policy, and manner of appearance made no difference in any event

Catchwords:

JUDGMENTS AND ORDERS – Orders to give effect to reasons in principal judgment

Catchwords:

CONTRACT – where alleged oral agreement for loan of $267,000 by mother to adult son – where mother pleaded loan repayable after five years – where mother drew cheques on son’s bank account in favour of herself in purported payment of interest on loan and part repayment of principal – whether primary judge erred in not being persuaded any agreement existed – whether primary judge erred in finding that any loan if made out was repayable on demand so that limitation period commenced to run when moneys advanced and action statute-barred

Catchwords:

HEALTH – Public Health – COVID-19 – Public health orders made under Public Health Act 2010 (NSW), s 7, requiring state-employed healthcare workers to be vaccinated by particular dates – Whether it was open to the Minister to make the orders having regard to the risk to public health – Whether order could have effect beyond 90-day limit imposed by statute – Whether orders inconsistent with International Covenant on Civil and Political Rights

Catchwords:

CIVIL PROCEDURE – Hearings – notice of motion seeking an order to vacate hearing date – unrepresented litigant – no realistic prospect of obtaining pro bono legal assistance or the consent of a person to act as a tutor – notice of motion dismissed

Catchwords:

CIVIL PROCEDURE – Application to vacate hearing dates – Counsel for one appellant unwell and unable to attend hearing in person or by AVL – Application to vacate hearing granted

Catchwords:

ENVIRONMENT AND PLANNING – waste disposal – licensing of premises – scheduled activity – waste disposal (thermal processing) – exemption from obligation to pay contribution – whether appellant is occupier of scheduled waste disposal facility – licence requirement arises because facility used for treatment and processing – distinction between treatment and processing and disposal – disposal does not include treatment leading to destruction – Protection of the Environment Operations Act 1997 (NSW), s 88 – Protection of the Environment Operations (Waste) Regulation 2014 (NSW), cl 20(3) STATUTORY INTERPRETATION – definitions – “waste disposal” – term not defined in statute – where term found in heading to clause – heading as extrinsic material – meaning to be determined by reference to statutory context – Dictionary meanings unable to determine statutory meaning

Catchwords:

ADMINISTRATIVE LAW – jurisdictional facts – applicability of State Environment Planning Policy 65 – whether application of SEPP 65 was a matter for the Court or the consent authority to determine PLANNING LAW – planning approval – development application – applicability of State Environment Planning Policy 65 – Design Quality of Residential Apartment Development (“SEPP 65”) – Council approved development application for modifications and extensions to the first respondent’s apartment including construction of additional storey – substantially affected views from one floor of appellant’s apartment in neighbouring block –whether development approval invalid – whether SEPP 65 applicable – whether SEPP 65 complied with –– whether development application involved the “substantial redevelopment or the substantial refurbishment of an existing building”

Catchwords:

APPEALS – procedural fairness – property – proceedings commenced by summons for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where self-represented defendant consented to directions in Online Court, and made no applications prior to hearing – where large parts of defendant’s affidavit struck out – whether lack of pleadings or mediation constituted denial of procedural fairness – whether “further hearing” should have been granted – call for “substantive guidance” from Court – no denial of procedural fairness EVIDENCE – affidavit evidence – proceedings for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where large parts of defendant’s affidavit struck out, including based on speculation as to deceased’s state of mind about change to will – whether statement made by deceased’s former solicitor, that he did not change will, relied upon to prove that fact – no applicable exception to hearsay rule – evidence properly rejected or treated as submissions APPEALS – bias rule – actual or apprehended – proceedings for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) – where primary judge described case as “unremarkable” but for defences raised – where defendant alleged actual and apprehended bias based, principally, on findings against him “on nearly every single issue” – Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 42; [2011] HCA 48 – no actual or apprehended bias demonstrated LAND LAW – co-ownership – statutory trust for partition – appointment of trustees – where defendant resisted orders for the sale of real property under s 66G of the Conveyancing Act 1919 (NSW) based on promissory estoppel and contract – where primary judge made finding of fact, based on credibility, that there was no agreement between parties not to sell before 2023 – where defendant relied on absence of evidence in text messages with plaintiff concerning pre-2023 sale – no sound foundation for challenge to finding on appeal LAND LAW – co-ownership – statutory trust for partition – appointment of trustees – where defendant resisted orders for the sale of real property under s 66G of the Conveyancing Act 1919 (NSW) based on proprietary estoppel – where defendant alleged plaintiff owed duty to disclose change to will, removing clause allowing plaintiff continued residency for four years after deceased’s death – where defendant already knew about change, but had subsequent “realisation” that change occurred due to improper pressure applied by plaintiff – “realisation” amounted to no more than speculation APPEALS – from finding of fact – admission of further evidence – where foreshadowed evidence would not assist appellant given assumption made by primary judge that the fact the subject of the further evidence was proved

Catchwords:

CONTRACTS – Remedies – Damages – Time of assessment – Contract for supply and installation of software system – Where system delivered was defective – Whether primary judge erred in assessing damages as at date of hearing rather than date of breach – No contention that plaintiff unreasonably failed to mitigate its losses by delaying rectification or replacement – No error in assessing damages as at date of hearing CONTRACTS – Remedies – Damages – Measure of damages – Whether primary judge erred in assessing damages as costs of replacing defective system with new upgraded system, instead of costs of rectifying individual defects – Common ground that most efficient and cost-effective approach was replacement with newer system – Betterment – Onus on defendant to prove any amount saved by plaintiff due to upgrade – No error in primary judge’s approach

Catchwords:

INSURANCE – Liability insurance – Motor vehicle – Compulsory third-party insurance – Appeal from judicial review of medical assessment review panel decision – Whether accident caused psychiatric injury – Whether degree of whole person impairment greater than 10% ADMINISTRATIVE LAW – Whether medical assessment review panel failed to respond to substantial argument regarding temporal connection between accident and PTSD symptoms – No jurisdictional error found

Catchwords:

ADMINISTRATIVE LAW — status of minority reasons – whether majority required to address minority reasons ADMINISTRATIVE LAW — challenge to effect of applicant’s negative attitude in disciplinary proceedings — medical practitioner’s duty of candour in disciplinary context

Catchwords:

CRIME — Appeal and review — judicial review — statement made in decision dismissing a sentencing appeal not binding where it concerned an issue that did not need to be decided to determine the sentence — issue estoppel as it applies in civil proceedings inapplicable in the criminal law CRIME — Appeal and review — judicial review — judge did not misconstrue s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW) in suggesting that a new fact-finding process based on fresh evidence was not required — judge stated that the facts allegedly established were relied upon in previous proceedings and the relevant inquiry was whether the matters raised cause doubt as to guilt CRIME — Appeal and review — judicial review — whether judge erred in summarily dismissing an application under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW) — judge did not proceed on material misapprehensions of fact and law — allegedly fresh evidence confirmed what was advanced in previous proceedings and did not relate to an element of the relevant offence

Catchwords:

APPEAL – security for costs of appeal – UCPR r 51.50 – “special circumstances” found to exist – one appellant acting as representative only – evidence and findings of fraudulent activity of other appellant – doubt that appellants could satisfy adverse costs order

Catchwords:

CONTRACTS — construction of handwritten document promising refund of deposit paid by respondent to applicant’s company for migration agency services — whether applicant signed document in personal capacity or as company director — presumption of personal liability arising from unqualified signature not rebutted by evidence of contrary intention — consideration provided by respondent in the form of forbearance to sue — conclusion supported by surrounding circumstances including repeated demands on applicant for details of visa application

Catchwords:

EQUITY – trusts and trustees – constructive trusts – where respondent’s former de facto partner convicted of drug-related charge – Forfeiture Order made in respect of de facto partner’s assets pursuant to Criminal Assets Recovery Act 1990 (NSW) – where respondent performed domestic duties, raised children, and worked in business founded by de facto partner – whether “joint relationship and endeavour” formed pursuant to which respondent made contributions to acquisition of two properties the subject of the Forfeiture Order – application of principles in Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 – challenges to findings as to how respondent’s contributions to properties were said to be established – application of maxim “equity is equality”

Catchwords:

REAL PROPERTY — application to extend operation of caveats — s 74K Real Property Act 1900 (NSW) — no reasonable basis for existence of interest claimed in caveats — no alternative arguable interest suggested

Catchwords:

JUDICIAL REVIEW – modification of development consent – conditions governing exercise of power – consideration of reasons for grant of consent – whether reasons given – found no breach of condition if no reasons given – satisfaction that modified development substantially the same as originally approved development – whether opinion of satisfaction formed – not proven opinion not formed

Catchwords:

CONTRACTS – contract to provide certain services – contractual obligations in relation to provision of services – whether question as to validity of composition of contractor’s board affected its discharge of obligations under services agreement – whether failure to comply with requests for information in relation to contractor’s board and to take steps to hold a new election was in breach of obligations under services agreement – no breach of contract

Catchwords:

TAXATION – Payroll Tax Act 2007 (NSW) – Appeal from decision of Supreme Court regarding exercise discretion to “de-group” entities under s 79 of the Payroll Tax Act 2007 (NSW) – Appeal dismissed

Catchwords:

ADMINISTRATIVE LAW — judicial review — whether reasons of primary judge form part of the record — meaning of “ultimate determination” —primary judge’s decision a step towards an ultimate determination — reasons of primary judge do not form part of the record CHILD WELFARE — Care proceedings — whether primary judge made an error of law on the face of the record by misconstruing or failing to apply the requirement that there be a ‘realistic possibility of restoration within a reasonable period’ — submissions invite merits review of primary judgment and are therefore rejected CHILD WELFARE — Care proceedings — paramountcy of the best interests of the child —whether primary judge erred in focusing on the possibility that a parent would be capable of providing a safe environment for the child — primary judge did not err ADMINISTRATIVE LAW — Irrelevant and relevant considerations — judge below erred in the way in which he took into account whether a parent was denied procedural fairness

Catchwords:

APPEAL – appellant sought interim relief pending appeal – appeal arguable and balance of convenience not strongly favouring either side – respondents’ success in proceedings at first instance decisive factor

Catchwords:

APPEAL – security for costs of appeal – UCPR r 51.50 – “special circumstances” found to exist – fraud finding against appellants at first instance not challenged on appeal – adverse findings at first instance in relation to appellant’s conduct during hearing

Catchwords:

PRACTICE AND PROCEDURE – Application for expedition of leave application and appeal – Not in interests of justice to grant high degree of expedition sought – Application dismissed – Costs in the cause

Catchwords:

LIMITATION OF ACTIONS – Motor accidents – Failure to commence proceedings within three years of accident – Requirements of leave under Motor Accidents Compensation Act 1999 (NSW) ss 66(2) and 109(3)(a) – Whether a “full and satisfactory” explanation for delay – Whether evidence required by each of the applicant’s former legal advisors to constitute a full and satisfactory explanation for delay

Catchwords:

APPEALS – Procedure – Leave to appeal – No discretionary error of kind referred to in House v The King identified – Application out of time – Extension of time in which to bring application for leave to appeal refused

Catchwords:

RESTITUTION — Nature of restitutionary liability — Common counts — Money had and received to the use of the plaintiff — Onus of proof — Money paid by plaintiff to defendant to hold subject to further directions — Where plaintiff requested repayment — Where defendant said funds were paid out pursuant to plaintiff’s directions — Whether plaintiff required to prove payments were made without authority

Catchwords:

APPEALS – procedural fairness – whether court below was bound to fix a date for the hearing of a notice of motion prior to the date of the final hearing – leave to appeal refused

Catchwords:

CIVIL PROCEDURE – pleadings – amendment – grant of leave to amend after conclusion of hearing – application of s 63 of Supreme Court Act 1970 (NSW) – possibility of multiplicity of proceedings – absence of express reference to ss 56, 57, and 58 of the Civil Procedure Act 2005 (NSW) – no basis to interfere with judge’s exercise of discretion to allow amendment

Catchwords:

CONSTITUTIONAL LAW — Federal jurisdiction — Principle in Burns v Corbett — Inability of administrative tribunal to determine matters where judicial power being exercised — Taking administrative steps preliminary to exercising judicial power PERSONAL INJURY CLAIMS — Statutory interpretation — Section 26 of the Personal Injury Commission Act 2020 (NSW) — Legislative response to Burns v Corbett — Meaning of “compensation matter application” — Compensation matter application refers to applications made in respect of a particular dispute or issue that has arisen in the course of dealing with a claim, not a generic reference — No specific application requiring determination was presented in this case

Catchwords:

APPEALS — Leave to appeal — Interlocutory decision of the Land and Environment Court to refuse joinder of the Willoughby Local Planning Panel to proceedings — Whether joinder of the Panel to the judicial review proceeding was mandatory pursuant to r 59.3(4) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) — Whether primary judge erred in not exercising the discretion under r 6.24 of the UCPR to join the Panel as a necessary or proper party to the proceeding — Leave to appeal refused

Catchwords:

OCCUPATIONS — legal practitioners — misconduct and discipline — application by Law Society to remove from the Roll the name of a solicitor found guilty of professional misconduct and unsatisfactory professional conduct — appeal by solicitor against Tribunal (NCAT) decision — parties subsequently sought to have orders made by consent — the Court must satisfy itself as to the appropriateness of proposed consent orders APPEALS — Tribunal (NCAT) exceeded its jurisdiction — its finding of reckless indifference was impermissible because it went beyond the allegations put to it by the Law Society — on the application of both parties the Court set aside the Tribunal’s order recommending removal of the solicitor’s name from the Roll and in lieu ordered that the solicitor not be permitted to apply for a new practising certificate unless she satisfies an educational condition

Catchwords:

CONSTITUTIONAL LAW – criminal procedure – challenge to validity of State law governing committal proceedings – Kable doctrine – impairment of institutional integrity – independence, impartiality and fairness – what courts have traditionally done – whether administrative function is compatible with judicial functions – whether magistrate required to rubber-stamp executive decision CRIMINAL PROCEDURE – committal proceedings – Criminal Procedure Act 1986 (NSW), Ch 3, Pt 2 – case management – administrative process ancillary to judicial function – similar to procedures and powers of trial court – purpose to explore possibilities of guilty pleas and challenges to evidence of prosecution witnesses

Catchwords:

ADMINISTRATIVE LAW – judicial review – construction of regulations – validity of regulation – construction of regulation-making power – whether regulations which cut down common law rights authorised – grounds to refuse visits – application to communications with legal practitioners – Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 94 CONSTITUTIONAL LAW – inconsistency – State law having discriminatory impact on ethnic group – whether inconsistent with Racial Discrimination Act 1975 (Cth), ss 9, 10; Constitution, s 109 HUMAN RIGHTS – discrimination – grounds – racial discrimination – ethnic origin – restrictions on use of language – disparate impact – prison security – extreme high risk inmate – communications with family and lawyers – Racial Discrimination Act 1975 (Cth), ss 9, 10 PRISONERS – administration – supervision of visits and telephone calls – requirement to communicate in English – validity of Regulation – Commissioner’s monitoring policy – validity of policy – application to legal visits and communication with legal representatives – prisoners’ right to lawyer of choice and access to courts – whether criminal record check authorised – power to refuse visits by legal practitioners for any other reason STATUTORY INTERPRETATION – regulation-making power – authorising regulations limiting common law rights – sufficiency of general words – administration of prisons – rights of access to courts and legal advice – Crimes (Administration of Sentences) Regulation 2014, cll 15, 101, 116, 119

Catchwords:

CONTRACTS – breach of contract – financial services external dispute resolution scheme – review of determinations made by Australian Financial Complaints Authority (AFCA) – where tripartite contract provided that, under certain circumstances, AFCA may determine complaints by making determinations which are binding on two parties to the complaint – judicial review of determinations made pursuant to contractual dispute resolution schemes – whether AFCA had contractual authority, jurisdiction or power to determine complaint – whether complaint involved a claim to set aside a guarantee supported by security over the guarantor's primary place of residence – whether interest to be included in calculating value of claim – whether AFCA afforded procedural fairness to the parties to the complaint – whether AFCA’s determination was unreasonable in the Wednesbury sense CORPORATIONS – financial services – external dispute resolution scheme – review of determinations made by Australian Financial Complaints Authority (AFCA) – where tripartite contract provided that, under certain circumstances, AFCA may determine complaints by making determinations which are binding on two parties to the complaint – judicial review of determinations made pursuant to contractual dispute resolution schemes – whether AFCA had contractual authority, jurisdiction or power to determine complaint – whether complaint involved a claim to set aside a guarantee supported by security over the guarantor's primary place of residence – whether interest to be included in calculating value of claim – whether AFCA afforded procedural fairness to the parties to the complaint – whether AFCA’s determination was unreasonable in the Wednesbury sense

Catchwords:

CONTRACTS – Remedies – Specific performance – Requirement that plaintiff be ready, willing and able to perform its obligations under contract – Presumption in UCPR r 14.11 that a statement to that effect is implied in pleading – Plaintiff’s readiness, willingness and ability not traversed in defence and therefore taken to be admitted – Issue not resurrected in cross-examination such as to require evidence to be adduced – No error in primary judge’s conclusion that plaintiff was ready, willing and able to perform its obligations APPEALS – Procedure – Grounds of appeal not formally abandoned but not canvassed in written reply submissions and expressly not supported in oral submissions – Grounds taken to raise no issue of principle – Disposal “in short form” under Supreme Court Act 1970 (NSW), s 45(4) and UCPR r 51.55

Catchwords:

TAXES AND DUTIES – Where statutory demand issued by the Deputy Commissioner largely comprising estimates due under Div 268 in Sch 1 to the Taxation Administration Act 1953 – Application to set aside statutory demand – Whether supporting affidavit verified facts sufficient to prove that the underlying taxation liability never existed

Catchwords:

ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Procedural error — Right to reasons — Inadequacy of reasons — Whether inadequacy of reasons on part of non-superior court amounts to jurisdictional error — Nature of judicial duty to give reasons — Where inadequacy of reasons does not constitute failure to deal with substantial and clearly articulated argument or other similar failure to exercise jurisdiction ADMINISTRATIVE LAW — failure to deal with substantial and clearly articulated argument — overlap with procedural fairness CRIME — Appeal and review — Appeal from Local Court to District Court — Whether constructive failure on part of District Court judge in performing appeal functions

Catchwords:

COSTS – security for costs – power to order – where application made by first defendant in District Court for security for future costs of proceedings – where security not provided and proceedings against first and second defendants dismissed – whether power of dismissal under rule 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW) conditional on defendant seeking dismissal having security for costs order in its favour – whether discretion to dismiss proceedings miscarried – grant of leave to appeal COSTS – security for costs – power to order – whether rule 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW) is invalid pursuant to s 109 of the Constitution (Cth) due to direct inconsistency with s 1335 of the Corporations Act 2001 (Cth) – no substantive inconsistency demonstrated APPEALS – leave to appeal – where application filed out of time – where delay attributable to inadvertence of solicitors rather than applicants – consideration of discretionary factors for extension of time under rule 51.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) APPEALS – leave to appeal – adequacy of reasons for costs of cross-claim – no issue of principle

Catchwords:

CIVIL PROCEDURE — notice of motion seeking withdrawal of funds deposited into Court to provide security for the deceased’s costs of an appeal over two decades ago — order for withdrawal made pursuant to UCPR r 41.3(1) and inherent powers of the Court CIVIL PROCEDURE — requirement of service dispensed with — where concerted but unsuccessful efforts made by applicant to contact respondent over several years

Catchwords:

CONTRACT – restraint of trade – whether exclusive employment covenants reasonable – whether potentiality for confidential information to be used to employer’s detriment – where proposed new employer supplied a competing product – where employee had received information about marketing, shortcomings and potential development of employer’s product CONTRACT – restraint of trade – whether competitor restraint reasonable – where restraint only operated if competition existed at termination – language of restraint justifies inference that parties contemplated competition at termination – not necessary to prove specific competitors existed at time of entry into restraint CONTRACT – restraint of trade – challenge to discretion to make declaration and grant injunction – whether protectable interest in employer’s confidential information at date of hearing CONTRACT – restraint of trade – inducing or encouraging another employee to leave employment – whether other employee had independently decided to leave – where finding as to materiality of encouragement and inducement was well open

Catchwords:

HIGH RISK OFFENDERS – extended supervision order – whether the respondent is a “supervised offender” within the meaning of the Crimes (High Risk Offenders) Act 2006 (NSW), s 5I – whether an extended supervision order can commence earlier than when the respondent’s current sentence expires

Catchwords:

NEGLIGENCE – Motor vehicle accident – Identity of vehicle in dispute – Whether primary judge erred in preferring evidence of a particular witness – Whether principles in Fox v Percy apply – Nominal Defendant held liable NEGLIGENCE – Motor vehicle accident – Contributory negligence – Whether primary judge erred in not accepting evidence suggestive of speeding – No contributory negligence

Catchwords:

CONTRACTS — Contracts requiring written evidence — Statute of frauds — Contract said to record agreement for sale of land — Family arrangement — Construction — Whether contract was an agreement for sale of land — Whether a clause headed “Recitals” was an operative provision — Whether contract a note or memorandum of agreement APPEALS — Point not taken below — Whether point taken below — Whether claim, though pleaded, proceeded on a different basis at trial

Catchwords:

NEGLIGENCE – Medical practitioner – Failure to diagnose – Whether failure to diagnose caused harm – Loss of chance APPEAL – Function of appellate court – finding of fact purely based on analysis of the medical evidence

Catchwords:

COSTS –Party/Party – Indemnity

Catchwords:

CONTRACTS – Construction and interpretation – Where shareholders agreement entitled company to project management fees in respect of development project – Whether fees became payable after development approval was granted, or at completion of project by sale – Project management expressly not limited to work in relation to development application – No source of funds for fee contemplated other than sale proceeds – Held that fees became payable only at completion of project by sale

Catchwords:

DEFAMATION – Requirement of “serious harm” to reputation under Defamation Act 2013 (UK), s 1 – Limited publication – Time at which harm falls to be determined – Relevance of duration of period of harm – Relevance of delay in complaint and commencement of proceedings – Whether imputation regarding specific instance of conduct supports general imputation – Whether Court is required to determine that each conveyed imputation is defamatory in nature – Primary judge’s conclusion that serious harm threshold not satisfied upheld DEFAMATION – Defences – Common law qualified privilege – Where matter complained of was an email sent to complainant’s parents by his ex-wife’s parents regarding family matters – Defining of privileged occasion – Relevance of conveyed imputations to occasion – Whether privilege lost by publication being actuated by malice

Catchwords:

APPEALS – procedure – stay of judgment pending appeal – where appellant company has no substantial assets – where sufficiently arguable case on appeal – whether real risk of prejudice to appellant in event appellant wound up and prosecution of appeal stayed – whether prejudice to respondent in event application to wind up delayed in challenging “uncommercial transactions” of appellant – no question of principle

Catchwords:

BUILDING AND CONSTRUCTION – Contract – Whether contract existed – Whether respondent engaged as either builder or supervisor – Alleged partly written and partly oral contract – No contract in existence BUILDING AND CONSTRUCTION – Defective work – Duty to mitigate loss – Whether appellants acted reasonably to mitigate loss

Catchwords:

CONSTITUTIONAL LAW – constitutional implications – whether ss 81 and 83 of the Constitution provide an implied basis for the recovery of ultra vires payments by the Commonwealth – where proceedings brought by Commonwealth to recover ultra vires payments mistakenly made to former Navy officer after his separation from Navy – whether s 14(1)(a) of Limitation Act 1969 (NSW) is rendered inoperative or invalid in its application to the Commonwealth’s claim by reason of ss 81 and 83 of the Constitution RESTITUTION – bars and defences to restitutionary claims – limitation periods – where Commonwealth brought proceedings to recover ultra vires payments mistakenly made to former Navy officer after separation from Navy – application of principle in Auckland Harbour Board v The King [1924] AC 318 – whether recovery of some payments statute-barred by reason of limitation period – whether Auckland Harbour Board claim is a claim in “quasi contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – meaning and historical development of claims in “quasi contract” – whether limitation period should be postponed pursuant to s 56 of the Limitation Act RESTITUTION – public authorities – claims by public authorities – where Commonwealth mistakenly continued to make payments to former Navy officer for six years following separation from the Navy – where mistaken payments were made ultra vires – application of principle in Auckland Harbour Board v The King [1924] AC 318 – historical development and juristic nature of claim pursuant to Auckland Harbour Board principle – whether recovery of some payments statute-barred by reason of limitation period – whether claim based on the Auckland Harbour Board is a claim in “quasi-contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – whether former Navy officer liable for payments made to third parties at his direction prior to separation from Navy RESTITUTION – nature of restitutionary liability – common counts – money had and received to the use of the plaintiff – where Commonwealth mistakenly continued to make payments to former Navy officer for six years following separation from the Navy – where mistaken payments were made ultra vires – application of principle in Auckland Harbour Board v The King [1924] AC 318 – historical development and juristic nature of claim pursuant to Auckland Harbour Board principle – whether recovery of some payments statute-barred by reason of limitation period – whether claim based on the Auckland Harbour Board is a claim in “quasi contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) LIMITATION OF ACTIONS – quasi-contract and restitution – construction of “quasi contract” for the purposes of s 14(1)(a) of the Limitation Act 1969 (NSW) – where Commonwealth brought proceedings to recover ultra vires payments mistakenly made to former Navy officer after separation from Navy – application of principle in Auckland Harbour Board v The King [1924] AC 318 – whether recovery of some payments statute-barred by reason of limitation period – whether Auckland Harbour Board claim is a claim in “quasi contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – meaning and historical development of claims in “quasi contract” – whether limitation period should be postponed pursuant to s 56 of the Limitation Act

Catchwords:

COURTS AND JUDGES – supervisory jurisdiction – post-appeal application to Supreme Court for inquiry into conviction under Pt 7, Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW) – power to consider application conferred on judge authorised by Chief Justice – power not conferred on Supreme Court – judge acting as persona designata COURTS AND JUDGES – supervisory jurisdiction – post-appeal application to Supreme Court for inquiry into conviction – conviction for breach of a law of the Commonwealth – whether State Act applies of its own force – whether State Act picked up and applied as Commonwealth law – operation of s 68 of Judiciary Act 1903 (Cth) where part only of State law ancillary to exercise of judicial power CRIME – federal offenders – offender convicted by State court for offence against federal law – applicability of State laws permitting post-appeal application to Supreme Court for inquiry into conviction JUDICIAL REVIEW – exercise of administrative power by Supreme Court judge – whether acting under a Commonwealth enactment – availability of judicial review – whether decision reviewable by Federal Court

Catchwords:

CIVIL PROCEDURE — Pro bono referral under r 7.36 of UCPR — Referral power likely administrative in nature — No evidence as to the financial means of the applicant — Where previous pro bono referral assistance provided — Where applicant unlikely to accept legal advice — Referral refused CIVIL PROCEDURE — Suppression and non-publication — Possible public interest in non-disclosure of identifying information of persons on Child Protection Register — Where the information sought to be suppressed was already in the public domain —Order not made under the Court Suppression Act

Catchwords:

COSTS — Security for costs — Relevant factors — Strength of the claim — Degree of unreality about claims in light of undisputed facts — Discretion — Mere non-payment of judgment debt does not indicate stultification of appeal — Lack of evidence of financial position of either party — Order not to be refused purely on the basis that claimant of security may have been well-resourced

Catchwords:

TORTS — false imprisonment — matters known to prosecutor after conclusion of applicant’s electronic interview with police justified his continued detention following earlier lawful arrest TORTS — malicious prosecution — whether officer-in-charge continued to act as a “prosecutor” after case transferred to DPP — absence of reasonable and probable cause not demonstrated — malice not established as no basis for concluding that prosecutor acted other than appropriately to invoke criminal justice system

Catchwords:

CONTRACTS — Formation — Acceptance of offer — Acceptance by conduct — Where the parties each propounded draft documents — Where neither party expressly accepted the draft provided by the other party — Where respondent commenced works — Whether respondent by its conduct accepted the contract propounded by the appellant CONTRACTS — Formation — Subsequent conduct — Where appellant sought variation of the works ostensibly in accordance with contract provisions — Extent to which subsequent conduct is relevant to questions of formation

Catchwords:

WORKERS COMPENSATION — Disease injury — Aggravation, acceleration, exacerbation, or deterioration in the course of employment — Where the deceased suffered an asthma attack causing cardiac arrest and anoxia, and ultimately resulting in her death, during the course of her employment — Where appellants initially pleaded the injury as an “asthma attack” — Where appellants brought a second claim for compensation pleading the injury as “cardiac arrest and anoxia” — Whether Anshun estoppel precluded the appellants from bringing the second claim STATUTORY INTERPRETATION — Applicability of Anshun estoppel to the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Catchwords:

NEGLIGENCE — Causation — Increased risk of harm — Necessity of showing that the risk “came home” or eventuated EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Whether opinion of experienced horse trainer and breeder without tertiary qualifications based on specialised knowledge — Eccentric expressions used in report — Expert not required to engage in line-drawing exercise APPEALS — From finding of fact — Function of appellate court — Credibility findings — Advantages of trial judge — Impressions formed by seeing and hearing witness not limited to observed demeanour

Catchwords:

ADMINISTRATIVE LAW – Public Sector – Police Regulation (Superannuation) Act 1906 (NSW) ss 9A(4) and 21(4) – where District Court on appeal de novo backdated respondent’s pension by ten years before date of application – where appeal lies in point of law – where pension may be backdated if decision-maker is satisfied that there are exceptional circumstances that merit its doing so – whether such circumstances are only those which explain the delay in filing an application

Catchwords:

EQUITY – trusts and trustees – discretionary trust – whether unpaid distributions payable at call – unpaid distributions credited to beneficiaries’ loan accounts – acknowledgement of debt in audited accounts of the trust – whether trustee intended to exercise power of distribution – whether approval of audited accounts of trust justifies inference as to trustee’s intention and informal resolution to make distributions CORPORATIONS – accounts – evidentiary weight of matters stated or recorded in accounts of the trust – s 1305, Corporations Act (Cth) – inference to be drawn from matters recorded in accounts of the trust – where no formal resolution of directors to distribute income to beneficiaries APPEAL – new point on appeal – where alternative case on appeal involves contrary proposition to case at trial – whether prejudice to respondent

Catchwords:

COSTS – Security for costs – special circumstances – whether grounds reasonably arguable – whether appellants impecunious – whether attempts at judgment enforcement frustrated by appellants – substantial risk respondents will not recover costs if successful – Uniform Civil Procedure Rules 2005 (NSW), r 51.50

Catchwords:

APPEALS — Leave to appeal denied — Section 127 of the District Court Act 1973 (NSW) — Principles relating to appeals for small claims — Damages assessed to be between $7000 and $7500 TORTS — Misfeasance by public officer in discharge of public duty – Mental element

Catchwords:

APPEALS – Proceedings summarily dismissed – Question of principle – Whether claims sufficiently arguable to be determined at hearing – Whether person who has instigated, if not formally commenced, legal proceedings liable for tort of abuse of process

Catchwords:

WORKERS COMPENSATION – Boilermaker’s deafness – Workers Compensation Act 1987 (NSW) ss 60 and 17 – claim for provision of new hearing aids – where notice of injury of loss of hearing given to worker’s then employer in 1999 – where worker changed employment in 2009 – where worker suffered further hearing loss due to nature of employment after 1999 but did not give notice of further injury to later employer – where finding made that hearing aids were reasonably necessary as a consequence of worker’s hearing loss notified in 1999 – held worker not obliged to give notice of further injury to second employer – first employer liable for consequences of 1999 injury – no question of law

Catchwords:

SUCCESSION – family provision – claim by adult daughter for provision pursuant to Succession Act 2006 (NSW), s 59 – where deceased’s 2019 will left family home to appellant daughter and small legacy to respondent daughter – where testamentary statement purported to justify 2019 will – where primary judge found will and statement obtained by process of manipulation and sourced to appellant – where earlier will of deceased leaving one-third of estate to each child found to reflect deceased’s fair and considered testamentary judgment – whether primary judge erred in being satisfied that 2019 will did not make adequate provision for respondent’s proper advancement

Catchwords:

APPEALS — Leave to appeal — Security for costs — Applicant conceded unable to pay costs of other side if ordered to do so — No issue of principle — No miscarriage in exercise of discretion

Catchwords:

BUILDING AND CONSTRUCTION – residential building contract – where general conditions of contract provided for making by builder of monthly payment claims – where special conditions appointed architect to administer contract on owner’s behalf, including by assessing and certifying builder’s payment claims – whether owner’s obligation to pay and builder’s entitlement to payment only in respect of amounts certified as due and payable by architect

Catchwords:

COSTS – unsuccessful respondent seeks costs order in its favour or no order as to costs – whether basis to displace UCPR r 42.1 – court did not determine all points raised by successful appellant – some points not raised at first instance – where respondent’s conduct cause of entire litigation – no basis to displace usual order as to costs

Catchwords:

CIVIL PROCEDURE – parties – vexatious litigants – fifth application to set aside vexatious proceedings order – application dismissed CONSTITUTIONAL LAW – Judiciary Act 1903 (Cth) s 78B – whether proceedings involve a matter arising under the Constitution or involving its interpretation – where mere assertion of invalidity of Vexatious Proceedings Act 2008 (NSW) by reason of s 109 of the Constitution – whether frivolous or unarguable contention – no obligation to stay proceedings until s 78B notices given ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW), s 34B – original application before Tribunal involved disciplinary proceedings – whether original application involved federal jurisdiction – whether Tribunal’s decision stayed by reason of subsequent proceedings in Federal Court between applicant and an insurer

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – bias – apprehended bias on the ground of prejudgment – where members of the Court sat on previous unsuccessful applications by the applicant

Catchwords:

APPEALS – jurisdiction of appellate court – Court of Appeal – where jurisdiction of Supreme Court of NSW invoked pursuant to cross-vesting legislation – where Commercial Arbitration Act 2012 (WA), s 13(5), provides first-instance decision that is “within the limits of the authority of the Court” is “final” – whether s 13(5) precludes appeal to Court of Appeal by way of a rehearing pursuant to Supreme Court Act 1970 (NSW), s 101 – whether s 13(5) precludes appeal to Court of Appeal from decisions of courts, including superior courts, for jurisdictional error COMMERCIAL ARBITRATION – composition of arbitral tribunal – grounds for challenge to arbitrator – where presiding arbitrator’s now wife acted for respondents in connection with transactions relevant to the arbitration, in 1994, while in relationship with him – where applicants sought termination of arbitrator’s mandate – whether “justifiable doubts” as to arbitrator’s impartiality or independence – whether necessary to consider whether combined effect of circumstances gives rise to justifiable doubts when individual circumstances do not – whether erroneous to consider whether doubts overcome by rational arguments distancing wife from respondents – whether decision of primary judge involved finding that Commercial Arbitration Act 2012 (WA), s 12(3), sets higher threshold than Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 – no arguable error warranting grant of leave

Catchwords:

INSURANCE – property insurance – home and contents – where claim by policyholder made following break-in at home – where drafting in policy used the word “cover” throughout – whether cause of action for damages arose at the time of property damage or upon determination of claim – whether claim against policy barred by Limitation Act 1969 (NSW), s 14 – whether “cover” where used in policy interchangeable with “indemnify”

Catchwords:

PROCEDURE – applications for leave to appeal – where plaintiffs claimed damages from defendant doctor for medical negligence – where plaintiffs sought leave to proceed against defendant’s insurer under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) s 5(1) – where primary judge found plaintiffs’ claims “first made” before commencement of relevant policy period – whether primary judge erred in refusing leave on basis that no arguable case that policy responded to plaintiffs’ claims

Catchwords:

APPEALS – jurisdiction of appellate court – Court of Appeal – cross-vesting – whether Court of Appeal had jurisdiction to determine appeal – whether proposed appeal involved a matter for determination arising under s 90K of the Family Law Act 1975 (Cth) – whether application for leave to appeal was required to be instituted in and could only be determined by Full Court of the Federal Court and Family Court of Australia – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 7 COURTS AND JUDGES – jurisdiction – Court of Appeal – cross-vesting – whether Court of Appeal had jurisdiction to determine appeal – whether proposed appeal involved a matter for determination arising under s 90K of the Family Law Act 1975 (Cth) – whether application for leave to appeal was required to be instituted in and could only be determined by Full Court of the Federal Court and Family Court of Australia – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 7

Catchwords:

CONTRACTS – construction – loan agreement – construction of clause imposing default interest – whether interest accrued only on outstanding principal, or entire indebtedness – whether default interest unenforceable as penalty

Catchwords:

ASSOCIATIONS AND CLUBS – jurisdiction of courts – justiciability – whether party pre-selection process justiciable – application of Cameron v Hogan (1934) 51 CLR 358; [1934] HCA 24 – whether statutory provisions create an interest in members allowing Court to enforce procedures under Party Constitution ASSOCIATIONS AND CLUBS – unincorporated political party – pre-selection dispute – where constitution of a party authorises Federal Executive to intervene in the management of a State Division – whether “management” includes “management and control” – whether power to endorse candidates for election is exercise of management function – whether power to endorse candidate subject to Constitution of State Division

Catchwords:

COURTS AND JUDGES — Apprehended bias — Disqualification

Catchwords:

APPEALS — Procedural fairness — Denial of procedural fairness — Where primary judge alleged to have worn a brown suit and no tie — Whether failure of primary judge to wear a robe and wig a denial of procedural fairness or a breach of the Court Attire Policy — No denial of procedural fairness APPEALS — Right of appeal — Relationship with judicial review — Where applicant sought leave to appeal from two decisions of the primary judge and judicial review of the same two decisions — Whether primary judge was exercising an administrative function in light of his Honour’s omission to wear robes and a wig CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — Whether judicial review proceedings an abuse of process APPEALS — Leave to appeal — Principles governing — Public importance APPEALS — From exercise of discretion — Whether House v The King (1936) 55 CLR 499; [1936] HCA 40 type error disclosed by the primary judge

Catchwords:

LIMITATION OF ACTIONS – debt – limitation period – suspension of limitation period – lender under relevant disability – mental impairment – whether impairment rendered lender incapable of, or substantially impeded in, managing her affairs in relation to initiating proceedings to recover loan – whether enduring powers of attorney and enduring guardianship prevent finding of disability – Limitation Act 1969 (NSW), ss 11, 52 EVIDENCE – documentary evidence – business records – medical reports – records of treating health professionals – admissibility – whether other party can require party tendering record to call expert for cross-examination – Uniform Civil Procedure Rules 2005 (NSW), r 31.29 EVIDENCE – evidence of disability – solicitor for deceased lender who took instructions at material time not called – whether Jones v Dunkel inference available – whether solicitor-client privilege justified absence

Catchwords:

EQUITY – fiduciary duties – breach – accessorial liability – whether assistant had knowledge of breaches of fiduciary duties – where limitations to appellate review of credibility-based findings EQUITY – fiduciary duties – breach – accessorial liability – whether knowledge of breaches of fiduciary duties – whether reliance on professional advice glaringly improbable – where lack of understanding of full effect of transactions – whether assistant had knowledge of dishonest and fraudulent scheme EVIDENCE – general principles – Jones v Dunkel –where alleged assistant in dishonest and fraudulent design did not give evidence – where inference sought to fill gap in plaintiffs’ case EQUITY – fiduciary duties – breach – accessorial liability – where alleged assistant was a company – transactions constituting carousel frauds – corporate attribution rule – whether knowledge of director attributed to company – whether fraud exception applied – whether transactions partly for the benefit of the company

Catchwords:

CIVIL PROCEDURE – no issue of principle

Catchwords:

APPEALS – security for costs – special circumstances – length and complexity of appeal – whether grounds reasonably arguable – respondents’ estimates of likely costs of appeal – appellant’s impecuniosity – overseas residence of appellant – circumstances of those likely to benefit from success – availability of litigation funding – whether lawyers with unpaid costs reasonably expected to fund appeal – Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50 APPEALS – stay of order for assessment of costs of trial – assessment referred to referee – expenses to be incurred in reference – possible futility – likely stay of enforcement of payment of costs if assessed – parties to focus on appeal – overriding principle of expeditious resolution of proceedings – undertaking not to dispose of assets CORPORATIONS – directors and officers – diversion of commercial opportunity – fiduciary duties – knowing assistance – other corporations’ participation in breaches – vicarious liability for officer’s breach of duty – damages for loss of a chance

Catchwords:

EQUITY – fiduciary duties – breach – accessorial liability – second limb in Barnes v Addy – involvement in contravention of director’s statutory duties – where fiduciary and some accessories released from liability – whether Civil Procedure Act 2005 (NSW) s 95 abrogates joint liability release rule – whether the common law rule applies in equity EQUITY – fiduciary duties – breach – accessorial liability claim – whether assistant had requisite knowledge of dishonest breaches of fiduciary duty – whether facts would have indicated to honest and reasonable person that invoices were contrived and payments lacked genuine commercial purpose

Catchwords:

EASEMENTS – application to extinguish right of way – s 89(1) Conveyancing Act – adjacent properties – obsolescence – right of way granted in 1885 in unlimited terms – purposes included, but not limited to, removal of “nightsoil”– right of way fell into disuse after sewers connected in 1908 – no error in primary judge’s finding that easement should not be deemed obsolete EASEMENTS – abandonment – title to dominant tenement became indefeasible in 2010 – owners took ‘active steps’ to include right of way on title – servient tenement not part of appellants’ property until possessory title approved in 2019 – title granted subject to right of way fence erected between properties preventing access – garden bed and fishpond built on servient tenement – after grant of indefeasible title dominant tenement owners built new fence, shed and wall impeding access to right of way – owners of servient tenement replaced garden bed and fishpond with wall – extended room over right of way – whether intention to abandon easement should be inferred – non‑user and building of non-permanent obstacles thereafter did not establish abandonment EASEMENTS – substantial injury – continued existence of easement would secure practical benefit to owners of dominant tenement – no error in primary judge’s finding that it was not shown that extinguishment would not substantially injure the owners of the dominant tenement – appeal dismissed

Catchwords:

SUCCESSION – probate and administration – where primary judge granted letters of administration to respondents in respect of deceased’s 2000 will – where applicant challenged validity of that will and propounded 2016 will – where primary judge found applicant had no standing to challenge 2000 will and rejected substance of his challenge – where primary judge found 2016 will fabricated by applicant – whether evidence sufficient to support primary judge’s conclusions CIVIL PROCEDURE – application to adduce further evidence in the appeal – where evidence sought to be led could have been obtained with reasonable diligence for use at trial – where no realistic probability that with benefit of evidence there would be different outcome in the proceedings – no “special grounds” established under Supreme Court Act 1970 (NSW) s 75A(8) – application dismissed

Catchwords:

CONTRACTS — implied term — where the primary judge implied a term into a deed containing an option to purchase land so as to validate the purported exercise of that option — whether the conditions stated in BP Refinery were satisfied — held on appeal that the term was not necessary to give business efficacy to the contract, not “so obvious that it goes without saying” and not consistent with the express terms — further held that it was sufficient that the option, without the implication, was capable of being exercised in many foreseeable circumstances as distinct from all conceivable circumstances EQUITY — remedies — whether the respondent entitled to relief against forfeiture if option to purchase land was not validly exercised — held on appeal that the respondent did not establish any of the “special heads” of fraud, accident, mistake or surprise, or any other circumstances establishing unconscientious conduct on the part of the appellant — circumstances do not amount to an “accident” where they are reasonably within the contemplation of the parties

Catchwords:

PROCEDURE – application for pro bono assistance – judicial review of dismissal of appeal by District Court against Local Court conviction – applicant suffers from significant hearing impairment – strength of case – complaint against solicitor formerly retained – application refused

Catchwords:

EQUITY – Unconscionable conduct – Special disability or disadvantage – Whether constructive notice of special disadvantage sufficient – Whether equitable presumption of the unconscientious taking of advantage arises where disadvantage of a kind that renders the disadvantaged person incapable of judging their best interests, and knowledge of such disadvantage, are proved to the requisite standard

Catchwords:

PERSONAL PROPERTY — Gifts — Conditional gifts — Where the respondent advanced moneys to the appellant to assist in the payment of legal fees and the payment of stamp duty — Whether moneys were advanced by way of loan or unconditional gift — Where primary judge held that certain moneys advanced by way of conditional gift — Where conditional gift not pleaded APPEALS — From finding of fact — Credibility of witnesses

Catchwords:

CORPORATIONS — Directors and officers — Directors’ duties — Duty of care and diligence — Whether directors breached s 180 of the Corporations Act 2001 (Cth) by voting in favour of the payment of dividends — Where an alleged contravention of s 254T was significant to the alleged contravention of s 180 CORPORATIONS — Statutory construction — Construction of s 254T(1)(c) of the Corporations Act — Whether “prejudice” to a company’s ability to pay its creditors includes prejudice to the company’s ability to pay the claims of its creditors as and when they fall due — Whether “ability to pay” encompasses the presence of trading stock which could be sold CORPORATIONS — Damages — Whether payment of a dividend can constitute “damage” under s 1317H(1) of the Corporations Act in circumstances where there has been a breach of a statutory norm WORDS AND PHRASES — “materially prejudice” — “ability to pay” — “damage” — Corporations Act, ss 254T(1)(c),1317H(1) CORPORATIONS — Capital raising — Application for loan facility — Misleading or deceptive conduct — Failure to disclose practice of over-purchasing to obtain O&A rebates — Failure to disclose actions taken to address overstocking — Significance attached to undisclosed information determined by all evidence CORPORATIONS — Proportionate liability — One act of two persons acting jointly causing loss or damage — Where officer is agent of company — Vicariously liable principal not concurrent wrongdoer — No acts or omissions independently attributable to company

Catchwords:

OCCUPATIONS — Heath practitioners — Misconduct and discipline — Disciplinary proceedings — ophthalmologist conducted breast and abdominal examination in circumstances where examination not indicated — application by Health Care Complaints Commission to NSW Civil and Administrative Tribunal seeking finding of professional misconduct —Tribunal found only unsatisfactory professional conduct — whether Tribunal erred in equating inappropriate conduct of a sexual nature with conduct that is sexually motivated — two-stage procedure for determination of disciplinary complaints — meaning of “interlocutory decision” in Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Application for leave to appeal – From interlocutory orders – Summary dismissal of proceeding – Motion seeking leave to amend draft notice of appeal – Application for leave to appeal dismissed – Motion dismissed

Catchwords:

NEGLIGENCE – workplace injury – plaintiff employee sustained injury following years of operating machine requiring him to drive tractor while turning his head – plaintiff gave divergent accounts of how frequently and how long he turned his head – primary judge dismissed claim on basis that injury not foreseeable – reasons for judgment very concise – whether primary judge made finding concerning plaintiff turning his head – whether if finding made, it accorded with evidence – whether reasons inadequate – whether proceedings needed to be remitted for further trial – causation and damages not in issue – finding of breach made and judgment for plaintiff entered

Catchwords:

DUST DISEASES – appeal from Dust Diseases Tribunal – deceased worker exposed to asbestos dust and fibres at appellant’s factory between 1962 and 1964 – heavy smoker – died in 2019 – prior to death acquired lung cancer – only issue was causation – two limbs to causation case – exposure to asbestos caused worker to acquire asbestosis – exposure to asbestos caused worker to acquire lung cancer – success on either limb sufficient for worker to succeed – primary judge upheld both limbs – finding of asbestosis based on preference for respondent’s expert – appellant called five experts refuting asbestosis – none cross‑examined – whether primary judge required as a matter of law to accept evidence not cross‑examined on – Browne v Dunn – appeal restricted to points of law – question of fact – no obligation as a matter of law to accept unchallenged evidence – whether primary judge obliged to draw Jones v Dunkel inference from failure of respondent to call specialist who viewed lung scan – no obligation as a matter of law to draw such inference – finding that asbestos exposure caused lung cancer – epidemiological evidence – appellant’s expert concluded relative risk of smoking causing lung cancer was around 96% – primary judge wrongly treated evidence as supporting a finding that asbestos made a material contribution to worker acquiring lung cancer – erred in law in approach to causation – s 25B of the Dust Diseases Tribunal Act – whether primary judge acted inconsistently with s 25B(1) and previous decision of tribunal in Judd v Amaca – not established – whether primary judge failed to address appellant’s case that causal potency of historical exposure to asbestos reduces over time – not established

Catchwords:

PRACTICE – appeals – stay of execution – whether appropriate case made out – where undertaking and security provided – where appeal to be heard in near future – where respondents had failed to apply over previous two years to vary interlocutory regime based on changed circumstances – stay continued PRACTICE – appeals – security for costs – respondents sought substantial security – respondents claim to have spent more costs on opposing stay of execution and in support of application for security for costs than in defending the appeal – respondents sought to divide appeal into that brought by first appellant and that brought by second appellant – respondents’ submission misconceived – respondents substantially unsuccessful in opposition – security ordered in amount proffered by appellants

Catchwords:

CHILD WELFARE – Care proceedings – Care order – Order allocating parental responsibility – Second appeal – Appeal from Equity Division decision upholding Final Care Order of Children’s Court – Best interests of the child – Where child has undertaken substantial course of medical treatment by consent of Community Services with limited contact with parents – Where child approaching adult age and permanency planning underway – Whether child should be restored to mother’s care – Holding that there are insufficient prospects that alternative order would be made on appeal to justify granting of leave to appeal – Summons seeking leave to appeal dismissed

Catchwords:

PRACTICE – appeals – security for costs – variation – liberty to apply – order to pay $25,000 into court or as otherwise agreed by way of security for costs – appellant unilaterally offers alternative form of security – respondent rejects offer – no basis to vary regime

Catchwords:

PRACTICE – appeals – stay of execution pending appeal – subpoena and notice to produce issued by respondent opposing stay of execution – notice sought production of costs estimate of appeal –production of documents bearing on financial position of appellant’s partner – documents of no apparent relevance COSTS – indemnity costs – unfounded opposition to stay of execution on terms – significance of s 56 of Civil Procedure Act 2005 (NSW) – insignificance of respondent’s broader commercial interests – indemnity costs ordered

Catchwords:

PRACTICE – appeals – stay of execution – whether appellant had made out appropriate case for a stay – appeal brought promptly – whether appeal reasonably arguable – undertaking not to sell or encumber real property – whether judgment substantially exceeded appellant’s assets – where respondent threatened to execute judgment – where respondent had in breach of inter partes agreement taken steps to levy execution – stay ordered on appellant’s undertaking

Catchwords:

DEFAMATION – imputations – whether imputations conveyed by publications – plaintiff alleged alternative imputations - whether plaintiff entitled to decision that publication conveyed primary imputation as opposed to imputation most accurately reflected in publication – “single meaning rule” considered – contextual truth – whether contextual imputations conveyed DEFAMATION – justification – report of plaintiff’s offensive language mis-stated – plaintiff said to colleague “if you weren’t so young I’d come up there and rip your head off and shit down your throat” – reported as threat to “slit” colleague’s throat – significance of conditionality of language – significance of impossibility of literal meaning of plaintiff’s language – whether publication nevertheless substantially true DEFAMATION – honest opinion – fact/opinion distinction – significance of non-verbal and contextual aspects of publication – whether factual statements and opinion inextricably intermingled – whether opinion based on proper material DEFAMATION – offer of amends – offer to publish “correction” – offer did not include acknowledgement of error or statement of correct position – offer to publish matters claimed by plaintiff – offer held not to amount to correction for purposes of statutory defence APPEALS – principles governing appellate review – principles vary depending on nature of challenge – no obligation to resolve non-dispositive submissions – consideration of principle of judicial economy – consideration of “substantial wrong or miscarriage” precondition to ordering new trial – UCPR r 51.53 considered – significance of rule in case of judge-alone trial – significance of rule if evidence found to be wrongly rejected – relation between rule and s 56 of Civil Procedure Act 2005 (NSW)

Catchwords:

CONTRACTS – construction – contract for the provision of services in relation to water treatment facility – “step-in” clause requiring subcontractor to “assist” principal contractor – whether clause authorises the principal to direct the subcontractor to operate the facility and provide the services and requires subcontractor to comply with such direction – whether “Facility” as defined in the contract had come into existence as a condition to the exercise of step-in rights

Catchwords:

TAXES AND DUTIES – payroll tax – employment agents – interpretation of s 37(1) of Payroll Tax Act 2007 (NSW) – where Chief Commissioner sought to overturn construction determined by UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852 – construction consistently applied in subsequent cases – numerous subsequent amendments to legislation – some amendments had materially altered the operation of employment agency contract provisions – construction not shown to be unworkable or untenable – legislation harmonised with other jurisdictions – construction in UNSW Global not departed from

Catchwords:

APPEALS – leave to appeal from order for security for costs – representative proceedings – where litigation funder agreed to indemnify plaintiffs against adverse costs order and to provide security for costs – where identity of funder not disclosed – where respondent unable to assess funder’s financial ability to meet indemnity – no reasonably arguable error or question of principle COSTS – security for costs – sources of power to order security – UCPR r 42.21 – inherent power

Catchwords:

APPEAL – alleged assault by police – appeal from dismissal – appellant said he was assaulted as he confronted police over alleged failure to protect his father from neighbour – claims excessive force applied – claimed femur deliberately broken – police claim appellant represented threat to neighbour who was in their custody – claimed only applied “check drill” and appellant fell over – primary judge preferred evidence of police officers – dismissed claim – whether primary judge afforded proper weight to medical notes recording that applicant was assaulted – whether primary judge made finding that appellant and his mother concocted and colluded in their evidence – whether primary judge was obliged to make finding that police witnesses participated in a re-enactment of incident and their evidence was contaminated – all grounds rejected – appeal dismissed

Catchwords:

PROCEDURE – compromises and settlements – litigation compromised by defendant accepting plaintiff’s offer – defendant declined to execute deed – Court determined binding settlement reached – Court then authorised Registrar to execute deed on defendant’s behalf – deed as executed by Registrar departed from terms of binding settlement – legal effect of recitals in deed – subsequent proceedings brought by defendant summarily dismissed – whether decision materially affected by deed – appeals allowed, deed ordered to be delivered up for cancellation

Catchwords:

COSTS — security for costs — whether plaintiff “ordinarily resident outside of Australia” — proceedings dismissed after non-provision of security — r 42.21(1)(a) and (3) of UCPR — application for leave to appeal dismissed — no arguable prospects of success on appeal

Catchwords:

PRACTICE – parties – misjoinder – third respondent to appeal died after appeal commenced – appellant challenged findings that worker was injured and that appellant was employer – third respondent contingently liable in event that appellant established that third respondent was the deemed employer – neither appellant nor third respondent had paid workers compensation insurance premiums – Nominal Insurer liable to indemnify worker but entitled to recovery from employer – risk that estate of third respondent might contest Nominal Insurer’s entitlement to recover if not joined to this litigation – certainty that joinder of third respondent’s estate would involve expense and time – many circumstances in which joinder would serve no end – third respondent removed from proceedings

Catchwords:

CONTRACTS – construction – whether vendor’s covenant to construct building in a proper and workmanlike manner was only a “best endeavours” obligation – whether vendor is liable under covenant for incomplete or defective work by builder – where covenant did not merely require compliance with physical description of the building according to approved plans CONTRACTS – construction – whether good workmanship covenant merged on completion – absence of express statement that the covenant survived completion – primary obligation to convey title merged upon completion – nature of subject matter of secondary obligation as to good workmanship – where performance of covenant could not be investigated prior to completion – where occupation certificate is not determinative of performance CONTRACTS – damages – whether lot owners can claim damages in respect of proportionate share of cost to rectify common property – where damage to common property is infringement of lot owner’s proprietary interest in common property as equitable tenant in common – whether lot owners can recover costs of rectification where works have not been undertaken CONTRACTS – assignment – whether assignment of chose in action was effective – whether assignee had genuine, substantial pre-existing commercial interest in the suit – whether claim is time barred where plaintiff substituted – where effect of substitution order under UCPR, r 6.32 placed substituted plaintiff in same position as party replaced APPEAL – orders on appeal – building case – whether appropriate relief is remitter for retrial or reference out to referee – where reference out is the most efficient and timely option

Catchwords:

APPEALS — Damages — Personal injury or death cases — Motor Accident — Appellant suffers atypical psychotic disorder — Appellant had pre-existing susceptibility to psychotic disorder — Whether primary judge found that the accident accelerated the development of the appellant’s psychotic disorder from 2020 to 2016 — Whether primary judge erred in finding that the accident accelerated the development of the appellant’s psychotic disorder by four years

Catchwords:

CONSTITUTIONAL LAW – Commonwealth Constitution – Chapter III – Terrorism (High Risk Offenders) Act 2017 (NSW) – whether the Act is constitutionally invalid – involuntary detention of a citizen by the State – preventative detention orders – whether the Act directs the Supreme Court as to the manner of the exercise of its jurisdiction – judicial discretion – whether the Act creates procedural unfairness – whether the Act is inconsistent with the institutional integrity of the Supreme Court as a repository of federal jurisdiction STATUTORY INTERPRETATION – departure from literal meaning - Terrorism (High Risk Offenders) Act 2017 (NSW) s 39(4) – meaning when read in context – meaning having regard to the purpose of the Act STATUTORY INTERPRETATION – legislative purpose – Terrorism (High Risk Offenders) Act 2017 (NSW) s 10(1)(c)(ii) – necessary connection between the association or affiliation and the advocacy of terrorist acts or violent extremism

Catchwords:

LAND LAW – compulsory acquisition of land – compensation – compensable interests in land – bare licence to occupy land terminable at will by owners – interest had no market value – meaning of “privilege over, or in connection with, land” – claim for compensation for losses attributable to disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 4, 59 STATUTORY INTERPRETATION – definition of “interest” in land – interest included “privilege over, or in connection with, land” – reliance on statutory context – consistency of meaning – reliance on object to provide compensation – statute using language of ownership – interest able to be divested, extinguished or diminished by acquisition STATUTORY INTERPRETATION – precedent – challenge to earlier decisions of Court of Appeal – whether court comfortably satisfied reasoning in earlier decisions wrong – Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151 – Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSWLR 554; [2017] NSWCA 73 considered STATUTORY INTERPRETATION – extrinsic materials – legislative history – substantial amendments made without changing effect of precedent

Catchwords:

APPEALS – appeal from determination of Presidential member of the Personal Injury Commission – error-based jurisdiction in reviewing decision of arbitrator – jurisdiction of Court of Appeal – decision in point of law – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 APPEALS – applicant bearing burden of proof of employment-related injury cannot invert onus by pleading no evidence of pre-existing injury – applicant bearing burden of proof cannot rely on own evidence to assert no evidence of pre-existing injury WORKERS COMPENSATION – definition of “injury” – “disease” to be given broadest meaning – categorisation of “biological” and “pathological” changes rejected – Workers Compensation Act 1987 (NSW), s 4(b)

Catchwords:

PRACTICE – appeals – application to vacate – absence of evidence to explain why appeal could not proceed – heavy burden accompanying such applications – application refused

Catchwords:

CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Subsequent referral – Special reasons – Where Court has found case sufficiently arguable to justify grant of leave to appeal – Where hearing of appeal unlikely to involve any contradictor – Referral made

Catchwords:

PRACTICE – appeals – stay of execution – whether judgment sum should be paid into court – respondent a listed company based in Singapore – no local assets against which execution readily available – risk of expense and inconvenience if necessary to enforce NSW judgment in Singapore – no evidence of any prejudice – applicant proffering expedited appeal – stay granted

Catchwords:

COSTS — Application for leave to appeal from costs order — Proceedings dismissed by consent — Costs awarded against defendants — Whether defendants capitulated to plaintiff — No issue of principle or question of general public importance

Catchwords:

GUARANTEE – contract of guarantee – construction – where respondents executed guarantee in favour of partnership “and its successors and assigns” – where partnership subsequently incorporated and assigned business to company – whether company could rely on guarantee to recover payments respondents owed for goods supplied after assignment

Catchwords:

INSURANCE – motor vehicle – compulsory third-party insurance – collision causing stationary traffic on highway – driver injured avoiding stationary traffic – whether stationary traffic a “situation” – whether original collision caused “dangerous situation” –Motor Accidents Compensation Act 1999 (NSW), s 3A(1)(d) NEGLIGENCE – duty of care – scope of duty – whether negligent driver owed duty of care to road users not involved in collision – injury to second driver distant in time and place from original collision NEGLIGENCE – breach – whether risk “not insignificant” – levels of risk – error to focus on precise mechanism by which harm occurs NEGLIGENCE – defences – contributory negligence – speed not excessive – no failure to keep lookout – driver injured in avoiding stationary cars on highway – whether contributorily negligent

Catchwords:

DAMAGES – Quantum of compensation – overvalue purchase of boat – competing valuation evidence – whether judge had regard to extraneous material not in evidence – where judge questioned defendant’s expert about “publicly available information” relevant to perception of buyers – where judge’s reasons on the valuation issue unrelated to “publicly available information” CORPORATIONS – Directors and officers – where real and substantial conflict between duty as director and interest as shareholder – where director paid company’s money to same solicitor retained by company and director in shareholder dispute – whether breach of fiduciary duty PROCEDURE – whether breach of rule in Browne v Dunn – where affidavit evidence of defendant’s belief that solicitor retained in the ordinary course of company’s affairs and business – where out-of-court representations by the solicitor as to nature of work – where defendant paid company’s money to solicitor – absence of cross-examination of defendant regarding nature of work to which payments related – where fair notice given of plaintiffs’ case on timing of payments to solicitor CORPORATIONS – Member’s rights and remedies – oppression – compulsory transfer order – transfer of oppressor’s shares to other shareholder without payment in return – where relief in derivative action did not fully address oppression – where defendant failed to contribute promised skill and goodwill to the company – where company did not commence its intended business – where compulsory transfer order in the nature of recission of shareholder agreement

Catchwords:

APPEALS — Procedural fairness — Motion to amend statement of claim — Application for an adjournment CONTRACT – Release – Whether a defence based on a release is strong enough to justify summary dismissal CONSUMER LAW — Consumer credit — National Credit Code AUSTRALIAN CONSUMER LAW — Unconscionable conduct

Catchwords:

CONTEMPT — alleged breaches of order made under Court Suppression and Non-publication Orders Act 2010 (NSW) — summary dismissal applications — where contempt application made against barrister who disclosed information potentially in breach of order in course of other proceedings — whether suppression order should be read down to exempt disclosures made in furtherance of the administration of justice — operation of s 15 of Court Suppression and Non-publication Orders Act 2010 (NSW) — whether defence to contempt charges where breach of court order committed in furtherance of the administration of justice — where Attorney-General was a party to the proceedings in which the suppression order was made — where contempt application also brought against Attorney-General — whether Attorney-General has a duty to enforce suppression order CIVIL PROCEDURE — Registrars — Review of Registrar’s decision — Court of Appeal — where Registrar granted leave to amend notice of motion on condition that various paragraphs be omitted

Catchwords:

SUCCESSION – family provision – claim by alleged de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – whether eligible person – whether in a de facto relationship at time of death – whether there were factors warranting the making of the application for family provision CIVIL PROCEDURE – appeals – standard of appellate review regarding a decision as to whether a criterion for a claimant to be an eligible person for the purposes of s 57(1) of the Succession Act 2006 (NSW) has been met

Catchwords:

CIVIL PROCEDURE – Court of Appeal – show cause hearing – where consistent failure to comply with directions for filing and service of submissions – where reasons given for failure include pending application for legal aid and attempts to obtain legal representation – where existing notice of appeal deficient – appellant given final opportunity to file submissions and amended notice of appeal

Catchwords:

APPEALS – Leave to appeal – Appeal against multiple interlocutory orders, relevantly including an order declining to adjourn proceedings after applicant sought and was granted expedition – Where new psychiatric evidence suggests continuance of proceedings would adversely impact applicant’s mental health – Appellate court may interfere with case management decision of trial judge to prevent possible miscarriage of justice – In interests of justice, proceedings below stayed pending hearing of application for leave to appeal; hearing of application for leave to appeal adjourned

Catchwords:

CIVIL PROCEDURE – jurisdiction – exercise of non-federal jurisdiction by State Court – territorial limits – where applicant for leave under s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) must be capable of properly bringing proceedings against insured in New South Wales – where insured is New Zealand company in liquidation with no presence in New South Wales – where claimant is domiciled in New Zealand – where insured did not submit to jurisdiction of Supreme Court of New South Wales – where relevant loss and damage occurred entirely in New Zealand – where service on insured not authorised by schedule 6 to the Uniform Civil Procedure Rules 2005 (NSW) – whether service pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) generated personal jurisdiction over insured in New South Wales – whether those provisions are invalid under the Constitution as vesting Supreme Court of New South Wales with non-federal jurisdiction CIVIL PROCEDURE – jurisdiction – multiple meanings – personal jurisdiction – distinct from subject matter jurisdiction and federal jurisdiction – importance of distinction CIVIL PROCEDURE – service outside Australia – service under Trans-Tasman Proceedings Act 2010 (Cth) – where underlying claim in New South Wales against New Zealand domiciled defendant is not in federal jurisdiction – where chapter III of the Constitution carries negative implication that Commonwealth Parliament cannot vest Supreme Court of New South Wales with non-federal jurisdiction – where underlying claim could not proceed but for service on defendant pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) – whether ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) are invalid under the Constitution – whether those provisions vest the Supreme Court of New South Wales with non-federal jurisdiction CONSTITUTIONAL LAW – Commonwealth Constitution – legislative power – external affairs – principles of construction – heads of legislative power to be given broad plenary construction without limitation or implication not found in express words – heads of legislative power not to be read down by reference to other heads of power – whether external affairs power in s 51(xxix) capable of supporting law as to service and execution of process of Australian courts in New Zealand – where external affairs power is subject to chapter III of the Constitution – where s 51(xxiv) makes provision for service and execution of process throughout Commonwealth CONSTITUTIONAL LAW – the judiciary – chapter III – federal jurisdiction – Court of a State – negative implication that Commonwealth Parliament cannot confer State Court with non-federal jurisdiction – where claim brought in New South Wales against New Zealand domiciled defendant in non-federal jurisdiction – where claim could not proceed but for service on defendant pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) – whether those provisions confer Supreme Court of New South Wales with federal jurisdiction and are therefore invalid under the Constitution – whether argument for invalidity inconsistent with decision of High Court in Flaherty v Girgis (1987) 162 CLR 574 INSURANCE – third party claim – application for leave to bring proceedings against insurer pursuant to s 5 of Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – where insured is New Zealand company in liquidation with no presence in New South Wales – where claimant obtained judgment against insured in New Zealand proceedings concerning subject matter with no connection to New South Wales – where territorial hinge of Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) is that claimant must be capable of properly bringing proceedings against insured in New South Wales – where service on the insured not authorised by schedule 6 to the Uniform Civil Procedure Rules 2005 (NSW) – whether service pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) resulted in Supreme Court of New South Wales having personal jurisdiction over insured – whether those provisions are invalid under the Constitution PRIVATE INTERNATIONAL LAW – jurisdiction – personal jurisdiction – service outside of the jurisdiction – Trans-Tasman Proceedings Act 2010 (Cth) – where underlying claim against New Zealand domiciled defendant is not in federal jurisdiction – where chapter III of the Constitution carries negative implication that Commonwealth Parliament cannot vest Supreme Court of New South Wales with non-federal jurisdiction – where underlying claim could not proceed but for service on defendant pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) – whether ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) are invalid under the Constitution

Catchwords:

CIVIL PROCEDURE — appeal — where primary judge summarily dismissed proceedings for defamation — where no alleged defamatory publication identified in statement of claim — where no error identified in primary judge’s reasons

Catchwords:

CIVIL PROCEDURE – Court of Appeal – show cause hearing – where consistent failure to comply with directions for filing and service of submissions – where appellant not prepared to prosecute appeal in timely manner or file submissions within reasonable period – proceedings dismissed for want of due despatch

Catchwords:

GUARANTEE AND INDEMNITY – contract of guarantee – guarantee given by director of company’s obligations under credit agreement – whether guarantee enforceable CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – commercial experience of guarantor – director of substantial construction business – guarantee provided in hardcopy and electronic copy – effect of terms – availability of legal advice CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – guarantor suffered Lewy body dementia – progressive condition – symptoms not observed in relevant period – medical evidence as to “mild” condition after guarantee signed – evidence of business activity after guarantee signed

Catchwords:

APPEAL – procedure – security for costs – two natural person appellants and one corporate appellant – whether discretion to order security for costs differed between appellants – interests of natural person appellants identical with that of corporate appellant – absence of special circumstances – grossly inflated estimate of respondents’ costs – whether, if otherwise a proper case for security, inflated estimate should disentitle

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Application for review of decision pursuant to s 46(4) of the Supreme Court Act 1970 (NSW) of dismissal of applicant’s notice of motion seeking referral for pro bono legal assistance — Notice of motion dismissed

Catchwords:

CHILD WELFARE – care and protection of children – appeal from Children’s Court – mother seeks judicial review of appointment of guardian ad litem for mother – whether error of law on face of record – whether record included reasons for appointing previous guardian ad litem – whether necessary to make order that mother be legally represented before appointing guardian ad litem – whether jurisdictional error – ss 98 and 101 of Children and Young Persons (Care and Protection) Act 1998 (NSW) considered

Catchwords:

APPEALS – appeal by rehearing – functions of appellate court – orders on appeal – new trial – where appellate court has found error – court should resolve issue in order to avoid economic and emotional costs of re-trial to extent possible – torts – trespass to the person – battery – sexual assault against children – allegations attracting Briginshaw principles – where resolution of issue depends on questions of credibility of defendant – where plaintiffs entitled to test evidence and impugn credibility – whether appellate court should order a new trial EVIDENCE – admissions – civil proceedings – torts – trespass to the person – battery – sexual assault against children – where defendant participated in recorded interview with police – where certain answers given in that interview said to constitute admissions to inappropriate sexual dealing with children – where tendency for inappropriate sexual dealing with children alleged against defendant – where Briginshaw principles applied – reliance not to be placed upon indirect inferences of slender and exiguous proof – whether defendant made admissions as found by the primary judge EVIDENCE – admissions – civil proceedings – torts – negligence – admissibility against co-defendant – common purpose – s 87(1)(c) of the Evidence Act 1995 (NSW) – where admissions to inappropriate sexual dealing with children said to have been made by defendant during police interview sought to be admitted in claim of negligence against co-defendant – where no express authorisation to make admissions on co-defendant’s behalf – where common purpose required to exist as at time the impugned admissions were made – where co-defendant learned of occasion of alleged admissions after the fact – whether alleged admissions were admissible against co-defendant EVIDENCE – hearsay – exceptions – witness unavailable – within the meaning of cl 4(1)(f) of pt 2 of the Dictionary in the Evidence Act 1995 (NSW) – where that definition properly encompasses the issue and service of a subpoena – where no subpoena had been served on the relevant witness – where the determination of the unavailability of a witness does not involve the exercise of direction – whether witness was unavailable to give evidence so as to render hearsay of disclosures admissible as tendency evidence EVIDENCE – standard of proof – civil cases – torts – trespass to the person – battery – sexual assault against children – at childcare centre – allegations of such gravity as to attract Briginshaw principles – s 140(2) of the Evidence Act 1995 (NSW) – where plaintiffs relied on substantial body of tendency evidence as to inappropriate sexual dealing with children – where certain witnesses as to tendency unable to be cross-examined – whether tendency evidence was admissible against defendant – where trial occurred some 10 years after events in question – whether allegations established to the requisite standard EVIDENCE – tendency evidence – civil proceedings – tendency rule – significant probative value – where evidence taken at its highest individually or cumulatively must strongly support existence of tendency asserted – where tendency must strongly support proof of material fact in issue – where distinction to be drawn between admissibility of tendency evidence and its use – where use of tendency evidence must have regard to Briginshaw principles EVIDENCE – tendency evidence – civil proceedings – torts – trespass to the person – battery – sexual assault against children – where plaintiffs relied upon substantial body of tendency evidence as to inappropriate sexual dealing with children – including disclosures of plaintiffs and two other children and certain answers given by defendant in police interview – where tendency evidence required to be of significant probative value of tendency – where tendency required to strongly support proof of material fact in issue – where some of the tendency evidence marked by inconsistency and unreliability – where certain witnesses as to tendency not able to be cross-examined – whether tendency evidence was admissible against defendant – where admissibility of one piece of tendency evidence affects probative value of all others and of asserted tendency – where judge’s reliance on one piece of tendency evidence unable to be separated from remainder of tendency evidence NEGLIGENCE – duty of care – owed by corporate licensee of childcare centre and its director to attendees of centre – where volunteer alleged to have committed sexual assaults against children at the centre – where regulation required volunteer to be “accompanied” by member of primary contact staff when in the presence of children – where that regulation required no more than that children not to be under supervision of volunteer alone – where no internal complaints made regarding conduct of volunteer – where policies and procedures of childcare centre substantially in accordance with regulation – whether licensee and director breached duty of care NEGLIGENCE – vicarious liability – employer and employee – where employer was corporate licensee of childcare centre – whether director of licensee also vicariously liable for conduct of employee – principle of dual vicarious liability not adopted in the common law of Australia NEGLIGENCE – damages – economic loss – earning capacity – future economic loss – by way of a buffer – requires compliance with s 13 of the Civil Liability Act 2002 (NSW) – where assumptions on which buffer is based must be stated – where identical buffers awarded to different plaintiffs – whether proper account taken of plaintiffs’ particular circumstances TORTS – general principles – damages – trespass against the person – battery – sexual assault – against child – damages awarded to child and parent – for future economic loss – by way of a buffer – requires compliance with s 13 of the Civil Liability Act 2002 (NSW) – where assumptions on which buffer is based must be stated – where identical buffers awarded to different plaintiffs – whether proper account taken of plaintiffs’ particular circumstances TORTS – trespass to the person – battery – sexual assault – against two children – at childcare centre – by defendant volunteer – alleged that defendant kissed one child with open mouth and pulled down child’s pants – alleged that defendant tickled other child on underwear – defendant alleged to have tendency for inappropriate sexual dealing with children – substantial body of tendency evidence admitted – including disclosures of plaintiffs and two other children and certain answers given by defendant in police interview – whether certain tendency evidence was admissible against defendant – where certain witnesses unable to be cross-examined – where trial occurred some 10 years after events in question – whether claims established to the requisite standard per s 140(2) of the Evidence Act 1995 (NSW) WORDS AND PHRASES – “accompanied” – Children’s Services Regulation 2004 (NSW), cl 57(b)

Catchwords:

APPEALS – leave to appeal – principles governing – monetary threshold – whether application identified issue of principle, question of public importance or reasonably clear injustice – where Parliament intended that matters involving relatively small amounts in issue should not come before the Court of Appeal as of right – where there is need for proportionality between value of matter and costs of proceedings CIVIL PROCEDURE – Court of Appeal – leave to appeal – monetary threshold – whether application identified issue of principle, question of public importance or reasonably clear injustice – where Parliament intended that matters involving relatively small amounts in issue should not come before the Court of Appeal as of right – where there is need for proportionality between value of matter and costs of proceedings

Catchwords:

CIVIL PROCEDURE – leave to appeal – standing – application to set aside consent orders in Court below – applicant not a party to proceedings below – right to bring own proceedings not a sufficient basis to attract a right of appeal

Catchwords:

APPEALS – leave to appeal – claim for summary judgment for possession of land – whether the defence raised triable issues as to (i) enforceability of mortgage and (ii) rate of interest accruing under mortgage CIVIL PROCEDURE – summary disposal – judgment for plaintiff – sufficiency of plaintiff’s evidence – inconsistency on face of affidavit – proof of sum advanced inadequate – whether defence obviously untenable – opportunity for defendant to amend inadequate pleadings – arguable case for relief MORTGAGE AND SECURITIES – mortgages – form, validity and effect – whether arguable case that mortgage unjust or plaintiff’s conduct unconscionable – 23-year bank mortgage replaced by one repayable in full in six months – interest rate varied from 7% to 15% compounding daily

Catchwords:

APPEALS – procedure – application to extend time for filing Notice of Appeal – no realistic prospect of success on appeal – no reasonable explanation for delay – extension of time refused and appeal dismissed

Catchwords:

APPEALS – leave to appeal – interlocutory judgment – proposed appeal from refusal of leave to appeal from NCAT Appeal Panel – constrained approach to grant of leave for third level of appeal – primary judge found no error of law more than merely arguable – failure to consider submissions – LEASES AND TENANCIES – enforceability of commercial lease – breach of condition – landlord’s obligation to keep building in sound structural condition – breach – alleged inadequacy of water pump and pipes to provide fire protection

Catchwords:

APPEALS – Leave to appeal – Arguable case – Whether primary judge erred in making advance finding that expert evidence was inadmissible – Where evidence was submitted to be relevant as responsive to issue of causation by providing an alternative explanation for cause of loss – Where primary judge found such alternative should have been pleaded and thus admitting the evidence would be a breach of procedural fairness – Appeal raises insufficiently arguable case that primary judge erred

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Application for stay of orders for payment of money out of court, pending application for special leave to appeal to High Court – Where leave to appeal against those payment orders and earlier orders refused by majority of this Court – Where similar application to present already refused for lack of prospect that special leave will be granted – Application for reconsideration under UCPR r 36.16 incompetent – No application made for review of previous decision nor suggestion that conclusion was incorrect – No change of circumstances since first decision identified – Stay not sought by only party potentially prejudiced by relevant orders – Application dismissed with costs

Catchwords:

APPEALS – procedure – where notice of appeal consists of 50 paragraphs in form of lengthy narrative statements which do not identify asserted errors of primary judge or challenged facts (cf UCPR r 51.18) – where most of those paragraphs vexatious and abuse of process – notice of appeal struck out and direction made for making of application to file an amended notice of appeal APPEALS – stay of execution pending appeal – where appellant seeks stay of orders for possession and sale of real property – where dispute as to amount of interest and costs recoverable – stay of execution conditional on payment into Court of security

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Whether the court has the power to reopen an appeal and set aside final orders on the ground of the discovery of new evidence

Catchwords:

APPEAL – representation of deceased estate – where interest of estate in the outcome of the appeal – where probate not to be applied for – appropriate for sole beneficiary under the will to be appointed to represent the estate APPEAL – security for costs – where security for costs sought against individual appellants – whether special circumstances existed warranting the grant of security for costs – special circumstances found

Catchwords:

TORTS – trespass to the person – false imprisonment – defences – where respondent passenger on applicant’s cruise ship – where respondent detained in guest cabin for five days pending return of ship to port where alleged sexual assault would be investigated by local police – whether captain justified in detaining respondent “for the preservation of order and discipline or for the safety of the vessel or the persons or property on board” – whether justification defence in Hook v Cunard Steamship Co [1953] 1 WLR 682; [1953] 1 Lloyd’s Rep 413 part of Australian common law – whether that defence requires that captain subjectively believe detention is necessary PRIVATE INTERNATIONAL LAW – applicable law – choice of law rules – torts – where alleged tort committed on ship on high seas – where applicable law the law of ship’s flag – where law of flag neither pleaded nor sought to be proved – where primary judge applied substantive law of New South Wales SHIPPING AND NAVIGATION – false imprisonment – alleged sexual assault by passenger on cruise ship on high seas – confinement of passenger by order of captain – captain’s power to detain – whether confinement necessary

Catchwords:

COSTS – Orders against non-parties – Personal costs orders against lawyers – Application for such orders should be made at conclusion of proceedings – Whether judge had regard to irrelevant considerations

Catchwords:

APPEAL – disciplinary proceedings – finding of professional misconduct – order of NCAT cancelling registration of medical practitioner – appeal as of right restricted to question of law – challenge to acceptance of complainant’s evidence – challenge to severity of disciplinary order – whether a lesser order would have served the public interest – circumstances warranting a grant of leave HEALTH – professional registration and discipline – complaints – breach by medical practitioner of patient’s sexual boundaries during consultation – practitioner used consultation to indulge his own social and sexual inclinations – challenge to decision to cancel registration – whether decision unreasonable – whether failure to consider or give sufficient weight to relevant evidence – no question of law identified by applicant – no substance to challenges against factual findings

Catchwords:

CONTRACTS — Deeds — Whether binding lease or agreement for lease came into existence prior to withdrawal by respondent from proposed lease transaction — Where heads of agreement reserved parties’ right to withdraw from and terminate negotiations at any time prior to execution of lease documents by both parties — Where respondent provided executed lease documents to appellants’ solicitors and obtained early access to premises for limited purposes but appellants did not execute lease documents prior to withdrawal by respondent — Whether primary judge erred in holding that no binding lease or agreement for lease came into existence — Appeal dismissed.

Catchwords:

COSTS – application for order as to costs at first instance following outcome on appeal – costs of appeal – costs of late amendment to notice of appeal

Catchwords:

PRACTICE AND PROCEDURE – application for stay pending appeal – where no arguable grounds of appeal – where no evidence as to applicant’s financial means

Catchwords:

CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where grounds of appeal do not identify a question of law – where applicant unlikely to accept advice as to defects in her case – where applicant not completely lacking financial means

Catchwords:

CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where proposed appeal is devoid of merit – where Applicant has a prolonged grievance against his former counsel – where applicant unlikely to accept advice explaining defects in his case

Catchwords:

SUCCESSION – Alleged lack of testamentary capacity – Alleged lack of knowledge and approval SUCCESSION – FAMILY PROVISION – Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 – Whether appellant is an ‘eligible person’ under s 57(1) of the Succession Act 2006 (NSW) – Whether appellant was wholly or partly dependent upon deceased at any particular time – Whether adequate provision had been made for appellant’s education, maintenance and advancement in life

Catchwords:

SUCCESSION – Family provision – Provision from the deceased’s estate under the Succession Act 2006 (NSW), Ch 3 – Whether eligible person – Whether living together – Close friendship between the appellant and the deceased – Appellant regularly provided domestic support and personal care to the deceased

Catchwords:

APPEAL – plaintiffs claimed damages for breach of agreement to issue shares – primary judge dismissed claim but indicated alternative case which might succeed – whether primary judge ought to have upheld claim based on alternative case – whether alternative case subject of concession at trial – whether concession wrongly elicited by primary judge – whether concession ought be permitted to be withdrawn on appeal – appeal dismissed

Catchwords:

SUCCESSION – application for family provision order by biological son of deceased – approval of compromise under Succession Act 2006 (NSW) s 98 – parties entered into compromise following mediation – executrix opposed making orders giving effect to compromise – shortly after compromise reached, executrix came to believe applicant had been formally adopted – primary judge declined to make orders giving effect to settlement – whether adoption order caused applicant no longer to be a child of the deceased for purposes of s 57 of Succession Act – significance of executrix being on notice of the possibility of formal adoption – whether applicant remained a child of the deceased after being formally adopted – whether mistake as to basis of settlement warranted declining to make orders – appeal dismissed

Catchwords:

PROFESSIONAL NEGLIGENCE – architect – respondent was engaged as architect for appellant’s home renovations – appellants indicated initial budget of $300,000 which was later revised to $600,000 – respondent provided “opinion on probable cost” of $590,000 excluding GST and other items in April 2015 for preliminary design – further additions to design thereafter – appellants engaged builder who commenced work on cost plus basis in December 2015 – falling out between parties and appellants continued with builder – by June 2016 substantial increase in costs and some aspects of design not pursued – renovations cost $780,000 but only increased value of house by $330,000 – appellants sued for false and misleading representation about cost of renovations and breach of contractual and tortious duty to advise about cost – appellants claimed damages on a no transaction basis namely that if known that cost would have exceeded $600,000 would not have undertaken renovations – trial judge rejected appellants evidence of express representations about cost of renovations – trial judge upheld contract and tort claim but only awarded nominal damages – whether trial judge’s approach to damages was erroneous – whether trial judge’s findings warranted finding that respondent obliged to advise appellants that renovations could not be undertaken for $600,000 – whether appellants would not have undertaken renovations if they had been so advised – held – trial judge’s approach to damages erroneous – however not able to conclude that had respondent not breached his contractual and tortious duties then appellants would not have undertaken renovations – appeal dismissed

Catchwords:

COSTS – Security for costs – On appeal – Whether appellant should provide security for the respondent’s costs of the appeal – “Special circumstances” – Whether the appeal is reasonably arguable – Whether the appeal might be stifled if an order for security were made.

Catchwords:

CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assault in 1981 – alleged perpetrator died before defendant on notice of any allegation – no other witnesses to assaults – many critical witnesses deceased or unavailable – absence of documents – no basis for grant of leave to appeal from grant of permanent stay

Catchwords:

LEAVE TO APPEAL – slip and fall case – whether an injustice in rejecting plaintiff’s claim – proposed challenge to factual findings underpinning findings of obvious risk, no breach of duty and limitation defence – no issue of principle

Catchwords:

JUDICIAL REVIEW – review of judgment of District Court on appeal from Local Court – criminal jurisdiction – jurisdictional error – failure of judge to refer to submission of defendant – failure of judge to refer to absence of corroborative evidence – no basis for concluding judge mistook the extent or limits of his appellate function

Catchwords:

COSTS – offer of compromise – offer more favourable than judgment obtained – whether basis for displacing default costs orders – Calderbank offer – whether failure to accept offer warranted departure from ordinary rules as to costs

Catchwords:

CIVIL PROCEDURE – preliminary discovery – to identify potential cause of action – application for preliminary discovery pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) – whether preliminary discovery is available against a person who is already a defendant in proceedings brought by the applicant for preliminary discovery

Catchwords:

COSTS – application for special costs orders made after delivery of judgment – Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) – principle of finality favours refusal of belated application

Catchwords:

CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where grounds of appeal do not describe or identify any relevant question of law necessary to engage the right of appeal under Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 – application refused

Catchwords:

NEGLIGENCE — Defences — Civil Liability Act 2002 (NSW), s 45 — Whether defendant had actual knowledge of the particular risk the materialisation of which resulted in the harm — Extent of specificity required by phrase “particular risk”

Catchwords:

CIVIL PROCEDURE – summary dismissal of proceedings commenced against applicant’s former legal representatives - whether an advocates’ immunity defence can form basis of a summary dismissal application – whether the defence applies to administrative aspects of the retainer

Catchwords:

APPEALS – civil procedure – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – where application dismissed for failure to satisfy the Court of entitlement to make a claim for relief – whether dismissal involved a determination of the merits of the claim at an interlocutory stage CIVIL PROCEDURE – preliminary discovery – production of documents concerning negotiations leading to acquisition of company – applicants’ entitlement to disclosure – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – whether discovery may be given of documents relating only to quantum

Catchwords:

ESTOPPEL – proprietary estoppel – encouragement – nature of promise – strata title – promise of easement – whether representation sufficiently clear – where representation made at general meeting – where representation did not define the interest in property the representee was expected to receive – where further documentation was required to be executed to give effect to the representation ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether reliance was that of the owners corporation – Strata Schemes Management Act 1996 (NSW) s 21(2) – Strata Schemes Management Act 2015 (NSW) ss 8, 254 ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether the evidence indicated that the representation was such that the conduct of the lot holders was sufficiently influenced by the representation

Catchwords:

BUILDING AND CONSTRUCTION – adjudication – payment claim – existence of “one contract” rule – whether entitlement to serve payment claim must arise under one contract – whether “one contract” rule conditions validity of payment claim CONTRACTS – construction – where contract provided that each work order constituted a new agreement – whether there was one or multiple construction contracts – characterisation by parties not determinative – other provisions inconsistent with each work order constituting new agreement STATUTORY INTERPRETATION – jurisdictional constraints on function of adjudication – whether express constraints augmented by implied condition statutory context – focus on work performed under construction contract – no requirement that claim identify source of entitlement – reference to putative entitlements – legislative purpose – facilitation of money flow to subcontractors – Building and Construction Industry Security of Payment Act 1999 (NSW), Pts 2, 3

Catchwords:

JUDGMENTS AND ORDERS — Reasons — Uniform Civil Procedure Rules 2005 (NSW), r 36.2(2) — Delivery of reasons subsequent to delivery of judgment — Delay APPEALS — From finding of fact — Impermissible inferences — Improper admission or rejection of evidence TORTS — Intentional torts — Trespass to the person — Battery — Statutory defences — ss 52, 53 and 54 of the Civil Liability Act 2001 (NSW) — Whether contributory negligence is available as a defence to an intentional tort

Catchwords:

ADMINISTRATIVE LAW — road traffic infringement notice — application for judicial review of District Court decision on appeal from Local Court — whether applicant denied procedural fairness in relation to admission of further evidence in District Court

Catchwords:

JUDICIAL REVIEW – jurisdictional error – applicant pleaded guilty to three offences including using carriage service to menace, harass or cause offence – applicant sentenced on basis of agreed facts – Local Court imposed full-time custodial sentence – District Court allowed appeal imposing a lesser full-time custodial sentence – whether District Court fell into jurisdictional error when rejecting submission that sentence be served by intensive correction order – significance of community safety being paramount consideration – significance of requirement to consider whether intensive correction order more likely to address risk of reoffending – part of reasoning in Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318 disapproved – error in agreed facts concerning number of text messages giving rise to carriage service offence – agreed facts stated applicant had sent 24,459 text messages – in fact applicant had sent 11,204 messages – whether factual error gave rise to jurisdictional error – no jurisdictional error established and summons dismissed

Catchwords:

CONSUMER LAW – Misleading or deceptive conduct – Whether conduct is “in trade or commerce” – Requirement that conduct is commercial in character – No requirement of an extant commercial operation – Negotiations may be commercial even though the setting is social CONSUMER LAW – Misleading or deceptive conduct – Whether primary judge erroneously considered effect of unpleaded or unproven representations – Held that other representations may be contextually relevant to meaning and effect of pleaded representations CONSUMER LAW – Misleading or deceptive conduct – Remedies – Damages – Where shares acquired because of misleading representations – Whether loss should be measured by reference to residual value of shares at date of transaction or at date of hearing – Held appropriate to use date of hearing where deterioration of value inherent and not caused by supervening events, or where purchaser “locked in” to business

Catchwords:

CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assault in 1968 – where alleged perpetrator died before applicant on notice of allegation – where no other witnesses to alleged assault – where no documents dating back to or around the time of the alleged assault relating to allegation – no meaningful opportunity for applicant to engage with central question of whether alleged perpetrator committed alleged sexual assault

Catchwords:

CIVIL PROCEDURE – Notices to produce – where notice to produce requires disclosure to a party of protected information under s 355-30 of the Taxation Administration Act 1953 (Cth) – whether party can obtain protected information by compulsion where exception in s 355-75 to disclosure to a court not engaged

Catchwords:

COSTS – application for security for costs of appeal – respondent did not establish that there is reason to believe that the appellant will be unable to pay the costs of the appeal (see UPCR r 42.21(1)(d) and Corporations Act s 1335(1)) or that the appellant has divested assets with the intention of avoiding the consequences of the proceedings (see UPCR r 42.21(1)(f)) or that any special circumstances exist (UCPR r 51.50)

Catchwords:

LEAVE TO APPEAL – whether extension of time should be granted – where significant delay of 10 months – where applicant had legal advice – where applicant’s earlier notice of appeal challenging principal judgment and costs orders dismissed as incompetent – where applicant now sought extension of time to challenge only costs orders – whether fairly arguable case for leave to appeal

Catchwords:

COSTS — Security for costs — relevant factors — deficiency of appeal — where applicant for security for costs concedes irregularity in orders of court below

Catchwords:

BUILDING AND CONSTRUCTION – contract – whether claimed variations within contractual scope of work – builder’s margin – GST – no question of principle

Catchwords:

APPEALS — Leave to appeal — question of principle — whether person who has instigated, if not formally commenced, legal proceedings liable for tort of abuse of process

Catchwords:

TRUSTS – new trustee – provision of documents by former trustee to new trustee – effect of vesting order – former trustee prima facie required to provide trust documents to new trustee – where former trustee failed to distinguish between documents received and possessed by her as trustee and documents received and possessed by her in other capacities – former trustee required to make copies of documents used by her, even if not owned or co-owned by her, for new trustee – primary judge found that particular documents were trust documents but need not be provided to new trustee until completion of pending arbitration – whether primary judge found that former trustee did not own or co-own documents in her capacity as trustee – whether primary judge erred in the exercise of discretion – appeal allowed and former trustee ordered to provide documents to new trustee

Catchwords:

CONTRACTS – construction and interpretation –partnership agreement – whether interest on funds provided to the partnership by one partner to be treated as a partnership expense or as an independent debt to be paid by the other partner – whether inconsistency between agreement’s recitals and operative provisions and how any such inconsistency to be resolved

Catchwords:

NOTICE OF MOTION – Application to remit to Common Law Division – Notice of motion dismissed

Catchwords:

COSTS — Security for costs — Appellant to provide security for costs

Catchwords:

APPEAL – Competency – Appeal brought purportedly as of right from refusal to vary orders – Appeal dismissed as incompetent

Catchwords:

EQUITY – Fiduciary duties – Breach – Where director of corporate trustee caused trust funds to be distributed to himself – Whether written resolutions effecting valid distribution were adopted by relevant date – Whether director had been delegated authority to make distributions alone – Whether trust monies held on constructive trust EQUITY – Trusts and Trustees – Constructive Trusts – Whether director liable for breach of trust as trustee de son tort – Pre-requisite that one must assume the trust by purporting to act as trustee – Finding that acting in capacity as director of corporate trustee, even without authority and in breach of fiduciary duties, does not alone constitute assumption of the trust – Holding that director not liable as trustee de son tort EQUITY – Trusts and Trustees – Whether director acted “dishonestly” in the context of postponement of the statutory limitation period or equitable equivalent – Where director of corporate trustee was entrusted by other director to manage most company affairs alone – Whether director held honest belief that he was entitled to deal with trust proceeds as he did – Finding that director deliberately withheld information from other director that may have caused her to object to his decisions regarding trust assets – Finding that director’s conduct involved dishonesty in the form of conscious wrongdoing and active concealment EQUITY – Defences – Laches – Knowledge of ability to bring claim – Whether means of knowledge is as good as knowledge – Requirement of knowledge of the relevant facts, although not necessarily of the rights to which they give rise EQUITY – Tracing – Whether property and its commercial proceeds were traceable – Extent to which property was purchased with proceeds of sale of trust assets in breach of trust – Where trust monies were loaned by constructive trustee to purchaser of property and repaid before property was purchased – Where purchaser was alter ego of constructive trustee – Finding that property was effectively purchased by constructive trustee and was therefore traceable property, along with its proceeds LIMITATION OF ACTIONS – Equity – Application of Limitation of Actions Act 1958 (Vic) – Section 21(2) does not apply to actions for breach of fiduciary duty in respect of remedial constructive trusts imposed by Court – Section 5 does not apply to claims for an account in equity, except by analogy LIMITATION OF ACTIONS – Equity – Application of limitation periods by analogy – Claims for proprietary relief and equitable compensation – Claims determined to be within analogy of Limitation of Actions Act 1958 (Vic), s 5, for application of equivalent equitable limitation period

Catchwords:

RESTITUTION – illegal contract – contract involving “investment” in local company in return for employing foreign national to fulfil visa criteria – agreement rendered unlawful by Migration Act 1958 – recovery of amounts “invested” in restitution – amount paid to Director on behalf of counter party company – whether restitution permissible – whether Director can rely on “defence” of payment over to company where not expressly pleaded – whether primary judge erred in dismissing claim against Director without expressly finding had no notice of illegality – form of notice required for agent who pays funds to principal received under illegal contract – HELD: claim rejected – manner in which case conducted meant that “defence” was available – primary judge’s findings inconsistent with Director having relevant notice AUSTRALIAN CONSUMER LAW – representation that visa “would be” granted – whether such a representation made – whether “illegality” of representation or underlying transaction meant no conduct in trade or commerce or recovery impermissible – HELD: representation not made – if it was made was in trade or commerce and recovery permissible

Catchwords:

LEGAL PRACTITIONERS — disciplinary proceedings — practitioner convicted of offences under s 192E(1)(b) of the Crimes Act 1900 (NSW) of dishonestly obtaining an advantage — sentence of imprisonment — declaration that the practitioner is not a fit and proper person to remain on the roll of Australian lawyers

Catchwords:

LAND VALUATION — compulsory acquisition – partial acquisition of land – lease of land – lease to operate service station and convenience store business – compensation payable – market value of acquired land – decrease in value of residue land - before and after approach to determine compensation – appropriate valuation method – assessment of diminution in cash flow of business– whether valuation method available – whether valuation methodology accepted by primary judge raises question of law – agreement for term of lease to be extended – equitable term of lease – compensation to be determined having regard to equitable term of lease

Catchwords:

CONTRACT – breach of contract – land sale contract – nature of breach – failure to complete by fixed date – where time not of the essence – whether failure to complete on time a continuing breach – substantive and temporal nature of obligation to complete CONTRACT – remedies – damages – causation – where delay in completion – claim for consequential loss – expenditure incurred in mitigating action – interplay between causation and mitigation – whether causative link between breach and action to mitigate loss – where purchaser agreed to pay mortgagee up to $500,000 if shortfall on recovery of mortgagee’s loan from second security CONTRACT – remedies – damages – mitigation of loss – vendor unable to obtain discharge of mortgage – expenditure incurred by purchaser to obtain discharge of mortgage – whether reasonable action to mitigate loss – where available alternatives would have exposed purchaser to potentially greater loss CONTRACT – remedies – damages – remoteness – whether in contemplation of parties that purchaser would need to pay off part of mortgagee’s loan to obtain discharge of mortgage – where vendor had not obtained mortgagee’s consent to contract for sale or the release of deposit or prepayment to the vendor – where vendor failed to complete on fixed date

Catchwords:

COSTS — party/party — exceptions to general rule that costs follow the event — offer of compromise — where offer made to compromise claim and cross-claim — where no separate offer made in relation to appeal proceedings — circumstances in which it is appropriate to “otherwise order”

Catchwords:

ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – appeal against decision of Medical Council of NSW to suspend the registration of a medical practitioner – construction of s 150 of the Health Practitioner Regulation National Law (NSW) – where no complaint had been made about the practice of the medical practitioner – whether the circumstances were urgent enough to warrant the exercise of the emergency power contained in s 150 – whether suspension of registration was in the public interest