BUILDING AND CONSTRUCTION – residential building contract – builder issues payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) for works at lock up stage – builder proceeds to adjudication and registers adjudication certificate as a judgment – where owners commence proceedings following dispute about termination of the contract – where primary judge found that works had not reached lock up stage and builder not contractually entitled to payment for works the subject of the claim – where primary judge found that owners validly terminated the contract and entitled to damages – application of s 32 Building and Construction Industry Security of Payment Act 1999 (NSW)
Judgment of
Ball JA at [1]
Free JA at [28]
Griffiths AJA at [29]
CONTRACTS – construction – whether monthly interest under short-term interest-only loans payable in advance or in arrears – whether provisions relating to payment of interest void for uncertainty – where drafting of provisions unsatisfactory but the intention of the parties is discernible from the loan agreements as a whole
Judgment of
Mitchelmore JA at [1]
Ball JA at [2]
Free JA at [37]
INTERNATIONAL ARBITRATION — arbitration agreement — stay of proceedings under s 7(2) of the International Arbitration Act 1974 (Cth) — interpretation of tiered dispute resolution clause in IATA Standard Group Handling Agreement — whether an agreement to agree — whether “the dispute” referred to substantive dispute or dispute as to arbitral process — no mandatory referral to arbitration AVIATION — interpretation of tiered dispute resolution clause in IATA Standard Group Handling Agreement
Judgment of
Bell CJ at [1];
Kirk JA at [47];
McHugh JA at [48].
APPEALS — stay pending appeal — where primary judge ordered indefinite committal of contemnor — whether grounds of appeal raise serious issues — whether refusal would risk harm or prejudice to applicant — balance of convenience and competing interests — where applicant has ongoing medical issues APPEALS — stay pending appeal — power to grant bail in respect of committal for civil contempt — whether incident of power to order stay
APPEALS — stay of orders pending determination of summons for leave to appeal — orders for guardianship — protective jurisdiction — where orders made to stay other proceedings — where orders made prohibiting institution and prosecution of other proceedings — where no risk of prejudice if stay not made — where balance of convenience weighs against a stay — application refused CIVIL PROCEDURE — application for pro bono legal assistance — protective proceedings — where all parties appear in person — where referral unlikely to address applicant’s difficulty
EQUITY – unconscionable conduct – where appellant appoints son as appointor of family trust and transfers marital home to son – where stated purpose of transactions to place assets outside the reach of the daughter in any family provision claim – whether unconscionable advantage taken of any special disadvantage or disability EQUITY – unconscionable conduct – where special disadvantage said to arise from inadequacy of legal advice received and the absence of evaluative advice on the merits of the transactions to achieve the stated purpose – consideration of the role of legal advice in cases of unconscionable conduct – legal advice was not inadequate, and the appellant was capable of assessing the merits of the transactions
CIVIL PROCEDURE — review of decision of Judge of Appeal — where primary judge dismissed notice of motion seeking document production and interrogatories — whether materials sought relevant to pleaded grounds — whether materials sought protected by legal professional privilege — whether requests amount to a “fishing expedition” — whether order for interrogatories necessary in interests of fair trial — where respondent confirmed it did not possess information sought by applicant CIVIL PROCEDURE — vacation of hearing — whether issues on notice of motion require oral hearing — whether to determine notice of motion on the papers — where applicant sought to adjourn hearing — where question on application is limited
SUCCESSION — construction — where will provided that rest and residue of deceased’s estate was to be given to her three children in equal shares following distribution of specified pecuniary legacies — where will further directed that a property which had been transferred by deceased and her late husband to the appellant and his wife be treated as an advancement to the appellant and be brought into account and taken in satisfaction to the extent of the gift in his favour — whether primary judge erred in construction of the will — whether primary judge required to decide whether transfer was a gift or advancement to appellant — whether primary judge erred in construing gift to appellant as being qualified by direction as regards property — whether primary judge erred in finding that transfer was a gift or an advancement — whether primary judge erred in approach to evidence
Judgment of
Bell CJ at [1];
Stern JA at [2];
McHugh JA at [102]
CIVIL PROCEDURE — summary disposal — contract for design and construction of high physical support accommodation — recovery of unpaid payment claims — summary judgment for plaintiff below — whether triable issue as to valid service of payment claims — whether triable issue as to entitlement to claim progress payments where no insurance for residential construction — whether triable issue because of prospect of expert evidence informing statutory construction — no serious or substantial dispute of fact — no triable issue BUILDING AND CONSTRUCTION — payment claims — Building and Construction Industry Security of Payment Act 1999 (NSW), s 13 — requirements for service of a valid payment claim — whether claimant must establish as a matter of objective fact that construction work was carried out within the relevant time period — failure to serve payment schedule — statutory liability arises from lack of response — payment claims not served prematurely BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW), Sch 1, cl 3(3)(d) — residential building work — dwelling — accommodation specially designed for persons with a disability — meaning of “self-contained units” — no serious question of fact arising from speculative possibility of expert evidence on meaning of words — contextual indications of meaning of “self-contained units”
Judgment of
Ward P at [1]
Free JA at [2]
Griffiths AJA at [81]
APPEAL – application for leave to appeal on costs only – underlying proceedings relate to a defamation claim that was statute barred – whether indemnity costs properly ordered – where it was communicated to the applicant in advance that the claim was hopeless and the applicant proceeded regardless – where advance notice given that indemnity costs would be sought – leave refused
APPEALS — application for leave to appeal from dismissal of District Court proceedings for false imprisonment — value of claim assessed at $2,000 — primary judge’s conclusion supported by unchallenged findings — proposed grounds of appeal otherwise weak — no issue of principle, question of public importance or reasonably clear injustice identified — leave refused
STATUTORY INTERPRETATION — consistency with international treaty — foreign state immunity — meaning of “service” — whether provision susceptible to construction consistent with international law — whether statutory method for service inoperative if inconsistent with treaty obligation PRIVATE INTERNATIONAL LAW — jurisdiction — service outside of jurisdiction — Hague Service Convention, Art 9 — meaning of “for the same purpose” — availability of diplomatic channels where receiving party a foreign State STATUTORY INTERPRETATION — literal meaning — Foreign States Immunities Act 1985 (Cth), s 40 — effect of certificate — whether conclusive of valid service
Judgment of
Ward P at [1]
Payne JA at [2]
Mitchelmore JA at [3]
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — where appellant has not filed critical documents and not appeared at hearing
CONTRACT — lease — tenant’s obligation at end of lease to remediate to standard suitable for on-going commercial/industrial use — Land occupied for many years by Department of Defence — asbestos known to be present on land — whether provision of site audit statement certifying land suitable for commercial/industrial use subject to compliance with environmental management plan discharged tenant’s obligation even though asbestos continued to be present in topsoil — whether primary judge erred in finding asbestos continued to be present in topsoil — tenant’s obligation to return premises clean and in good repair and condition — whether that obligation added to obligation to remediate — significance of statutory regime concerning planning permission and remediation of land — whether appropriate to determine non-dispositive issues concerning release in deed of surrender
Judgment of
Leeming JA at [1]
Free JA at [163]
Griffiths AJA at [164]
WORKERS COMPENSATION — Compensation for medical, hospital and rehabilitation expenses — Limits on employer liability — s 62(1A) of the Workers Compensation Act 1987 (NSW) — whether Workers Compensation (Private Hospital Maximum Rates) Order 2024 (NSW) made pursuant to s 62(1A) fixes maximum amount of employer’s liability for hospital treatment not specified in Order
Judgment of
Adamson JA at [1]
McHugh JA at [2]
Free JA at [61]
PROFESSIONAL RESPONSIBILITY — whether Director of Public Prosecutions guilty of professional misconduct or unsatisfactory professional misconduct due to alleged 'misrepresentation' — whether advice given by Director of Public Prosecutions was misleading — whether decision by Legal Services Commissioner based on subject advice 'infected' by reviewable error
CIVIL PROCEDURE — stay of judgment — stay pending application for special leave to appeal to the High Court — stay pending application for review — where no application has been made — prospects for grant of special leave not substantial — limited risk of enforcement in near term
ADMINISTRATIVE LAW — judicial review — motor vehicle accident — decision under Motor Accident Injuries Act 2017 (NSW), s 7.20 not to refer a claim for assessment — claimed psychological or psychiatric injury — dispute as to whether claimant suffered a threshold injury — application unaccompanied by evidence of claimed injury — whether obligation to refer dispute to assessment — whether existence of medical dispute a jurisdictional fact — whether procedural rules inconsistent with s 7.20
Judgment of
Leeming JA at [1]
Kirk JA at [66]
Griffiths AJA at [67]
CONTRACTS – Construction – appellant ceased employment as real estate agent – deed of release executed with respondent – deed established right to payment of commissions – construction of commission entitlements – employee commission policy reaffirmed in deed subject to express exceptions – commissions payable when policy preconditions satisfied EVIDENCE – Burden of proof – no evidence of invoice to establish commission payable to appellant – argument that evidence within capacity of respondent to produce with reference to Blatch v Archer – principles of judicial reasoning – Blatch v Archer does not shift burden of proof – open to appellant to obtain discovery of invoice – notice to produce was issued by appellant – adequacy of production not subject of challenge – absence of evidence was evidence of absence – burden not discharged by appellant CONTRACT – Remedies – Damages – damages sought for consequential loss – inadequate evidence of loss of opportunity
LEGAL PRACTITIONERS – disciplinary proceedings – respondent convicted of offences involving solicitation and transmission of child abuse material – application for removal of the respondent’s name from the Roll of Australian Lawyers – orders not opposed COSTS – application for removal of respondent’s name from the Roll of Australian Lawyers – whether costs should follow the event where the respondent did not oppose the relief sought – whether the respondent ought to be permitted to pay costs in instalments
COSTS — security for costs — payment out of court — where moneys paid into court as security for costs of appeal — no order made as to costs of appeal — whether to release amount of security in partial satisfaction of costs at first instance — not the purpose of security ordered — purpose of security spent — order for payment out made
APPEALS — rectification suit — whether common intention contended for on appeal differed from common intention contended for at trial — whether evidence could have been led at trial to rebut common intention contended for on appeal CONTRACTS — rectification — intention — common intention — proof of common intention — where party to deed knew of concern of other party in relation to a risk — where evidence of communications between solicitors of parties to deed in relation to risk — whether clear and convincing proof of common intention — significance of solicitors being closely involved in drafting of the clause sought to be rectified — significance of failure to call plaintiff’s solicitor
Judgment of
Bell CJ at [1]
Mitchelmore JA at [61]
McHugh JA at [62]
CIVIL PROCEDURE – Court of Appeal – notice of motion seeking review of order of a single judge of appeal – whether appellants have identified an error of principle or how the decision is plainly wrong
Judgment of
Payne JA at [1]
Free JA at [2]
Harrison AJA at [3]
DEFAMATION — Practice and procedure — Trial by jury — Discharge of jury — Application for trial to continue without jury — Defamation Act 2005 (NSW), s 21 — Applicable principles — Whether primary judge identified incorrect source of power — Whether primary judge failed to take into account argument that change in mode of trial would occasion prejudice to applicant
APPEALS – competency – appeal from summary dismissal of claim – leave required APPEAL – leave to appeal – summary dismissal of claim – primary judge found proceedings to be abuse of process – application for leave to appeal – no issue of principle – no issue of public importance – no reasonably clear injustice – leave refused
NEGLIGENCE – breach – where respondent distributed refrigerators manufactured by parent company in South Korea – where model of refrigerator purchased by appellants was the subject of a voluntary recall after two instances of refrigerators catching fire – where refrigerator purchased by appellants caught fire – serial number of appellants’ refrigerator not included in list of affected refrigerators provided by parent company to the respondent – whether the respondent ought to have made inquiries of parent company concerning affected refrigerators – whether the primary judge erred in concluding that the respondent did not breach its duty of care and that factual causation was not established EVIDENCE – onus of proof – where respondent did not call evidence from parent company about how the parent would have responded to the inquiries contended for by appellants – whether evidence adduced by appellants sufficient to discharge their onus of proof
COSTS – whether costs of unsuccessful application for leave to appeal from interlocutory decision of District Court should be ordered to be paid forthwith – where application for leave to appeal was misconceived and related to a discrete issue – order made
COSTS – security for costs – where appeal has reasonable prospects of success and raises an issue of public importance – excessive estimate of costs of appeal – where undertaking provided by director of appellant – no question of principle
APPEALS — leave to appeal — principles governing — obligation under lease to rectify flood damage — question of construction — points of principle identified — no reasonably clear injustice going beyond something that is merely arguable — costs grossly disproportionate to amounts in issue — special interest in finality where small sums at stake — leave to appeal refused
WORKERS COMPENSATION — disease injury — aggravation, acceleration, exacerbation, or deterioration in the course of employment — employment main contributing factor — Workers Compensation Act 1987 (NSW), s 4(b)(ii) — employee suffered from post-traumatic stress disorder and major depression — employer conceded aggravation of injury for which employment was a contributing factor — employer argued employment not main contributing factor in light of pre-existing psychological condition — member finds employment main contributing factor — certificate of determination upheld on appeal to presidential member APPEALS — appeal from Personal Injury Commission — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353(1) — whether error in point of law — no error in presidential member’s construction and application of Workers Compensation Act 1987 (NSW), s 4(b)(ii) — no error in evaluation of psychological condition before and after commencement of employment — no failure to take into account evidence of prior symptoms and treatment regime — no reversal of onus of proof — no error in point of law
CONTRACTS — commercial lease — where fire originating on leased premises destroyed structures on leased and adjacent premises — proper construction of indemnity clause — whether causation in indemnity clause satisfied — whether reinstatement provision includes rebuilding not just repair — whether lease provisions imposing liability negatived implied covenant under s 84 of the Conveyancing Act 1919 (NSW)
Judgment of
Leeming JA at [1];
Payne JA at [2];
Mitchelmore JA at [89]
APPEALS — practice and procedure — review of single Judge of Appeal — whether a material change of circumstances — where additional evidence before the Court — where cross-appeal has been filed — where discretion re-exercised PRACTICE AND PROCEDURE — costs — security for costs — appeal — whether special circumstances exist — where it was contended that the appeal was unreasonable in nature and with poor prospects — where appellant impecunious — where Court found that no special circumstances exist — where order for security is likely to stultify the appeal
APPEALS – further and fresh evidence – whether appellants should be granted leave to rely upon further and fresh evidence – distinction between further evidence and fresh evidence under s 75A of the Supreme Court Act 1970 (NSW) – whether special grounds shown to admit further evidence – whether fresh evidence should be admitted APPEALS – application to amend grounds of appeal – whether leave should be granted to appellants for proposed additional grounds of appeal – where no prejudice to respondents APPEALS – whether appellants permitted to raise new issues on appeal – where conduct of the hearing in the Court below proceeded by way of detailed agreed statement of issues – whether possibility that new issues could have been met by evidence at the hearing below APPEALS – from findings of fact – credibility of witnesses – whether primary judge erred in making adverse credibility findings against appellants – where extensive submissions as to credit findings made by counsel – whether primary judge denied appellants procedural fairness contrary to the rule in Browne v Dunn CONTRACTS – construction – share sale agreement – whether primary judge erred in construction of cl 3.3 of the agreement – whether primary judge erred in concluding appellants waived rights – whether ordinary and natural meaning of the words – agreement read as a whole according to terms CONTRACTS – knowledge – whether primary judge erred in finding solicitor’s knowledge imputed to appellants – where solicitor’s knowledge obtained in the course of carrying out the share sale RESCISSION – whether primary judge erred in failing to order partial rescission of appellants’ obligation to pay vendor finance – restitutio in integrum – whether partial rescission available in equity or under s 243 of the Australian Consumer Law – whether primary judge erred taking into account considerations of delay and receivership to conclude partial rescission not available – no causal connection
Judgment of
Kirk JA at [1];
Adamson JA at [2];
Price AJA at [3]
CORPORATIONS — members’ rights and remedies — oppression — shareholder and adviser’s exit from financial services business — shareholder corporate vehicles corporate authorised representatives of service entity AFS licensee — exiting shareholder copies client information in preparation to leave business — remaining shareholders cut exiting shareholder’s access to business’ systems — remaining shareholders encourage clients of exiting shareholder to remain with business — whether trial judge erred in finding oppression where alleged baiting — whether compensation warranted or buy-out order should be made — no basis to do so where quantifiable loss not demonstrated CONTRACT — remedies — damages — proof of loss or damage — breaches of corporate authorised representative agreement leading to alleged loss of clients — whether loss adequately demonstrated or quantified — facilitation principle — “fair wind” — whether appellant entitled to the benefit of the doubt and favourable inferences where some loss demonstrated — assistance in proof not warranted — case theory below profoundly misleading — expert report relied upon based on false assumptions — uncertainty in proof of loss resulting also from false basis initially advanced by claimant for damages — unreasonable and unfair for respondents to assume evidential burden APPEALS — procedure — notice of contention — unsatisfactory to do no more than rely on submissions below — calibration to findings of trial judge required
CIVIL PROCEDURE — Court of Appeal — application for leave to appeal — whether to grant leave to file amended response and rely on deed of re-assignment — whether more than merely arguable error in primary judge’s decision to set aside statutory demand
PRACTICE — application for extension of time for filing of application for review of the orders of a Judge of Appeal — where Judge of Appeal dismissed the applicant’s challenge to dismissal of proceedings as a consequence of guillotine order made by Registrar that if a summons for leave to appeal was not filed by a particular date the proceedings would be dismissed — no error of principle demonstrated — circumstances in which guillotine order will be an appropriate tool of case management — extension of time refused
APPEALS — from finding of fact — function of appellate court — whether appropriate for appellate court to interfere with findings of primary judge based on observations of witnesses in the course of the trial ESTOPPEL — proprietary estoppel — encouragement — nature of promise — where daughter claims parents promised to transfer family home and family business to her during their lifetimes — whether promise clear and unequivocal
Judgment of
Bell CJ at [1];
Mitchelmore JA at [75];
Adamson JA at [76].
ANIMALS — companion animals — dogs — where respondent and her dog were attacked by appellant’s dog — where respondent sued under s 25 Companion Animals Act 1998 (NSW) — where circumstances of attack not in dispute — where primary judge gave judgment for respondent — where primary judge found respondent suffered both physical and psychiatric injury — whether primary judge erred in preferring opinion of one psychiatric expert over another — whether primary judge erred in approach to causation — whether evidence before primary judge did not support his Honour’s finding that respondent had suffered impairment of earning capacity — whether primary judge erred in assessment of damages — appeal dismissed
SUCCESSION — Family provision — Approval of release — Whether release is “fair and reasonable” under s 95(4)(c) of the Succession Act 2006 (NSW) — Evidence of value of assets and liabilities of deceased estate and relevant parties CIVIL PROCEDURE — Parties — Persons under legal incapacity — Application to adduce further evidence on appeal to support legal incapacity — Application refused CONTRACTS — Formation — Deeds — Whether deed was delivered in escrow — Whether primary judge erred in finding that deed was delivered in escrow when issue not raised in terms by the parties — Whether deed was incomplete — Intention to be bound by deed on condition that deed becomes effective only upon execution by other party — Mutual assent to be bound by terms of the deed
PROCEDURE – application for pro bono referral – impecunious but articulate applicant – relatively straightforward appeal – trial including cross-examination conducted by litigant in person – the fact that applicant would be advantaged by pro bono assistance insufficient – application refused
APPEALS — expert evidence — Class 4 proceedings in the Land and Environment Court — challenge to approval of development of sports complex at Fred Caterson Reserve — asserted failure to consider environmental impact of light spill on vulnerable owl species including Powerful Owls — where primary judge refused leave for the appellant to rely on evidence from an owl biologist — whether evidence relevant to issues to be determined by the Court
Judgment of
Leeming JA at [1]
Adamson JA at [2]
Ball JA at [3]
APPEALS — Leave to appeal — appeal brought out of time — extension of time granted — application for leave to appeal from a decision that the Council did not owe and did not breach the duty of care alleged — issues of principle — leave to appeal granted NEGLIGENCE — Personal injury — pedestrian tripped against a “raised lip” on concrete footpath in early morning light — internal Council policy for the assessment and maintenance of footpaths — whether Council owed a duty of care to respond to the 23mm height differential — whether the “raised lip” was an obvious risk — contributory negligence — onus of proof for contributory negligence and obviousness of risk NEGLIGENCE — Damages — personal injury damages — alleged errors in assessment of quantum — discount for vicissitudes — no error shown in evaluation of respective heads of damage — minor arithmetical error
Judgment of
Ward P at [1]; McHugh JA at [191]; Free JA at [192]
PRACTICE AND PROCEDURE — leave to appeal — interlocutory decision — leave sought to appeal against dismissal of applicant’s amended statement of claim in District Court proceedings with leave to re-plead certain claims — leave sought to cross-appeal against grant of leave to re-plead claim against the Director of Public Prosecutions — no question of principle — no demonstrated injustice
CONTEMPT — Civil contempt — Breach of orders — Clarity of terms — Proper construction of consent order – Meaning of the words “pending the hearing of this matter” — Ambiguity — Whether consent order was ambiguous
Judgment of
McHugh JA at [1]
Griffiths AJA at [4]
Harrison AJA at [76]
PUBLIC ASSEMBLY — “public assembly restriction declaration” (“PARD”) scheme — Terrorism and Other Legislation Amendment Act 2025 (NSW) — enacted in the wake of the terrorist attack at Bondi Beach on 14 December 2025 — restriction of the holding of public assemblies within a declared area following a terrorist attack — regime for the authorisation of proposed public assemblies displaced — enhanced police powers when and where a PARD is in force — Terrorism (Police Powers) Act 2002 (NSW), Pt 2, Div 3A — Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 200(5) — Summary Offences Act 1988 (NSW), ss 27A, 27B CONSTITUTIONAL LAW — Commonwealth Constitution — implied freedom of political communication — importance of peaceful protest — substantial burden on implied freedom — legislature perceived potential of public assemblies to undermine social cohesion and place community at risk — purpose of provisions to address this mischief by restricting and discouraging public assemblies within declared areas — purpose not compatible with maintenance of the constitutionally prescribed system of representative and responsible government — disharmony, incivility and disruption accepted as features of democratic intercourse — scheme not reasonably appropriate and adapted — PARD scheme a blunt tool — inability under scheme to tailor restrictions to characteristics of particular public assemblies — impugned provisions declared invalid CONSTITUTIONAL LAW — “matter” — justiciability — standing — plaintiffs assert special interest as protest organisers affected by PARD initially declared on 24 December 2025 — PARD lapsed before hearing — impugned provision conferring power to make a PARD still in force — non-remote risk that a future PARD may be made impacting the plaintiffs in their protest activities — plaintiffs continue to have standing to maintain the proceedings — matter persists and requires resolution — justiciable controversy apt to be quelled — prudential considerations telling against the exercise of jurisdiction not engaged
COMMERCE — Competition and Consumer Act 2010 (Cth), Pt IIIA — Declared service —Construction of access determination — Nature and extent of extrinsic material to be taken into account — Whether appellant able to take advantage of determined wharfage charge without being liable to pay determined navigation service charge
Judgment of
Mitchelmore JA at [1];
Stern JA at [2];
McHugh JA at [3]
APPEAL — leave to appeal – alleged procedural unfairness resulting from difficulties in transmission created when applicants’ legal representative appeared by AVL at hearing of respondent’s motion for leave to amend statement of claim — subsequent application for recusal on basis of apprehended and actual bias refused — no issue of principle, question of public importance or reasonably clear injustice going beyond the merely arguable — leave refused
PROCEDURE – application for adjournment – applicant admitted to private clinic – second occasion on which applicant had entered clinic shortly before adjourned hearing – application by applicant for appointment of tutor on basis of incapacity – underlying appeal challenging dismissal of applicant’s claim when applicant hospitalised – adjournment granted on basis of overriding purpose
APPEALS – whether primary judge erred in refusing to order an apology under s 237 of the ACL – whether question of public importance raised APPEALS – cross-appeals – whether primary judge acted on a wrong principle in identifying the event for the purposes of the costs analysis – whether primary judge took into account extraneous or irrelevant matters when making a costs order – whether primary judge erred in failing to find that costs should have been calculated in accordance with UCPR 42.15 – whether primary judge acted on a wrong principle in identifying that offer of money was unlikely to provide a basis upon which to settle – whether primary judge’s exercise of costs discretion unreasonable or plainly unjust
Judgment of
Payne JA at [1]
Price AJA at [2]
Harrison AJA at [3]
PRACTICE AND PROCEDURE — application for leave to appeal from decision refusing to grant a permanent stay of proceedings in favour of expert determination — construction of expert determination clause — characterisation of parties’ dispute — relevance of third party as a proper party to proceedings — criteria for leave to appeal not met
Judgment of
Bell CJ at [1];
Adamson JA at [26];
Ball JA at [27].
EVIDENCE — opinion evidence — exceptions — expert opinion — where expert certificate tendered and served under and in compliance with ss 177(1), 177(2) and 177(3) of the Evidence Act 1995 (NSW) — where maker of expert certificate not required to give evidence under s 177(5) of the Evidence Act 1995 (NSW) — whether opinion evidence in expert certificate admissible under s 177 of the Evidence Act 1995 (NSW) as an exception to s 76 of the Evidence Act 1995 (NSW) — whether requirements of s 79 of the Evidence Act 1995 (NSW) required to be satisfied for an expert certificate to be admissible under s 177 STATUTORY INTERPRETATION — departure from literal meaning — unreasonable consequences — presumption that word in statute bears same meaning as same word elsewhere in same statute — whether presumption applies less strongly where provision in question containing word was added to statute at later stage of drafting process
COSTS — Security for costs — pending appeal — whether special circumstances — where appellant wholly unsuccessful at first instance — where judgment debt entered and freezing orders made in proceedings below — where real prospect that assets will not be available to satisfy any costs liability made against appellant — where grounds of appeal face significant hurdles
OCCUPATIONS — veterinary surgeons — misconduct and discipline — investigation of complaint by Veterinary Practitioners Board — asserted failure to comply with statutory procedures — whether non-compliance with statutory requirements deprived NSW Civil and Administrative Tribunal of jurisdiction — jurisdiction of NSW Civil and Administrative Tribunal to consider procedural error by the Board — effect of non-compliance APPEALS — leave to appeal — appeal from NSW Civil and Administrative Tribunal to Supreme Court — meaning of “interlocutory decision” — meaning of “ancillary decision” — whether leave required — not necessary to decide
Judgment of
Mitchelmore JA at [1]
Adamson JA at [82]
McHugh JA at [83]
NEGLIGENCE — professional negligence — where solicitor failed to draft notice to complete with reasonable care — client subsequently repudiated the contract — purchaser sued client for return of the deposit and damages — deposit repaid but no damages awarded as causation not established BREACH OF FIDUCIARY DUTY — appeal — failure to advise — where solicitor found liable for breach of duty to client — failure to establish causation of loss claimed REMEDIES — damages — loss of opportunity — assessment of damages where alleged loss of chance — need to prove that alleged lost chance had some value
Judgment of
Mitchelmore JA at [1]
Adamson JA at [2]
Stern JA at [101]
LEGAL PRACTITIONERS — Solicitors — whether firm should be restrained from acting for a defendant — where firm sought to be restrained from acting when an employed solicitor was formerly employed by plaintiff firm — test for restraint where confidential information relates to principal of prior firm not client information — whether confidential information needs to be identified - inherent jurisdiction to prevent a lawyer from acting is extraordinary and should be used sparingly — importance of supervision and mentoring opportunities to the legal profession — error of principle to extend dicta relating to restraint of a solicitor possessing client confidential information to support restraint of solicitor allegedly possessing confidential information of a former co-worker APPEAL — whether inherent jurisdiction to protect administration of justice supported restraint in this case CIVIL PROCEDURE — Parties — where orders made against a non-party to motion — whether orders properly made — no application for costs order made — non-party entitled to have costs order set aside
Judgment of
Payne JA at [1];
Kirk JA at [61];
Adamson JA at [62]
APPEALS — appeal from findings of fact — whether the primary judge erred in finding the Council had actual knowledge of the risk which caused the harm — whether knowledge of particular class of Council persons required – whether the primary judge erred in failing to find the liability arose from road works for the purpose of s 45 of the Civil Liability Act 2002 (NSW) — whether the primary judge erred in failing to find that the claim relied on the exercise of a special statutory power for the purposes of s 43A of the Civil Liability Act — no error in any findings of fact APPEALS — TORTS — negligence — personal injury — application of the Civil Liability Act 2002 (NSW) — whether s 45 Civil Liability Act is applicable — whether the address of the risk that caused harm was ‘carrying out road work’ for the purposes of s 45 — whether s 43A Civil Liability Act applicable — whether special statutory power was exercised for the purposes of s 43A
CIVIL PROCEDURE — parties — persons under legal incapacity — court must be positively satisfied as to legal incapacity — incapacity a task-specific matter — considerations relevant to capacity in context of conducting litigation — level of capacity required commonly greater where person self-represented
Judgment of
Mitchelmore JA at [1]
Kirk JA at [2]
Griffiths AJA at [69]
NEGLIGENCE — slip and fall in undercover carpark on speed hump —speed hump not painted — other hazards and irregularities in carpark painted yellow — whether primary judge erred in finding movement-sensitive lighting had not come on when plaintiff fell — whether unpainted speed hump an obvious risk — whether primary judge erred in finding breach and causation — whether primary judge erred in not finding contributory negligence — whether primary judge erred in assessment of future economic loss and future domestic assistance — appeal allowed in part and judgment in lesser amount substituted
CORPORATIONS — receivers and managers — appeal — standing of receiver to seek declaratory relief in respect of ownership of shares — whether shares formed part of secured property — where bases of grounds of appeal not raised in the Court below APPEAL — where appellant seeks to run a point not taken in the Court below — parties generally bound by the way they conducted themselves at first instance
NEGLIGENCE — motor vehicle accident — appeal — dispute as to factual matters relating to liability — alleged errors with respect to factual matters relating to the circumstances of the collision APPEAL — from findings of fact — assessment of witnesses by primary judge
ENVIRONMENT AND PLANNING – Land and Environment Court – Jurisdiction and powers – Class 1 – conciliation conferences – whether decision to give effect to development consent was one which the Court could make in the proper exercise of its functions – where common ground that cl 6.7(2) of the Kiama Local Environmental Plan 2011 is a jurisdictional constraint – whether Commissioner formed the requisite state of satisfaction so as to satisfy jurisdictional constraint – where Jurisdictional Note provided by the parties ENVIRONMENT AND PLANNING – Land and Environment Court – Jurisdiction and powers – Class 1 – conciliation conferences – whether Commissioner had power to grant development consent to amended development application – whether third respondent’s role as consent authority was functus officio upon refusing the development application so as to preclude the Commissioner from giving effect to grant of consent – where amendments to development application diminished the impact on neighbouring properties
Judgment of
Stern JA at [1];
McHugh JA at [144];
Griffiths AJA at [145].
APPEAL – Leave to appeal – Application for leave to appeal NCAT Appeal Panel decision under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – Whether question of fact or question of law – Whether finding of the Appeal Panel that strata application filed out of time concerned question of fact or question of law – Leave to appeal refused
CIVIL PROCEDURE – application for appointment of tutor – whether appellant under legal incapacity – where insufficient evidence – no appointment of tutor made
LOANS — account — appeal — quantum of amount owing by son to mother for unpaid loans — erroneous apprehension about the significance of a figure contained in a schedule of payments — requirement to review evidence of the loans and make findings of fact pursuant to power in s 75A of the Supreme Court Act 1970 (NSW) LIMITATION OF ACTIONS — debt — requirement that defence under the Limitation Act 1969 (NSW) be pleaded
EQUITY — defences — laches — whether claim to rectification of share register barred by laches — disadvantage or prejudice suffered — no link between prejudice and delay EVIDENCE — rejection of affidavit evidence — whether evidence purporting to be in support of laches defence outside pleadings following abandonment of estoppel argument – no error of principle PROCEDURE – no error of principle, matter of public importance or reasonably clear injustice going beyond something that is merely arguable – refusal of leave to appeal
Judgment of
Bell CJ at [1];
Leeming JA at [61];
McHugh JA at [65].
CIVIL PROCEDURE – requirement of leave – monetary threshold not shown to be satisfied – reasonable and fair although to advise appellant of requirement to seek leave
AGENCY — enduring power of attorney — effectiveness of — whether certificate under s 19(1)(c) of Powers of Attorney Act 2003 (NSW) must be given contemporaneously with execution of enduring power of attorney by principal — whether instrument can be construed or rectified to include omitted statement required by s 19(1)(c)(iv)
Judgment of
Bell CJ at [1]
Adamson JA at [2]
Griffiths AJA at [3]
EQUITY — trusts and trustees — breaches of trust — discretionary family trust — where primary judge found the trustee breached its duties by making unauthorised distributions to non-beneficiaries — where primary judge relieved the trustee from liability pursuant to s 85 of the Trustee Act 1925 (NSW) on the basis that it had acted honestly and reasonably — whether the primary judge erred in his discretion in refusing to order an account or for restoration of the unauthorised distributions LIMITATION OF ACTIONS — breach of trust — account — where limitation period has expired — effect of s 48 of the Limitation Act 1969 (NSW) on a claim for an account or order for restoration based on alleged breach of trust — where s 68A of the Limitation Act provides for an extinction of title where limitation period applies RELIEF — where breach of trust established — whether order for restoration of the trust property ought be made or whether declaratory relief sufficient TRIAL — party bound by conduct of proceedings — ought not be permitted to challenge in separate proceedings for an account matters which have already been litigated in contested proceedings where all material evidence before the primary judge RELIEF — when an account will be ordered — no utility in ordering an account where the amounts distributed in breach of trust have already been quantified following contested proceedings
Judgment of
Leeming JA at [1]
Mitchelmore JA at [78]
Adamson JA at [79]
APPEAL — Application for leave to appeal — Appeal from Supreme Court — No question of general principle — No question of public importance — Where amount in issue less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)
PRACTICE AND PROCEDURE — costs — security for costs — appeal — relevant factors — need for special circumstances — impecuniosity — where appellant has strong ties to the United Kingdom and the expectation of inheritance — whether appellant has established that an order for security will stultify proceedings — relevance of disparity between limited role played by appellant in the Court below and ambit of the appeal
APPEALS – from findings of fact – appellate deference – forensic advantages of primary judge – limitations of transcript evidence especially where credit in issue – principles in Briginshaw v Briginshaw – large conflicting bodies of evidence – three week trial – credibility and reliability of witnesses – character evidence – tendency evidence 20 years before alleged abuse – imperfections of human memory – witnesses recalling events from 30 years ago – witnesses of a young age at time of events – effect of traumatic incidents on recollection APPEALS – from findings of fact – fact finding methodology in institutional abuse cases – effect of High Court’s decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle – observations in Longman, Watson v Foxman and Gestmin SGPS S.A. v Credit Suisse (UK) Limited remain valid after AA – requirement for “actual persuasion” by trier of fact LIMITATION OF ACTIONS – personal injury – alleged historic child abuse – legislative removal of limitation periods – construction of “serious physical abuse” under s 6A(2)(b) Limitation Act 1969 (NSW) – alleged abuse by teacher and teachers’ aide over 30 years ago in infants school – use of wooden ruler to discipline students – forced to stand in sun for long periods – large conflicting bodies of evidence – evidence of fellow students and teachers – absence of complaints formally recorded prior to proceedings – limitations in evidence of Appellant – “serious physical abuse” not made out
Judgment of
Bell CJ at [1];
Kirk JA at [128];
Ball JA at [129].
COSTS — gross sum costs order — where sufficient information before the Court to enable the assessment of a gross sum costs order in respect of costs of appellate proceedings — no issue of principle — gross sum costs order made in respect of costs of appellate proceedings
APPEAL — Application for leave to appeal — Application filed out of time — Appeal from decision granting summary judgment for possession of land — No question of general principle — No question of public importance — No error amounting to a reasonably clear injustice going beyond what is merely arguable
CIVIL PROCEDURE — Court of Appeal — Leave to appeal — applicant sought to rely on further evidence in appeal — application of Supreme Court Act 1970 (NSW) — whether application for leave to appeal within meaning of “an appeal” in s 75A — court’s power to receive further evidence in application for leave
APPEALS – orders on appeal – appeal from conviction in Local Court to District Court – where appeal to District Court dismissed under s 21 of the Crimes (Appeal and Review) Act (NSW) for want of prosecution – whether dismissal of appeal by District Court operates as confirmation of conviction by Local Court – dismissal under s 21 operates as confirmation of conviction – judicial review of Local Court decision unavailable in these circumstances ADMINISTRATIVE LAW – judicial review – whether decision of Local Court reviewable by Court of Appeal where District Court dismissed appeal for want of prosecution – clear jurisdictional error in Local Court – where Magistrate held private discussion in Chambers with Prosecutor during cross-examination of Defendant – Local Court conviction confirmed by dismissal of appeal by District Court – judicial review of Local Court conviction not available – no jurisdictional error in District Court – application dismissed
APPEALS — Leave to appeal — interlocutory orders — application for leave to appeal from a decision that the Liquidators were justified in declining to convene a meeting of creditors — whether there is any practical utility in the appeal — where there is an available alternative avenue for the applicants to seek the remedy claimed — leave to appeal dismissed APPEALS — Admission of further evidence — whether the primary judge erred in granting leave to the Liquidators to call and admit further evidence after Liquidators had closed their case — whether the further evidence was outside scope of leave granted APPEALS — Statutory Interpretation — whether requirement of “good faith” under r 27-250 of the Insolvency Practice Rules (Corporations) 2016 (Cth) imports condition of objective reasonableness APPEALS — From finding of fact — whether primary judge erred in finding that the Liquidators formed the requisite opinion acting in good faith — whether Liquidators asked themselves the wrong question (in considering the possible outcome of the meeting rather than whether direction to convene the meeting was unreasonable) — whether Liquidators failed to carry out the required balancing exercise between benefits of convening meeting and prejudice to creditors/shareholders of complying with Direction
Judgment of
Ward P at [1]; Payne JA at [261]; Free JA at [262]
Valuation of land – appeal – decision on question of law – whether identified – weight to be given to comparable sales – whether valuation principle – whether error in valuation principle an error on a question of law – calculation of median and mean of values – whether valuation principle – adequacy of reasons
COSTS — gross sum costs order — where sufficient information before the Court to enable the assessment of a gross sum costs order — no issue of principle — gross sum costs order made
EQUITY – trusts and trustees – two couples established unit trust for purpose of making property investments – equal division of units – equal board representation on corporate trustee – equal shareholdings in trustee – no provision to resolve deadlocks – trust deed contained clause based on s 3A(3B) of Land Tax Management Act 1956 (NSW) deeming it to be a fixed trust – clause provided that unit holders may require the trustee to wind up the trust and distribute the trust property – whether individual unit holder entitled to wind up trust PRECEDENT – appellate decision on similar clause in trust deed, in unit trust where one person held all units, construed to entitled unit holder to wind up trust – whether earlier decision authority for clause authorising one of a number of unit holders individually to wind up trust – decisions only authority for what was decided – Sayden Pty Ltd v Chief Commissioner of State Revenue (2013) 83 NSWLR 700; [2013] NSWCA 111 distinguished CORPORATIONS – members’ rights and remedies – oppression – construction and background to Corporations Act 2001 (Cth), s 232 and 233 – whether applicable to members of trustee companies – whether member’s capacity as person with indirect interest in trust assets relevant – trustee conducted agricultural business – whether ongoing disputes concerning management of business amounted to oppression – whether deadlock as to whether trust should be wound up amounted to oppression RECEIVERS – so-called “principle in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360” relied on to appoint receiver to wind up trust – nature of principle – whether principle of equity or statutory construction – nature of receivership – whether remedy interlocutory or final – differences between companies and trusts – court’s function to preserve trusts – equitable doctrines directed to preservation of trusts
Judgment of
Leeming JA at [1];
Stern JA at [258];
Griffiths AJA at [259]
WORKERS COMPENSATION — appeal to Presidential member — nature of appeal to Presidential member — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 — Presidential member dismissed appeal on basis that findings made at first instance were "open" and it was insufficient that he would have drawn a different inference — whether appeal governed by principles in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 — effect of amendments in 2011 altering nature of appeal in response to court decisions — subsequent decisions held that right of appeal under s 352 was narrower — whether this Court should depart from those decisions — Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 disapproved WORKERS COMPENSATION — entitlement to compensation — death benefit — worker sustained post-traumatic stress disorder during employment — death caused by adenocarcinoma — whether death resulted from workplace injury — whether reasoning in Commission wrongly relied merely on an increased risk of death — no error in findings of causation
Judgment of
Bell CJ at [1];
Leeming JA at [2];
Kirk JA at [97];
McHugh JA at [98];
Free JA at [99]
APPEAL — Application for leave to appeal — Appeal from decision not to dismiss claim summarily — Whether claim so obviously untenable that it cannot succeed — No reasonably clear injustice that is more than arguable
ENVIRONMENT AND PLANNING — subdivision — land swap deed negotiated by owners of neighbouring properties in Box Hill — negotiations instigated by owners of appellant to expand scope of proposed subdivision — appellant incurs range of expenses to satisfy conditions of development consent — no enforceable agreement about sharing burden of these costs — claim for restitution for unjust enrichment RESTITUTION — nature of restitutionary liability — quantum meruit — unjust enrichment — unjust or vitiating factors — express or implied request — failure to establish on the evidence RESTITUTION — unjust or vitiating factors — “free acceptance” — uncertainty in Australian law — provider of services also principal beneficiary — potential overlap with factors demonstrating implied request — failure to establish why a reasonable person in the circumstances would have known the service provider expected to be paid — unnecessary to resolve legal controversy
Judgment of
Ward P at [1]
Free JA at [2]
Griffiths AJA at [66]
CONSTITUTIONAL LAW – parliamentary privilege – Bill of Rights, Article 9 – recusal application for apprehended bias based on judge making submission to Parliamentary Committee – submission published by Committee – whether tender of submission for purposes of recusal application contrary to Article 9 – common ground between all parties save Commonwealth Attorney intervening pursuant to Judiciary Act 1903 (Cth) s 78A that Article 9 did not validly prevent the tender – whether presence of Commonwealth Attorney meant there continued to be a matter – whether dispute between parties as to whether Article 9 did not apply as a matter of construction or of legislative power meant there continued to be a matter – whether declaratory relief should be refused as a matter of discretion – whether alternatives available other than recusal – whether Constitution s 49 preserved applicability of Article 9 for freedom of speech in a State Parliament – whether if Article 9 would otherwise prevent a court from being constituted by a judge free from the apprehension of bias, Article 9 was cut down by reason of the principle in Kable v Director of Public Prosecutions (NSW) – limited declaratory relief issued
TORT — negligence — trespass — where appellants in two separate appeals and their family members conducted excavation works on the development site causing the driveway of the first respondent’s property to collapse — where primary judge finds appellants liable in trespass for encroachment over the first respondent’s boundary and negligence constituting a breach of the duty of care pursuant to s 177(2) of the Conveyancing Act 1919 (NSW) — whether respondents established that the appellants encroached on the first respondent’s property and contributed to the collapse TORT — appeal — cross-appeal — trespass — apportionment of liability — whether Civil Liability Act 2002 (NSW) applies to alleged trespass TORT — appeal — negligence — principles of causation — tortious act need only have caused or contributed to harm — not necessary that it be the sole cause TORT — remedies — damages — whether compensation ought be measured by cost of rectification or diminution of value of affected land — relevance of proportionality and intentions of landowners — whether the affected land is the plaintiff’s residence CIVIL PROCEDURE — pleading — proportionate liability defence pursuant to Pt 4 of the Civil Liability Act 2002 (NSW) — importance of identifying concurrent wrongdoer and basis of claim — no error in primary judge holding appellants to pleaded defence APPEALS — from findings of fact — credibility of witnesses — oral evidence can be accepted without corroboration — no need for comprehensive photographic evidence — difficulties of judging distances and depth from photographic evidence
Judgment of
Ward P at [1]
Mitchelmore JA at [2]
Adamson JA at [3]
APPEALS – leave to appeal – where application for leave to rely on expert report refused in the Land and Environment Court – whether leave to appeal should be granted to reconsider that decision
CIVIL PROCEDURE – application to vacate hearing date – heavy burden to vacate shortly before the hearing – where appellants seek to adduce fresh evidence – application dismissed
CONTRACT — loan agreement — whether payments made by lender to a third party fell within loan agreement — insufficient evidence to establish advances to borrower under loan agreement COMMERCE — money counts — onus of proof — plaintiff bears onus of proving elements of cause of action — rejection of defendants’ case does not assist in proof of plaintiff’s case APPEAL — nature of appeal — functions of appeal court — importance of identifying determinative question
Judgment of
Bell CJ at [1]
Mitchelmore JA at [2]
Adamson JA at [3]
CIVIL PROCEDURE — Pleadings — Form and content of pleading — purposes served by pleadings — principles relating to pleading claims in negligence — pleading ordinary duty of care — pleading breach of duty — pleading vicarious liability CIVIL PROCEDURE — Pleadings — Form and content of pleading — Defects — necessity for ordinary duties of care to identify acts or omissions available to defendant which reasonable person would have taken to avoid identified risk of harm — whether respondent failed to plead facts establishing applicant’s provision of opportunity and occasion for wrongful act NEGLIGENCE — effect of High Court’s decision in AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 — matters plaintiff required to plead following AA — whether respondent’s pleadings sufficient
CORPORATIONS — takeover bid — whether this proceeding commenced contrary to s 659B of Corporations Act 2001 (Cth) — whether this is a proceeding “in relation to a takeover bid” — s 659B(1) does not apply to this proceeding CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors – Notice — where respondent issued notice of intention to move a resolution at general meeting of shareholders removing directors of first appellant and notice of intention to nominate new directors — whether notices were valid
CIVIL PROCEDURE – application for pro bono referral – where proceedings at an early stage – whether referral in the interests of the administration of justice – referral confined to the provision of advice
CIVIL PROCEDURE — Notices to produce —whether requests for documents sufficiently specific — whether requests relevant to a fact in issue —whether requests amount to a “fishing expedition” — whether leave be granted for discovery — whether draft reasons of a statutory board prepared by a legal adviser attract legal professional privilege — where requests seek documents subject to claims of legal professional privilege — whether leave be granted for interrogatories — whether leave be granted to amend summons — where no form of proposed amended summons before the Court
COSTS — security for costs — special circumstances and residual discretion — impecuniosity — whether appeal has real prospects for success — unsatisfactory explanation as to delay where notice of motion filed three weeks before hearing
CIVIL PROCEDURE — application for pro bono referral under UCPR r 7.36 — where party has a history of non-appearance at hearings — application refused CIVIL PROCEDURE — non-publication order — application refused
WILLS, PROBATE AND ADMINISTRATION – informal wills – Succession Act 2006 (NSW) s 8 – where a document saved on deceased’s iPhone in the Notes application – whether deceased intended document without more to operate as a will – evidence that the deceased considered the document final – where no publication of will prior to death – where will discovered after death
Judgment of
Bell CJ at [1];
Payne JA at [2];
Mitchelmore JA at [80].
CONTEMPT – fitness to plead – primary judge found applicant to have committed contempt – whether real and substantial question of fitness arose before primary judge – significance of proceedings being civil and contempt being civil – significance of appointment of a tutor PROCEDURE – appeals – fresh evidence – obligations in Supreme Court Act 1970 (NSW), s 75A(8) and UCPR, r 51.51 – failure to include transcript of hearings – documents sought to be relied on wrongly dated – importance of attending to obligation of preparing appeal papers
APPEALS — practice and procedure — appellant unrepresented — consideration of extent of court’s role in relation to unrepresented parties APPEALS — procedural fairness — where primary judge refused to allow cross-examination of lay witness present in court — where no prejudice to witness in allowing cross-examination — denial of procedural fairness CONSUMER LAW — misleading or deceptive conduct — liability of intermediaries — where employee personally made misleading oral statements — where employee personally gave misleading document signed by employee on behalf of employer to representee — employee liable
Judgment of
Bell CJ at [1]
Mitchelmore JA at [124]
Stern JA at [125]
BUILDING AND CONSTRUCTION — payment claim — where parties engaged in two adjudicative processes — whether a decision by an adjudicator as to lack of jurisdiction to carry out the statutory functions of an adjudicator constitutes a “determination” — whether second adjudication determination is an abuse of process — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 22, 26
Judgment of
Mitchelmore JA at [1];
Griffiths AJA at [2];
Price AJA at [110].
EVIDENCE — Standard of proof — Civil cases — whether primary judge failed properly to apply standard of proof and reached erroneous conclusion — where primary judge did not so err APPEALS — From finding of fact — Credibility and reliability of witnesses — whether primary judge erred in treatment of evidence of appellant and two witnesses — where the weight to be given to the evidence of each witness was a matter for his Honour — where primary judge’s findings were based on his Honour’s assessment of the evidence as a whole — where primary judge did not so err APPEALS — From finding of fact — Credibility of witnesses — whether primary judge erred in finding respondent had not deliberately sought to create a false impression and gave inadequate reasons for so finding — where primary judge did not so err
Judgment of
Bell CJ at [1];
Stern JA at [2];
Griffiths AJA at [130]
COSTS — Security for costs — Uniform Civil Procedure Rules 2005 (NSW), r 42.21 — Where appellant is a natural person ordinarily resident outside Australia
CIVIL PROCEDURE — Court of Appeal — application for pro bono referral — application made by appellant — substantial judgment sum previously paid to appellant — whether test for pro bono referral satisfied
APPEALS — leave to appeal — whether leave required LAND LAW — easements — construction of easements — general principles of construction — admissibility of information beyond the register — relevance of physical characteristics of land — range of physical characteristics which may be considered and as at what time, in light of Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 — whether account may be taken of physical characteristics revealed on building plans which can be accessed by the public LAND LAW — easements — validity of easements — whether easement capable of forming subject matter of grant — whether the right conferred under an easement would amount to right of joint occupation or would substantially deprive the servient owner of proprietorship or legal possession — consideration of effect on both the servient tenement as a whole and the burdened area — consideration of effect on the rights, positive and negative, of the servient owner
Judgment of
Mitchelmore JA at [1];
Kirk JA at [2];
Griffiths AJA at [161].
COURTS AND JUDGES – significant delay in providing reasons for judgment by primary judge – where primary judge delivered written reasons three months after making final orders in proceedings – whether delay in providing reasons amounts to error – whether a retrial is required as a consequence of the delay – whether UCPR r 36.2 applies where reasons for judgment are not yet reduced to writing – whether a common law duty compels District Court judges to give written reasons for judgment contemporaneously with judgment or very soon thereafter – where common law rule in Palmer v Clarke (1989) 19 NSWLR 158 has evolved – no such common law duty – retrial not required TORTS – malicious prosecution – whether the tort is available in respect of the procuring of an Apprehended Domestic Violence Order (ADVO) – where ‘prosecutor’ for the purposes of the tort is the complainant – where provisional ADVO was issued by a police officer – where interim ADVO was consented to by respondent on a no admissions basis – where application for final ADVO was rejected by Magistrate – tort does not apply TORTS – trespass – where appellant claimed to suffer PTSD resulting from the trespass – where the appellant claimed the trespass damaged his house – where primary judge found trespass occurred – where appellant failed to establish that he suffered damage as a consequence of the trespass – where primary judge declined to award damages for trespass – nominal damages payable APPEALS – leave to appeal – where six instances of alleged battery occurred – where primary judge implicitly rejected the alleged battery – where damages not assessed by primary judge – whether failure to assess damages constituted error – where damages would likely be nominal and fall below $100,000 – whether leave should be granted – leave refused
GUARANTEE AND INDEMNITY — school for international students — non-payment of rent — company responsible for school liquidated — enforcement of guarantee against appellant by lessor — appellant claimed not to be subject to personal guarantee — defence struck out — summary judgment for lessor APPEALS — leave to appeal — principles governing — enforceability of express term of lease — application of well settled principles of contractual construction — no issue of principle or question of public importance — no reasonable defence raised by reliance on subjective understanding of agreement based on heads of agreement — significance of signature on lease — significance of entire agreement clause — insufficient doubt warranting reconsideration on appeal — no reasonably clear injustice
APPEAL — application for leave to appeal — no issue of principle or question of public importance identified — where amount in issue substantially less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)
CIVIL PROCEDURE — dismissal of proceedings — application for dismissal of proceedings on basis of non-payment of security for costs — where security for costs paid at the eleventh hour — whether the Court may still dismiss the proceedings on basis of late payment of security for costs CIVIL PROCEDURE — stay of proceedings — condition of payment — overturned where party benefitting from stay no longer seeks to rely on the order CIVIL PROCEDURE — adjournment — application to adjourn hearing of notice of motion COSTS — interim costs orders — application for costs orders to be paid forthwith — where the Court not persuaded to depart from usual practice LEGAL PRACTITIONERS — capacity to appear — where no record of solicitor on New South Wales Law Society website — where leave required to appear as a director of a corporation — where no leave sought
TORTS — trespass to person — intentional tort — battery — police — unreasonable use of force during arrest — where applicant slammed to ground and punched — where applicant was handcuffed and weighed 55kg — failure to apply the rule in Browne v Dunn — where respondent failed to call or ascertain unidentified police officers — where trial judge failed to draw a Jones v Dunkel inference against the respondent — lawful justification defence — whether a new trial ought be ordered — damages — aggravated damages — exemplary damages
CONSUMER LAW — misleading or deceptive conduct — contractual interpretation — price-capped gas contract — whether gas supplier represented that it would obtain third-party insurance — pre-contractual negotiations — cover email — two phone calls — whether “calculated ambiguity” in terms of contract — whether any ambiguity was exploited — significance of silence or non-disclosure.
Judgment of
Bell CJ at [1];
McHugh JA at [100];
Free JA at [101].
HEALTH — negligence — surgery — medical procedure on eye — liability of hospital for negligence of medical practitioners — tap and inject treatment for endophthalmitis — appellant alleges treating ophthalmic registrar made excessive number of attempts to tap vitreous fluid from eye — alleged failure to document procedure — submissions on whether failure to make clinical notes of procedure amounts to breach of duty — claim fails on the facts — no error in reasoning of trial judge demonstrated — failure to establish causal connection with harm allegedly suffered
Judgment of
Free JA at [1]
Griffiths AJA at [83]
Price AJA at [84]
NEGLIGENCE — Professional negligence — Solicitors — Breach of duty — Whether solicitor should have advised proceedings were hopeless and doomed to fail — Whether solicitor should have advised appeal lacked any arguable basis CIVIL PROCEDURE — Effect of grant of “liberty to apply” with respect to costs order — Uniform Civil Procedure Rules 2005 (NSW), r 36.16 — Time limit for application to vary final order — Procedural fairness — Whether primary judge ought to have reserved the question of costs
Judgment of
Stern JA at [1];
McHugh JA at [2];
Free JA at [164]
CIVIL PROCEDURE – Admissions – Withdrawal – unopposed amendment of Commercial List Statement during trial – whether amendment amounted to withdrawal of admission – construction of UCPR r 12.6(2) – rule does not apply to statements of claim – rule does not require provision of formal notice where court’s leave to amend a document is sought
Judgment of
Bell CJ at [1];
Kirk JA at [2];
Adamson JA at [66]
CORPORATIONS — directors and officers — appointment, removal and retirement of directors — employment of director purportedly terminated by executive chairman of another company — whether executive chairman had actual express or implied authority APPEALS — parties — obligation to join all persons directly affected by orders sought — appellants co-owned company and sought orders that employment contract between company and director validly terminated but joined neither to the appeal — joinder ordered
Judgment of
Leeming JA at [1];
Mitchelmore JA at [66];
Stern JA at [67]
APPEAL — sentencing — control orders — Children’s Court — whether a single aggregate control order may exceed two years — coherence between cumulative and aggregate sentencing — jurisdictional limit for aggregate control orders — construction of Children (Criminal Proceedings) Act 1987 (NSW), ss 33(1)(g), 33A(4), 33C — application of Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 53B CHILDREN — criminal law — sentencing — control orders — aggregate control order imposed for multiple offences — whether two-year limit in s 33(1)(g) applies — three-year jurisdictional limit under s 33A(4) — power to impose aggregate control order derived from Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A as applied by Children (Criminal Proceedings) Act 1987 (NSW) s 33C
Judgment of
Ward P at [1]
Mitchelmore JA at [2]
Adamson JA at [22]
PROCEDURE – security for costs – application for leave to appeal – security ordered against company in earlier proceedings at first instance – no need for special circumstances – no ability to assess prospects of appeal – estimated amounts of costs excessive – security ordered, in much smaller amount than sought
NEGLIGENCE — Medical negligence — Whether primary judge overlooked or incorrectly rejected expert radiological evidence — Whether doctor failed to take reasonable care — Whether hip prosthesis loose at time of revision surgery or thereafter until 2017
Judgment of
Harrison CJ at CL at [1];
McHugh JA at [2];
Free JA at [147]
CONSTITUTIONAL LAW – State legislative power – powers of Legislative Council to summon witnesses – Parliamentary Evidence Act 1901 (NSW) authorises President to certify that a witness has not complied with a summons without just cause or reasonable excuse – upon receiving such certification, Supreme Court judge required to issue warrant for detention of witness – warrant authorises holding witness in custody in accordance with subsequent orders of President – whether those provisions of Parliamentary Evidence Act contrary to limitations on State legislative power identified in Kable v Director of Public Prosecutions (NSW) – provisions held invalid
CONTRACTS – Construction – Whether written agreement should be read together with earlier handwritten agreement – Where terms of both agreements related to the same transaction but were inconsistent – Where counsel for Appellant eschewed reliance on earlier handwritten agreement at trial CONSUMER LAW – Misleading or deceptive conduct – Where Appellant failed to disclose agreement with third party prior to entering Deed of Settlement with Respondent EVIDENCE – Admissibility – Credibility evidence – Where impugned evidence relevant to determining when the Respondent became aware of the undisclosed conduct which formed the basis of the misleading or deceptive conduct claim
Judgment of
Bell CJ at [1];
Ward P at [105]; and
Mitchelmore JA at [106].
BUILDING AND CONSTRUCTION – claim by subcontractor against principal for recovery of amount outstanding in relation to debt certificates issued under Contractors Debts Act 1997 (NSW) – where obligation of principal (the Club) to pay money owed to contractor (Builder) under construction contract was assigned to subcontractor pursuant to s 8(1) of the Contractors Debts Act 1997 (NSW) – where defence by principal raised set-off – determination of separate question by primary judge as to construction of s 11(4) of Contractors Debts Act 1997 (NSW) – where subcontractor contended s 25(4)(a) of Building and Construction Industry Security of Payment Act 1999 (NSW) constrains operation of s 11(4) of Contractors Debts Act 1997 (NSW) such that principal not entitled to raise any contractual defences arising under the construction contract between principal and defaulting contractor – application for leave to appeal from decision of primary judge rejecting subcontractor’s contention – leave to appeal refused with costs – obiter dicta as to construction of s 11(4) of Contractors Debts Act 1997 (NSW)
Judgment of
Ward P at [1]; McHugh JA at [78]; Griffiths AJA at [83]
APPEALS – Procedure – Application for interim stay – Enforcement of costs orders – Proposed appointment of a tutor – Applicant’s legal incapacity unresolved – No material changes in circumstances justifying longer stay
APPEALS — from finding of fact — documentary evidence —contemporaneous correspondence — logic of events — inferences from objectively determined facts — application of rule in Jones v Dunkel — whether primary judge erred in making factual findings CORPORATIONS — directors and officers — whether first respondent was an officer of the first appellant — upheld primary judge’s finding that first respondent was not an officer of the first appellant CORPORATIONS — statutory duties under ss 180–183 of the Corporations Act 2001 (Cth) — fiduciary duties — whether first and second respondents breached fiduciary and statutory duties owed to first appellant — upheld primary judge’s finding that no breach of duties established — held that first respondent did not owe duties to the first appellant — held that second respondent not involved in alleged conduct at relevant time EQUITY — trusts and trustees — constructive trusts — whether constructive trust should be ordered over first and second respondent’s competing business — held that no breach of duties established — no basis for constructive trust CONSUMER LAW — misleading or deceptive conduct — whether deed of settlement executed by reason of misleading or deceptive conduct by first respondent — where first respondent negotiated deed on behalf of own interests — held that first respondent’s conduct was not misleading or deceptive
CONTRACTS — remedies — damages — mitigation of loss — whether conduct was unreasonable in the circumstances such that some or all of the claimed loss should be disregarded — legal and evidentiary onus on the party asserting a failure to mitigate — no “positive obligation” to provide builder an opportunity to rectify damage — invocation of a “shifting” or “tactical onus” misconceived and should be avoided CIVIL PROCEDURE — alternative dispute resolution — court referral to referee — claimed denial of procedural fairness — no procedural unfairness established
Judgment of
Leeming JA at [1];
Kirk JA at [2];
Ball JA at [81]
APPEALS — procedure — stay pending appeal — urgent stay of execution upon judgment for possession and writ of possession — stay previously granted following undertaking to pay money into court within 21 days — money not paid — application to vary undertaking to extend time — evidence to explain failure to pay deficient — evidence about prospects of payment by alternative date deficient --- application refused
LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of offence under s 400.3(1) of the Criminal Code (Cth) of dealing in proceeds of crime – sentence of imprisonment – declaration that the practitioner is not a fit and proper person to remain on the roll of Australian lawyers – order that practitioner’s name be removed from roll – orders not opposed
PROCEDURE – application to set aside judgment entered in absence of party – whether primary judge erred in dismissing application – defendants unrepresented after failed adjournment application at commencement of 10 day trial – no challenge to finding that no satisfactory explanation for failure to appear at trial – whether primary judge erred in failing to consider matters outside scope of pleadings – no basis for grant of leave made out
CRIMINAL LAW — proceeds of crime — proceeds assessment order — assessment of expenditure under Criminal Assets Recovery Act 1990 (NSW) — whether market value of drugs in appellant’s possession properly included as proceeds — compulsory examination — maintenance payments — weight of admissions — credibility — objective probabilities — alleged loans — failure to discharge onus under s 28(3) — Browne v Dunn — alleged denial of procedural fairness — beneficial ownership of property — judicial notice — objective probabilities — whether inference open — appeal dismissed EVIDENCE — compulsory examination — admissibility of transcript to prove truth of admissions — operation of ss 59, 81, 82 of the Evidence Act 1995 (NSW) — effect of s 54(5) of the Criminal Assets Recovery Act 1990 (NSW) — first-hand versus second-hand hearsay — probative value of admissions — use of admissions against interest — weight of evidence concerning maintenance payments — availability of Jones v Dunkel inference — whether appellant “gave evidence” by being examined under s 12
Judgment of
Kirk JA at [1]
Adamson JA at [2]
Griffiths AJA at [208]
APPEALS — leave to appeal from stay of judgment — where quantum of costs under review — whether primary judge misapprehended effect of orders — whether primary judge erred in description of applicant’s conduct — whether express reference to principles governing grant of stay was required
Judgment of
Mitchelmore JA at [1]
Kirk JA at [30]
Price AJA at [31]
COSTS – gross sum costs orders – assessment of gross sum – orders made – quantum of order COSTS – gross sum costs order – second and third respondents each retained a firm in which they were employed to act for them – whether second and third respondents entitled to costs for their own time
APPEAL — leave to appeal — leave required as the amount does not exceed $100,000 —failure to establish issue of principle, question of public importance or reasonably clear injustice — by consent leave granted in respect of proposed ground 5 and appeal allowed for failure to award separate amounts for damages and order judgment against each applicant separately — leave to appeal otherwise refused DEFAMATION — defamatory matter — multiple publications — emails — Facebook comments — alleged misuse of charitable funds for personal financial benefit — applicants held to have published defamatory material — Wild2Free — wildlife care — common law qualified privilege — reply to attack — triviality defence — Defamation Act 2005 (NSW), ss 33, 39
ADMINISTRATIVE LAW – judicial review – jurisdictional error – review of interlocutory decisions of District Court in its appellate criminal jurisdiction – effect of s 176 of District Court Act 1973 (NSW) on judicial review of decisions of District Court – decision not to grant an adjournment pursuant to s 40 of the Criminal Procedure Act 1986 (NSW) – decision not to allow fresh evidence on appeal pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) – subsequent decision not to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) – whether denial of procedural fairness or natural justice – whether constructive failure to exercise jurisdiction – whether reasonable apprehension of bias APPEAL AND REVIEW – application for extension of time for filing of summons – where applicants self-represented – application to rely in judicial review proceedings on all of the evidence that was before Local Court and District Court
CONTRACTS – contract for the sale and purchase of Crown lease – defects – cracks in concrete slab – measure of damages – rectification damages – where multiple methods of rectification are available – where evidence led only in respect of one method of rectification – reasonableness of methods of rectification
BUILDING AND CONSTRUCTION — design and construct contract — apartment development — payment for variations —construction of “variation”, “direction” and contractual pricing mechanism CONTRACTS — interpretation — whether parties agreed to exclude consultants’ fees from contract sum — practical completion — whether date for practical completion varied by agreement — claim for liquidated damages for delay EQUITY — contribution — co-ordinate liability — deed of settlement — whether settlement conferred benefit on builder requiring reduction of damages — valuation dispute as to alleged undervalue of transferred properties
Judgment of
Mitchelmore JA at [1]
Kirk JA at [2]
Adamson JA at [3]
WORKERS COMPENSATION – claim for compensation following injury – alleged constructive failure to exercise jurisdiction – alleged failure to properly consider submissions – no error established
Judgment of
Adamson JA at [1]
Ball JA at [2]
Price AJA at [44]
CONTRACTS — construction — where parties entered into deed for staged sale by put and call options of parcels of land identified as Properties 6 to 10 — where appellants were required to provide respondents with plan of subdivision — whether primary judge erred in finding that plan of subdivision must be “based upon” draft plan annexed to deed — whether primary judge erred in finding that rights to acquire Properties 7 to 10 are lost when right to acquire Property 6 is lost
Judgment of
Payne JA at [1];
Harrison JA at [2];
Griffiths AJA at [3]
SUCCESSION – Probate and administration – Missing original will – presumption of revocation by destruction – testator assumed the original was held by solicitors – testator assumed the will remained current – presumption not engaged – presumption rebutted in any event.
Judgment of
Bell CJ at [1];
Payne JA at [43];
Kirk JA at [44].
APPEALS — issue not argued below — conduct of trial — enforceability of agreement — offer and acceptance and intention to create legal relations only issues of contractual formation raised below — alleged absence of consideration raised on appeal — principles against allowing new points to be run on appeal — question of construction with factual aspects — possibility of further evidence below — additional possibility of alternative claim being pursued if the point had been raised — inimical to administration of justice — argument not entertained CONTRACTS — formation — consideration — forbearance to sue — respondent previously sued as guarantor for appellant under Chinese loan agreement — appellant agreed to pay respondent for judgment debts incurred in Chinese litigation — right to commence legal proceedings if payment not made — appellant fails to pay — respondent sues under agreement — whether forbearance to sue on proper construction of agreement — unnecessary to decide
CIVIL PROCEDURE – abuse of process – want of due despatch – application for leave to appeal against summary dismissal of proceedings – where primary judge dismissed proceedings pursuant to r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) – where instructions of plaintiff’s pro bono legal representatives terminated part way through hearing – where primary judge refused adjournment sought by unrepresented plaintiff and plaintiff then absented himself from courtroom – whether r 29.7 conferred power to dismiss proceedings where plaintiff absented himself after initially appearing – where alternative source of power under rr 12.7 or 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) – whether refusal to adjourn unreasonable or plainly unjust – leave to appeal refused
TAXES AND DUTIES — Dutiable transactions — Dutiable value — Land — landholder duty — whether interest in pipeline is “land holdings” or “goods” — meaning of “land holdings” in s 155 of the Duties Act 1997 (NSW) — meaning of “goods” in s 155 of the Duties Act — nature of interest conferred by the Water Industry Competition Act 2006 (NSW) TAXES AND DUTIES — Dutiable transactions — dutiable value — whether interest in pipeline is indeterminate thus non-dutiable
Judgment of
Ward P at [1];
Payne JA at [2];
Stern JA at [168];
McHugh JA at [169];
Basten AJA at [170]
CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Application for judicial review of decision of District Court – Dispute as to costs assessment – Whether proceedings an abuse of process after applicant’s debt compromised by Deed of Company Arrangement – Whether proceedings should be dismissed for want of due despatch COSTS – Whether costs should be ordered of proceedings as whole where matter not determined on the merits – third-party costs order – Where solicitor on the record in the proceedings is the sole shareholder of represented party and has effectively funded the proceedings – Where solicitor is associated with incorporated legal practices which stand to benefit as creditors of the defendant company
NEGLIGENCE – historical sexual assault – whether error in process of making findings of primary fact – whether removal of limitation period alters obligation of plaintiff to establish elements of cause of action – whether primary judge sufficiently paid regard to inconsistencies in plaintiff’s account NEGLIGENCE – claim brought against “Diocese” – juristic nature of defendant – significance of defendant being proper defendant under Part 1B of Civil Liability Act 2002 (NSW) – whether defendant owed duty of care to plaintiff in 1969 – significance of litigation proceeding on basis that alleged abuser was a parish priest rather than an assistant priest – obligation to establish foreseeability of harm by assistant priest by evidence – no duty of care owed NEGLIGENCE – non-delegable duties – whether appellant could owe non-delegable duty of care for intentional criminal act of assistant priest
Judgment of
Bell CJ at [1];
Leeming JA at [18];
Ball JA at [253]
CONTRACTS — building and construction — earthworks contract — termination prior to completion — whether respondents overpaid for work performed — payment claims under Building and Construction Industry Security of Payment Act 1999 (NSW) RESTITUTION — common money count — money paid under mistake — pleadings — necessary elements for pleading restitution — whether payment claims overstated percentage of work completed — recovery of differential between claimed and actual work — Uniform Civil Procedure Rules 2005 (NSW), r 14.12 AUSTRALIAN CONSUMER LAW — misleading or deceptive conduct — alleged misrepresentations in payment claims as to extent of work completed — whether representations in payment claims were representations of fact APPEALS — appeal from District Court — whether primary judge erred in upholding restitution and misleading or deceptive conduct claims
Judgment of
Mitchelmore JA at [1]
Adamson JA at [2]
Free JA at [123]
APPEALS — procedure — stay pending appeal — urgent application for stay of execution upon judgment for possession and writ of possession — stay previously refused on the basis no application for leave to appeal filed — timing of effective filing unclear — prejudice established — undertaking by applicants to pay money into Court in satisfaction of respondents’ claim within 21 days — undertaking decisive —temporary stay granted
MENTAL HEALTH — forensic patient — schizophrenia — substance use disorder — appeal from refusal to extend status — interim extension order — whether Court of Appeal judge had power to make interim extension order — whether unacceptable risk can be adequately managed by less restrictive means — whether primary judge applied correct statutory test — conditional release — Community Treatment Order — psychiatric evidence — disagreement between court-appointed experts — whether primary judge erred in approach to expert evidence — alleged rule as to calling experts — Jones v Dunkel inferences — Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 121, 122
INSURANCE – interpretation – standard business insurance policy – insurance of petrol station – meaning of “building” within policy – whether underground pipes fall within definition of “building” INSURANCE – interpretation – meaning of “contract value” – whether “contract value” distinguishable from “contract price”
ADMINISTRATIVE LAW – appeal from judicial review decision – legal unreasonableness –certificate under Costs in Criminal Cases Act 1967 (NSW) – determination of costs that should be paid by Secretary of Department – whether Secretary bound to award “costs reasonably incurred” – application of Attorney General’s payment rates for solicitors and counsel – standard of legal unreasonableness – advertence to policy considerations – statutory purpose – no error in reasoning of primary judge
Judgment of
Bell CJ at [1]
Mitchelmore JA at [2]
Kirk JA at [49]
CIVIL PROCEDURE — Dismissal of proceedings — Want of due despatch — Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 51.5 — Where applicant failed to file White Folder — Where applicant has explanation of delay and is now legally represented CIVIL PROCEDURE — Expedition of proceedings — Where respondent of advanced age — Where respondent suffers anxiety and is kept out of funds
APPEAL — appeal against liability in the tort of deceit — whether primary judge erred in concluding that the appellant had knowledge of, or was reckless as to, falsity — where primary judge’s conclusion was based on inferences — inferences not to be disaggregated — appellate review of witness evidence — whether primary judge’s findings were glaringly improbable or contrary to compelling inferences — advantage of primary judge in seeing and hearing the witnesses give evidence
Judgment of
Payne JA at [1]
Mitchelmore JA at [2]
McHugh JA at [72]
HIGH RISK OFFENDERS – extended supervision orders – appeal against Supreme Court’s refusal of application – whether offence against s 33A(1) of Crimes Act 1900 (NSW) is a “serious violence offence” defined in s 5A(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) – elements of claimed index offence necessarily such as to satisfy the requirements of s 5A(1)(a), even though not expressed in that way STATUTORY INTERPRETATION – principle of legality inapplicable to ss 5A and 5B of Crimes (High Risk Offenders) Act 2006 (NSW) – in any event would not outweigh significance of text, context and purpose CRIMES – attempt – if person discharges firearm with intent to cause grievous bodily harm they have necessarily at least undertaken an act not merely preparatory towards commission of crime of engaging in conduct causing grievous bodily harm with intent to do so
DAMAGES – assessment of damages for statutory unconscionable conduct and breach of fiduciary duties in acquisition of company – valuation of start‑up company – where primary judge rejected expert valuation reports from plaintiff and defendants – whether primary judge erred in relying on statements by defendant to creditor as to the value of the company
Judgment of
Mitchelmore JA at [1]
McHugh JA at [2]
Ball JA at [3]
COSTS – security for costs on appeal – impecunious appellant – where appellant’s impecuniosity was in part caused by his own conduct in related proceedings – where security may stifle appeal – limited prospects of success on appeal – security ordered
BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — Whether there was a “construction contract” within meaning of s 4 of the Act — Whether payment claim complied with s 13(2)(a) — Whether payment claim validly served — Whether subcontractor liable to pay amount claimed COSTS — Whether primary judge erred in ordering costs on indemnity basis in relation to entire proceedings — Where court in position to re-exercise discretion — Whether unreasonable not to accept Calderbank offer
ADMINISTRATIVE LAW — judicial review — District Court — whether primary judge’s decision affected by jurisdictional error — legal unreasonableness — alleged denial of procedural fairness — alleged errors in assessment of evidence and credibility — whether such errors capable of founding jurisdictional error — Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18 CRIMINAL LAW — intimidation with intent to cause mental harm — residents of aged care facility with dementia — circumstantial case — use of photographic evidence as corroborative of eyewitness account — tendency evidence — Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
JUDGMENTS AND ORDERS — Application to vary orders — Where head of claim dismissed by primary judge on particular basis — Where basis successfully disturbed on appeal — Where head of claim not reagitated on appeal — Where Court of Appeal referred “remaining amounts claimed” to referee — Whether head of claim included in reference — Whether orders should be varied to include head of claim in reference
CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – where respondent is a National Disability Insurance Scheme participant – where respondent became a forensic patient pursuant to s 73(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act) – where the applicant seeks the respondent’s status as a forensic patient to be extended by 18 months – whether material obtained by the applicant from a registered NDIS service provider pursuant to s 138 of the MHCIFP for the purpose of that application is admissible – whether there is an operational inconsistency between s 138 of MHCIFP Act and s 67G of the National Disability Insurance Scheme Act (2013) (Cth) such that to that extent the former is invalid pursuant to s 109 of the Commonwealth Constitution
CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Actions on judgments prior to expiry of deadline for enforcement – Proceedings brought four days before expiry of limitation period – Whether bringing an action on a judgment instead of enforcing the judgment debt is necessarily an abuse of process – No manifest unfairness or oppression from mere delay LIMITATION OF ACTIONS – Action on a judgment – Interaction with enforcement provisions in Civil Procedure Act 2005 (NSW), Pt 8 and Limitation Act 1969 (NSW), s 17 – Whether commencement of action on judgment circumvents time restrictions which would otherwise apply – No circumvention
LEGAL PRACTITIONERS — disciplinary proceedings — application by Prothonotary for removal of name from roll — practitioner convicted of criminal offences — breach of undertakings to Law Society — failure to complete practice management course — practising without a practising certificate — holding-out as solicitor — misappropriation of trust monies — forgery and uttering of false court orders — subsequent criminal offending including breaches of bail, common assault and driving offences — practitioner unfit to remain on roll
Judgment of
Bell CJ at [1]
Adamson JA at [2]
McHugh JA at [94]
EQUITY – Trusts and trustees – Trust instrument – interpretation – where the object of an 1873 deed was to “provide an efficient course of education for youth” – whether “youth” referred to boys only or was gender-neutral – unambiguous gender-neutral meaning – “ancient document rule” not enlivened – no compelling surrounding circumstances
CIVIL PROCEDURE – Application for pro bono referral – Relevant considerations discussed – Referral confined to the provision of advice in relation to proceedings
MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — interim extension order granted pending resolution of Attorney General’s application for extension order — application for extension order refused by Supreme Court — refusal appealed to Court of Appeal — notice of motion filed by Attorney General seeking new interim extension order — whether three month limit on interim extension orders prevents granting of new interim extension order in appeal proceedings — meaning of “proceedings”
WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member – Presidential member dismissed appeal on basis that findings made at first instance were “open” prior to decision in State of New South Wales v Culhana [2025] NSWCA 157 – whether the error was material – where there was no realistic possibility that appeal would have been upheld had the correct standard of review been applied WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member – alleged constructive failure to exercise jurisdiction – where no constructive failure to exercise jurisdiction
Judgment of
Adamson JA at [1];
Stern JA at [2];
Ball JA at [93]
PUBLIC ASSEMBLY — Palestine Action Group organising public assembly to advocate for the humanitarian crisis in Gaza — Proposed procession to the Sydney Opera House forecourt — Summary Offences Act 1988 (NSW) Pt 4 — Commissioner of Police seeking prohibition order pursuant to s 25(1) — Effect of such a prohibition order —Principles underlying the making of prohibition order — Application granted CONSTITUTIONAL LAW — Commonwealth Constitution — Constitutional freedoms — Implied freedom of political communication — Sydney Opera House Trust Act 1961 (NSW) — Sydney Opera House Trust By-law 2021 (NSW) — Whether provisions impermissibly burden implied freedom of political communication — Unnecessary to decide
CRIME — appeal and review — application for review of District Court judgment dismissing appeal from Local Court ruling — where apprehended personal violence order made against applicant — whether District Court judgment involved jurisdictional error — whether District Court extended term of apprehended personal violence order in excess of jurisdiction — whether applicant unfairly denied opportunity to make submissions on term of apprehended personal violence order and costs COSTS — application for review of District Court order awarding costs to respondents — whether appeal judge wrongly relied on Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 99 and 99A — whether order involved jurisdictional error
Judgment of
Mitchelmore JA at [1];
McHugh JA at [2];
Griffiths AJA at [3]
PRACTICE AND PROCEDURE — security for costs — application for order for security for costs of appeal — where appellant bankrupt and impecunious — where appellant has history of non-appearance, non-payment of costs orders and unsuccessful litigation — where appellant has not identified any arguable ground of appeal — where there is significant risk of unrecoverable costs — Uniform Civil Procedure Rules 2005 (NSW), r 51.50
EQUITY — Trusts and trustees — intention to create — real property purchased by one company with funds provided by another company — existence of express, resulting, “Quistclose” and/or constructive trusts alleged — intention to create trust determinative of each alternative trust claim — significance of evidence subsequent to claimed agreement to create trust — whether evidence established intention to create trust COSTS — Costs assessment — Determination — Review/appeal — primary judge accepted some of appellants’ claims in court below but did not conclusively determine — whether appellants should be liable for entirety of costs of proceedings below
Judgment of
Mitchelmore JA at [1];
Kirk JA at [2];
Adamson JA at [106]
CORPORATIONS — application for leave to intervene in proceedings and to conduct appeal on behalf of company— builder’s claim against developer — where company unable to act due — constitution requiring joint directors to be unanimous — Corporations Act 2001 (Cth), ss 236, 237
CIVIL PROCEDURE — Time — Extension of time to commence judicial review proceedings ADMINISTRATIVE LAW — Whether reviewable decision — Jurisdictional error — where decision to issue a construction certificate legally unreasonable ENVIRONMENT AND PLANNING — Consent — Conditions — Construction certificate — plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent – effect of decision in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 in circumstances where jurisdictional error has been established
Judgment of
Payne JA at [1];
White JA at [183];
Price AJA at [184].
APPEALS — Leave to appeal — whether any issue of principle, question of public importance or reasonably clear injustice going beyond something that is merely arguable has been shown — application refused COSTS — Party/Party — application of the general rule that costs follow the event — no error in ordering that the applicant pay the respondents’ costs of the notices of motion he unsuccessfully brought
Judgment of
Payne JA at [1];
McHugh JA at [143];
Free JA at [144]
EVIDENCE – advanced ruling by primary judge that two reports and their contents were not “restricted information” within the meaning of the Transport Safety Investigation Act 2003 (Cth) – whether primary judge erred in ruling the reports were not inadmissible – no error by primary judge APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused
Judgment of
Mitchelmore JA at [1]
McHugh JA at [2]
Ball JA at [3]
APPEALS – leave to appeal – where primary judge requested parties provide orders as to distribution of money paid into Court – where parties agreed that a specified sum should not have been paid into Court – where order made in accordance with the parties’ indication – where party now appeals against this order – party bound by conduct of counsel and solicitors – leave to appeal refused
CONTRACTS — contractual construction — authorised financial services agreement terminated for cause — clause requiring parties to keep other party’s confidential information confidential and not use — whether disclosure of client portfolio information to competitor following termination was breach of confidentiality clause — whether client portfolio information was confidential information as defined — where parties were in the relationship of principal and agent — where authorised representative provided financial services under principal’s Australian financial services licence — where authorised representative retained goodwill in the business during the currency of the agreement but not post-termination CONTRACTS — contractual construction — whether disclosure was required by law — where licensee had obligations to clients under Corporations Act 2001 (Cth), Part 7.6 DAMAGES — whether primary judge was entitled to conclude loss not proved where experts produced joint report and were not cross examined — whether denial of procedural fairness — where primary judge not satisfied of assumptions underpinning expert evidence — no denial of procedural fairness in primary judge’s approach
Judgment of
Bell CJ at [1];
Mitchelmore JA at [2];
Free JA at [83]
CIVIL PROCEDURE – appearance – submitting appearance – withdrawal of appearance – appeal from refusal to grant application for compliance certificate – where the LPAB filed a submitting appearance upon the Law Society being joined to the proceedings – whether the Law Society can now vacate or set aside the order granting it leave to intervene – whether the LPAB can withdraw its submitting appearance and file an appearance under UCPR 6.10 – application of Hardiman principles – where there was no appearance for the applicant when the motions were heard – where the Court would be without a contradictor unless LPAB participates – Law Society removed as a party – leave granted to LPAB to withdraw submitting appearance
CIVIL PROCEDURE – Interpleader – Sheriff – whether interpleader required to be brought by Sheriff’s alternate – whether proceedings are one to which the Sheriff is a party for the purposes of s 6(1)(a) of the Sheriff Act 2005 (NSW) – whether contravention of s 6 of the Sheriff Act 2005 (NSW) requires mandatory dismissal of proceedings – Summons dismissed with costs STATUTORY INTERPRETATION – Construction of s 6(1) of the Sheriff Act 2005 (NSW) – whether reference to “the Sheriff’s functions in relation to” refers to the function of commencing or maintaining legal proceedings to which the Sheriff is a party
Judgment of
Ward P at [1]; Leeming JA at [59]; Basten AJA at [100]
COSTS — where appellant enjoyed partial success on appeal — where retrial ordered — whether to apply usual rule as to costs for costs of appeal — whether costs of trial should be costs in cause — whether to order security for costs for the retrial CIVIL PROCEDURE — Court of Appeal — where retrial ordered — whether orders should be made affecting ambit of retrial
CIVIL PROCEDURE—Application for further extension of stay to prevent funds paid into court being released to successful party in satisfaction of judgment debt—Short extension granted on previous motion to allow unsuccessful party to consider seeking review—No application for review—No justification for further extension—Prejudice asserted on behalf of third party which is aware of proceedings--Further extension an arbitrary and unjustifiable frustration of successful party’s right to take benefit of orders below—Motion dismissed
PROCEDURAL RULINGS – Use of private solicitors by government agency – Request for order prohibiting use of private solicitors – Request for sound recording – Request for protective costs order – Oaths of office of judicial officers – De facto officers doctrine
Removal of practitioner from roll of Australian lawyers – Declaration that practitioner is not a fit and proper person to remain on the roll – Misappropriation of trust funds – Need for consideration of factual circumstances warranting removal from Roll – Entitlement of Council of the Law Society to costs of application
NEGLIGENCE – Duty of care – Public authorities – Police officers owe duty to take reasonable care to avoid risk of harm to class of persons in immediate vicinity of operational response during protest march – Risk of harm in police actions inflicting physical injury on identified class of persons – s 43A of Civil Liability Act 2002 (NSW) inapplicable NEGLIGENCE – Breach – Regard to be had to police obligations to take actions to prevent breaches of the peace even in crowded situations –Reasonable to effect arrest in the way done – No breach made out NEGLIGENCE – Causation – Novus actus interveniens – Third party actions leading to respondent’s injury not occurring in ordinary course of things which might flow from police actions – Issue of fact and degree in all circumstances – Distinct and significant criminal action of third party led to arrest leading up to injury – Chain of causation broken TORTS – Trespass to the person – Battery – Police “utterly without fault” in colliding with respondent – Battery not made out
Appeal — leave to Appeal — where summary judgment granted in favour of plaintiff for possession of land — failure to establish arguable error in reasoning — failure to establish issue of principle, question of public importance or reasonably clear injustice — failure to establish error in the Courts exercise of jurisdiction — leave refused
WORKERS COMPENSATION — uninsured liability regime — Workers Compensation Act 1987 (NSW), s 140 — meaning of “work injury damages” — meaning of “injury” — where relevant injury is silicosis DUST DISEASES — dust diseases legislation — distinction between legislative treatment of dust diseases and general workers compensation
Judgment of
Stern JA at [1];
McHugh JA at [2];
Price AJA at [95]
LAND LAW — easements — substantial interference with easements — whether cropping over a right of carriageway constituted a substantial interference with dominant owner’s rights — remedies for substantial interference — whether dominant owner entitled to construct proposed crowned road — width of road which the dominant owner is entitled to undertake work on — whether 14 day notice period prior to undertaking work expressed as part of declaration is justifiable TORTS — nuisance — trespass — whether appellant entitled to have the full width of the right of carriageway cleared — whether appellant entitled to greater amenity damages — whether appellant entitled to exemplary damages APPEALS — point not taken below — pleadings — whether issue of substantial interference raised before primary judge and understood to be in issue
Judgment of
Leeming JA at [1];
Kirk JA at [26];
Adamson JA at [163].
CONTRACTS — construction — written contract for supply of aviation fuel and services for aerial fire fighting — aircraft supplied to third parties pursuant to separate contracts — whether contract automatically terminated when contract with third parties came to end — whether obligations under contract automatically ceased when contract with third parties came to end — contract permitted termination for convenience — respondent entitled to liquidated fee if contract terminated for convenience within 100 days of “start of the fire season” — construction of “start of the fire season”
Judgment of
Leeming JA at [1];
McHugh JA at [111];
Griffiths AJA at [112]
APPEALS — amendment of notice of appeal — where proceedings ought not be remitted to Court below — where appellate court to determine quantum of damages — damages determined on the papers DAMAGES — measure of damages — misleading or deceptive conduct — where reliance on misleading conduct caused the appellants to agree to a contractual variation — measure of loss or damage suffered as a result of variation — cost of rectification — rectification costs for installation of cladding — reliance on expert quantity surveyor evidence — proportionate liability — whether reduction required under principles of proportionate liability — where respondents bound by case put in court below
Judgment of
Adamson JA at [1]
Stern JA at [63]
Price AJA at [64]
PRACTICE — security for costs — review of decisions of Judge of Appeal to order security for costs — applicant located in British Virgin Islands — no evidence of Australian assets against which a costs order could readily be executed — applications dismissed PRACTICE — adjournment — applicant seeks to adjourn hearing of application to review orders for security for costs — whether decision of English court likely to alter outcome of review — consideration of ss 56 and 60 of Civil Procedure Act 2005 (NSW) — applications dismissed OCCUPATIONS — legal practitioners — solicitor for applicant maintained ground of review that judge should have recused himself — transcript not provided — transcript provided by Court to parties — transcript established that after disclosure by judge, solicitor had not advanced any application — applicant’s further submission confirmed ground of review, without addressing the transcript or decision not to advance application — other unsatisfactory aspects of conduct and presentation of case by solicitor — opportunity to show cause why judgment should not be referred to Legal Services Commissioner
APPEAL — dismissal of proceedings for want of due despatch — application for leave to appeal from an interlocutory decision on matter of practice and procedure — limitation period for defamation proceedings now expired — no issue of principle or question of general public importance — no material error of fact
OCCUPATIONS — legal practitioner directed to show cause why judgment should not be referred to Legal Services Commissioner — submissions supplied confirm appropriateness of referral COSTS — indemnity costs — gross sum costs order — costs of applications for security for costs — significance of proportionality — whether third party order against solicitor should be made — significance of referral of solicitor to Legal Services Commissioner to exercise of jurisdiction
SUMMARY DISMISSAL – Leave to appeal from order for summary dismissal – Requirement for leave – Absence of any factor warranting the grant of leave – Defects in claim seeking to re-litigate workers compensation entitlements
APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused
CONTRACTS – Construction – Deeds – Scope of appellant’s assumption of third party’s royalty obligation under separate deed entered between unrelated parties – Whether “proportionate share or interest” could refer to a 100% interest.
Judgment of
Bell CJ at [1];
Stern JA at [80]; and
McHugh JA at [81].
CIVIL PROCEDURE — Court of Appeal — application for leave to appeal — whether primary judge constructively failed to exercise jurisdiction in determining whether the respondent had breached its obligations under s 106 of the Strata Schemes Management Act 2015 (NSW) — where none of the applicant’s contentions of error identified any arguable constructive failure to exercise jurisdiction by primary judge — where applicant therefore failed to identify issue of principle, question of public importance or reasonably clear injustice going beyond something merely arguable — where leave to appeal refused with costs
CIVIL PROCEDURE — whether relevant misapprehension of facts or law affecting decision of single Judge of Appeal or some matter calling for review or interests of justice require that orders should be set aside under UCPR r 36.15 — where no such misapprehension or error calling for review and interests of justice do not so require CIVIL PROCEDURE — whether interests of justice require that orders of single Judge of Appeal be set aside or whether real likelihood that it would be unjust to applicant to allow judgment to stand such that orders should be set aside under UCPR r 36.16(2)(b) — where no real likelihood of injustice to applicant and considerations of utility weigh heavily against applicant being permitted to reinstate proceedings
Judgment of
Leeming JA at [1];
Mitchelmore JA at [2];
Stern JA at [3]
CIVIL PROCEDURE — motion to set aside orders of Court of Appeal — whether orders made irregularly, unlawfully or in bad faith — procedural fairness — where judge put proposition of law to counsel — whether denial of opportunity to respond — no basis to set aside orders