Recent decisions for Court of Appeal

Catchwords:

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

Catchwords:

CHILD WELFARE – care proceedings – interlocutory application – whether care order should be stayed – whether orders should be made allowing child to live with mother or allowing daily contact – whether parens patriae jurisdiction should be invoked.

Catchwords:

EQUITY – equitable interests in real property – priorities – where property purchased by trustee on trust for sole unitholder – competing claims of beneficiary under trust and equitable mortgagee – where beneficiary did not pay any monies towards purchase price of property or “fully paid” units in unit trust – where beneficiary’s solicitor advised trustee was untrustworthy – where trust deed conferred wide powers on trustee, including power to mortgage trust assets for any contractual obligation – where trust deed precluded unitholder from lodging caveat against any trust property and no caveat was lodged – where equitable mortgage granted over property to respondent in breach of trust – whether merits of competing equities unequal – whether beneficiary’s prior interest postponed to subsequent interest of equitable mortgagee EQUITY – equitable interests in real property – priorities – where unitholder issued “fully paid” units but no monies paid for units in trust or towards purchase of property – whether evidence that trustee borrowed funds for purchase of property – whether beneficiary has liability to trustee for units issued to it – whether beneficiary was a volunteer

Catchwords:

CRIME – Appeal and review – Stated case – Refusal to state a case – Application for judicial review – Where application before District Court raised no questions of law – Where all grounds of review in this Court represent challenges to factual findings or are otherwise devoid of merit – No jurisdictional error established – Attempt to circumvent lack of further right of appeal on grounds of fact – Application dismissed JUDICIAL REVIEW – Ground of review other than procedural fairness – Decision not authorised – Where primary judge provided revised transcripts of reasons after delivering judgments ex tempore – Whether judgments void because Court functus officio after initial delivery of judgment – Revision of transcripts entirely orthodox – No error established JUDICIAL REVIEW – Bias rule – Apprehended – Particular factual matter giving rise to alleged bias – Where primary judge contacted respondent seeking submissions in response to applicant’s application – Applicant copied on email – No apprehension of bias CONSTITUTIONAL LAW – Commonwealth and State relations – Inconsistency of laws – Where no relevant Commonwealth law identified – No inconsistency CONSTITUTIONAL LAW – State legislative power – Proportionality – Whether lack of consonance between Crimes (Domestic and Personal Violence) Act 2013 (NSW) and Declaration on the Elimination of Violence against Women – Act does not purport to enact Declaration as part of domestic law – Challenge misconceived

Catchwords:

JUDGMENTS AND ORDERS – amending, varying, setting aside – application to set aside orders under UCPR rr 36.15, 36.16, 36.17 – no basis to set aside established – application dismissed

Catchwords:

CONTACT – share sale agreement – business affected by fire before agreement – business made claims on insurance policies – whether amount received after agreement from insurer for uninsured losses caught by contractual clause – use of evidence of parties’ subjective intentions – primary judge erred in relying on evidence of intentions but construction nevertheless correct – appeal dismissed

Catchwords:

CORPORATIONS – directors and officers – fiduciary duties – duty to act in good faith in the best interests of company – duty not to use position as director or officer improperly – duty to ensure proper financial records kept – acting as director for two related entities – conflict of duty and interest EQUITY – fiduciary duties – conflict of interest and duty – acting as director for two related companies – involvement in transactions between companies –director holding 25% shares of one company – where one company holds a financial interest in the other and consequently shares in any benefits received by the director – when director inherits and continues an existing and accepted practice as between the companies

Catchwords:

MOTOR ACCIDENTS – judicial review – assessment of permanent impairment – adequacy of assessor’s reasons – whether need to deal separately with further aspect of insurer’s case – requirement to distinguish jurisdictional error from error of law on face of record – requirement to state grounds of review with specificity

Catchwords:

COSTS – gross sum costs – where administration of justice served by bringing litigation to an end

Catchwords:

CONTRACTS — termination — repudiation of contract — implied refusal to perform — where purchasers raised requisitions on title — whether requisitions properly made — whether vendors adequately answered requisitions — whether vendors evinced intention no longer to be bound by contract CONTRACTS — termination — repudiation of contract — erroneous construction of contract — where vendors insisted on payment of default interest — whether repudiation by insisting on erroneous construction of contract ENVIRONMENT AND PLANNING — heritage conservation — protection of Aboriginal heritage — National Parks and Wildlife Act 1974 (NSW) — meaning of “Aboriginal object” LAND LAW — conveyancing — contract for sale — defect in title — whether presence of Aboriginal objects on land constitutes defect in title — whether Aboriginal objects on land — whether presence of Aboriginal objects constituted defect in title where land already subject to development constraints LAND LAW — conveyancing — contract for sale — termination in accordance with rule in Flight v Booth — whether presence of Aboriginal objects materially or substantially affected contract — no Aboriginal objects on land — no material or substantial effect LAND LAW — conveyancing — contract for sale — requisitions — where requisitions based on plausible contention of presence of Aboriginal objects — whether purchasers’ objections and requisitions on title properly made — whether vendors’ responses sufficient

Catchwords:

STATUTORY CONSTRUCTION – interpretation – Health Care Complaints Act 1993 (NSW) (HCC Act), s 4 – definition of “disciplinary body” – whether disciplinary body “established under” the Health Practitioner Regulation National Law 2009 (NSW) (National Law) – definition required to be read into HCC Act, s 90B – where Commission referred complaint to the Tribunal (NCAT) under the National Law, s 145C – where NCAT “established under” the National Law – whether NCAT authorised by the National Law to exercise the specified power of a disciplinary body in relation to a registered health practitioner STATUTORY CONSTRUCTION – interpretation – HCC Act, s 90B – National Law, s 145C – interaction between HCC Act and National Law – where Director of Proceedings determined that the Commission should prosecute complaint before the Tribunal – whether Director of Proceedings acting ultra vires – whether distinction between Commission “prosecuting” the complaint before a disciplinary body and referring the complaint to the Tribunal PROFESSIONS AND TRADES – health practitioners – dental practitioners – whether Commission referred a complaint against registered dentist to the Tribunal pursuant to s 145C of the National Law

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Objections to competency of appeal – Whether appeal from exercise of cross-vested jurisdiction and so lies only to Federal Court – Whether leave to appeal required CIVIL PROCEDURE – Cross-vesting – Where appellant became bankrupt after commencing proceedings in Supreme Court – Whether a “matter arising under” the Bankruptcy Act – Distinction from exercise of jurisdiction in bankruptcy – Cross-vesting legislation not intended to require appeals from judgment in a matter arising under a Commonwealth Act to be instituted in federal Court where first instance court not exercising cross-vested jurisdiction – Primary judge was not exercising cross-vested jurisdiction – Cross-vesting legislation not engaged CONSTITUTIONAL LAW – The Judiciary – ‘Matter’ – Proceedings not owing existence to federal law but stayed by operation of federal law nevertheless constitute a ‘matter’ arising under federal law APPEALS – Leave to appeal – Whether leave required from declaratory orders – Whether declarations can be interlocutory – Declarations were interlocutory for purposes of leave to appeal – Leave to appeal required – Appellant directed to file application for leave to appeal lest the appeal be dismissed

Catchwords:

APPEALS – Leave to appeal – From orders for payment out from funds held in Court – Only other party with arguable claim to funds not permitted by Court to be re-joined as an applicant – Grant of leave would undermine Court’s unanimous decision to refuse re-joinder – Significant obstacles and uncertainty attending to claim – Court concerned by potential undisclosed interest of first applicant – First and second respondents entitled to final resolution – Orders appealed from are discretionary – Leave refused APPEALS – Leave to appeal – From various other decisions dating back to 2017 – Application well out of time – No explanation for delay – Issues known to applicant and thus ought to have been raised much earlier – Rights of third parties have intervened – No errors demonstrated – Leave refused

Catchwords:

COSTS – variation of order – apportionment where appellant partly successful on appeal – interest on costs

Catchwords:

CONTRACTS — construction — where agreement to pay royalty following “actual sale” of mineral — where royalty a percentage of “net sales realisation” amount — whether “actual sale” occurs when title passes to buyer — whether “net sales realisation” is after deduction of sales realisation expenses CONTRACTS — termination — where breach of time stipulation for making of payment — where demand made after giving further time for payment — whether breach of essential term justifying termination — whether repudiatory conduct evincing an unwillingness to render substantial performance

Catchwords:

PROFESSIONS AND TRADES – medical practitioners – challenge to finding of professional misconduct – where medical practitioner sent inappropriate text messages and voice messages to patient – where breach of health practice conditions limiting intake of alcohol and prescription medication – where conduct found to be unsatisfactory professional conduct – whether such conduct of “sufficiently serious nature” to warrant suspension or cancellation of registration – whether challenge to finding raises question of law PROFESSIONS AND TRADES – medical practitioners – challenge to finding that not competent to practise – where medical practitioner admitted alcohol use disorder – where evidence that remission requires period of three years of abstinence – where medical practitioner not yet commenced period of abstinence – where alcohol dependence could grossly impair judgement and clinical ability – whether challenge to finding raises question of law PROFESSIONS AND TRADES – medical practitioners – challenge to protective orders made by Tribunal cancelling medical practitioner’s registration – whether challenge involved question of law – where assertion that error of law in House v The King sense – whether Tribunal failed to consider effect of medical practitioner’s alcohol dependence – whether protective orders excessive – whether Tribunal failed to provide sufficient reasons

Catchwords:

CONTRACT – construction – written contract largely in Mandarin entered into between two businessmen without legal assistance – contract concerned acquisition of 40% interest in company with interests in land - whether contract entitled investor after three years to sell the shares or alternatively to obtain title to 40% of the land – no material difference between competing translations – literal meaning of one last sentence favoured transfer of 40% of the land to exiting shareholder – whether legal meaning of contract accorded with literal meaning

Catchwords:

APPEAL – application for leave – interlocutory decisions of District Court – decisions to refuse amendments, to strike out certain paragraphs and to refuse to join new defendants – insufficient prospects of success to warrant grant of leave – application dismissed

Catchwords:

APPEALS – separate questions answered in Equity Division – subsequent attempt to raise additional issues rejected – leave to appeal refused – principle in Anshun 147 CLR 589 applicable APPEALS – procedure – freezing order – sufficient basis for order extending freezing order – leave to appeal refused

Catchwords:

APPEALS – Nature of appeal – Appeal by way of rehearing – Appeal against sentence brought by the Director of Public Prosecutions under s 23(1) of the Crimes (Appeal and Review) Act – Whether Director required to establish error – whether the District Court has a “residual discretion” to dismiss the appeal notwithstanding a finding that the sentencing decision entailed error

Catchwords:

COSTS — Chorley exception — where party represented by incorporated legal practice of which he was the principal and sole director and shareholder — whether primary judge erred in denying solicitor applicant costs payable to incorporated legal practice — Bell Lawyers Pty Ltd v Pentelow JUDICIAL REVIEW — what constitutes “the record” for the purposes of error of law on the face of the record

Catchwords:

APPEAL – application for leave to appeal – judicial review of conduct of local council – whether local council an impounding authority – powers of council officers to impound stock straying on public road – whether alpacas are stock or animals PROCEDURE – costs – availability of gross costs order – notice of intention to make gross costs order – whether procedural unfairness

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Application – Notice of Motion seeking various orders – Where legal representatives unable to advance any submissions in support of motion – Where Court has serious reservations as to whether party who signed motion in fact filed it – Inability of party to answer basic questions from the Bench or advance any submissions in support of motion – Correspondence from misspelled email address – Court being trifled with – Motion dismissed with indemnity costs CIVIL PROCEDURE – Parties – Joinder – Application to reinstate company as appellant after misconceived attempt to circumvent requirement of representation by joining director instead

Catchwords:

APPEALS – Jurisdiction of appellate court – Court of Appeal – Discretion to exercise jurisdiction – Appeal from District Court Judicial Registrar – Assignment to Supreme Court – Where no submissions by applicant in support of matter remaining in Court of Appeal – Remitted to Equity Division Corporations List

Catchwords:

APPEAL AND REVIEW – supervisory jurisdiction – review of judgment of District Court on appeal from Local Court – refusal to reopen sentence appeal – jurisdictional error – failure to vary sentence to take account of error in calculation of earlier partly concurrent sentence PROCEDURE – civil – discontinuance – notice given after hearing – leave requirement – dismissal – costs

Catchwords:

JUDGMENTS AND ORDERS – Enforcement – Appeal from setting aside of examination orders – Where District Court had given two inconsistent judgments – Where Court of Appeal previously prohibited District Court from taking any further steps in proceedings on basis that second judgment was valid – Where District Court on remittal considered itself to be functus officio – Whether District Court entirely prohibited from taking any further steps in the proceedings – Court of Appeal only quashed second judgment – Court of Appeal only prohibited steps on basis of validity of second judgment – Distinction between adjudication and enforcement – Appeal allowed APPEALS – Right of appeal – Who may exercise – Felons – Application of Felons (Civil Proceedings) Act 1981 (NSW), s 4, in Court of Appeal APPEALS – Leave to appeal – Whether leave required – Interlocutory decisions – Setting aside of examination orders – Decision had effect of finally disposing of proceedings – Evident merit to appeal – Leave granted APPEALS – Procedure – Time limits – Extension of time – Where respondents on notice of intention to appeal prior to time elapsing – No prejudice identified – Extension granted

Catchwords:

JUDICIAL REVIEW – District Court – conviction appeal from Local Court dismissed as outside three month time limit – erroneous as calculation should have excluded day of lodgement – whether error jurisdictional – whether necessary to show error was “material” – Held – relief granted

Catchwords:

APPEALS — Contracts — Whether loan advance paid pursuant to loan agreement — Error of primary judge — Where loan advance never repaid EQUITY — Trusts and trustees — Express trusts — Unit trusts — Where trust documents not correctly executed — Where no unit holders had subscribed for units — Whether trust constituted — Whether unit holders had a right to trust property if trust constituted — error of primary judge — Where trust constituted and unit holders acquired beneficial interest in trust property

Catchwords:

INSURANCE – Appeal from decision joining insurer to proceedings – Whether there was an insured liability – Where insured gave no notice of facts that might give rise to claim – Whether contractual obligation to give notice – Whether breach of obligation cured by statute

Catchwords:

COSTS – supplementary order concerning costs – successful respondent sought further order entitling his costs in successful defence of appeal to be paid out of estate with administrator subrogated to respondent’s costs order – orders corresponded to form of orders made by trial judge which were unchallenged by appeal or cross-appeal – orders made

Catchwords:

CIVIL PROCEDURE - subpoenas - application to set aside - where production of material unduly burdensome and would not facilitate appeal CHILD WELFARE - care proceedings - interlocutory application - whether orders should be made allowing child to live with mother or allowing daily contact - whether tutor should be appointed

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Leave to appeal — Final or interlocutory order — Appeal from determination concerning constructive refusal of application to vary legal practising certificate — where practising certificate in question since expired — No utility in granting leave

Catchwords:

DUST DISEASES — damages for non-economic loss — where proceedings commenced before plaintiff’s death — where deregistered company named as defendant — whether subsequent reinstatement of registration has consequence that proceedings deemed to have been validly commenced and pending at time of death for purposes of operation of Dust Diseases Tribunal Act 1989 (NSW), s 12B CORPORATIONS — deregistration — order for reinstatement of registration under Corporations Act 2001 (Cth), s 601AH(2) — where deregistered company named as defendant in initiating process — whether by operation of s 601AH(5) subsequent reinstatement of registration validates commencement of proceedings

Catchwords:

CIVIL PROCEDURE – stay of orders – application for stay pending application for special leave to appeal to High Court – where no application yet filed in High Court – where no evident prospects of success of obtaining special leave under Judiciary Act 1903 (Cth), s 35A – where no offer by applicants to pay any part of judgments into court as a condition of a stay – whether applicant had accrued right to fee which could be set-off against judgment debts – whether orders should be stayed – whether exceptional circumstances established for grant of stay

Catchwords:

RESTITUTION – total failure of consideration – prepayment for goods never delivered – where buyer dealt with father and son – payment into account in son’s name at his direction – where primary judge accepted son’s evidence that the father controlled that account and obtained the benefit of the funds deposited into it – whether son liable to make restitution

Catchwords:

APPEAL AND REVIEW – Court of Appeal – supervisory jurisdiction – review of costs order made by District Court on appeal from Local Court – order in favour of successful appellant – review as to quantum – grounds – failure to take account of evidence/submissions – procedural unfairness in ordering costs motion to reopen PROCEDURE – order for costs – assessment of costs by court – only evidence proffered was a bundle of invoices – invoices included work on other proceedings – amounts held to be irrelevant or excessive – judge entitled to make own assessment

Catchwords:

CIVIL PROCEDURE — stay of proceedings — where interim certificate of costs assessor treated as judgment upon filing in District Court under Legal Profession Act 2004 (NSW), s 368(5) — where applicant’s appeal to the District Court against decision of costs assessor remains afoot — where applicant seeks leave to appeal against District Court’s refusal to set aside judgment — application for stay of deemed judgment, District Court appeal proceedings and the assessment process — whether appropriate to grant interim stays in the circumstances

Catchwords:

JUDICIAL REVIEW – summonses seeking judicial review of decision of Supreme Court orders – whether judicial review lies to Court of Appeal – Penson v Titan National Pty Ltd [2015] NSWCA 404 applied – summonses dismissed

Catchwords:

CIVIL PROCEDURE — pleadings — striking out — abuse of process — where statement of claim pleads fact inconsistent with finding of Court of Appeal in earlier proceedings — statement of claim constitutes collateral attack on Court of Appeal’s decision — statement of claim struck out as abuse of process

Catchwords:

EQUITY — trusts and trustees — powers, duties, rights and liabilities — indemnity of trustee — whether trustee is entitled to be indemnified — where parties are joint tenants of a property — rights of trustees to be indemnified for defending proceedings brought against the trust — trustee entitlements to security for contingent liabilities EQUITY — trusts and trustees — judicial advice — disagreement between trustee and beneficiaries regarding management of property — whether judicial advice should have been sought by the trustee pursuant to Trustee Act 1925 (NSW), s 63 before defending the proceedings — consequences of a failure to seek judicial advice — if judicial advice had been sought, the trustee would have been advised that defending the proceedings was appropriate — that a trustee “should” seek legal advice does not give rise to a legal obligation to do so

Catchwords:

APPEALS — Leave to appeal — where applicant seeks leave to appeal from summary dismissal — where applicant had brought proceedings for recovery of land against party other than the registered proprietor — where no viable claim

Catchwords:

COSTS — Where appellant succeeded in substantially reducing sum awarded to respondent — Where order that respondent pay appellant’s costs of the appeal — Whether appellant entitled to costs of the proceedings below — Where Motor Accidents Compensation Regulation 2015 requires the appellant to pay a certain amount of the respondent’s costs and disbursements in the court below — Where Motor Accidents Compensation Act 1999 (NSW) fixes amount which appellant’s solicitors were permitted to charge, subject to an order otherwise — Whether such order to be made

Catchwords:

ADMINISTRATIVE LAW – application for leave to appeal from refusal of leave to appeal from NCAT – leave refused

Catchwords:

ADMINISTRATIVE LAW – judicial review – application for review of District Court decision dismissing appeal from conviction in Local Court – application for extension of time – where review limited to jurisdictional error on part of District Court – whether personal service of court attendance notice in accordance with Local Court Rules a condition for exercise of Local Court’s summary criminal jurisdiction – whether applicant denied procedural fairness – whether primary judge erred in rejecting applicant’s “claim of right” defence – no arguable jurisdictional error of District Court

Catchwords:

CIVIL PROCEDURE — default judgment — setting aside — where default judgment irregularly entered — whether applicants demonstrated bona fide defence on merits — default judgment set aside JUDGMENTS AND ORDERS — enforcement — garnishee order — where default judgment set aside — order for return of garnished amount

Catchwords:

APPEALS – application for leave – where mortgagee brought proceeding for removal of caveats lodged by guarantor/mortgagor against two adjoining properties – interlocutory order made for withdrawal of caveats – sale of properties completed – contention that sale of properties unauthorised – whether leave should be granted – whether injustice which is reasonably clear – leave refused

Catchwords:

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

Catchwords:

NEGLIGENCE – public authority – Murray Darling Basin Authority – Authority or its delegates alleged to have negligently released water causing damage to plaintiffs’ lands – whether Authority or delegates a “public or other authority” within meaning of s 41 of Civil Liability Act 2002 (NSW) CONSTITUTIONAL LAW – relationship between constitutional and non-constitution issues – role of intervening Attorney-General submitting that constitutional issue does not arise PROCEDURE – defendant Authority pleaded defences from Part 5 of Civil Liability Act 2002 (NSW) on basis that it was a “public or other authority” – paragraphs struck out by primary judge – questions reserved on agreed facts and removed to Court of Appeal – consideration of appropriateness of determining such issue on final basis

Catchwords:

APPEALS — leave to appeal — no issue of principle, question of general public importance, or injustice — leave refused

Catchwords:

CONTRACT — construction — interpretation — debt collection agreement — meaning of ‘collect’ — where agent obtained judgment debt against debtor — where debtor deregistered company — no monies collected from debtor — whether agent entitled to fee — whether agreement authorised agent to pursue other alleged debtors not specified in agreement CONTRACT — breach — where debt collection agreement prohibited principal taking any steps in relation to specified debt — where principal withdrew instructions of solicitors retained on behalf of principal by agent — whether breach of debt collection agreement DAMAGES — damages in contract — causation — loss of commercial opportunity — chance of obtaining fee for collecting a debt — where debtor company deregistered and likely insolvent — whether causation established — whether chance of acquiring fee had some value other than negligible or speculative

Catchwords:

HEALTH – professional registration and discipline – unsatisfactory professional conduct – professional misconduct – inappropriate prescription of drugs of addiction– inadequate clinical records – continuing involvement in unproven therapies HEALTH – professional registration and discipline – proportionality of disciplinary orders to misconduct – whether reprimand and conditions on registration sufficient to protect the public interest – whether orders were made in reliance on particulars not pleaded against the appellant PRACTICE AND PROCEDURE – appeal – stay – reversing order under appeal – order for de-registration effected – stay no longer available – interlocutory injunction to third party to reverse order

Catchwords:

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

Catchwords:

COURTS AND JUDGES – application for recusal rejected by District Court judge – summons seeking judicial review of decision dismissed

Catchwords:

PRACTICE AND PROCEDURE – appeal – application for referral for pro bono assistance – second application in 3 year period – special reasons – attempt to rely on mediation agreement – advice from previous lawyers – mediation agreement not raised in court below – prospects of success

Catchwords:

CONTRACT - damages - claim for consequential loss - construction works caused damage to neighbour’s land - claim for lost rent - trial judge found apartments unlettable in light of damage to stairway - finding based on evidence of landlord and letting agent - no reference in reasons to unchallenged engineering evidence that stairway safe - whether reasons of trial judge inadequate - inutility of inadequate reasons as a ground where appeal is by way of rehearing - whether trial judge misused evidence admitted on limited basis - no error made out APPEALS - requirement of leave - whether appellants required leave for separate challenge to costs order based on rejection of Calderbank offer in circumstances where there was an appeal as of right - construction of “an appeal from a judgment or order as to costs only” in District Court Act 1973 (NSW), s 127(2)(b) - history of s 127(2)(b) and s 101(2)(c) of Supreme Court Act 1970 (NSW) - history of United Kingdom antecedents - appellants entitled to challenge special costs order as of right COSTS - Calderbank letter - whether error in finding that appellants had unreasonably rejected offer - significance of factual error in letter - significance of offer being rejected before service of all evidence - no error made out

Catchwords:

JUDGMENTS AND ORDERS – supervisory jurisdiction – judicial review – application proceeding in Local Court special jurisdiction dismissed – where appeal to District Court under Local Court Act 2007 (NSW), s 70(1) dismissed for lack of jurisdiction – whether jurisdictional error in dismissing appeal CIVIL PROCEDURE – jurisdiction – appeal to District Court under Local Court Act 2007 (NSW), s 70(1) from orders made in special jurisdiction – whether right of appeal from order dismissing proceeding

Catchwords:

CONTRACTS — termination — contractual promise to comply with terms of commercial lease — lease breached — right to terminate subject to notice requirement — peremptory termination without notice — repudiation of contract — acceptance of repudiation CONTRACTS — parties — failure to join all necessary parties to proceedings — corporate entities distinct from individuals

Catchwords:

APPEALS – application for leave to appeal – proposed appeal has no prospect of success

Catchwords:

APPEALS – procedure – application for stay of judgment pending appeal – stay refused on the condition that the first and second respondents give certain undertakings

Catchwords:

OCCUPATIONS – Legal practitioners – Solicitors – Professional negligence – Advising client – Whether solicitor settled motor accident insurance claim prematurely and at an undervalue – Whether solicitor entitled to rely on Civil Liability Act 2002 (NSW), s 5O – Whether causation of loss established – Appeal dismissed NEGLIGENCE – Breach – Standard of care – Professional negligence – Whether solicitor acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice – Expert opinion adduced not determinative merely because not challenged on ground of irrationality – Where solicitor gave clear and repeated advice discouraging premature settlement at undervalue despite client’s perilous financial position and desire for quick settlement – Where early settlement prudent given risk of future disclosure of information adverse to claim – Where accepted offer far from so unreasonable as to warrant warning against acceptance – No breach of duty of care NEGLIGENCE – Causation – Factual causation – Whether client would have accepted offer even if given proper advice – Competing expert opinions – Where accepted offer was slightly above mid-range of potential outcomes – Where client in precarious financial position – Where clear willingness to settle – Where risk of future disclosure of information adverse to claim – Causation not established

Catchwords:

WORKERS COMPENSATION – medical assessment – appeal from approved medical specialist to Appeal Panel – whether second appeal to Appeal Panel available on ground of deterioration – whether application for further appeal should have been treated as application for reconsideration, or whether notice to applicant should have been given, before application dismissed APPEALS – consideration of nature of appeals from approved medical specialist to Appeal Panel – consideration of nature of appeals from Associate Judge to Court of Appeal

Catchwords:

APPEAL – application for leave to appeal – where final orders entered by consent – applicant claiming not to have understood effect of orders for medical reasons – whether orders liable to be set aside on that basis

Catchwords:

APPEALS – application for leave to appeal – proposed appeal has no significant prospect of success – no important issue of principle – no question of general public importance

Catchwords:

PROCEDURE – interlocutory appeal from decision striking out paragraphs of defence – decision based on whether defendant was a “public or other authority” for purpose of Part 5 of Civil Liability Act 2002 (NSW) – appropriateness of determining question on strike out application or by way of separate question – directions made for formulation and determination of separate question

Catchwords:

SUCCESSION – contested probate – knowledge and approval – suspicious circumstances - significance of reading out will to capable testator – whether reading out will to capable testator who executes it will discharge onus on propounder – whether sufficient to establish knowledge of contents of will or whether it may be necessary to establish knowledge of its effect – consideration of Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 – consideration of “mistake doctrine” – significance of statutory power to rectify wills SUCCESSION – contested probate – severance of testamentary instruments – power to admit only those clauses to probate of which testator has been shown to have known and approved – distinction between omitted clauses which confer bequests and omitted clauses which confer power – Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89 considered and explained SUBPOENAS – production of documents – redaction of parts of documents on ground of relevance – distinction between redaction for privilege and redaction for relevance

Catchwords:

APPEALS — leave to appeal — summary judgment where amendment to defence refused — opportunity to advance further evidence in support of amended defence — limited grant of appeal

Catchwords:

CIVIL PROCEDURE — pleadings — implied abandonment — certain pleadings not expressly raised during trial — supporting evidence admitted — forensic decision by respondent to leave evidence unopposed — pleading unaddressed by primary judge — self-represented litigant — whether pleadings abandoned or merely overlooked in course of proceedings — remedy sought on appeal EQUITY — equitable remedies — equitable compensation — availability — misappropriation of company funds by director — moneys applied for personal uses — recovery of moneys by company EQUITY — fiduciary duties — breach — rule in Barnes v Addy — whether evidence of breach by primary wrongdoer established

Catchwords:

APPEALS – Orders on appeal – Remittal – Whether more appropriate for Court to finally resolve part of the dispute – Where neither party sought remitter – Where Court has all the evidence and submissions – Where Court in best position to understand own judgment – Order for remittal set aside CONTRACTS – Remedies – Specific performance – Whether to exercise discretion to decline specific performance – Imbalance of rights and entitlements of parties – Impairment of development application – Lapse of time – Difficulty of framing orders for specific performance – Likelihood that ongoing supervision necessary – Land of no greater importance to appellant than its value – Availability of alternative remedies – Specific performance declined – Lord Cairns’ Act damages awarded in substitution for specific performance – Resolution of competing valuations COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offer of compromise made during hearing – Where appellant only liable for costs if successful solely on basis of offer – Offer not the basis of appellant’s success – No reason for costs not to follow event COSTS – Party/Party – Exceptions to general rule that costs follow the event – Whether error found by Court of Appeal was attributable to successful appellant not raising point at trial – Where appellant has always advanced case in appropriate terms – No reason for costs not to follow event

Catchwords:

COSTS – where Class 4 proceedings in Land and Environment Court dismissed by consent – where on application under UCPR r 42.20(1) primary judge ordered “otherwise” by making no order as to costs – where notwithstanding consent orders applicant clearly successful party – whether manifest error in failing to order respondents pay applicant’s costs of proceedings

Catchwords:

CIVIL PROCEDURE – leave to appeal – where proceeding referred to arbitration and balance stayed – whether arbitration agreement applied to referred proceeding – whether error in ordering stay – leave to appeal refused

Catchwords:

COSTS – gross sum costs order – where submissions and evidence in support of application for gross sum costs order served prior to the hearing of the applicants’ application for judicial review against the possibility that the application for judicial review was unsuccessful – where application for judicial review dismissed with costs – where Court made directions on delivery of judgment for applicants to provide submissions in response – whether application for a gross sum costs order was an application to set aside or vary the original costs order – whether application governed by UCPR r 36.16(3) or 36.16(3A) – where applicant for the gross sum costs order did not file a notice of motion seeking the order within 14 days of the costs order being entered – whether any requirement to do so should be dispensed with

Catchwords:

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — General rule that costs follow the event — Proceedings discontinued or dismissed — Whether parties acted reasonably TORTS — Trespass to land — Continuing trespass — Where subterranean encroachment upon plaintiffs’ land from defendants’ land — Where defendants were not in possession when the encroachment was constructed — Whether defendants liable for trespass committed by predecessor in title — Whether encroaching material affixed to defendants’ land

Catchwords:

CONTRACTS — Construction — Construction of insurance contract — Where policy insured against damage to construction projects — Where houses under construction damaged in hailstorm — Where policy provided for application of “deductible” — Whether “deductible” to be applied in respect of each house under construction, or whether to be applied only once to the total sum to be paid for damage caused by the hailstorm

Catchwords:

TAXES AND DUTIES – land tax – exemption – land used for primary production – where independent users conduct separate primary production activities on land – whether each activity relevant to determine if dominant use of land is for primary production – whether uses can be considered as a whole to determine if exemption applies – whether primary production business conducted on other land relevant to determining commercial character of activities on subject land

Catchwords:

APPEALS – application for leave to appeal – proposed appeal has no significant prospect of success – no issue of principle – no question of general public importance

Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal – stay of enforcement of costs order – referral for pro bono assistance – motion dismissed

Catchwords:

APPEAL – leave to appeal – where application under UCPR, r 36.15 to set aside costs orders made in earlier interlocutory proceedings – where primary judge made one of the costs orders sought to be varied – where primary judge refused to disqualify himself for apprehended bias – where r 36.15 application dismissed – where challenges to those orders have no realistic prospects of success – leave to appeal refused

Catchwords:

CONTRACT – contract to transfer land, subdivide it and reconvey lots to vendor on which were constructed a House and Duplex – developer failed to provide Layout Plans to vendor of House and Duplex – plans ultimately provided – plans gave rise to dispute as to dimensions of “Duplex” – developer in breach of promise to reconvey lots with House and Duplex constructed – common ground that reasonable not to construct Duplex until dispute resolved – whether order for reconveyance of lots as vacant land plus Lord Cairns’ Act damages appropriate – Soames v Edge (1860) Johns 669; 70 ER 588 considered – whether primary judge misapprehended plaintiff’s case – whether anything turns on misapprehension of plaintiff’s case – whether primary judge erred in proper construction of “Duplex” – whether primary judge erred in failing to address availability of contractual limitation of liability SPECIFIC PERFORMANCE – nature and availability of remedy – relevance of historic breach – need to establish not just for plaintiff to be confined to damages – damages under Supreme Court Act 1970 (NSW), s 68 (Lord Cairns’ Act) – nature and availability of remedy

Catchwords:

COSTS — security for costs — on appeal — application under UCPR r 51.50 — special circumstances — non-compliance with curial procedure — application granted

Catchwords:

APPEALS – application for leave to appeal – practice and procedure – refusal of stay – separate civil proceedings in Supreme Court – common factual basis – differing issues – findings in one not admissible in the other – no prejudice demonstrated APPEALS – Civil and Administrative Tribunal, Occupational Division – refusal of stay – interlocutory decision – requirement for leave to appeal – applicable principles – error of law – issue of principle – demonstrated unfairness

Catchwords:

DEFAMATION – defamatory statement made in interview with reporter – defences – justification – substantial truth – conduct forming basis of imputation reactive to poor behaviour of defendant – whether defamatory statement by defendant not substantially true DEFAMATION – defences – defence of contextual truth – further harm done by plaintiff’s imputations – whether harm done by substantially true plaintiff’s imputations to be weighed against contextual imputations – Defamation Act 2005 (NSW), s 26(b)

Catchwords:

ADMINISTRATIVE LAW – Judicial review – where questions sought to be referred by the applicant to the Court of Criminal Appeal were plainly not pure “questions of law” – where any jurisdictional error by the primary judge in finding that she lacked power to refer questions to the Court of Criminal Appeal because she was functus officio was thus immaterial – where relief withheld in the exercise of the Court’s discretion because of its lack of demonstrated utility CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – nature of the power and role of a District Court judge in deciding whether or not to submit a question of law to the Court of Criminal Appeal – contextual considerations surrounding the operation of s 5B of the Criminal Appeal Act 1912 (NSW) CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – where applicant submitted questions informally via email to the Registrar of the Local Court – where no formal order was made by the primary judge dismissing the applicant’s request to state a case to the Court of Criminal Appeal – where no reasons were published by the primary judge for declining the applicant’s request – where applicant was advised of the primary judge’s refusal to state a case via an email from the Registrar of the Local Court CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – where questions sought to be referred to the Court of Criminal Appeal were plainly not pure “questions of law” JUDGMENTS AND ORDERS – where no formal order was made by the primary judge dismissing the applicant’s request to state a case to the Court of Criminal Appeal – where no reasons were published by the primary judge for declining the applicant’s request – where applicant was advised of the primary judge’s refusal to state a case via an email from the Registrar of the Local Court – general requirement for judgments to be given in open court where practicable to do so – requirement for clarity as to when a judgment has been given – requirement that a judgment reaches the parties

Catchwords:

NEGLIGENCE – Duty of care – Particular relationships – Users of public right of passage – Duty owed to postal delivery officer by owners of caravan parked on nature strip – Formulation of risk – Where postal delivery officer claimed to have collided with concealed extender bed protruding from caravan – Presence of caravan insufficient – Risk arising specifically from concealed extender bed – Formulation must account for driver taking reasonable care for own safety NEGLIGENCE – Breach – Whether risk foreseeable – Whether risk not insignificant – Whether reasonable person would have taken precautions – Probability of harm – Seriousness of harm – Burden of taking precautions – Where limited or no social utility of activity creating risk – Where a reasonable response was to do nothing – Breach not established – Appeal dismissed APPEALS – Procedural fairness – Failure to give reasons – Adequacy of reasons – Requisite standard of reasons for accepting and rejecting evidence and for making credit findings APPEALS – From findings of fact and credit findings – Function of appellate court – Restraints on appellate interference – Obligation to undertake a real review of the evidence and reasons – Where overarching adverse credibility finding made – Where appellant’s account of incident rejected – Whether credit finding informed by assessment of demeanour or only by inconsistencies in evidence – Where demeanour neither expressly relied upon nor disclaimed – Court able to interfere with factual findings but fresh findings would require retrial

Catchwords:

CIVIL PROCEDURE – stay of proceedings – under the Service and Execution of Process Act 1992 (Cth) – where District Court of New South Wales was court of issue – whether South Australian court was “the appropriate court” to determine all the matters in dispute between the parties – where the identification of all the matters in issue between the parties is a prerequisite to resolving the question of what is “the appropriate court” CONSUMER LAW – industry codes – Franchising Code of Conduct – what constitutes a “franchise agreement” – whether a deed of guarantee is a “franchise agreement” as defined in cl 5 of the Code – where the guarantors assumed certain obligations of the franchisee and covenanted to be personally bound by the terms and conditions of the Franchise Agreement pursuant to the deed of guarantee – where the deed of guarantee conferred no right to carry on the business of offering, supplying or distributing goods or services as a franchisee CONSUMER LAW – industry codes – Franchising Code of Conduct, cl 21(2)(a) – where franchise agreement must not contain a clause that requires a party to the agreement to bring an action or proceedings in relation to a dispute under the agreement in any State or Territory outside that in which the franchised business is based – whether franchise agreement may contain a non-exclusive jurisdiction clause – where the prohibition refers to a clause that “requires” the parties to litigate in a particular forum EVIDENCE – standard of proof – civil cases – application for stay of proceedings under the Service and Execution of Process Act 1992 (Cth) – whether applicant bears onus of proof – whether standard of proof is on the balance of probabilities – where primary judge applied the standard of a “clear and compelling basis” for the relief sought – whether Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54 was decided correctly PRIVATE INTERNATIONAL LAW – jurisdiction – non-exercise of jurisdiction – stays under the Service and Execution of Process Act 1992 (Cth) – jurisdiction clauses – non-exclusive jurisdiction clauses – whether excessive reliance placed upon non-exclusive jurisdiction clause in favour of New South Wales – where s 20(4)(d) of the Service and Execution of Process Act 1992 (Cth) requires the court of issue to take into account “any agreement between the parties about the court or place in which the proceeding should be instituted” – whether dictum in Asciano Services Pty Ltd v Australian Rail Track Corp Ltd [2008] NSWSC 652 at [18] was correct PRIVATE INTERNATIONAL LAW – jurisdiction – non-exercise of jurisdiction – stays under the Service and Execution of Process Act 1992 (Cth) – standard of proof – whether applicant bears onus of proof – whether standard of proof is on the balance of probabilities – where primary judge applied the standard of a “clear and compelling basis” for the relief sought – whether Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54 was decided correctly PRIVATE INTERNATIONAL LAW – jurisdiction – non-exercise of jurisdiction – stays under the Service and Execution of Process Act 1992 (Cth) – where District Court of New South Wales was court of issue – whether South Australian court was “the appropriate court” to determine all the matters in issue between the parties – where the identification of all the matters in issue between the parties is a prerequisite to resolving the question of what is “the appropriate court” WORDS AND PHRASES – “franchise agreement” – Competition and Consumer (Industry Codes––Franchising) Regulation 2014 (Cth) sch 1 cl 5

Catchwords:

ADMINISTRATIVE LAW – judicial review – error of law – review of decision of consent authority – construction of State Environmental Planning Policy – whether decision-maker considered conditions aimed at ensuring that greenhouse gas emissions are minimised to the greatest extent practicable ADMINISTRATIVE LAW – judicial review – error of law – obligation to consider case presented by applicant – minimising scope 3 greenhouse gas emissions of thermal coal – whether refusal of proposal could lead to use of inferior resource with higher emissions ADMINISTRATIVE LAW – judicial review – error of law – reference in reasons to “no evidence” – where information before decision-maker – whether reasons indicated decision-maker not satisfied that information provided rational basis for finding sought ENVIRONMENT AND PLANNING – development application – refusal of consent – judicial review – State significant development – coal mine proposal – consent required from Independent Planning Commission – construction of Mining SEPP, cl 14 – conditions of development STATUTORY INTERPRETATION – “applicable … policies … concerning greenhouse gas emissions” – State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW), cl 14(2)

Catchwords:

CIVIL PROCEDURE – where notice of motion dismissed on the basis that it was to be replaced by an amended summons – amended summons filed after the applicant became subject to a vexatious litigant order – whether primary judge in error in determining that the amended summons was taken to be dismissed by the operation of the Vexatious Proceedings Act – whether amended summons was filed as the continuation of the application commenced before the applicant became subject to a vexatious litigant order COURTS AND JUDGES – bias – grounds alleging actual bias and apprehended bias – repeated applications for recusal on substantially the same grounds – no basis for recusal

Catchwords:

CONTEMPT – criminal contempt – where appellant engaged in conduct found to amount to a contumacious disregard of Court orders – where sentencing judge imposed a sentence of six weeks’ imprisonment – whether sentencing judge failed to consider possibility of suspending sentence for contempt – whether sentencing judge erred in failing to suspend the sentence – whether sentence was manifestly excessive. SENTENCING – criminal contempt – where sentencing judge imposed a sentence of six weeks’ imprisonment – whether sentencing judge erred in failing to suspend the sentence – power to suspend a sentence for criminal contempt in the Supreme Court’s civil jurisdiction – whether sentence was manifestly excessive.

Catchwords:

CORPORATIONS – take-over offers – off-market bid – freeing off-market bids from defeating conditions – bifurcated conditions – where notice declaring the offer free of conditions was given within the seven day period of the close of the offer – whether the notice was effective to free the offer of a condition – Corporations Act 2001 (Cth), s 650F CORPORATIONS – take-over offers – off-market bid – freeing off-market bids from defeating conditions – bifurcated conditions – whether the condition related to the happening of an event or circumstance in s 652C(1) of the Corporations Act 2001 (Cth)

Catchwords:

DEEDS – execution – whether defendant signed deed – creditor and witness testified that defendant signed deed – defendant testified that she did not sign deed – uncontradicted expert evidence that defendant’s signature was not authentic – primary judge dismissed proceedings on basis of not being persuaded that debtor had signed deed – whether conclusion disclosed appellable error – appeal dismissed

Catchwords:

COSTS – Security for costs – On appeal – Statutory power under Corporations Act 2001 (Cth) s 1335 – Relevant factors – Where credible evidence that appellant may be unable to pay adverse costs order if unsuccessful – Where appellant did not appear to oppose security – Reductions to excessive proposed quantum – Security for costs ordered

Catchwords:

BUILDING AND CONSTRUCTION – progress payment claim – payment schedule – email refusing payment until work completed – failure to say why payment withheld – other documents not incorporated – use of contextual material – Building and Construction Industry Security of Payment Act 1999 (NSW), s 14

Catchwords:

APPEALS – leave to appeal – representative proceedings – interlocutory orders – orders final with respect to the representative party – no finality as to group members claims – challenge to answers to common questions TORTS – negligence – standard of care – acts or omissions of public authority – exercise of statutory function – statutory protection – application of Wednesbury standard of care – Civil Liability Act 2003 (Qld) s 36 NEGLIGENCE – standard of care – conduct of flood operations – compliance with Flood Operations Manual – construction of Manual written by flood engineers for application by flood engineers – purposive construction – dual purposes of water supply and flood mitigation – concept of flood mitigation – releases not to exceed peak inflows – use of best available rainfall forecasts – degrees of tolerance – scope for professional judgment – role of the senior flood operations engineer in determining strategies NEGLIGENCE – causation – factual causation – cumulative effect of sequential breaches – series of acts jointly sufficient to cause harm – division of single course of conduct into discrete breaches artificial TORTS – damage to property – whether liability apportionable – concurrent wrongdoers – whether acting independently of each other – Civil Liability Act 2003 (Qld) s 30 TORTS – damages – prejudgment interest on damages – property damage – awards with respect to cleaning undertaken by volunteers – interest on such awards – interest on subventions in form of charitable relief COSTS – apportionment of costs – wrongful conduct governed by Queensland law – proceedings brought in New South Wales – Civil Procedure Act 2005 (NSW), s 98 applied

Catchwords:

COSTS – party/party – general rule that costs follow the event

Catchwords:

CIVIL PROCEDURE – subpoenas – to produce documents – application to set aside – whether legitimate forensic purpose – whether subpoena irrelevant, too broad or issued for improper purpose – apparent relevance to application for security for costs – documents relating to appellants’ source of funds – application to set aside subpoena dismissed

Catchwords:

TORTS – Trespass to the person – False imprisonment – Wrongful arrest – Whether arrest wrongful where officer had additional purpose of interviewing arrestee and obtaining a “version” of events – Where officer nevertheless had requisite intention to charge – Secondary intention does not vitiate lawfulness of arrest APPEALS – Leave to appeal – From final order dismissing false imprisonment claim – Amount in issue below $100,000 threshold – Insufficient prospects of success – Leave refused

Catchwords:

CIVIL PROCEDURE – jurisdiction – declaration that court has no jurisdiction to decide claim – claim for death or injury – carriage by air – occurring entirely within New South Wales – where party brought claim under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) in the Federal Court – where Federal Court lacked jurisdiction to decide claim – claimant brought claim in the Supreme Court under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – Supreme Court claim brought more than two years after relevant carriage by air – whether order of the Federal Court dismissing claim for want of jurisdiction was a “relevant order” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – whether claim in the Supreme Court was extinguished by s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – Supreme Court proceedings pursuant to s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – where those proceedings are linked to incompetent Federal Court proceedings but operate independently of them – where s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) operates to extinguish any claim for damages under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) if not brought within two years after an accident – whether order made under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) undermined the purpose of s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – order under s 11(2) not a discretionary extension of time to bring a proceeding otherwise out of time LIMITATION OF ACTIONS – operation of bar – action for compensation for death under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) – where s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) provides that the right to damages is extinguished if a party does not bring an action within two years of an aviation accident – characterisation of statutory bar – whether s 34 is a “limitation law” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – where the law recognises a distinction between the barring of a right of action and its extinguishment STATUTORY INTERPRETATION – contextual approach – context to be considered in the first order – context understood in a broad sense – including the existing state of the law, legislative purpose, legislative history and extrinsic materials STATUTORY INTERPRETATION – departure from literal meaning – where literal reading of “relevant order” in s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) does not conform to the legislative purpose – where purpose determined by reference to immediate context and extrinsic materials STATUTORY INTERPRETATION – legislative purpose – remedial legislation – where statute passed to remedy the effect of the decision of the High Court of Australia in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 – whether “want of jurisdiction” in s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) refers to the conferral of jurisdiction held to be invalid by the High Court TRAFFIC LAW AND TRANSPORT – aviation – carriage by air – death or personal injury – intra-state carriage by air occurring entirely within New South Wales – where party brought claim under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) in the Federal Court – where Federal Court lacked jurisdiction to decide claim – claimant brought claim in the Supreme Court under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – whether order of the Federal Court dismissing claim for want of jurisdiction was a “relevant order” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) TRAFFIC LAW AND TRANSPORT – aviation – statutory liability – limitation of actions – characterisation of statutory bar – whether s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) is a “limitation law” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) WORDS AND PHRASES – “relevant order” – Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(1) WORDS AND PHRASES – “limitation law” – Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(1)

Catchwords:

INSURANCE – where appellant’s house destroyed in a fire – where house used to operate a business – where house and business insured by respondent – where respondent granted conditional indemnity under deed of release – where respondent then denied liability on basis fire deliberately lit by insured – whether primary judge erred in finding appellant deliberately started fire INSURANCE – measure of indemnity – where lack of reasonable despatch in rectifying property – whether indemnity for property damage payable on reinstatement basis INSURANCE – damages – whether damages available for consequential loss arising from insurer’s breach of promise to indemnify – whether damages available for inconvenience and distress caused by breach

Catchwords:

AGENCY – ostensible authority – man used company email address and corporate signature – man closely involved with company’s sole director in finalising orders of building materials – whether man had ostensible authority to bind company CONTRACT – company purchased building materials from South Australian company – sole director guaranteed company’s obligations to supplier – guarantee expressed to be with Queensland company and “each related body corporate that supplies goods or services to the Customer” – South Australian supplier was related to Queensland company and had similar name – whether South Australian company could enforce guarantee

Catchwords:

TORTS — Trespass to the person — Battery — Sexual assault — where resolution of the issues depended on the assessment of the truthfulness of each party — no issue of principle TORTS — Evidence — proof of a fact relied on by defendant TORTS — Malicious prosecution — where defendant provided statement to police in connection with criminal investigation — whether defendant a prosecutor for purposes of the tort — whether defendant knowingly provided false information to a prosecuting authority

Catchwords:

CORPORATIONS – shares – exercise of power to allot shares – where director of family company allotted shares to himself – where effect of allotment was to confer control of company on the director – where hearsay evidence that director provided paperwork concerning allotment to shareholders – where no evidence of paperwork or content of paperwork – whether shareholders gave fully informed consent to allotment – whether share allotment should be set aside EQUITY – defences – laches – knowledge of the wrong – where impugned share allotment occurred in 2004 – where director of company has since passed away – where appellants reside in Indonesia and speak minimal English – whether appellants had means of knowledge of the wrong – whether respondents pleaded that appellants could have searched public records and ran that defence below EVIDENCE – expert evidence – whether letter from overseas lawyers in the nature of an investigative report was expert evidence – whether the primary judge erred in rejecting the tender of the evidence – whether the primary judge should have waived the rules of evidence – Evidence Act 1995 (NSW), s 190

Catchwords:

LEGAL PRACTITIONERS – solicitors – Court’s supervisory jurisdiction – recovery of fees – retainer to investigate dispute between client and third party arising from frauds committed by solicitors’ employee –actual conflict between solicitors’ personal interests and fiduciary duty to client – whether solicitors obtained fully informed consent to act – whether nature of conflict precluded reliance on consent LEGAL PRACTITIONERS – solicitors – Court’s supervisory jurisdiction – undertaking not to charge fees for work done – whether undertaking given in a professional capacity – whether reliance, loss or consideration required to enforce undertaking – whether Court should prevent solicitors reneging on undertaking

Catchwords:

APPEALS — from exercise of discretion — procedural decisions — refusal to extend time for filing summons — reasons for delay — significance of first instance decision decided on basis of authority later overturned on appeal — interest rei publicae ut sit finis litium COSTS — costs assessment — determination — review/appeal — jurisdiction to appeal from certificates in proceedings commenced prior to 1 July 2015

Catchwords:

APPEALS – application to receive further evidence – s 75A Supreme Court Act 1970 (NSW) – whether “special grounds” established – special grounds not established because the further evidence could have been obtained with reasonable diligence for use at the trial and there is no significant prospect that the outcome at first instance would have been different if that evidence had been led at first instance

Catchwords:

CIVIL PROCEDURE – Court of Appeal – notice of motion – application for review of decision of single judge – no error shown – application dismissed – Supreme Court Act 1970 (NSW), s 46(4)

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – Stay of primary judgment – Appeal not unarguable – Appeal likely to be rendered nugatory without stay – Where judgment for portion of funds received from insurance payment – Disposition of funds unexplained by applicant – Indicia that appellant may be insolvent – Sums transferred from corporate appellant to director – Sums potentially recoverable by liquidator – Prejudice to respondents if potential appointment of liquidator deferred – Prejudice potentially mitigable by fixed and floating charge over assets of appellant and director – No such security offered – Stay refused COSTS – Security for costs – On appeal – Statutory power under Corporations Act 2001 (Cth), s 1335 – Relevant factors – Where credible evidence that appellant may be unable to pay adverse costs order if unsuccessful – Where director/sole shareholder declined to expose themselves to adverse costs order – Reductions to excessive proposed quantum – Security for costs ordered APPEALS – Procedure – Time limits – Extension of time to appeal – Where appeal filed one day out of time – Extension not opposed – No prejudice – Extension granted

Catchwords:

INSURANCE – Claims – Property insurance – Fire – Proof – Circumstantial case – Where insurers alleged that fires in hotel premises deliberately lit – Whether plausible hypotheses consistent with innocence – Relevance of financial motive – Whether means and opportunity – Passive infrared sensors – Timing – Layout of premises – Plausibility of intruders – Appeal dismissed APPEALS – From findings of fact – Function of appellate court – Where primary judgment not dependent on credibility findings – Court obligated to conduct a real review of the evidence and reasons

Catchwords:

CIVIL PROCEDURE – interim order pending special leave application – appeal dismissed – caveat protecting interest of dispossessed due to expire – application to extend caveat

Catchwords:

NEGLIGENCE – dangerous recreational activities – appellant suffered injury in mid-air collision between light aircraft and Ferris wheel – appellant engaged in dangerous recreational activity of landing at an unregulated aircraft landing area – whether appellant suffered harm as the result of the materialisation of an obvious risk of a dangerous recreational activity – appropriate level of generality when characterising risk – obviousness of risk – appellant’s harm resulted from manifestation of the obvious risk of colliding with obstructions in the splay of the landing area – appeal dismissed

Catchwords:

EQUITY – Trusts and trustees – Express trusts – Declaration of trust – Where only evidence of trust was a conversation purported to have occurred 23 years before hearing – Where evidence inconsistent with later documentary evidence – No issue of principle LAND LAW – Co-ownership – Rights between co-owners – Account – Where accounts showed beneficial co-owners paid “rent” to third beneficial co-owner – Where accounting secured a tax advantage for the third co-owner – Where no evidence that the accounting was intended to reflect payment of an occupation fee – Whether beneficial co-owners entitled to adjustment

Catchwords:

CIVIL PROCEDURE – abuse of process – where the Court may exercise its inherent powers to prevent an abuse of its process – where the Court deemed it appropriate that an order in the nature of that made in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 be made CIVIL PROCEDURE – notice of motion – where applicant filed notice of motion challenging earlier orders by judges of the Court and in part repeating relief that had previously been sought and refused – where the notice of motion was dismissed as an abuse of process or as being either vexatious or oppressive, or as disclosing no arguable basis for the relief sought

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of offence under s 319 of the Crimes Act 1900 (NSW) – whether probably permanently unfit to practise – order removing name from roll CIVIL PROCEDURE – hearings – suppression and non-publication orders – whether necessary to ensure consistency with extant suppression order of the District Court – where name published in publicly available judgments – no basis for order

Catchwords:

CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Third referral – Where Bar Association has indicated that no further assistance will be provided without additional referral – No conditions for ceasing to provide ongoing assistance satisfied – Bar Association guidelines not relevant – Further referral made but ongoing effect of previous referral emphasised JUDGMENTS AND ORDERS – Court of Appeal – Extension of stay of execution of writ for possession – Extension not opposed – Extension granted and orders made with view to progressing matter to hearing CIVIL PROCEDURE – Jurisdiction – Transfer of Notice of Motion from Supreme Court to Court of Appeal

Catchwords:

APPEALS - leave to appeal - interlocutory orders - challenge to terms of interlocutory regime permitting tenant to recover goods from premises after conclusion of lease - pending proceedings seeking final relief - whether utility in grant of leave - whether tenant had failed to comply with earlier regimes - leave refused

Catchwords:

APPEALS – nature of appeal – appeal by way of rehearing – appeal against conviction under s 11(1) of the Crimes (Appeal and Review) Act – where applicant appealed from the Local Court to the District Court alleging specific errors on the part of the Local Court – whether the District Court was required to undertake a complete review of the whole of the evidence and form its own view as to the applicant’s guilt regardless of the issues raised in the appeal – absence of any clearly articulated argument the resolution of which required a review of the whole of the evidence

Catchwords:

EQUITY – trusts and trustees – express trusts – construction – whether constitution of trust confers discretion on trustee to determine Distributable Income – whether trustee exercised discretion in determining the amount of Distributable Income EQUITY – subrogation – requirements – whether the GLT Indemnity is a true indemnity against loss or merely a promise to pay on a contingency – not a true indemnity against loss EQUITY – subrogation – rights of subrogated party – where subrogation is limited only to rights which diminish loss – no subrogation to right to receive Withdrawal Amount

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – application to reopen appeal under UCPR r 36.16 – whether Court determined the appeal on a ground not pleaded at trial – whether Court found ordinarily implied general obligation in contract to cooperate – Court found particular contractual terms pleaded, the essence of which was cooperation to achieve stated purpose CONTRACT – remedies – specific performance – whether Court found breach of contract – order for specific performance does not require proof of breach – sufficiently reasonable apprehension of breach may support order for specific performance JUDGMENTS AND ORDERS – reasons – duty to give reasons – whether Court gave adequate reasons in rejecting contentions of abandonment and unilateral release – matters relied on by parties referred to and rejected – reasons sufficiently explained conclusion reached – standard for reasons depends on nature of case, submissions and issues engaged

Catchwords:

CIVIL PROCEDURE – pleadings – amendment – where applicant sought to plead an apportionable claim under s 34 of the Civil Liability Act 2002 (NSW) – where Part VIA of the Competition and Consumer Act 2010 (Cth) was the relevant statutory scheme – application for leave to appeal dismissed CIVIL PROCEDURE – pleadings – amendment – where applicant did not identify any particular “concurrent wrongdoer”

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – motion under UCPR r 36.16 to set aside previous judgment of Court – judgment granted leave to appeal limited to specific issues – whether grant of leave should be extended to allow applicant to appeal against entire decision including costs order made by Registrar and reviewed by primary judge – no good reason to permit appellate challenge to costs order – costs order appears to have been appropriate in the circumstances COURTS AND JUDGES – bias – application for recusal – allegations of apprehended bias and actual bias against judges – applications rejected

Catchwords:

COMMERCE – restraint of trade – validity and reasonableness – legitimate interests – where restraint imposed a blanket protection from importation of goods from a subcontinent – whether blanket protection directed to preserve or maintain a personal or corporate relationship with a supplier – where restraint did not relate to any particular supplier – Restraints of Trade Act 1976 (NSW), s 4 COMMERCE – restraint of trade – validity and reasonableness – public policy – where restraint imposed a blanket protection from importation of goods from a subcontinent – whether restraint was against the public interest – where restraint prohibited respondents from competing in the market for the supply and sale of goods from a subcontinent – Restraints of Trade Act 1976 (NSW), s 4

Catchwords:

SUCCESSION — Claim by estate to recover property — Where property of deceased transferred by deceased’s daughter by way of gift in favour of deceased’s granddaughter in exercise of power of attorney — Where no power of gift conferred on attorney — Where daughter purportedly acted pursuant to direction in letter — Whether deceased’s signature was forged SUCCESSION — Family provision — Claim by adult child — Where evidence of ill treatment of testatrix by claimant — Where evidence that claimant received substantial benefits from testatrix before death

Catchwords:

APPEALS – appeal from primary judgment making personal costs orders against the applicant pursuant to Sch 2 of the Legal Profession Uniform Law Application Act 2014 (NSW) and s 99 of the Civil Procedure Act 2005 (NSW) – where applicant was the legal practitioner for the defendant in the proceedings below and made allegations of fraudulent misrepresentation and conspiracy without any proper basis – where solicitor breached his professional ethical duties in pursuing the claims APPEALS – application for leave to appeal – whether leave to appeal is required by a legal practitioner who is subject to a third party costs order, assuming that the monetary threshold under s 101(2)(r) of the Supreme Court Act 1970 (NSW) is satisfied – leave to appeal not required pursuant to s 101(2)(c) of the Supreme Court Act on the basis that the decision was not one “as to costs only” APPEALS – challenge to earlier decision of this Court on the basis that it was “plainly wrong” – where no real attempt was made to satisfy the requirements for a challenge to a decision of this Court as outlined in Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 APPEALS – procedural fairness – whether applicant was denied procedural fairness on the basis that the primary judge did not consider all of the grounds and arguments advanced by the applicant – whether applicant was denied procedural fairness in that the Court treated various findings made in the substantive judgment as beyond challenge for the purposes of the costs application – where applicant’s arguments in the costs application were essentially a replication of the arguments that had been advanced and rejected by the primary judge in the substantive judgment – where no denial of procedural fairness COSTS – where primary judge imposed personal costs orders against the legal practitioner of the unsuccessful party in proceedings below – where applicant was the legal practitioner for the defendant in the proceedings below and improperly made allegations of fraudulent misrepresentation and conspiracy without any evidence to support it – where solicitors breached their professional ethical duties in pursuing the claims COSTS – whether in an application for costs orders against a legal practitioner under s 99 of the Civil Procedure Act 2005 (NSW), the Court is entitled to take account of its findings in the substantive judgment – whether a legal practitioner against whom such costs orders are sought is bound by findings in the substantive judgment, even though the legal practitioner was not formally a party to the proceedings – where in the present case, the applicant was given a full and fair opportunity to explain the basis upon which he made the relevant allegations and to rebut the statutory presumption arising under cl 6 of Sch 2 to the Legal Profession Uniform Law Application Act 2014 (NSW) LEGAL PRACTITIONERS – obligations of solicitors arising pursuant to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 21

Catchwords:

ENVIRONMENT AND PLANNING – consent – application to modify consent – condition of consent requiring payment of monetary contribution – power to reduce contribution – no change to development – contribution paid in full – calculation of contribution – construction of “gross floor area”– loading areas excluded – only loading areas in approved plans excluded – no utility in modification

Catchwords:

OCCUPATIONS – Medical practitioners – Qualifications and registration – Appeal – From dismissal of reinstatement application by NCAT – Whether appellant no longer suffering from mental impairment rendering her unfit to practise – Relevance of evidence of professional competence – Relevance of patient outcomes – Relevance of psychiatric evidence – Relevance of NCAT’s own observations – Appeal dismissed OCCUPATIONS – Medical practitioners – Qualifications and registration – Reinstatement application – Principles governing – Review body not permitted to review original deregistration decision

Catchwords:

PRACTICE AND PROCEDURE – judicial review – refusal by District Court to state case to Court of Criminal Appeal – application to vacate hearing date – further charge pending in Local Court – stress – lack of medical evidence – no basis to delay hearing by several months

Catchwords:

PRACTICE AND PROCEDURE – appeal – stay pending hearing of application for leave to appeal – gross costs order – stay of enforcement

Catchwords:

MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – power of sale – mortgagee’s duty to exercise power of sale in good faith – effect of contract of sale upon mortgagor’s rights – whether attempt to refinance and discharge mortgage prior to transfer of title can prevent sale – where mortgagor’s attempts to refinance accelerated the sale process MORTGAGES AND SECURITIES – mortgagee exercising right of sale – price higher if vacant possession given – requirement of vacant possession not communicated to occupant –damages awarded for failure to communicate occupation condition LAND LAW – Torrens title – exceptions to indefeasibility – fraud by mortgagee exercising power of sale – bid-rigging where alleged collaborator later acquired share in successful purchaser – whether collusion established LAND LAW – mortgages – mortgagee sale – where owner of the mortgagee financed the purchase and acquired option to control purchaser – honesty and independence of sale process – good faith exercise of power of sale – pre-existing relationship between parties acting on other projects – whether lack of independence in sale process indicative of fraud – burden of disproving fraud

Catchwords:

CONTRACT – 2018 edition Law Society of New South Wales standard form contract for sale of land – construction – where additional clause 38 provided for payment of deposit in two instalments – where clause 2.3 made time for payment of second instalment “essential” – where deadline for payment not a business day – whether time for payment extended to next business day by clause 21.5 – whether exception to application of clause 21.5 “in the case of clauses 2 and 3.2” engaged

Catchwords:

APPEAL – leave to appeal – where applicant’s claims summarily dismissed on ground that statute-barred – whether primary judge erred in being satisfied that there was no arguable case that applicant was under a “disability” within meaning of Limitation Act 1969 (NSW) s 52(1)

Catchwords:

CHILD WELFARE – care proceedings – practice and procedure – application to vary final judgment – whether notice of motion should be transferred to Equity Division – motion dismissed

Catchwords:

ADMINISTRATIVE LAW – judicial review – orders of District Court dismissing appeal on questions of law from costs assessment review panel – where District Court decided reasons given by review panel were adequate – whether jurisdictional error in applying incorrect test for adequacy of reasons – whether error of law on the face of the record in relation to decision that reasons adequate COSTS – costs assessment – determination by review panel of amount of costs of assessment process and by whom payable – whether review panel required to determine “fair and reasonable amount”

Catchwords:

APPEALS — procedure — application for joinder after appeal decision handed down — applicants interested in appeal who took no part in appeal — court’s power to preclude party from litigation without res judicata or issue estoppel — factors warranting APPEALS — procedure — application to reopen for adducing further evidence — special grounds — curing factual misapprehension — exercise of court’s discretion — variation of orders to cure misapprehension VOLUNTARY ASSOCIATIONS — unincorporated and incorporated associations — effect of incorporation — relationship between unincorporated and incorporated associations — complex structure of incorporated and unincorporated associations on local, state and national levels — incorporation of a unit that was subordinate to an unincorporated association — construction of rules and constitution

Catchwords:

CIVIL PROCEDURE – application for leave to appeal from an interlocutory decision of the Civil and Administrative Tribunal of NSW – where Tribunal refused to grant the applicant an extension of time in which to appeal from a decision of the Medical Council of NSW, which had imposed a condition on the applicant’s registration as a health practitioner that she not practise medicine – where applicant sought to appeal the Medical Council’s decision over one year after it provided its reasons for imposing the relevant condition – where applicant contended that her appeal was as of right and that no extension of time was required to be granted by the Tribunal – whether Tribunal was correct to hold that an extension of time within which to appeal from the Council’s decision was required – whether Tribunal’s discretion miscarried in refusing the applicant an extension of time HEALTH – medical professionals – whether Medical Council of NSW had the power to impose a temporary condition that a practitioner not practise medicine – where such a power is found under s 150(1)(b) of the Health Practitioner Regulation National Law (NSW) PRACTICE AND PROCEDURE – Procedural fairness – whether there had been a breach of procedural fairness by the Medical Council of NSW in conducting a hearing pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) in the applicant’s absence – whether there was a breach of procedural fairness in the Council denying the applicant’s request for an adjournment of that hearing – where applicant had been given sufficient notice of the hearing and where her application for an adjournment was raised only a day before the hearing was scheduled – where Tribunal was correct to conclude that there was no breach of procedural fairness by the Council

Catchwords:

COURTS – Land and Environment Court (NSW) – jurisdiction and powers – class 3 jurisdiction – assessment of value of land compulsorily acquired – enforcement of statutory obligation to pay 90% of Valuer General’s assessment pending resolution of claim – power to make freezing order LAND LAW – compulsory acquisition of land – payment required by Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 68(2)(a) – whether payment into trust account of acquiring authority’s solicitor satisfied obligation

Catchwords:

COSTS — Civil and Administrative Tribunal — disciplinary proceedings — costs incurred by a lawyer in defending allegations of professional misconduct — application for payment of costs from the Public Purpose Fund following successful appeal — statutory requirement for the Court to be satisfied that the lawyer did not engage in unsatisfactory professional conduct or professional misconduct — where solicitor admitted professional misconduct but on a basis not alleged by the Legal Services Commissioner in the proceedings before the Tribunal — proper construction of sch 5, cl 23(3) of the Civil and Administrative Tribunal Act

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Stay pending appeal – Judgment for monetary sum – Orders transferring proceedings for possession to NCAT – Whether arguable grounds of appeal – Whether orders already implemented amenable to stay – Whether failure to grant stay would render appeal nugatory – Monetary judgment stayed – Anti-suit injunction granted restraining prosecution of proceedings in NCAT – Conditional upon undertakings as to damages and expedition, and provision of security LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Termination – By landlord – Prohibition on recovery of possession – Whether prohibition deprives court of jurisdiction or is merely a defence LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – NSW Civil and Administrative Tribunal – Jurisdiction and powers – NCAT proceedings commenced by respondent after appeal filed but prior to applicant notifying NCAT of appeal – Whether NCAT retains jurisdiction – Whether Court of Appeal can stay NCAT proceedings

Catchwords:

CONTRACTS – termination – breach of term – what constitutes gross negligence and gross misconduct CONTRACTS – termination – breach of term – implied term – term implied in fact – implied term not to use position to obtain unauthorised benefit – where breach compounded by deliberate deception – gross misconduct CONTRACTS – termination – breach by terminating party – whether repudiation of contract – whether acceptance of repudiation possible – whether party willing to perform obligations under the contract CONTRACTS – construction – interpretation – natural and ordinary meaning – no ambiguity – unusual term – Court must give effect to the language used STATUTORY INTERPRETATION – text, context and purpose of provisions and the mischief they are intended to remedy – Strata Schemes Management Act 1996 (NSW) – Strata Schemes Management Amendment Act 2002 (NSW) – Strata Schemes Management Act 2015 (NSW) – extrinsic material – where purpose of relevant provisions emerges from the Second Reading Speech – savings provisions – Interpretation Act 1987 (NSW) s 30

Catchwords:

ADMINISTRATIVE LAW – application for orders in the nature of certiorari quashing decision of District Court dismissing an appeal from the Small Claims Division of the Local Court and the decision of the Local Court for jurisdictional error and error of law on the face of the record – where appeal to District Court lies only on basis of lack of jurisdiction or denial of procedural fairness – where applicants contended District Court judge misapprehended the meaning of “lack of jurisdiction”, failed to make a bona fide assessment of the grounds of appeal and failed to give adequate reasons – where applicants’ challenge to the Local Court decision out of time – where applicants contended that Local Court assessor failed to take into account “jurisdictional facts”, gave judgment notwithstanding notice of an alleged counter claim or set-off and otherwise invalidly exercised jurisdiction

Catchwords:

APPEAL – where applicant incorrectly filed an application for leave to appeal – where, although leave to appeal was not required, an extension of time in which to bring the appeal was required – no satisfactory explanation provided for delay in commencing appeal proceedings – where no injustice would be suffered by the applicant if an extension of time to appeal was refused – application for extension of time to appeal refused

Catchwords:

COSTS – Calderbank offer at first instance – where offeror would have been unsuccessful at first instance but where Calderbank offer, if accepted, would have resulted in appellant securing a more favourable outcome at first instance than it ultimately obtained as a result of its successful appeal

Catchwords:

NEGLIGENCE – professional negligence – solicitors – where appellant law firm was retained to advise the respondent as to his rights in a family law partnership – whether appellant failed to give competent advice to the respondent about the manner and circumstances of the exercise of a put option granted by a put and call option agreement forming part of the partnership documents – breach of retainer and concurrent duty of care NEGLIGENCE – professional negligence – causation – factual causation – where respondent would have exercised put option had he been properly advised of his rights – where failure to give competent advice caused loss CONSUMER LAW – misleading or deceptive conduct – professional advice – where a dangerously incomplete statement of the respondent’s rights was misleading and deceptive in that it was apt to mislead the respondent into believing that his legal rights were ineffective CONTRACTS – implied terms – terms implied in law – necessity CONTRACTS – implied terms – terms implied in fact – necessary to give business efficacy CONTRACTS – construction – interpretation – calculation of purchase price under formula prescribed in a put and call option agreement APPEALS – damages – where primary judge awarded damages and required an undertaking as to repayment pending the outcome of related proceedings – whether primary judge erred in not assessing damages on a lump sum basis once and for all – whether this Court should itself determine the damages payable on a lump sum basis – approach for correct assessment of damages

Catchwords:

CHILD WELFARE – care proceedings – statutory construction – interpretation – where guardian ad litem appointed for a child and young person in separate proceedings – where court found child and young person was incapable of giving proper instructions to a legal representative – whether appointment of guardian ad litem mandatory or discretionary – Children and Young Persons (Care and Protection) Act 1998 (NSW) – interaction between ss 98(2A) and 100 of the Act CHILD WELFARE – care proceedings – where guardian ad litem appointed for a young person by Supreme Court – whether young person incapable of giving proper instructions to a legal representative

Catchwords:

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Where appellant purchased properties in the name of the respondent pursuant to a power of attorney — Whether appellant contributed to the purchase price — Whether appellant manifested an intention inconsistent with beneficial ownership of properties — Where appellant provided to the respondent a will to sign which clearly acknowledged her ownership of the properties — Where appellant submitted tax returns on behalf of the respondent which were not trustee returns

Catchwords:

CIVIL PROCEDURE – Pleadings – Striking out –Appeal against striking out of Statement of Claim in full – Where quantum of damages claimed identical to value of real property subject to family law proceedings – Whether proceedings brought for an improper or collateral purpose and thus an abuse of process – No sufficient basis for finding of abuse – Whether District Court erred in striking out applicant’s statement of claim as defective in form – Whether reasonable causes of action – Statement of claim not so defective as to justify striking out TORTS – Malicious prosecution – Damage – Where limitations on recoverability of costs in subject proceedings – Whether legal costs of defence and lost earnings are actionable damage TORTS – Malicious prosecution – Elements – Whether malice and absence of reasonable or probable cause adequately particularised – Whether necessary to show that prosecutor prejudiced by false information – Whether Apprehend Domestic Violence Order proceedings capable of founding malicious prosecution claim TORTS – Trespass to land – Damage – Whether distress to children of claimant actionable damage

Catchwords:

CONTRACT – construction – design and construct contract – contractor claimed additional payment for works required pursuant to development consent – whether works were “Excluded Works” – significance of definition commencing “Notwithstanding any other clause” – significance of grammatical meaning of clause – clause required to be read as a whole, harmoniously with other provisions in contract

Catchwords:

TORTS — Negligence — Appellant injured as a result of falling on the first step on a stepped path in a park — Whether the primary judge erred in finding that the appellant had breached the duty of care which it owed to the respondent — Primary judge found the respondent to be a witness of credit who maintained that he was taking care and was not distracted —Experts agreed that single steps presented a hazard — Primary judge was not in error in finding that the appellant failed to take reasonable precautions against the risk of harm and was negligent — Appeal dismissed NEGLIGENCE — Cross Appeal — Damages — Challenged findings of contributory negligence and discount of damages for past economic loss — Primary judge concluded that contributory negligence was established — Finding of contributory negligence not contradicted by the finding of liability — No want of reasonable care on the part of the respondent that might have contributed to his failure to perceive the steps — Primary judge reduced the appellant’s damages for past economic loss by 10% to allow for circumstances in the respondent’s circumstances that would have caused him to retire earlier — Where primary judge made no express finding on the degree of probability that the respondent would have retired before 66 — Evidence accepted by the primary judge contradicted the prospect of early retirement — The discount of 10% was inconsistent with the positive findings of the primary judge — Cross-appeal allowed

Catchwords:

CONSUMER LAW – Misleading or deceptive conduct – Representations – Explicit false representations made in proposal document given to prospective investors in fraudulent betting syndicate scheme masterminded by notorious conman – Appellant a member of partnership promoting scheme – Whether appellant had knowledge of false representations – Whether appellant jointly and severally liable for misrepresentations made in ordinary course of business of partnership – Liability established APPEALS – From findings of fact and credibility – Function of appellate court – Circumstantial case – Briginshaw standard – Inferences from primary facts – Whether open to be comfortably satisfied various factual findings, including inference that appellant knew of false proposal representations PARTNERSHIPS AND JOINT VENTURES – Relationship of partners to persons dealing with them – Liabilities of partner – Partnership intended to be limited – Unlimited because limited partnership agreement never registered – Joint and several liability for misrepresentations made by other partner in ordinary course of business of partnership CONSUMER LAW – Misleading or deceptive conduct – Silence or non-disclosure – Whether appellant represented that conman not involved in scheme – Whether appellant had knowledge of various prerequisite facts such as notoriety, involvement, and alias of conman, and of need to conceal such information – Appellant unable to demonstrate any of these findings as glaringly improbable – Appellant ought to have known of reasonable expectation that conman’s involvement would be disclosed – Appellant did not disclose and deliberately concealed conman’s involvement CIVIL PROCEDURE – Pleadings – Amendment – Late application for amendment on second day of trial – Amendments added alleged liability of appellant for representation by silence and clarified alleged liability of appellant for explicit proposal representations – Whether appellant deprived of opportunity to make “no case” submission – Whether primary judge failed to consider dictates of justice – Not necessary to recite considerations seriatim – Appellant not deprived of fair and reasonable opportunity to meet case – Pleadings sufficiently clear and specific, and not unfairly open-ended CIVIL PROCEDURE – Pleadings – Construction of pleadings – Subparagraphs of pleadings not in precise correspondence with each other – Whether prejudicial construction by primary judge in finding that pleadings nevertheless sufficiently clear CONSUMER LAW – Misleading or deceptive conduct – Causation or reliance – Whether respondent’s decision to invest caused by proposal representations – Whether prospective investor would have been deterred by knowledge of involvement of notorious conman – Gullible investors not disentitled to protection CONSUMER LAW – Misleading or deceptive conduct – Remedies – Quantification of damages – Whether primary judge failed to account for group members’ prior recoveries and respondent’s trading profits received from scheme – Award of damages below only for respondent’s unpaid loan to scheme – Prior recoveries and trading profits irrelevant CIVIL PROCEDURE – Representative proceedings – Remedies – Award of damages to individual group member CIVIL PROCEDURE – Court of Appeal – Notice of contention – Reliance on claim in deceit in addition to misleading and deceptive conduct – Deceit considered briefly in judgment below – Contention material and advances respondent’s case in circumstances where appellant claims apportionment for misleading and deceptive conduct but cannot do the same for claim in deceit – Notice of contention upheld and decisive of appeal – Unnecessary to consider further aspect of notice, namely conspiracy TORTS – Miscellaneous Torts – Deceit – Relationship with misleading or deceptive conduct – Apportionment defence available for misleading and deceptive conduct but not for deceit TORTS – Joint and several liability – Apportionment – Primary judge disallowed late attempt to raise apportionment defence – Disallowance denied a real prospect of significant reduction in liability – Strongly arguable error in disallowance – Unnecessary to consider further as respondent nevertheless able to rely on non-apportionable claim in deceit

Catchwords:

COSTS – Party/Party – Appeals – Appeal against refusal of leave to commence proceedings out of time – Delay attributable to appellant’s solicitors – Unsatisfactory explanation for delay – Respondent opposed application and led court below into error – Costs not sought by respondent against appellant – No order as to costs between parties COSTS – Appeals – Orders against non-parties – Personal costs orders against lawyers – As between respondent and appellant’s solicitors – Solicitors acted negligently – Respondent increased costs considerably by opposing application – Orders not made COSTS – Appeals – Orders against non-parties – Personal costs orders against lawyers – As between appellant and appellant’s solicitors – Costs incurred without reasonable cause – Relevance of undertaking by solicitors to not seek costs against appellant – Orders made

Catchwords:

DEFAMATION – defences – common law qualified privilege – privileged occasion – privileged communication – whether communication relevant to privileged occasion – no test of necessity – news publications based on police media releases – additional information in publications not foreign to occasion of privilege DEFAMATION – remedies – compensatory damages – whether assessment of damages manifestly inadequate – primary judge justified in using appellant’s failure to correct the record as indicative that the appellant was not hurt and distressed as claimed DEFAMATION – remedies – compensatory damages – whether assessment of damages manifestly inadequate – adverse credibility findings

Catchwords:

APPEALS – right of appeal – scope of right – excess or lack of jurisdiction below – jurisdiction of the District Court – where there is a common law cause of action for money had and received APPEALS – right of appeal – scope of right – excess or lack of jurisdiction below – jurisdiction of the District Court – whether proceeding is for “relief against fraud of mistake” – District Court Act 1973 (NSW), s 134 CONTRACTS – breach of contract – consequences of breach – right to damages – where total failure of consideration CONTRACTS – termination – consequences of termination – restitutionary claims – where total failure of consideration JUDGMENTS AND ORDERS – interest – pre-judgment interest – rate applicable – where respondent succeeded on restitutionary claim – whether it was open to the primary judge to select the same rate of interest agreed to by the parties – Civil Procedure Act 2005 (NSW), s 100

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – discrimination – harassment – sexual harassment – where applicant was contracted to design, publish, display and distribute a poster depicting a captioned photograph of the respondent at her workplace – whether conduct was “other unwelcome conduct of a sexual nature” – whether parties were “workplace participants” – Anti-Discrimination Act 1977 (NSW), ss 22A, 22B CIVIL PROCEDURE – appeal on question of law

Catchwords:

APPEALS – procedure – stay pending appeal

Catchwords:

COSTS - “Chorley” exception - client sued former solicitor for negligence in failing to enforce a favourable costs order in Family Court proceedings - former solicitor represented by incorporated legal practice which was its sole shareholder - whether District Court erred in dismissing client’s action for negligence - former solicitor sought gross sum costs order - whether District Court erred in failing to grant second adjournment - whether District Court erred in making gross sum costs order - whether former solicitor to be equated with incorporated legal practice which represented it

Catchwords:

ADMINISTRATIVE LAW - workers compensation - examination by approved medical specialist - request for re-examination by appeal panel refused - primary judge held that request not considered by appeal panel - appeal panel in fact considered request - adequacy of reasons of appeal panel - whether denial of procedural fairness by primary judge - whether any denial could be material in light of the right of appeal by way of rehearing - whether other judicially reviewable errors in appeal panel’s decision - consideration of differences in assessment regimes under workers compensation and motor accident legislation - appeal allowed and decision of appeal panel reinstated COSTS - whether reason to depart from rule that costs should follow event - inclusion by appellant of voluminous irrelevant pages in appeal materials - where error by primary judge could have been corrected without need for appeal

Catchwords:

ENVIRONMENT AND PLANNING – development consent – challenge to validity – whether environmental impact statement complied with Environmental Planning and Assessment Regulation cl 7(1)(c) – requirement to consider feasible alternative sites – requirement to consider feasible alternative designs ENVIRONMENT AND PLANNING – meaning of “feasible alternatives” – requirement for competitive design process – scope of alternative designs – Parramatta Local Environmental Plan, cl 7.10

Catchwords:

CIVIL PROCEDURE – subpoenas – to produce documents or things – application to set aside – legitimate forensic purpose – test for determining the validity of a subpoena issued in civil proceedings – whether sufficient that the documents sought by a subpoena have “apparent relevance” to an issue in the proceedings – whether necessary to satisfy the court that the documents are likely materially to assist the case of the party issuing the subpoena – consideration of bases for setting aside subpoenas CIVIL PROCEDURE – Subpoenas – Legitimate forensic purpose – origins of concept – converse of abuse of process – whether a party issuing a subpoena will lack a legitimate forensic purpose if unable to demonstrate that documents sought by subpoena likely to assist its case – legitimate forensic purpose may be presumed where documents sought have apparent relevance to matters in issue or are capable of assisting in cross examination COURTS AND JUDGES – precedential value of decisions of Court of Appeal refusing leave to appeal.

Catchwords:

WORKERS COMPENSATION – referral of medical dispute to approved medical officer – assessment of permanent impairment – whether approved medical officer is confined to an assessment of the body parts and systems specified by the Registrar in the referral form WORDS AND PHRASES – “medical dispute”

Catchwords:

COURTS – jurisdiction – criminal jurisdiction of Children’s Court – where young person sought to have charges heard by a female magistrate and to have males excluded from court for certain evidence and from viewing that evidence – powers of the Children’s Court to deal with criminal charges against a young person APPEALS – appeal from refusal by Children’s Court of application to have proceedings heard by a female magistrate – whether amenable to appeal to the Supreme Court under the Crimes (Appeal and Review) Act 2001 (NSW)

Catchwords:

ADMINISTRATIVE LAW – Particular administrative bodies – Health Care Complaints Commission – Health Care Complaints Act 1993 (NSW) – Registered health practitioner – Whether the Commission failed to consult the appropriate professional council under s 39(2) before making a prohibition order under s 41A – Where the complaint against the health practitioner concerned conduct outside the field of his registration – Whether failure to consult the appropriate professional council rendered the prohibition order invalid.

Catchwords:

APPEALS – procedure – stay pending appeal

Catchwords:

NEGLIGENCE – duty of care – formulation of risk – whether formulation too narrow – formulation focussed purely and precisely on the circumstances in which injury suffered – more generalised formulation would not have affected outcome NEGLIGENCE – breach – whether risk of harm “not insignificant” – common knowledge that lifting heavy weights from floor level can cause back injury – obvious that leaving weights littering floor of gymnasium would force others to put them away – whether reasonable person would have taken precaution of implementing system of inspecting weights area – constant supervision not required – no reason why staff could not be present during limited problematic period to enforce rules about putting weights away after use NEGLIGENCE – causation – whether factual causation established – gymnasium member injured when lifting heavy weight from floor level – not within member’s exercise regime – member clearing floor to allow her to exercise – injury due to failure of gymnasium to enforce its own rules

Catchwords:

REVENUE – stamp duties – declaration of trust – whether document styled “Declaration of Trust by Nominee” merely acknowledged position after grant of probate and resealing of grant – dutiable transaction - whether mere acknowledgement a dutiable transaction – significance of Duties Act 1997 (NSW) being tax on transactions, rather than tax on instruments PRECEDENT – precedential authority of dissenting judgment – precedential authority of statements applicable to earlier legislation – precedential authority of points assumed without argument TRUSTS – property held on trust for beneficiary – beneficiary’s will appointed his executor as sole beneficiary of his estate – effect on trust of grant of probate of will and resealing in NSW – estate not fully administered – nature of obligations owed by trustee to executor who was also sole beneficiary of deceased estate – construction of declaration of trust – whether document merely acknowledged existing state of affairs

Catchwords:

APPEALS – leave to appeal – costs assessment – where alleged that lawyers acting for party with benefit of costs order did so pro bono – whether costs assessment applicant liable to pay lawyers’ costs – no question of principle

Catchwords:

INSURANCE – professional indemnity insurance – claims made and notified policy – where insurers notified within policy period of “chance of a claim” by insured’s clients for any loss “that may be incurred” – whether notification of “facts that might give rise to a claim” engaging Insurance Contracts Act 1984 (Cth), s 40(3) – whether loss more than a potential possibility on notified facts INSURANCE – non-disclosure and misrepresentation – where dispute about extent of disclosure – whether non-disclosure entitling insurers to reduce liability to nil under Insurance Contracts Act 1984 (Cth), s 28(3) – whether evidence that insurers would not have issued policy but for non-disclosure directed to undisclosed matters distributively or taken together INSURANCE – non-disclosure and misrepresentation – where insurers seek to avoid policy for fraudulent misrepresentation under Insurance Contracts Act 1984 (Cth), s 28(2) –whether fraudulent misrepresentations specifically pleaded – whether misrepresentations concerning matters of fact or statements of opinion COSTS – where separate proceedings against same defendants heard together – where most issues of fact and law common or closely related – where plaintiffs and defendants represented by the same lawyers in each proceeding – whether plaintiffs should be jointly and severally liable for defendants’ costs

Catchwords:

ENVIRONMENT AND PLANNING – Court of Appeal – jurisdiction and powers – where appellants imported fill, engaged in earthworks, constructed hardstand areas and used land for storage without development consent – where appellants admitted breaches – where primary judge ordered cessation of use, removal of fill and restoration of premises – where primary judge suspended injunctive relief – whether House v The King error in granting injunctive relief established

Catchwords:

APPEAL – post-judgment application to vary order – proposed order not sought at hearing – whether slip rule engaged – power to vary entered order COSTS – appeal – post-judgment application to vary order – order as to costs of trial favourable to cross-appellant – order set aside – application to reinstate PROCEDURE – variation of entered order – slip rule – whether “accidental slip or omission” – mistake by party – Uniform Civil Procedure Rules 2005 (NSW), r 36.17 – application to vary despite entry – Uniform Civil Procedure Rules 2005 (NSW), r 36.16 – whether prejudice to opposing party – order consented to at trial

Catchwords:

CONTRACTS – construction – agreement resulting from mediation of dispute – heads of agreement – Masters v Cameron class 2 contract – proposed deed of release – parties to enter into deed to terminate earlier agreement – whether deed to include all terms of settlement CONTRACTS – construction – agreement to grant easement – whether ambiguity – whether specified width included kerb, gutter and footpath CONTRACTS – construction – implied terms – term to be necessary to give business efficacy – whether temporary easement for construction to be implied – whether expansion of easement to permit construction of roundabout to be implied

Catchwords:

DEFAMATION – Publication – Slander – Where appellant relied on contemporaneous email to prove publication of the words allegedly said – Whether slander proved in the terms pleaded – Whether appellant identified by the matters complained of – Whether imputations complained of by appellant conveyed to the ordinary reasonable listener DEFAMATION – Defences – Defence of qualified privilege at common law and under Defamation Act 2005 – Whether reasonableness required to be proved to establish defence at common law having regard to defence as pleaded – Whether reasonableness established – Defence of justification – Where ASIC sought to establish truth of imputation of market manipulation without attempting to establish the individual trading of any particular trader or pod of traders – Contention that the relevant company had engaged in the impugned conduct on “any one or more” of 23 “occasions” – Expert opinion evidence concerning proof of impugned conduct by the establishment of certain metrics observed in the company’s trading – Whether sufficient to establish truth defence

Catchwords:

ENVIRONMENT AND PLANNING — consent — power to grant – subdivision – provision fixing development standard – minimum size of lots created by subdivision – proposed subdivision non-compliant – whether development standard applied to proposed subdivision – provision that consent not be granted for subdivision of “resulting lot” – proposed subdivision of a resulting lot – whether provision applied to proposed subdivision

Catchwords:

CONTRACTS – construction – whether mistake in written agreement can be rectified by construction – inconsistency concerning right to terminate on face of document – primacy given to handwritten amendments COSTS – appeal books – unnecessary reproduction of thousands of pages already reproduced in appeal books – whether special order as to costs warranted DEEDS – delivery – whether deed restating terms of joint venture delivered to other side in escrow – whether terms of document precluded finding of delivery in escrow – whether deed even if not delivered effective as simple contract ELECTION AND WAIVER – where one party continued to perform work and incur expenses pursuant to joint venture after a contractual right of termination had accrued – absence of any reservation of rights – significance of “no waiver” clause EQUITY – ancillary liability – liability for procuring or inducing breach of trust or breach of fiduciary duty – whether requirement that third party be “dishonest” – whether separate bases of liability for procuring as opposed to inducing breach – whether director of company acting as such capable of procuring or inducing breach of trust by director's company EQUITY – rectification – whether contract should be rectified in equity if mistake incapable of being corrected by construction EQUITY – unconscionability – statutory unconscionability – joint venture to develop land for resale – offer made to one party to sell part of joint venture land at profit – offer communicated to other party with invitation to share profit – other party sought to persevere with joint venture – first party purported to terminate and sell land – finding that first party believed entitled to terminate – in fact first party not entitled to terminate – first party’s conduct not unconscionable contrary to s 21 of Australian Consumer Law

Catchwords:

APPEAL – injunction – application for injunction to preserve property the subject of the appeal – expedition granted – interim injunction granted – whether conditions should be imposed limiting the effect of the injunction – public interest underlying the litigation – merit of appeal – prejudice to respondent – appeal to be heard in seven days

Catchwords:

Application for stay of tribunal’s orders cancelling medical registration or for restorative interlocutory order — no question of principle

Catchwords:

TORTS – General principles – Damages – Where task of assessing evidence of major depressive disorder complicated by evidence of exaggeration or malingering – Whether plaintiff entitled to any damages

Catchwords:

CONTRACT – admitted breach of contract – causation of loss where alleged that, had proper due diligence been undertaken, an investment would not have been made – whether trial judge erred in holding that no damage was suffered by reason of breach of contract. INSURANCE – whether professional indemnity policy responded to a claim – whether insured party became aware of any circumstances that could give rise to a third party claim during the policy period.

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Further stay – Where little progress made since initial stay – Where pro bono referral unavailing – Where applicant did not have published reasons for judgment regarding previous stay – Where original document constituting fresh evidence with indicia of authenticity raising serious question of miscarriage of justice in decision below said to have been sent to Court – Stay extended – Where any further extension will require very prompt steps to progress proceedings CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Second referral – Special reasons – Where barrister on first referral did not have benefit of published reasons for judgment regarding previous stay – Referral made

Catchwords:

INSURANCE – claim by ex-police officer for total and permanent disability (“TPD”) payment – need to provide proof to satisfaction of insurer of TPD under policies – contractual obligations of insurer to assess claim in good faith and act fairly and reasonably – whether insurer breached contractual obligations – whether it was fair of insurer to rely on certain medical opinions as adverse to claimant – whether insurer took into account written submissions of claimant – cumulative effect demonstrated a lack of overall fairness COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise and Calderbank offers – assertion that appellant unreasonably failed to accept respondent’s Calderbank offer – whether primary judge erred in refusing to make a special costs order – primary judge did not err in the exercise of his costs discretion

Catchwords:

APPEALS – procedure – Court of Appeal – motion seeking review of a decision of the Court dismissing application to review decision of a single judge – where suggestion that not all of the evidence or submissions had been considered by the reviewing court – where evidence and submissions voluminous, unstructured and discursive – extent of obligation to consider and address. CIVIL PROCEDURE – Court of Appeal – application to review a decision of the Court – where application brought by way of a notice of motion – where suggestion that not all of the evidence or submissions had been considered by the reviewing court – where evidence and submissions voluminous, unstructured and discursive – extent of obligation to consider and address

Catchwords:

ESTOPPEL — estoppel by representation — detrimental reliance — whether terms of representation proved — whether claimant actually relied upon alleged representation SUCCESSION — family provision — claim by member of household for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — whether factors warranting —provision of household care to deceased — conscious misuse of special disadvantage of deceased — significance of reliance upon alleged agreement to leave real estate in will EQUITY — fiduciary duties — unauthorised profit — bank cards and personal identification number entrusted for certain purposes — retention of excess cash for fiduciary’s personal use EQUITY — unconscionable conduct — special disability or disadvantage — whether unconscientious advantage taken

Catchwords:

SUCCESSION – appropriate substitute for specific devise – property subject of specific devise sold by administrator to pay debt – need to put specific devisees in materially the same position that they would have been in if the sale had not occurred – how rights of beneficiaries should be adjusted –whether substitution of specific property from residuary real estate appropriate – need for equivalence in value VALUATION – courts and tribunals – appeals – whether judge erred in discounting value of property for contingencies – acceptance of expert evidence required evaluative conclusions to be made – standard of appellate review analogous to that described in House v The King SUCCESSION – trusts and trustees – judicial advice, Trustee Act 1925 (NSW), s 63 – whether judicial advice given – parties concurred in primary judge himself determining the issue of what adjustment of the rights of the beneficiaries should be made – broad powers of the Court under UCPR r 54.3

Catchwords:

COSTS – where successful appellant succeeds on appeal on a point different to that made orally at first instance – where departure from argument made orally (but not in writing) at first instance justifies a partial departure from usual rule that costs follow the event – question of discretion in all the circumstances of the case.

Catchwords:

PRACTICE AND PROCEDURE – joinder – appeal against refusal of application to modify development consent – parties agree on terms of a decision to dispose of appeal – intervenor raising jurisdictional issue that court has no power to so dispose of the appeal – source of power to join intervenor – whether s 8.15(2) Environmental Planning and Assessment Act available power for joinder – section 8.15(2) not an available power of joinder for this appeal - whether r 6.24 Uniform Civil Procedure Rules alternative source of power for joinder – whether joinder as a party necessary to determine all matters in dispute - whether power to amend modification application – whether error in exercise of discretion to join intervenor – whether joinder legally unreasonable

Catchwords:

NEGLIGENCE – breach of duty – motor vehicle accident – failure to keep a proper lookout and slow vehicle NEGLIGENCE – causation – factual causation – motor vehicle accident – whether expert opinion was necessary to establish causation – whether evidence of time and distance was too imprecise to support a finding of causation EVIDENCE – witness evidence – cross-examination – procedural fairness – Browne v Dunn – substance of the case allegedly not put to respondent in cross-examination – whether prior notice had nevertheless been given to respondent of cross-examining party’s case

Catchwords:

ANIMALS - Cruelty to animals – consideration of the element of “intention of inflicting severe pain” in s 530(1) of Crimes Act 1900 (NSW) - defences to offence of serious cruelty to animals under s 530(2) of the Crimes Act 1900 (NSW) – meaning of “pest animals” – meaning of “in the course of or for the purposes of extermination of pest animals” – whether animal killed was a “pest animal” within the meaning of s 530(2) of the Crimes Act – whether killing of animal was “in the course of or for the purposes of extermination of pest animals” – statutory context – context includes other legislation addressing cruelty to animals CRIMINAL LAW – cruelty to animals – offence of serious cruelty to animals – elements of offence - consideration of the element of “intention of inflicting severe pain” in s 530(1) of Crimes Act - statutory defence – whether animal killed was a “pest animal” within the meaning of s 530(2) of the Crimes Act – whether killing of animal was “in the course of or for the purposes of extermination of pest animals” STATUTORY INTERPRETATION – where provision in question one of a number of provisions in various statutes concerned with prevention of cruelty to animals – other statutes forming part of the statutory context – consideration of the use of dictionaries in statutory interpretation WORDS AND PHRASES – “pest animal” – “extermination” – “in the course of or for the purposes of extermination of pest animals”

Catchwords:

APPEALS – procedure – stay pending appeal

Catchwords:

CIVIL PROCEDURE – Court of Appeal – leave to appeal – notice to produce – no issue of principle

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Stay of orders for payment out of funds in Court – Where funds represent purchase money of real property – Whether judgment creditor entitled to payment out orders – Where outstanding claim to funds by second applicant – Where such claim not without merits – Stay granted – Stay conditional upon formal undertakings as to damages by applicants CIVIL PROCEDURE – Court of Appeal – Stay of costs orders – Where application out of time – Where no sufficient prospects of success demonstrated – Stay refused

Catchwords:

APPEALS — Leave to appeal — Application arising from decision of the Appeal Panel of the NSW Civil and Administrative Tribunal — Appeal confined to a question of law — No question of law identified such as to warrant a grant of leave

Catchwords:

UNCONSCIONABLE CONDUCT — Where appellant excluded from negotiations after admission to hospital — Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA, 12CB — Whether respondents took unconscientious advantage of the appellant’s disabling condition — Australian Securities and Investments Commission Act 2001 (Cth), s 12GM(7) — Whether appellant suffered any compensable loss

Catchwords:

SUCCESSION – family provision – claim by alleged long-term partner of deceased – whether alleged partner an “eligible person” – whether de facto relationship, close personal relationship or dependent household member relationship – Succession Act ss 57(1)(b), (e), and (f) – requirement of “living” together and need for some common residence APPEALS – from findings of fact – findings likely affected by impressions about credibility and reliability of witnesses – whether findings “glaringly improbable” – Fox v Percy test

Catchwords:

SUCCESSION – construction of will – gift of two shares to three children as tenants in common – will stated that if shares not divisible by three, daughter would receive more – whether daughter entitled to both shares under will – consideration of joint ownership of choses in action

Catchwords:

ADMINISTRATIVE LAW – judicial review – certificate under s 11 of Farm Debt Mediation Act 1994 (NSW) – whether judicial review available CONTRACT – construction and interpretation of trust deed – express and implied terms – whether trust deed had an express power of unilateral retirement – whether trust deed had a lacuna to be filled by implying a power of unilateral retirement MORTGAGES AND SECURITIES – debt owed under financial facilities – when liability for debt incurred – whether liability for debt only arises once debt becomes payable MORTGAGES AND SECURITIES – proceedings for recovery of a debt secured by a mortgage – Farm Debt Mediation Act 1994 (NSW) – whether mortgagor was the only relevant “farmer” – whether a “satisfactory mediation” was undertaken for the purpose of s 11 MORTGAGES AND SECURITIES – proceedings for recovery of a debt secured by a mortgage – Farm Debt Mediation Act 1994 (NSW) – what constitutes “enforcement action” under s 10 – whether bank enforcing debt owed under financial facilities constituted “enforcement action”

Catchwords:

APPEAL – security for costs – Uniform Civil Procedure Rules 2005 (NSW) r 51.50 – “special circumstances” not established

Catchwords:

CIVIL PROCEDURE — proceedings in Equity Division dismissed by first judge — application to second judge to set aside dismissal — application refused as in substance simply an attempt to reargue first decision — leave to appeal against second decision refused

Catchwords:

NEGLIGENCE — medical negligence — breach of duty — whether failure to advise the appellant that it was essential and urgent to organise orthopaedic review of injured shoulder constituted breach NEGLIGENCE — medical negligence — peer professional opinion – Civil Liability Act 2002 (NSW) s 5O – whether the respondents acted in a manner that was widely accepted by peer professional opinion as competent professional practice NEGLIGENCE — medical negligence — causation — factual causation — whether it was more probable than not that the appellant would have had a better outcome but for the negligence – whether the appellant would have consulted an orthopaedic surgeon – whether the appellant would have undergone surgery prior to her shoulder injury becoming inoperable

Catchwords:

CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Loss — Causation and remoteness CONTRACTS — Misleading conduct under statute — Remedies — Measure of damages — Where loss of opportunity

Catchwords:

LAND LAW – Adverse possession – Actual possession – Old system title – Conversion to Torrens title – Limited title – Indefeasibility of title – Exceptions to indefeasibility – Where successful claim at trial in respect of adverse possession of small portion of a ‘dunny lane’ commencing before creation of limited folio – Whether statutory possessory application over Torrens title land able to be made – Alternatively, whether adverse possession claims preserved at common law by reason of possession for any length of time commencing prior to creation of folio – Whether wrong description of parcel or boundaries in circumstances where adverse possessory claim inchoate but not crystallised at time of conversion – Appeal dismissed LIMITATION OF ACTIONS – Actions to recover land – Adverse possession – Interaction of Limitation Act 1969 (NSW), ss 27 and 65, with Real Property Act 1900 (NSW), s 45C STATUTORY INTERPRETATION – Interpretation of Real Property Act 1900 (NSW) – Extrinsic materials – Explanatory memoranda and notes – Legislative history – Registrar-General’s guidelines – Second reading speeches MORTGAGES AND SECURITIES – Mortgages – Duties, rights and remedies of mortgagee – Right to notice of proceedings in which orders might be made affecting mortgagee’s interest – Where no notice given and no application by mortgagee to set aside orders below – Where application may not succeed – Where if successful, ultimate result unlikely to be different – Where impact on value of mortgagee’s security likely de minimis – Absence of notice not decisive of appeal APPEALS – Leave to appeal – Whether leave required – Monetary threshold – Whether threshold denotes value of whole parcel of land or disputed portion only – Where questions of principle and public importance as to Torrens system also raised – Leave granted

Catchwords:

CONTRACTS – construction – interpretation – joint venture agreement – third party – successor clause – “successor to a party” – whether the expression is wide enough to include nominee – where there was no contemplation work would be carried out by another – where there are no clear words to construe nomination as conferring rights and obligations – where third party acquired its rights as nominee under separate contract CONTRACTS – construction – interpretation – reflective loss principle – exception – where company has no cause of action – where there is no prospect of double recovery CONTRACTS – construction – interpretation – indemnities – “in respect of” – “loss” – whether indemnities extend to loss of diminution in value of shares in nominee as a result of nominee incurring costs for rectification

Catchwords:

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)