Recent decisions for Court of Appeal

Catchwords:

CIVIL PROCEDURE – appeal – interlocutory injunction – extension of order granted pending hearing of appeal – owner of property in default under loan agreement – receiver and manager appointed by lenders – proceeds of sales of secured property and rental income held by receiver and manager – application by owner to prohibit payment to lenders pending outcome of challenge to loan agreement

Catchwords:

APPEALS – Procedural fairness – Bias or apprehension of bias – Where primary judge intervened during the examination of witnesses and made comments in relation to the State’s submissions – Where no issue of apprehended bias was raised or application for disqualification made at trial TORTS – Trespass to the person – Battery – Whether stopping and detaining of the Respondent was an unlawful exercise of power pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether Respondent was “stopped” – Where small period of time between initial “stopping” and time at which the Respondent was told she would be searched – Where Respondent was not physically constrained and had a limited ability to walk around – Whether police had a suspicion on reasonable grounds that any of the circumstances in s 21 existed – Where primary judge made adverse credit findings in relation to police officer’s evidence as to the matters that informed his suspicion TORTS – Trespass to the person – False imprisonment – Wrongful arrest – Whether Respondent’s arrest was an unlawful exercise of power pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether police officer suspected on reasonable grounds that the Respondent had committed an offence – Where a person other than the Respondent was carrying a bag which contained a knife – Where primary judge made adverse credit findings in relation to police officer’s evidence as to his belief that the Respondent was carrying the bag TORTS – Trespass to the person – False imprisonment – Whether s 43A of the Civil Liability Act 2002 (NSW) applied to exclude any liability arising from the conduct of the Appellant – Whether s 3B(1)(a) applied to exclude the operation of s 43A – Whether there was an intentional act done with intent to cause injury or death – Whether deprivation of liberty falls within the definition of “injury” TORTS – Malicious prosecution – Whether charges were brought against the Respondent without reasonable and probable cause and with malice – Where police officer made repeated references to his previous interactions with the Respondent and omitted exculpatory material from the Facts Sheet including that the Respondent was not holding the handbag in which a knife and various items of new male clothing were found TORTS – Malicious prosecution – Damages – Whether award of damages included compensation for custody that was not a natural and probable consequence of the prosecution – Whether causal connection between the charges laid against the Respondent and the Respondent’s detention severed by the refusal of the Respondent’s bail application or by the revocation of her parole TORTS – Damages – Whether award of exemplary damages excessive – Whether primary judge took into account damages and aggravated damages awarded under each head of damage

Catchwords:

ADMINISTRATIVE LAW — judicial review of “serious corrupt conduct” findings made by Independent Commission Against Corruption against former Premier — where Commission’s report adopted findings of credibility made by person who presided at public inquiries — where the appointment of the person who presided at public inquiries as an Assistant Commissioner expired after conclusion of those public inquiries and that person appointed as a consultant and accordingly officer of Commission prior to report being finalised — whether assistance of presiding officer as consultant in preparation of report outside limits of her authority — whether Commission could adopt credibility assessments made by presiding officer after her appointment as Assistant Commissioner had expired ADMINISTRATIVE LAW — judicial review of “serious corrupt conduct” findings made by Independent Commission Against Corruption against former Premier — whether “no evidence” to support finding applicant influenced by her private interest in maintaining close personal relationship — whether non-pecuniary personal relationship capable of being “private interest” giving rise to conflict of interest and public duty — whether applicant as parliamentarian and Minister of the Crown had legally enforceable positive duty to act only according to what she believed to be in public interest — whether Commission made findings about merits of funding proposals — whether s 7 of NSW Ministerial Code and cll 10-12 of Schedule to code applies to Premier — whether applicant’s conduct in relation to funding decisions constrained by duty to act impartially — whether finding of partial conduct requires finding that but for unacceptable reason conduct would not have occurred — whether finding of partial conduct requires comparative exercise — whether Commission reached illogical or irrational result by making “serious corrupt conduct” finding but also refusing to recommend advice be sought as to whether to prosecute applicant — whether “dishonest” in s 8(1)(b) of Independent Commission Against Corruption Act 1988 (NSW) requires person to realise his or her conduct dishonest according to standards of ordinary people

Catchwords:

JUDGMENTS AND ORDERS – Amending, varying and setting aside – Court of Appeal – whether judgment should be set aside under Uniform Civil Procedure Rules 2005 (NSW), r 36.16 COSTS – Application to vary costs order – whether parties should be permitted to make further submissions on costs

Catchwords:

CONTRACTS – Rectification by construction – whether primary judge erred in failing to find that properly construed, cl 5.1 of Business Sale Agreement provided for an earn-out calculation based on “average annual” earnings before interest and tax EQUITY – Rectification in equity – onus and standard of proof – whether respondents had shown by clear and convincing evidence that cl 5.1 of Business Sale Agreement did not correctly record the common intention of the parties – whether primary judge erred in ordering rectification of cl 5.1 EVIDENCE – Jones v Dunkel inference – whether primary judge erred in failing to draw Jones v Dunkel inferences in respect of respondents’ failure to call several witnesses involved in the transaction culminating in the Business Sale Agreement – whether primary judge erred in drawing Jones v Dunkel inference against the appellants for failing to call its solicitor to give evidence

Catchwords:

CONTRACTS – Formation – acceptance of offer – whether there was sufficient communication of acceptance – where the respondent Council had passed a resolution accepting the appellant’s offer during a Council meeting which was open to the public and livestreamed on its website and published a copy of the unsigned minutes of the meeting (which recorded that such resolution was passed) on its website the following day – where a rescission motion was lodged in respect of that resolution shortly after the meeting ended and the Council took no steps to notify the appellant that such resolution had been passed or to otherwise directly communicate its acceptance of the offer to the appellant – whether the legislative and regulatory framework affecting the Council’s operations were matters of context relevant to the objective assessment of whether there was effective communication of acceptance LAND LAW – Conveyancing – Requirements of Writing – whether the signed minutes of the Council meeting comprised a “memorandum or note” of a contract for sale for the purposes of s 54A of the Conveyancing Act 1919 (NSW) – whether the mayor and general manager who signed the minutes were lawfully authorised signatories pursuant to s 54A LOCAL GOVERNMENT – whether land acquired by resumption under s 532 of the Local Government Act 1919 (NSW) was “land subject to a trust for a public purpose” and therefore should be classified as “community land” for the purposes of cl 6(2)(b) of Sch 7 of the Local Government Act 1993 (NSW)

Catchwords:

BANKING AND FINANCE – standby letter of credit issued by Chinese bank to secure lender’s/builder’s obligations under construction contract – receivers appointed to beneficiary – receivers made demand on standby letter of credit on behalf of beneficiary – payment by issuing bank stopped by order of Chinese court – whether breach of contract by beneficiary with lender/builder rendered demand invalid – obligations of issuing bank independent of contract between lender/builder and beneficiary – standby letter of credit subject to Rules on International Standby Practices ISP 98 – whether appointment of receivers engaged rule concerning transfer by operation of law – whether interlocutory order made by Chinese court preventing payment a bar to entry of judgment – whether parallel proceedings in Australia and China an abuse of process

Catchwords:

APPEAL – whether argument sought to be run on appeal was outside the pleadings – whether the trial had been in part run outside of the pleadings such that the argument was available to be run on appeal CONTRACTS – breach of contract – damages – whether Appellant proved that it had or would suffer losses as a result of the breach – where some past costs of rectifying the breach were paid by family companies on the Appellant’s behalf – restitution – whether Appellant was legally obliged to reimburse the family companies for the costs paid such that it could be said to have incurred losses – where other past costs of rectifying the breach were paid by a real estate agent from a trust account in the Appellant’s name EVIDENCE – proof of loss – where no evidence led from principals of family companies – where documentary evidence of alleged understanding between family companies as to reimbursement for various payments lacking – whether a promise to repay could be implied – evidentiary inferences available RESTITUTION – third party payment of another party’s debts – whether implied request to pay – whether implied promise to reimburse – evidence and drawing of inferences

Catchwords:

ASSOCIATIONS AND CLUBS — meetings — validity — where members of association were issued debentures — whether certain debenture holders are no longer members on the basis of unpaid fee — whether debenture holders who are no longer members are able to vote at a general meeting

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Crown and ministerial employees – Termination of a senior executive for alleged misconduct in failing to comply with directions ADMINISTRATIVE LAW – Unreasonableness – Obvious inquiry into critical fact – Fact in question not critical – No obvious inquiry – Claim that directions to employee unlawful for non-compliance with industrial award and for contravention of Anti-Discrimination Act 1977 (NSW) – No unlawfulness established – Delegation of power – Materiality where decision-maker not authorised to make decision – Relevance of materiality to discretionary grant of relief ADMINISTRATIVE LAW – Hearing rule – Notice – Adverse information credible, relevant and significant to decision – Substance of information already put – No requirement for running commentary upon decision-maker’s opinion about evidence – Remaking of first decision – Whether notice needed to be given of second decision – Notice was required of second decision

Catchwords:

NEGLIGENCE – workplace injury – occupier’s liability – plaintiff suffered jolt when descending elevator stopped without warning during planned power interruption – power testing conducted by other employees at the workplace – no steps taken to ensure lifts were not being used – no warnings given – litigation conducted on basis that plaintiff’s employer was not sued – plaintiff sued two related companies which owned the land and operated the business – whether related companies liable in negligence as occupiers – whether evidence capable of sustaining findings of breach attributable to related companies, as opposed to attributable to plaintiff's employer – appeal allowed and judgments entered in favour of defendants

Catchwords:

NEGLIGENCE – Personal injury – Causation – Physical and psychological injuries – Multiple possible causes of injury – Appellate intervention in the provisional assessment of damages COSTS – Indemnity costs – Offers of compromise Rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) – Discretion to “order otherwise”

Catchwords:

APPEALS – competency of appeal – where dismissal of contempt proceedings – whether proceedings for civil or criminal contempt – where criminal contempt not established – where finding of civil contempt but proceedings dismissed – whether appeal incompetent – characterisation of contempt proceedings – whether remedial or coercive, not punitive – time at which character of proceedings assessed CONTEMPT – breach of undertakings given to Court – whether civil or criminal contempt – whether error in characterising proceedings as criminal only – where statements of charge particularised breaches of undertakings as contumacious – whether allegation of contumacy determinative – where double aspect of contempt proceedings – whether procedurally unfair to find civil contempt

Catchwords:

MEDIA AND COMMUNICATIONS — Publication — Court Suppression and Non-publication Orders Act 2010 (NSW) – Informal application that appellant’s name appearing in a published judgment be replaced by pseudonym – Unwarranted assumption that Personal Injury Commission’s acceptance of pseudonym would be adopted – PTSD and major depressive order alone not sufficient to justify order – Criteria require more than that an order be “convenient, reasonable or sensible, or to serve some notion of the public interest” – No evidence of significant risk of harm

Catchwords:

APPEALS – leave to appeal – interlocutory judgment – application to appoint administrator pendente lite –executor granted probate in common form – application to prevent executor recovering costs from estate – application to recoup costs already paid – whether executor protecting personal interests – whether executor obliged to seek judicial advice - principles governing leave to appeal from interlocutory procedural orders – applicant was not joined by parties with prior interests

Catchwords:

BUILDING AND CONSTRUCTION – payment claim – validity – claim for payment due under construction contract – whether claim must be “for construction work” – purpose of claim to recover an amount obtained by respondents through recourse to bank guarantees provided by claimant – defence asserted in payment schedule – whether issue to be determined by adjudicator or Court

Catchwords:

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Orders for costs of appeal and underlying proceedings — Where notice of motion not filed within 14 days of judgment being entered but notice given to Court and parties of that application — Whether Court can dispense with requirement to file and serve notice of motion — No basis to vary costs order

Catchwords:

PROFESSIONS AND TRADES – health practitioners – registration as specialist – practitioner formerly practised as specialist anaesthetist – practitioner deregistered following misconduct – practitioner subsequently registered as a medical practitioner – practitioner applied for specialist registration as an anaesthetist – Medical Board of Australia refused application – NCAT dismissed appeal – NCAT found applicant not a fit and proper person, and unable to practise as specialist anaesthetist competently and safely – whether material error of law in NCAT's decision – consideration of Health Practitioner Regulation National Law – consideration of Medical Board of Australia and NSW Board of Medical Board of Australia

Catchwords:

ENVIRONMENT AND PLANNING – Development consent for the adaptive reuse of existing commercial building – judicial review – building exceeds height standard – whether consent authority satisfied of cl 4.6 of Willoughby Local Environment Plan 2012 before granting development consent – whether consent authority satisfied building had active street frontage – whether development for permissible use of shop top housing – whether consent authority failed to consider if land is contaminated LIMITATION OF ACTIONS – Whether proceedings time-barred – time limit of three months after public notice in accordance with regulations published – earlier notifications not notices in accordance with regulations

Catchwords:

JUDGMENTS – significance of plaintiff who settles with one defendant and characterises payment as going to costs – meaning and scope of rule against double recovery – significance of plaintiff settling with and releasing a defendant after judgment has been entered – nature of defendants’ liability after entry of judgment COSTS – gross sum costs order – costs of long and complex trial and appeal – whether materials sufficient to permit making of gross sum costs order – whether costs associated with after-the-event insurance were disbursements or expenses – significance of costs being necessary, reasonable, and brought about by application for security for costs by ultimately unsuccessful respondents – whether and how costs should be discounted for various matters

Catchwords:

CONTRACTS – Construction – Context – where the parties entered into four separate oral contracts – whether the contracts provided for the transfer of ownership of four cars – where transaction documents indicated that a security interest in the vehicles was required – whether trial judge’s construction of contract was uncommercial CORPORATIONS – Contracts – financial statements – s 1305(1) Corporations Act 2001 (Cth) – whether information within financial statements held significant probative value in determining the terms of a contract – where signatory to financial statements not a party to proceedings

Catchwords:

NEGLIGENCE — professional negligence — advice about settlement and cost consequences — breach — causation

Catchwords:

CONTEMPT – Civil contempt – Breach of orders – Non-production – whether charges drafted with sufficient particularity to provide the Appellants with a fair hearing – whether findings of civil contempt proven beyond a reasonable doubt – whether documents existed or were in the custody, power or possession of the Appellants – whether primary judge erred in making findings that did not reflect the Statement of Charge – power of the Court to make any order which ought to have been made pursuant to s 75A(10) of the Supreme Court Act 1970 (NSW)

Catchwords:

APPEALS – Further evidence – whether the appellants should be granted leave to rely upon further evidence on the appeal VALUATION – Compulsory acquisition – market value – where freehold interest in land acquired by the respondent for Coffs Harbour Bypass Project – where appellants objected to compensation awarded by primary judge – whether primary judge erred in applying s 56 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) in determining market value of the acquired property EVIDENCE – Witness evidence – adversarial bias – whether the evidence of the respondent’s hydrology and valuation expert witnesses should have been inadmissible due to adversarial bias APPEALS – Procedural fairness – whether appellants denied procedural fairness by conduct of their case by counsel below – whether appellants denied procedural fairness by conduct of the Valuer Conclave – whether appellants denied procedural fairness by apprehended bias of the primary judge EVIDENCE – Witness evidence – valuation experts – supervision of the expert valuation conclave VALUATION – Valuer – comparable sales – where expert valuers disagreed as to location adjustment for Corindi Property – whether primary judge erred in accepting the respondent’s expert valuer’s location adjustment VALUATION – Valuer – comparable sales – where comparable sale of Shepherds Lane Property relied on by appellants’ expert valuer – whether primary judge erred in disallowing Shepherds Lane Property as a comparable sale on the basis it was a compulsory acquisition VALUATION – Compulsory acquisition – disturbance – where primary judge awarded compensation under s 59(1)(f) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) for stamp duty on a replacement property which was not for “relocation” – whether primary judge’s award for disturbance erroneous as a matter of legal principle in light of the Court of Appeal’s findings in Sydney Metro v G&J Drivas Pty Ltd [2024] NSWCA 5

Catchwords:

NEGLIGENCE — breach — foreseeability of risk — whether height differential between surfaces in a playground gave rise to a reasonably foreseeable risk of harm — whether height differential was readily discernible — where the Australian playground maintenance standards applied — where council was independently advised to take steps to mitigate risk — where council did not take reasonable precautions advised NEGLIGENCE — breach — obvious risk — whether height differential between different surfaces in a playground was obvious — assessment to be made in all the circumstances — where it was foreseeable that playground users would be distracted by children NEGLIGENCE — causation — factual causation — whether council’s failure to top up mulch in playground to even out the surfaces caused the respondent’s injury NEGLIGENCE — duty of care — formulation of risk — whether primary judge erred in identifying the risk of harm as the risk of falling and sustaining injury when walking between two surfaces in a playground — whether the risk of harm could be reformulated on appeal — necessary specificity of formulation of risk of harm APPEALS — point not taken below — where matters raised on appeal were not raised before the primary judge — where council’s case on appeal differed substantially from the way in which it was conducted at first instance — extent to which parties are bound by the way in which their case was conducted at first instance

Catchwords:

APPEALS – Leave to appeal – where applicant brought concurrent appeal and judicial review proceedings in relation to decisions of NSW Civil and Administrative Tribunal – where judicial review proceedings stayed – whether exercise of discretion to refuse to conduct judicial review pursuant to s 34(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) miscarried – whether primary judge misapplied principle in Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 – insufficient prospects to warrant grant of leave to appeal

Catchwords:

REAL PROPERTY – caravan park with entitlement to exclusive long-term sites through share in company which owned the land – at first instance, claim by purchasers of shares to equitable interest in sites – no challenge to finding that no equitable interest in the sites was acquired – challenge to rejection of allegation that alleged representations made that the purchasers were buying sites as land, as well as shares – claim for specific performance – company placed into liquidation caravan park sold to company – indefeasibility of title CORPORATIONS – oppression – company placed into voluntary administration and caravan park land sold to company owned by same directors – where primary judge found that certain other conduct of affairs of company was oppressive – whether primary judge failed to find sale of caravan park itself amounted to oppressive conduct – whether relief ordered was sufficient to remedy oppressive conduct CONSUMER PROTECTION – misleading or deceptive conduct – where appellants did not challenge primary judge’s finding that there had been no reliance on the representations said to constitute misleading and deceptive conduct – whether primary judge erred in failing to find misleading or deceptive conduct by the making of representations as to sale of sites as land – whether misleading or deceptive conduct in relation to assurances that caravan park could not be sold without shareholder approval and/or as to whether cabins were fixtures – whether adequate reasons CONSUMER PROTECTION – unconscionable conduct – where alleged unconscionable conduct was constituted by a “course of conduct” of disparate acts – alleged failure of primary judge properly to address the pleaded claim – adequacy of reasons CONSUMER PROTECTION – harassment or coercion – whether correspondence following sale of caravan park amounted to harassing or coercive conduct – where primary judge had found that no damage had resulted from the alleged misconduct

Catchwords:

ADMINISTRATIVE LAW — Procedural fairness — Whether the adjudicator afforded parties procedural fairness under the Building and Construction Industry Security of Payment Act 1999 (NSW) — Where necessary provision of procedural fairness attenuated in the context of the statute — Need for a substantial departure from the general requirements of procedural fairness ADMINISTRATIVE LAW — Procedural fairness — Where conversion factor from weight to volume that was applied was not explained in terms by claimant — Where conversion factor was readily calculable — Where party is aware that some conversion factor was applied — Whether reliance made on contractual document which had not been foreshadowed was a denial of procedural fairness — Whether reliance on industry standards not provided by either party was a denial of procedural fairness — No substantial denial of procedural fairness constituting jurisdictional error

Catchwords:

APPEALS — Procedure — Adjournment — application for adjournment — no issue of principle.

Catchwords:

AVIATION LAW – international carriage of passengers by air – Montreal Convention 1999 – limits of liability for bodily injury – whether carrier’s tariff waived partial defence under Art 21(2) for liability above 113,100 SDRs – whether unlimited strict liability for bodily injury

Catchwords:

APPEAL AND REVIEW – leave to appeal – proposed appeal from judgment dismissing judicial review proceedings – review of order by State Parole Authority revoking parole –– whether Authority satisfied of breach of parole condition – application of Crimes (Administration of Sentences) Act 1999 (NSW), s 170(1)(a) – whether order legally unreasonable

Catchwords:

STATUTORY INTERPRETATION – proper construction of s 114(3)(d) of the Law Enforcement Conduct Commission Act 2016 (NSW) – whether Commissioner of Police can object to production of documents to the Law Enforcement Conduct Commission relating to a critical incident investigation on grounds of public interest immunity – whether public interest immunity abrogated by necessary intendment

Catchwords:

ENVIRONMENT AND PLANNING – offences – unlawful disposal of asbestos waste – summons wrongly stating date of commission of offence – stated date preceded date on which offence commenced – summons dismissed as not disclosing offence known to law – appeal – misconstruction and misapplication of applicable statutes APPEAL – dismissal of summons as not disclosing offence known to law – summons wrongly stated date of commission of offence – stated date preceded date on which offence commenced – misconstruction and misapplication of Criminal Procedure Act 1986 (NSW) – decision not to allow amendment of summons to correct date – misunderstanding of applicable power to amend - misunderstanding of prosecutor’s argument as to how offence committed

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – misappropriation of large sum from solicitors’ trust account – conduct extending over six years – failure to make full and frank disclosure when conduct exposed – practitioner convicted of fraud offences –sentenced of imprisonment served – whether fit and proper person to be on the Roll of Australian Lawyers

Catchwords:

APPEALS – leave to appeal – where none of proposed grounds identifies arguable error and no issue of principle or question of public importance – leave refused APPEALS – practice and procedure – appeal dismissed by judge of appeal as “incompetent” – application for review under Supreme Court Act 1970 (NSW), s 46(4) – where applicant had sought to file summons seeking leave to appeal but did not make judge aware of that fact – order dismissing appeal not “plainly wrong” on facts as disclosed – no utility in setting aside order where no material difference between notice of appeal dismissed as “incompetent” and proposed appeal for which leave refused

Catchwords:

APPEALS – leave to appeal – orders under s 8 of the Vexatious Proceedings Act 2008 (NSW) – whether leave required – orders interlocutory – leave required under Supreme Court Act 1970 (NSW), s 101(2)(e) APPEALS – leave to appeal – whether appeal involves issue of principle, question of public importance or reasonably clear injustice – no issue of principle or question of public importance raised – no arguable errors

Catchwords:

APPEALS – judicial review – application for judicial review of a decision dismissing an appeal against a decision of a costs review panel on an application for review of a decision of a costs assessor assessing solicitor/client costs – whether District Court committed jurisdictional error or error of law on the face of the record by endorsing decision of costs assessor and review panel

Catchwords:

APPEALS – Leave to appeal – application for jury trial of motions seeking summary relief – allegation of actual bias – whether jury trial can be ordered for interlocutory matter involving no factual questions – no issue of principle

Catchwords:

CRIME — Apprehended violence orders — Variation or revocation — Where application to revoke AVO filed prior to expiry of order but heard in Local Court after order had expired — Whether Local Court had jurisdiction to vary or revoke AVO once order had expired STATUTORY INTERPRETATION — Meaning of word “revoke” — Application to revoke final AVO made under Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 73 CIVIL PROCEDURE — Jurisdiction — Judicial review — Where applicant has no right of appeal from District Court decision — Application to invoke Court of Appeal’s supervisory jurisdiction — Whether jurisdictional error established — Whether District Court misconstrued the relevant statute thereby misconceiving the extent of its powers on appeal in a criminal matter APPEALS — Procedural fairness — Whether District Court failed to consider revocation application — Whether District Court prevented applicant from tendering evidence — Whether “legitimate expectations” doctrine applies

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:

ADMINISTRATIVE LAW – jurisdictional error – application to re-open proceedings pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 – where District Court dismissed application – whether jurisdictional error – whether penalty contrary to law SENTENCING – relevant factors on sentence – form 1 offences – jurisdictional error – Crimes (Sentencing Procedure) Act 1999 (NSW), s 35A(2) – whether failure to comply with s 35A(2) invalidates sentence – no jurisdictional error ADMINISTRATIVE LAW – ground of review other than procedural fairness – procedural error – right to reasons – inadequacy of reasons – whether inadequacy of reasons on part of non-superior court amounts to jurisdictional error – nature of judicial duty to give reasons – reasons adequately conveyed essential ground for decision ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – materiality – no practical injustice – no materiality

Catchwords:

CONTRACTS — express terms — incorporation of terms — whether purchaser’s standard terms and conditions incorporated by reference into contract CONSUMER LAW — sale of goods — respiratory ventilators — whether purchaser made known particular purpose for which ventilators were required — whether there was an implied condition as to fitness for purpose — whether ventilators were suitable for use in any clinical setting CONSUMER LAW — misleading or deceptive conduct — whether vendor made misleading or deceptive representations — whether vendor provided purchaser user manual as an intermediary or principal

Catchwords:

TORTS – negligence – duty of care – statutory extension – breach of duty by nominated supervisor of works – nominated supervisor directed construction otherwise than in accordance with the approved plans – failure by builder to carry out works in a proper and workman-like manner NEGLIGENCE – assessment of damages – Hungerfords interest – whether the negligence of the nominated supervisor of building works caused the respondents to incur interest on their borrowings – where the delay in completion of the works resulted from multiple conjunctive causal factors

Catchwords:

CONTRACTS — Settlement agreement — Poor drafting — Formation — Distinction between formation and construction — Identity of parties a question of formation — Intention to form legal relations — Reference to surrounding circumstances — Parties intended to make an agreement CONTRACTS — Identity of parties — Whether directors signed in their personal capacity — Relevance of counterparts clause — Parties intended to be bound including as individuals DEEDS — Improperly executed — Relationship between deeds and contracts — Presence of agreement within improperly executed deed — Parties intended to make an agreement

Catchwords:

APPEALS – interlocutory injunction pending appeal – where properties owned by cross-appellant subject to security interest in favour of third and fourth respondents to cross-appeal as lenders – whether receiver and manager appointed by lenders should be restrained from dealing with rental income and sale proceeds of properties pending appeal – no question of principle – injunction granted until conclusion of hearing of appeal

Catchwords:

SUCCESSION - family provision - claim by grandchildren - whether primary judge erred in finding dependency - whether primary judge erred in finding factors warranting orders for family provision - whether failure in fact finding process in not addressing key documents or central submissions - whether retrial necessary

Catchwords:

WORKERS COMPENSATION – Disease injury – Disease contracted by a gradual process – Deemed date of injury – where original claim for compensation sought both weekly payments under s 33 and medical treatment expenses under s 60 of the Workers Compensation Act 1987 (NSW) (1987 Act) – where claim for weekly payments was subsequently withdrawn – whether the operation of s 15(1)(a)(i) and (ii) of the 1987 Act to deem the date of injury depends on whether there is an incapacity for work and a consequential entitlement to claim compensation for economic loss which has resulted from the injury in circumstances where the claim for compensation does not depend upon demonstrating incapacity – whether the limitation period in s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is inapplicable in the particular circumstances of this case because the appellant abandoned his s 33 claim

Catchwords:

CIVIL PROCEDURE — freezing orders — costs order below and potential increase of judgment sum on cross-appeal — where judgment on appeal and cross-appeal reserved — where respondent has entered a contract of sale for only significant asset — whether risk of dissipation of assets — whether discretion to make orders should be exercised

Catchwords:

APPEALS — leave to appeal — whether leave to appeal against liability and costs order ought be granted — where applicant found to be liable for false imprisonment of respondent — whether appeal raises issue of principle — whether appeal raises question of public importance — whether there is reasonably clear injustice — application of s 46 of the Bail Act 2013 (NSW) — bail obligations of police officers

Catchwords:

APPEALS – fact-finding – challenge to genuineness of belief – witness’ credibility – belief not glaringly improbable – whether belief objectively unreasonable – witness with expertise to form belief – no expert evidence to contradict reasonableness CONTRACTS – commercial lease – construction – implication of terms – landlord’s power to issue notice where leased property suffered fire damage – effect of notice to allow landlord to terminate lease – criterion for issue of notice was landlord’s belief that repair “impracticable or undesirable” – whether belief to be objectively reasonable – whether belief to be formed in good faith LEASES AND TENANCIES – termination without default – leased property damaged by fire – lessor’s power to serve notice if repair impracticable or undesirable – effect of notice to allow termination – whether notice given within reasonable time – period of reasonable time commencing when damage occurred – further period from time when lessor formed opinion permitting service of notice

Catchwords:

APPEAL – leave to appeal – interlocutory order refusing to strike out defence – defence pleaded plaintiff’s claim apportionable – issue of general public importance – significant impact on course of trial TORT – duty of care – statutory duty for construction work – extension of duty to subsequent owners of land – duty non-delegable – whether claim is apportionable under Pt 4 of Civil Liability Act 2002 (NSW) – claim by owners corporation for defective works – Design and Building Practitioners Act 2020 (NSW), s 37(1) WORDS AND PHRASES – “non-delegable duty – “tort” – “vicarious liability”

Catchwords:

CONTRACTS — formation — consideration — where new promise made in context of pre-existing contract — whether new promise is no more than promisor already bound to do — whether new promise was a bona fide compromise of a disputed claim CONTRACTS — illegality — illegal contracts — contracts contrary to public policy — whether it is incongruent with public policy to allow unlicensed agent to retain monies paid to it in breach of agency legislation RESTITUTION — ineffective transactions — unenforceable contracts — restitution of money paid — where payee in breach of obligation to be licensed under Property and Stock Agents Act 2002 (NSW) and Agents Act 2003 (ACT) — whether payor entitled to restitution of monies paid under contract despite payee’s breach — where legislation expressly excludes quantum meruit claims — where legislation does not provide for recovery of amounts already paid RESTITUTION — mistake — restitution of money paid — whether payor entitled to restitution of monies paid under mistaken belief that payee could enforce claim to recover such payment — whether payment made as a result of mistaken belief STATUTORY INTERPRETATION — Agents Act 2003 (ACT) — whether respondent “carries on business as a real estate agent” — meaning of “induce”

Catchwords:

APPEALS — Procedure — Adjournment — Amendment — Appeal from final orders but in relation to two interlocutory decisions leading to final orders – Whether leave required CIVIL PROCEDURE — Hearings — Adjournment application refused — Relevance of timing of application — Where applicant self-represented CIVIL PROCEDURE — Originating process — Application to file an amended statement of claim granted at hearing — Where applicant provided opposing party four months’ notice of intention to make application

Catchwords:

CIVIL PROCEDURE – recusal application – adjournment application – application pursuant to slip rule to vary orders made in 2022 – judgment in favour of one appellant with set off for respondents’ costs – judgment stayed and amount paid into court pending determination of costs of otherwise successful respondents – order for payment out

Catchwords:

JUDGMENTS AND ORDERS – Proper construction of orders made by primary judge – Whether interest applied to amounts awarded under an order – Meaning of “the rate specified in the Suncorp mortgage” where two rates involved – Whether certain expenditures relating to rubbish removal and legal cost for dispute about land rating were properly referable to expenses reasonably incurred in the maintenance of property – Whether appellant entitled to allowance on GST paid with respect to maintenance expenses

Catchwords:

CONTRACTS — formation — acceptance of Calderbank offer — whether parties reached binding agreement to settle proceedings — meaning of “without prejudice save as to costs” — where settlement agreement contemplated execution of deed — whether entry into deed was a condition precedent — whether settlement agreement incomplete due to missing key term — whether entry into Calderbank offer indicated intention immediately to be bound

Catchwords:

COSTS – Security for costs – Relevant factors – Impecuniosity – no issue of principle

Catchwords:

APPEALS – Procedure – Stay pending appeal –balance of convenience – whether stay should be conditional on appellant giving security – appellant is wholly owned subsidiary of listed company – deed of cross-guarantee – whether risk appellant would default on judgment debt – no issue of principle

Catchwords:

PRACTICE AND PROCEDURE – whether the Court should make a vexatious proceedings order of its own motion – s 8(1) of the Vexatious Proceedings Act 2008 (NSW) – whether sufficient frequency of institution of vexatious proceedings – where litigants reagitated the same points on multiple occasions in the Common Law Division of the Supreme Court and in the Court of Appeal

Catchwords:

APPEALS – Leave to appeal – Where applicant’s submissions raise no arguable issues – Purported notices of appeal dismissed and leave to appeal refused.

Catchwords:

CONTRACTS – construction – breach of contract – action in debt – no issue of principle

Catchwords:

TORTS – trespass to the person – wrongful arrest – battery – false imprisonment – whether Appellant’s arrest was an unlawful exercise of power pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether police officer was satisfied that the Appellant’s arrest was “reasonably necessary” – whether requirement that a police officer be satisfied that an arrest is “reasonably necessary” requires an objective or subjective assessment TORTS – trespass to the person – false imprisonment – ss 114-116 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether the Appellant who was otherwise lawfully detained was “falsely imprisoned” for 16 minutes when he was questioned in an interview room after he had made it clear that he did not wish to answer any further questions – where most of the 16 minutes was not spent questioning the Appellant but in reading him the complainant’s statement – whether the Appellant was falsely imprisoned during period where police officers were awaiting the issuance of an Provision Apprehended Violence Order – whether Jones v Dunkel inference can be drawn in relation to State’s failure to call the Custody Manager TORTS – malicious prosecution – whether police officers were actuated by malice – whether proceedings were brought to mollify the complainant and her mother or to punish conduct which the police officers considered to be inappropriate

Catchwords:

EQUITY – constructive trust – failed joint endeavour – property acquired by one sister and her son using borrowed funds secured by mortgage – purpose of acquiring property was to provide a home for another sister following breakdown of her marriage – sister lived in home, paid outgoings and paid “rent” roughly equivalent to mortgage repayments – sister also paid $160,000 in reduction of principal from proceeds of her divorce settlement – whether primary judge erred in finding that sister and her son held property on constructive trust for themselves and other sister in equal shares after the payment of their respective relevant contributions – whether primary judge erred in assessing the quantum of the parties’ contributions – whether primary judge erred in finding “mutual understanding” that sister had an undefined interest in property – whether primary judge erred in finding son was nominee of his mother – whether primary judge erred in indexing the sister’s capital contribution of $160,000

Catchwords:

MORTGAGES AND SECURITIES — Unregistered mortgage — Where mortgage granted as security for legal fees — Whether caveat claiming an interest pursuant to mortgage valid — Whether mortgage void or otherwise terminated for breach — Whether mortgage secures forensic and speculative amount — Whether mortgage executed as a deed in accordance with requirements of Conveyancing Act 1919 (NSW), s 38 COSTS — Solicitor/client — Costs agreement — Where costs estimate given and costs agreement capped legal costs — Whether mortgage constituting costs agreement void by reason of asserted non-compliance with disclosure obligations to provide an updated costs estimate COSTS — Solicitor/client — Costs assessment — Where Costs Review Panel found costs payable pursuant to mortgage constituting costs agreement — Where mortgage terms cap amount payable and defer date for payment of costs — Where Costs Review Panel determined it lacked jurisdiction to determine costs assessment application before costs became payable under agreement — Whether attempt to enforce costs agreement before costs fell due constitutes breach of agreement APPEALS — Appeal by mortgagor against declarations that mortgage secures legal costs and is enforceable subject to final quantification by assessment process after a future date — Whether trial judge misinterpreted findings of other courts on related issues between same parties CIVIL PROCEDURE — Pleadings — Departure from pleadings — Whether respondent acquiesced in appellant’s departure from pleadings — Whether trial judge should have made findings on matters not pleaded below EQUITY — Defences — Set-off — Whether client’s claim against solicitor in negligence in separate proceedings capable of offsetting amount owing under costs agreement — Where negligence claim still on foot and neither party presently has a monetary judgment against the other

Catchwords:

NEGLIGENCE — Breach — Slip and fall injury in supermarket — Whether systems of periodic inspection and cleaning adequate — Whether employees failed to implement systems — Whether reasonable precautions required additional system of hourly inspection and cleaning of front of store area — Whether breaches of duty additional to those found by trial judge NEGLIGENCE — Causation — Whether plaintiff proved factual causation under Civil Liability Act 2002 (NSW) — Whether injury would have occurred if there had been no negligent act or omission TORTS — Whether liability of occupier for breach of duty of care owed to invitee analogous to employer’s vicarious liability for employee’s tortious conduct or other wrongful act of employee in the course or scope of employment APPEALS — From findings of fact — Inferences to be drawn from CCTV footage — Whether appeal court in same position as trial judge to draw inferences from CCTV footage

Catchwords:

EQUITY — unconscionable conduct — whether equitable principles of unconscionable conduct apply to testamentary gifts as they apply to inter vivos transactions — where testator suffers from special disability — where beneficiary was aware of testator’s special disability — whether it was unconscionable for beneficiary to retain the benefit of a testamentary gift made in the course of a doctor/patient relationship EQUITY — undue influence — whether equitable principles of undue influence apply in probate as they do to inter vivos transactions — whether presumption of undue influence arises in circumstances where testator leaves substantial gift to treating physician — protection of testamentary freedom in testamentary dispositions EVIDENCE — credibility — whether primary judge erred in accepting evidence of testator’s treating physician who was also principal beneficiary under testator’s will — whether physician was a dishonest witness — where there were minor inconsistencies in physician’s evidence SUCCESSION — contested probate — lack of knowledge and approval — suspicious circumstances — where testator in poor health left substantial gift to treating physician — whether there was a quid pro quo arrangement between testator and beneficiary — whether beneficiary knew of the contents of testator’s will — onus of proof on beneficiary to prove that testator knew and approved of the contents of his wills SUCCESSION — contested probate — undue influence — whether testator was subject to undue influence — where testator in poor health left substantial gift to treating physician — where treating physician recommended solicitor to testator to draft his will — whether will represented testator’s true intention — onus of proof of undue influence in probate — whether presumption of undue influence arises in probate — whether general equitable principles of unconscionability apply in probate SUCCESSION — costs — whether appellants were entitled to have their costs paid out of the estate

Catchwords:

APPEALS – leave to appeal – interlocutory order dismissing Land and Environment Court Class 3 proceedings – leave to appeal required under s 57(4) of the Land and Environment Court Act 1979 (NSW) – where two of many proposed grounds raise questions of statutory construction, one of general application – leave granted in relation to those grounds LAND LAW – water boundary dispute – application for boundary determination made to Registrar-General under Pt 14A of Real Property Act 1900 (NSW) – application refused under s 135D(2) – whether right of appeal under s 135J(1) from a “determination” made under Pt 14A extends to a refusal to make a determination LAND LAW – water boundary dispute – where appeal filed in October 2022 from a boundary determination made under Pt 14A of Real Property Act in 1996– where s 135J(3) required “appeal” to be made within 28 days of notice of determination – where Land and Environment Court Rules 2007 (NSW), rr 7.1 and 7.3 do not provide for extension, variation or waiving of that requirement – where by Uniform Civil Procedure Rules 2005 (NSW), r 1.7 and Sch 2 those “local rules” prevail – appeal out of time and incompetent

Catchwords:

NEGLIGENCE — duty of care — foreseeability — whether primary judge erred in finding risk of psychiatric harm to employee was not reasonably foreseeable — where employee was verbally harassed by co-workers — where employee made complaint to employer and employer took reasonable precautions to address risk of psychiatric harm — where employee did not indicate to employer that psychiatric harm was being suffered NEGLIGENCE — causation — where employee suffered “transient” psychiatric injury — whether certificate of whole person impairment issued by the Workers Compensation Commission was evidence of the permanence of the psychiatric injury for the purpose of ascertaining causation APPEALS — from finding of fact — improper admission of evidence — whether primary judge erred in admitting evidence of witness who was not disclosed in respondent’s pre-filing statement — where disclosure was required by s 315 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where appellant’s pre-filing statement did not comply with s 315 CIVIL PROCEDURE — pleadings — whether primary judge erred in failing to address appellant’s case on vicarious liability — where vicarious liability was not pleaded — where vicarious liability was raised in cross-examination and oral submissions at first instance — purpose and function of pleadings

Catchwords:

APPEALS – appeal from Land and Environment Court – Class 4 civil enforcement proceedings – where primary judge found appellant lacked standing PRACTICE AND PROCEDURE – standing – whether environmental organisation has standing to bring civil enforcement proceedings against State forestry authority – where application of special interest test is fact and context specific – evaluative judgment required – where interest more than mere intellectual or emotional concern – where interest beyond that of public generally – where organisation has taken sufficient concrete steps to give effect to interest and concerns

Catchwords:

APPEALS – Leave to appeal – Appeal from orders as to costs only – Order on alternative bases – No clear injustice – Caution in granting leave from decision pertaining to practice and procedure – Proper reticence to grant leave in matters relating to costs alone APPEALS – Procedural fairness – Non-success in argument gives no cause for complaint about procedural fairness – Issue well and truly raised at hearing – Absence of reasons for rejecting procedural application for standing over issue of costs not sufficient basis to grant leave to appeal on substantive decision on costs

Catchwords:

CONTRACTS - construction - share sale agreement made provision for payment of “Deferred Amount” - joint venturer entitled to acquire shares owned by company being sold if written consent not provided - share sale agreement made no provision for Deferred Amount if written consent not provided but joint venturer did not acquire shares - literal meaning left Deferred Amount undetermined - text and context favoured conclusion that Deferred Amount payable if company retained shares - interpretation of contract where clauses inconsistent or lead to commercial absurdity CONTRACTS - requirement of written consent by joint venture partner - whether requirement satisfied by sale of joint venturer’s interest in joint venture, thereby terminating joint venture

Catchwords:

APPEALS – stay of execution – whether transfer of land and property to successful plaintiff should be stayed pending appeal – whether successful plaintiff entitled to Mareva relief pending appeal – stay of execution and limited Mareva relief granted

Catchwords:

APPEAL AND REVIEW – leave to appeal – proposed appeal from judgment disposing of appeal from review of a costs assessment – costs disputes as satellite litigation – fourth hearing with respect to costs assessment – need for strong likelihood that no further proceeding would result – leave refused COSTS – assessment of costs – review of costs assessment by review panel – functions of review panel – whether nature of review changed in 2014 with enactment of Uniform Law – whether review panel has function of determining the costs of the review and who should pay them

Catchwords:

PRACTICE – interlocutory relief pending appeal – application for leave to appeal from interlocutory injunction preventing steps being taken in pending Malaysian proceedings – whether applicant should be permitted to advise High Court of Malaya of existence of appeal and hearing set down at end of May – whether applicant should be permitted to apply to adjourn Malaysian proceedings – whether interlocutory orders necessary to protect subject matter of appeal – limited relief granted

Catchwords:

LAND LAW — Indigenous land rights — Aboriginal Land Rights Act 1983 (NSW) — Claimable Crown lands — Lawfully used or occupied for the purposes of s 36(1)(b) — Definition of “land” — Where land claimed is subject to a lease granted by the Crown — Where no lawful physical use of the land by tenant — Whether a “use” of the land may include a non-physical use — Claimable Crown lands include all estates and interests in the land — Multiple concurrent users with different “uses” and purposes must be considered independently — Leasing of the land by the Crown is a valid “use” of the estate in fee simple — Minister’s decision an error of law and legally unreasonable — Appeal allowed.

Catchwords:

CIVIL PROCEDURE – Default judgment – Setting aside – whether reasonably arguable defence on the merits – where the primary judge failed to have regard to the tension in some authorities on the requirements to establish the proposed equitable unconscionability defence – where the proposed defence under the Contracts Review Act 1980 (NSW) raised an issue of principle, namely whether the unjustness of a contract can be established by reference to matters of which the counterparty was ignorant when the contract was entered into EQUITY – Unconscionable conduct – standard of knowledge of the applicant’s special disability or disadvantage required on the part of the other party – whether mere inadvertence or indifference on the part of the stronger party is sufficient as opposed to establishing exploitative or predatory conduct – relevance of the distinction between active and passive conduct on the part of the stronger party EQUITY – Undue influence – Rule in Yerkey v Jones – Effect on third parties – where the applicant claimed to be under the control and influence of her husband – whether actual or constructive knowledge is required on the part of the third party or rather, whether notice of the weaker party’s disadvantage is sufficient

Catchwords:

ADMINISTRATIVE LAW — Whether applicant denied procedural fairness — Where nothing in transcript of hearing under review demonstrates that applicant was unable to put what he wished before the Court — Summons dismissed.

Catchwords:

PRACTICE – application for adjournment – separate proceedings challenging separate decisions of District Court concerning apprehended domestic violence orders – one decision refused an order sought by husband against estranged wife – other decision granted an order sought by wife against estranged husband – husband sought judicial review of both decisions – whether proceeding set down for hearing months earlier should be vacated so as to be heard together with other proceeding which did not have a hearing date – despite parties to proceedings being same, each raised different issues and turned on different evidence – application refused

Catchwords:

COSTS – security for costs – pending appeal – whether special circumstances – impecuniosity – where respondents incurred significant costs in first instance proceedings – where respondents unlikely to recover costs on appeal – appellants’ lack of candour – security ordered

Catchwords:

OCCUPATIONS – health practitioners – findings of unsatisfactory professional conduct and professional misconduct against medical practitioner following Stage 1 hearing – application for leave to appeal – whether case established for grant of leave – where application did not challenge most aspects of decision – whether clear case of error as to concession by expert in cross-examination – where any error was not shown to be anything other than a minor contribution to findings – leave refused

Catchwords:

COSTS – application for costs when statement of claim and cross-claims dismissed by consent – whether basis made out for leave to appeal from decision of primary judge to make no order for costs – where applicant unrepresented for some of period – where applicant sought only to challenge the absence of costs orders in some claims dismissed against him, leaving in place one costs order adverse to him and an absence of costs orders for his own cross-claims – where narrower application had not been advanced to primary judge – whether any question of principle or substantive injustice had been established – leave refused

Catchwords:

APPEAL – appeal as of right or by leave – where primary judge made findings as to termination of partnership but left many issues unresolved – appeal interlocutory and required leave PARTNERSHIP – primary judge rejected plaintiffs’ claim that partnership terminated on 30 June 2019 – primary judge disbelieved all witnesses – whether challenges to factual findings made out

Catchwords:

CONTRACT — Construction — Interpretation — Contractual purpose — Varied contract to be construed — Commerciality of contractual construction — Price adjustment mechanism — Meaning of Base Date Index Value when that composite term was not defined but when Base Date was defined

Catchwords:

INSURANCE – public liability – Sydney Trains held liable for personal injury sustained by commuter who slipped on tiles installed by insured – insured now deregistered – claim against insurer pursuant to s 601AG of Corporations Act 2001 (Cth) – claim against insurer confined to claim on implied term of contract – whether implied term to provide tiles of adequate slip resistance – whether term was breached – where expert evidence adduced at negligence trial not tendered in trial against insurer – whether inference that tile was of inadequate slip resistance available – whether breach of duty caused commuter to slip – whether evidence at trial established the tiles were wet – whether subsequent decision to reopen stairway broke chain of causation – whether insurance policy responded to claim – whether “occurrence” for purposes of policy was the installation of the tiles or the commuter’s personal injury – whether liability covered by policy extended to secondary liability for commuter’s personal injury – whether performance warranty exclusion applied

Catchwords:

APPEALS – from finding of fact – credibility of witness – where credibility informed assessment of competing contemporaneous documentary, affidavit, and oral evidence at trial – where credibility fell to be assessed having regard to evidentiary inconsistences in an individual’s affidavit and oral evidence at trial in determining what he would have done in two counterfactual circumstances – where primary judge enjoyed the benefit of observing the trial in forming an assessment of credibility NEGLIGENCE – where law firm breached duty of care to advise client against lodgement of a caveat – damages – loss of chance to exercise right of recission under a call option deed – whether the lost opportunity had some non-negligible value within the principles in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 – where relevant parties had a willingness to pay – where there was insufficient evidence for an inference that the relevant parties had an ability to pay

Catchwords:

COSTS – Security for costs – appeal – under Corporations Act 2001 (Cth) s 1335 – where parties agreed order should be made – dispute solely on quantum – competing estimates of appropriate amount of security – where security sought in relation to notice of contention – where security sought in relation to past costs – whether professional costs assessor’s estimate to be preferred over solicitor’s security estimate

Catchwords:

CIVIL PROCEDURE — Summons seeking leave to appeal — Summons abandoned and dismissed CIVIL PROCEDURE — Parties — Persons allegedly under legal incapacity — Tutors — Notice of motion seeking appointment of tutor — Notice of motion not pressed and dismissed

Catchwords:

LEGAL PRACTITIONERS — disciplinary proceedings — practitioner convicted of fraud offences and use of carriage service to menace or harass — whether fit and proper person to be on the Roll of Australian Lawyers — relief — order removing name from Roll of Australian Lawyers

Catchwords:

CIVIL PROCEDURE — Court of Appeal — whether appeal should be dismissed as incompetent where leave to appeal not sought — whether leave to appeal was required — Supreme Court Act 1970 (NSW) s 101(2)(r) — whether value of matter in issue was less than $100,000 — where evidence of quantum of compensation not controverted at first instance — where appellant not entitled to claim compensation in respect of easement — where costs order does not count towards s 101(2)(r) threshold

Catchwords:

CIVIL PROCEDURE — appeal — whether appeal should be dismissed as incompetent — Uniform Civil Procedure Rules 2005 (NSW) r 51.41 — whether leave to appeal required — whether appeal involves a matter at issue amounting to $100,000 or more — Supreme Court Act 1970 (NSW) s 101(2)(r) — where appeal does not disclose claim for damages or breach that is capable of being valued

Catchwords:

COSTS — party/party — appeals — exceptions to general rule that costs follow the event — apportionment of costs — unsuccessful appeal on liability — where reduction of damages on appeal COSTS — party/party — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — whether reasonable to reject offers of compromise/Calderbank offers

Catchwords:

APPEALS — Leave to appeal — subpoena and notice to produce — correctly set aside — no legitimate forensic purpose — leave to appeal refused CONTEMPT — power of arrest — Notice of Motion seeking arrest — application dismissed — no evidence justifying issue of warrant for arrest

Catchwords:

CIVIL PROCEDURE — Court of Appeal — stay of orders — stay pending application for special leave to appeal to High Court — no exceptional circumstances — stay not granted

Catchwords:

COURTS AND JUDGES — Supreme Court — Inherent jurisdiction — where solicitor acting for mortgagee has engaged in exorbitant overcharging — where mortgage provides for recovery by mortgagee of all costs expended pursuant to the mortgage on an indemnity basis — whether Court can order solicitor to pay moneys, to the extent of the exorbitant overcharging, to mortgagor pursuant to inherent jurisdiction to control charges and fees of officers of the Court — general consideration of extent of inherent jurisdiction COSTS — Inherent jurisdiction — where costs have previously been assessed as between mortgagee and mortgagor — whether Court adopted costs assessment in its inherent jurisdiction to require solicitor for mortgagee to pay money representing exorbitant charges to mortgagor OCCUPATIONS — Legal practitioners — Solicitors — Costs agreement — where costs agreement between solicitor and mortgagee — whether inherent jurisdiction extends to requiring solicitor for mortgagee to pay money exorbitantly overcharged to mortgagee to mortgagor

Catchwords:

EQUITY – fiduciary duty – whether fiduciary duty owed by successor trustee to former trustee – nature of former trustee’s entitlement to trust property to be indemnified for expenses properly incurred – whether former trustee vulnerable to exercise of power by successor trustee – whether former trustee only entitled to appointment of receiver and judicial sale and interlocutory relief – whether analogy with duty owed by mortgagee with surplus after exercising power of sale – Rothmore Farms Pty Ltd (in liq) v Belgravia Pty Ltd [2005] SASC 117 considered – whether property transferred to third parties in breach of asset preservation order – whether property transferred to third parties to defraud creditors

Catchwords:

INSURANCE — public liability insurance — where insured was builder responsible for construction site — where formworker slipped and fell from scaffolding — where insurer repudiated the policy because of misrepresentations by insured — whether the policy responded to liability assumed by a consent judgment — whether insured needed to prove that he was liable to the formworker — whether the settlement amount was reasonable APPEALS — amendment of notice of appeal — whether leave should be granted to run a new ground of appeal — where argument not put below — where argument may have been met by further evidence at trial

Catchwords:

CONTRACTS – Formation – Oral contract – Whether evidence of conversation alleged to have occurred in 1999 in which alleged agreement was reached was plausible – Whether primary judge erred in considering surrounding circumstances to determine the existence of the contract EVIDENCE – Witness evidence – Affidavits – Where affidavit evidence of two witnesses included identical paragraphs – Whether primary judge erred in rejecting evidence of appellant’s witness APPEALS – Procedural fairness – Apprehended bias – Whether primary judge’s interjections during witness examination amounted to a denial of procedural fairness to the appellant or gave rise to a reasonable apprehension of bias

Catchwords:

CONTRACTS – construction and interpretation –where hotel management agreements on foot in respect of four hotels - where hotel manager entitled to a "Capital Gains Bonus Fee" pursuant to hotel management agreements – where application by liquidators for declarations as to proper construction of hotel management agreements – whether "sale price of the property" in the definition of "Net Sales Price" contained in the formula for calculating the Capital Gains Bonus Fee referred to the sale price of the land upon which the hotels were built and the buildings as well as the hotel businesses, or only the sale price of the land and buildings – where the land upon which the hotels were built and the hotel businesses were owned by separate entities but were sold concurrently pursuant to hotel management agreements CONTRACTS – construction and interpretation – commercial purpose of agreement – objective ascertainment of commercial purpose – commercial purpose not to be used to give contractual terms a meaning they cannot reasonably bear

Catchwords:

PRACTICE AND PROCEDURE – Costs orders – Order made under s 135 of the Civil Procedure Act 2005 (NSW) – Whether registered certificates of determination of costs under s 70(5) of the Legal Profession Uniform Law Application Act 2014 (NSW) are “judgments” of the Court – Registered certificates of determination of costs are judgments – Respondents’ argument contrary to the statutory scheme SUMMARY JUDGMENT – Judicial review application – r 13.4 Uniform Civil Procedure Rules 2005 (NSW) – Action disclosing no reasonable basis

Catchwords:

PRACTICE – summary dismissal – notice of intention to appeal and notice of appeal filed late – whether appeal should be dismissed on basis of delay and insufficiency of prospects – delay minor – difficulty in assessing prospects in absence of appeal books and respondents’ submissions – lack of utility in determining questions of law in light of right of review – application for summary dismissal refused PRACTICE – security for costs – respondents in breach of procedural directions – application brought late – appeal to be heard in five business days – majority of costs the subject of the application already incurred - significance of delay – application for security for costs dismissed

Catchwords:

APPEALS — leave to appeal — interlocutory decisions — adoption of report by referee — leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — whether application brought out of time — construction of s 3B – distinction between “completion” and “practical completion”

Catchwords:

OCCUPATIONS – Legal practitioners – Barristers – Removal from roll of barristers – where barrister repeatedly and wilfully disobeyed injunctions preventing him from legal practice and advertising or presenting that he was able to engage in legal practice – where he pleaded guilty and was found to have committed 16 counts of contempt for continuing to practise – where he committed 12 contraventions of suspended imprisonment conditions

Catchwords:

APPEALS — Leave to appeal — Interlocutory decisions —— leave to appeal refused

Catchwords:

CIVIL PROCEDURE — Representative proceedings — Conduct of proceedings — Notices — Court’s power to order that notice be given to group members — Proposed notice referred to intention to apply for order excluding group members who had neither opted out nor registered from receiving potential prospective settlement sum JUDGMENTS AND ORDERS — Court of Appeal — Where Full Court of Federal Court (Parkin v Boral Ltd (2022) 291 FCR 116; [2022] FCAFC 47) had held that previous decision of Court of Appeal (Wigmans v AMP Ltd (2020) 102 NSWLR 199; [2020] NSWCA 104) was “plainly wrong” — Where disagreement with that characterisation — Whether Court of Appeal should depart from Wigmans v AMP Ltd (2020) 102 NSWLR 199; [2020] NSWCA 104 STATUTORY INTERPRETATION — Context — Whether general words in statute should be read down to conform with surrounding provisions and purpose of the legislation

Catchwords:

APPEAL – finding that appellant’s main witness unreliable – whether evidence as to business practice affected – reliance on commerciality – inferences drawn from circumstances and context – failure of trial judge to be satisfied of case for party bearing onus of proof – absence of basis to reject findings of fact CONTRACTS – formation – contract alleged to have been formed by exchange of emails – respondent disputed the existence of the two emails – no electronic record of emails – only explanation of absence from respondent’s server was deletion prior to migration to cloud in 2017 – deletion not relied on by appellant – hardcopy of emails relied on by appellant – irregularities between disputed emails and undisputed emails – belated discovery implausible

Catchwords:

NEGLIGENCE — Personal injuries — where the plaintiff tripped and fell down a flight of stairs in the Republic of Nauru — law of Nauru applies, which is broadly similar to common law — where the height of an exposed metal lip on an aluminium frame attached to the edge of the top stair from which the plaintiff fell was subject to different measurements by a lay person (6.25mm) and two experts (2 to 2.5mm) — whether the primary judge erred in finding the height was 6.25mm and not 2 to 2.5mm — whether any error was material NEGLIGENCE — Causation — Factual causation — whether the primary judge erred in finding that the lip which had a missing yellow non-slip strip caused the plaintiff’s fall when his boot caught on it NEGLIGENCE — Breach — Foreseeability of risk — Standard of care — whether the absence of a “non-slip” strip from the stair frame was obvious and reasonable precautions were required to be taken to address the risk of harm

Catchwords:

LIMITATION OF ACTIONS – overpaid rates – no claim made within 12 month limitation period imposed by Recovery of Imposts Act 1963 (NSW), s 2(1) – whether ratepayer’s claim was claim to recover tax “recoverable on restitutionary grounds” – whether claims “recoverable on restitutionary grounds” confined to claims at common law as opposed to statutory claims – significance of extrinsic materials to construction of statute – whether claim for credit as opposed to refund of overpaid rates was a claim to “recover” overpaid rates

Catchwords:

CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW), ss 7, 9 – Whether 6% monthly simple interest provision was relevantly unjust – Where mortgage was provided to a “lender of last resort” – Where debtor was advised by an independent solicitor of the applicable interest rates – Where primary judge varied the contract to remove the compounding element of the interest provision

Catchwords:

APPEALS – leave to appeal – whether to grant leave – circumstances of case did not raise matters of public importance – monetary amount small – leave refused

Catchwords:

WORKERS COMPENSATION – Medical assessment – Degree of permanent impairment as a result of an injury – Where medical assessor assessed appellant as having whole person impairment of 19% – Where primary judge found medical assessor had exceeded his statutory jurisdiction having regard to an estoppel arising from the terms of a Certificate of Determination – Whether primary judge erred as to the proper construction of the Certificate of Determination

Catchwords:

APPEALS – application for leave to appeal – where applicant club’s constitution provides that by-laws invalid unless “not inconsistent with” constitution – no arguable error identified in primary judgment – no question of principle – leave refused

Catchwords:

APPEAL AND REVIEW – appeal from judicial review of costs assessment – application for leave – judicial review refused on discretionary grounds – failure to follow prescribed procedure for review and appeal – allegation of procedural unfairness for failure to grant further adjournment not established – no arguable error on part of primary judge – no issue of principle CIVIL PROCEDURE – application for leave to appeal – application months out of time – explanation for delay – merit of application for leave – extension of time refused

Catchwords:

CIVIL PROCEDURE — Stay of proceedings — whether the home owner’s proceedings claiming damages should be stayed until payment of the judgment debt in favour of the builder obtained by filing an adjudication certificate under s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) — operation and effect of s 32 of the SOP Act — whether the home owner’s proceedings are properly characterised as a “cross-claim” for the purposes of Pt 3 of the SOP Act — where the primary judge failed to consider the strength of the home owner’s case — where the builder has delayed in enforcing the judgment debt BUILDING AND CONSTRUCTION — Contract — Damages — need to reconcile the policy of the SOP Act that a builder should receive progress payments promptly with the preservation of common law rights in s 32 of that Act

Catchwords:

CORPORATIONS — directors and officers — ostensible authority — whether company held out managing director as having authority to bind it to indemnity — where nature of indemnity was not outside of the normal course of the company’s activities CORPORATIONS — directors and officers — actual authority — whether managing director had actual authority to enter guarantee and indemnity — whether managing director was the alter ego of the company GUARANTEE AND INDEMNITY — contract of guarantee and indemnity — construction — whether agreement was guarantee and indemnity, or only indemnity ESTOPPEL — estoppel by convention — promissory estoppel — whether parties held mutual assumption, or the company induced solicitors to adopt an assumption, that the company would indemnify solicitors

Catchwords:

BAIL – breach of condition – arrest without warrant – applicant convicted of resisting officer in execution of duty – police officer reasonably believed applicant had not complied with bail condition – s 77(1) of Bail Act 2013 (NSW) empowered officer to take one of six actions, one of which was arrest – s 77(3) of Bail Act provided that officer was to consider four matters in deciding whether to take action and which action to take in those circumstances – officer considered none of those matters – whether non-compliance with s 77(3) meant that arrest was not in lawful execution of duties – appeal allowed, conviction set aside and charge dismissed

Catchwords:

TRAFFIC LAW AND TRANSPORT – traffic law – motor accident legislation – Motor Accident Injuries Act 2017 (NSW) – meaning of “medical dispute” under Act – actual medical dispute between the claimant and the insurer about the relevant medical assessment matter – question of fact depending on the ambit of dispute between the parties at the relevant time ADMINISTRATIVE LAW – judicial review – jurisdictional error – further medical assessment under Motor Accident Injuries Act 2017 (NSW) – where claimant underwent surgery for cervical spine injury – whether obliged to consider if surgery itself rendered injury “non-minor” – not included in “medical dispute” referred again for assessment – no obligation on medical assessor ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accident Injuries Act 2017 (NSW) – decision of delegate refusing to refer decision of medical assessor to review panel – where primary judge dismissed application for review of delegate’s decision on basis that there was no jurisdictional error in medical assessor’s decision – whether primary judge erred – question for the primary judge did not turn on question of whether there was jurisdictional error in decision of medical assessor

Catchwords:

COSTS – Party/Party – as to the costs of the proceedings at first instance, whether should be deduction to reflect costs incurred prior to amendment of summons in relation to claims or contentions then abandoned – Whether parties should bear their own costs in respect of a notice of motion filed by the second respondent under s 25C of the Land and Environment Court Act in the proceedings before the primary judge, in circumstances where primary judge was found to have erred in concluding that development consent was validly issued – Where the notice of motion would not have been necessary but for determination (overturned on appeal) that development consent valid COSTS – Party/Party – Apportionment of costs as between respondents following successful appeal – Where second respondent’s participation at first instance and on appeal was limited having regard to Hardiman principles – Whether costs liability should be joint and several or limited in the proportions indicated by the primary judge

Catchwords:

STATUTORY INTERPRETATION – meaning of “unpaid leave” – whether a period of absence from work due to incapacity from an injury for which a worker was paid workers compensation constitutes a “period of unpaid leave” – cl 2(3)(a) of Sch 3 to the Workers Compensation Act 1987 (NSW) – reg 8E of the Workers Compensation Regulation 2016 (NSW)

Catchwords:

JUDGMENTS AND ORDERS — Court of Appeal — motion to set aside order refusing leave to appeal —application under UCPR, rr 36.15, 36.16, 36.17 — whether orders made against good faith — where no misconduct or dishonourable conduct by the respondents — whether Court misapprehended the applicant’s evidence or submissions — where no basis for setting aside judgment established COURTS AND JUDGES — bias — where applicant requested notice of motion be heard by differently constituted bench — where members of bench participated in earlier decision refusing leave to appeal — whether previous adverse decision can ground reasonable apprehension of bias — recusal application refused

Catchwords:

ADMINISTRATIVE LAW – Judicial review – content of obligation “to consider” – whether failure specifically to refer to a matter reveals failure to consider that matter – scope of obligation to consider under Building and Construction Industry Security of Payment Act 1999 (NSW), s 22(2) BUILDING AND CONSTRUCTION – adjudication – judicial review – whether adjudication affected by jurisdictional error – principles of jurisdictional error under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether jurisdictional error to fail to investigate “true merits” of a payment claim – where adjudicator’s task limited to deciding dispute on restricted materials BUILDING AND CONSTRUCTION – adjudication – judicial review – setting aside part of determination – meaning and operation of s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW) – whether adjudicator entitled to fees after making adjudication affected by jurisdictional error – whether adjudicator’s decision to apportion costs affected by jurisdictional error

Catchwords:

CIVIL PROCEDURE – Service – application for substituted service under r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) – where not practicable to serve originating process and related documents personally CONTEMPT – Arrest - application for Court to issue warrant for arrest of contemnor under Pt 55 r 10 of the Supreme Court Rules 1970 (NSW) – where application not served either personally or otherwise – application to be listed for subsequent hearing

Catchwords:

NEGLIGENCE — Personal injuries — slip and fall during open for inspection — admission that driveway had recently been painted — whether non-slip paint was used — whether evidence was that driveway was slippery — whether primary judge erred in finding witness’ evidence unreliable

Catchwords:

ADMINISTRATIVE LAW — procedural fairness — decision of medical review panel made pursuant to Motor Accident Injuries Act 2017 (NSW) regarding percentage whole body impairment suffered by claimant in motor accident — decision quashed at first instance based on a denial of procedural fairness to the claimant — whether primary judge erred in finding procedural fairness was denied — content of procedural fairness obligations owed by a medical review panel as compared to a court or tribunal

Catchwords:

INTERLOCUTORY APPLICATIONS – interim injunction – forestry operations – assumption that serious question to be tried – unexplained delay in seeking interlocutory relief – scope of relief sought too vague and uncertain – balance of convenience a neutral consideration

Catchwords:

CIVIL PROCEDURE – Subpoenas – Leave to issue subpoena – Court of Appeal – Leave refused

Catchwords:

COSTS – Late substantial amendment to cross-claim – Amendment would have been vigorously fought even if made earlier – Allowance made for lengthening of hearing caused COSTS – Indemnity costs application rejected – Purported offer of compromise and Calderbank offer

Catchwords:

CIVIL PROCEDURE – Practice and Procedure – filing appeal books – contents of appeal books – unrepresented appellant – no issue of principle

Catchwords:

ADMINISTRATIVE LAW – functions conferred on professional council – power to delegate functions – no power to delegate power to delegate – delegation of function to persons appointed by Executive officer – whether delegation valid OCCUPATIONS – medical practitioners –misconduct and discipline – power to suspend registration – delegation of power – delegation to panel appointed by Executive Officer – whether invalid subdelegation OCCUPATIONS – medical practitioners – misconduct and discipline – obligation of Medical Council to refer complaint to Tribunal if grounds for suspension or deregistration – obligation of Medical Council to refer complaint to Health Care Complaints Commission – Commission to investigate – consideration of statutory scheme STATUTORY INTERPRETATION – obligation of professional council under National Law to refer complaint to disciplinary tribunal – provisions of National Law to be read harmoniously with State law establishing Complaints Commission – inconsistency – State law to prevail – requirement for investigation prior to referral to disciplinary tribunal

Catchwords:

NEGLIGENCE — personal injury — patient conveyed in hospital bed impacting with a wall — challenges to factual findings — foreseeability of risk NEGLIGENCE — causation — whether impact caused patient’s symptoms — conflicting expert evidence on causation NEGLIGENCE — assessment of damages — past economic loss — assessment of earnings of respondent but for negligence NEGLIGENCE — assessment of damages — future economic loss — damages by way of buffer — Civil Liability Act 2002 (NSW), s 13

Catchwords:

PROCEDURE - dismissal for default - summons seeking appointment of trustees for sale of co-owned land - cross-claim seeking orders that defendant/cross-claimant was sole owner - cross-claimant did not appear at hearing - formal application for adjournment based on loss of legal representation, not being supplied with documents and psychiatric injury - informal application on morning of hearing based on cross-claim suffering cardiac episode - primary judge permitted cross-claimant to establish extenuating circumstances to justify adjournment - following subsequent contested hearing, primary judge not satisfied extenuating circumstances established - cross-claim dismissed and trustees for sale appointed - whether appeal as of right - nature of appeal - whether primary judge erred in not being satisfied

Catchwords:

APPEALS – Leave to appeal against costs order – Where proceeding had led to a mixed result – Where two alleged Calderbank offers had been made by applicant – Where applicant asserted that the practical outcome of the proceeding aligned with the compromise proposed in the Calderbank offers – Whether the reluctance to grant leave in relation to orders as to costs only should be overcome by the alleged serious risk of injustice – Whether House v The King error not to grant indemnity costs

Catchwords:

APPEALS — Leave to appeal — Principles governing — Interlocutory decision — Public importance — Novel issues raised EVIDENCE — Expert Witness — Medicolegal report — Witness Immunity — Relationship to advocates’ immunity — Proper test

Catchwords:

APPEALS – leave to appeal – monetary threshold – principles governing grant of leave to appeal below monetary threshold – whether application identified issue of principle, question of general public importance or reasonably clear injustice – whether application goes beyond being merely arguable

Catchwords:

GUARANTEE AND INDEMNITY – actions to enforce guarantee – defences to – unconscionable conduct – whether primary judge erred in finding that respondent did not act unconscionably in procuring Deed of Guarantee and Indemnity – s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) GUARANTEE AND INDEMNITY – actions to enforce guarantee – defences to – relief under Contracts Review Act 1980 (NSW) – whether primary judge erred in finding that clause of Deed of Guarantee and Indemnity was unjust – s 7 of the Contracts Review Act JUDGMENT AND ORDERS – interest – award of on judgment – rate applicable – where primary judge awarded interest at the rate of 10% as provided for in Deed of Guarantee and Indemnity – where pleaded claim was for interest at the prescribed rate under the Civil Procedure Act 2005 (NSW) – whether primary judge erred in finding that interest should accrue in accordance with terms of Deed of Guarantee and Indemnity

Catchwords:

APPEALS – Leave to appeal – Arguable case CIVIL PROCEDURE – Jurisdiction – Where applicant alleged that primary judge had exercised Federal jurisdiction to the exclusion of State jurisdiction CIVIL PROCEDURE – Summary disposal – Where applicant had sought summary judgment – Where respondents had not yet been required to file evidence in defence CIVIL PROCEDURE – Default judgment – Where respondents had not yet been required to file a defence CIVIL PROCEDURE – Pleadings – Amendment – Where amendments were based on contentions the primary judge considered were doomed to fail – Where applicant had not been able to identify the evidence on which he intended to rely – Whether House v The King error was demonstrated CIVIL PROCEDURE – Summary disposal – Where primary judge had summarily dismissed the proceedings – Whether proceedings were doomed to fail COURTS AND JUDGES – Bias – Actual and apprehended bias – Whether primary judge had pre-judged the applicant’s claim – Whether primary judge was intimidatory and bullying towards the applicant APPEALS – Procedural fairness – Whether applicant was afforded a reasonable opportunity to adduce relevant evidence

Catchwords:

WORKERS COMPENSATION – Police Superannuation Scheme – where a member seeks to have a further infirmity certified under s 10B(1) or his earlier certification of infirmity amended to include an additional infirmity for the purpose of being entitled to increased annual superannuation allowance pursuant to ss 10 and 10B of the Police Regulation (Superannuation) Act 1906 (NSW) STATUTORY INTERPRETATION – whether an additional infirmity may be certified under s 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) in circumstances where a previous certification of a different infirmity was made prior to the police officer’s discharge

Catchwords:

APPEALS – judgment of Land and Environment Court – standard of review – characterisation of land use – evaluative judgment – correctness standard applied ENVIRONMENT AND PLANNING – civil enforcement proceeding – Local Environment Plan – permissible uses not requiring consent – characterisation of land use – cultivation of low-THC hemp – processing hemp leaves – production of goods for sale – whether cultivating hemp was “horticulture” or “extensive agriculture” – whether processing ancillary or incidental to cultivation activities – uses requiring consent – processing plant agricultural products for commercial purposes – “rural industry” – separate uses or one integrated purpose

Catchwords:

PRACTICE AND PROCEDURE — whether a vexatious proceedings order should be made — where litigant had reagitated the same points on multiple occasions after proceedings in the Court of Appeal and rejection of special leave application — whether sufficient frequency of institution of proceedings for the purposes of s 8(1) of the Vexatious Proceedings Act 2008 (NSW) — vexatious proceedings order made

Catchwords:

COSTS — Assessment procedure — Competing costs agreements — Second costs agreement with tutor — Tutor’s right of indemnity from incapacitated person APPEALS — Right of appeal — Relationship with judicial review — Whether right of appeal is reason to deny judicial review JUDGMENTS AND ORDERS — Judicial review application of decision made under UCPR r 36.15 — Setting aside judgment — Court of Appeal — Issues not raised below — Absence of proper evidence — Importance of written submissions in identifying issues — Costs consequences where issues not identified by respondent JUDICIAL REVIEW — Presence of error — Error not identified by parties — Exercise of discretion — Error goes only to whether applicant liable directly or indirectly — Time for disputation to end

Catchwords:

JUDGMENTS AND ORDERS – Motion to set aside or vary orders – Court of Appeal – Second application under UCPR, r 36.16(3A) – Applicant seeking to reagitate issues for second time – No basis for re-opening established – Application vexatious and an abuse of process

Catchwords:

JUDGMENTS AND ORDERS – Consequential orders – Where order made that parties seek to agree on declaratory relief to give effect to reasons – Where parties unable to agree on form of declaratory relief – Where declarations proposed in primary judgment include a slip – Whether matter should be remitted to primary judge – Matter not to be remitted to primary judge REAL PROPERTY – Caveats – Caveatable interests – Where caveatable interest in the nature of equitable charge secured payment of commission owing in respect of sales of property – Whether charge extended to all unsold units – Effect of supplementary agreements is that the properties listed therein are to be treated as included in the primary agreement – Declaration that equitable charge extends to all unsold units to secure debt owed for commission and interest

Catchwords:

PROCEDURE – security for costs – non-compliance with orders to provide security – company placed into liquidation – appeal dismissed

Catchwords:

CIVIL PROCEDURE – asset preservation orders – application for discharge after judgment – claims rejected but subject to appeal – further accounting claims pursuant to judgment – risk of dissipation of assets – defendants resident in Australia – one defendant with history of misappropriating funds – findings of unreliable and untruthful evidence – no need for funds beyond those available for legal fees and daily living permitted under existing order CIVIL PROCEDURE – stay of proceedings – vacation of further trial dates pending appeal – issues reserved for future consideration – relevance of appeal to reserved issues – application for leave to appeal and appeal listed for concurrent hearing in two months –applicants not having requested stay from trial judge

Catchwords:

NEGLIGENCE – claim for work injury damages for back condition – challenges to factual findings – whether breach of duty of care – whether injury caused by employment COSTS – claim for work injury damages against employer and third party – application of Workers Compensation Regulation 2016 (NSW), Pt 17 Div 3

Catchwords:

APPEALS — leave to appeal — where relatively modest claim — whether injustice reasonably arguable — where applicant sought to raise new point on appeal CONTRACTS — parties — identifying parties to contract implied from conduct of the parties — where accounting services provided to several companies and also to individuals — whether individual instructing accountant a party to the contract — where individual is directly or indirectly the beneficiary of services provided

Catchwords:

ENVIRONMENT AND PLANNING – Development applications – Delegation of assessment function of local council – Whether delegate had authority to determine application – Interpretation of relevant instruments of delegation and sub-delegation and policy – Whether primary judge erred by interpreting “submission by way of objection” by reference to the statutorily directed time period under the Environmental Planning and Assessment Act 1979 (NSW) – Whether objection was “a reasonable and unresolved objection resulting from the neighbour notification/exhibition process” – Whether objection was “resolved” ENVIRONMENT AND PLANNING – Development applications – Imposition of orders under s 25B of the Land and Environment Court Act 1979 (NSW) – Whether Council validly regranted consent – Whether there was substantial compliance within the meaning of s 25C of the Land and Environment Court Act 1979 (NSW)

Catchwords:

COSTS – fixed costs – perusing and scanning documents – schedule of costs identified $15 per page for perusing court documents, and $36 per page for scanning documents not necessary to peruse – previous versions of schedule identical in every respect except rate for scanning documents $3 per page – whether schedule read literally was absurd and irrational and irreconcilable to purpose of fixing fair and reasonable costs – power of court to correct obvious typographical mistakes in legislation considered – consideration of meaning of “scanning” and “perusing” and “examining” documents STATUTORY CONSTRUCTION – correction of obvious typographical mistakes in legislation – nature of power to construe erroneous text so as to correct obvious drafting error – whether the fact that literal meaning of legislation be capable of being applied prevented error from being corrected – whether sufficient in order to construe legislation so as to correct a mistake that mistake be obvious and intended text obvious – whether necessary also for literal operation to be absurd and irrational and irreconcilable to purpose

Catchwords:

COURTS AND JUDICIAL SYSTEM – Judges – Recusal – Apprehension of bias – Whether issue in proceedings pre-determined by reason of costs order made by Registrar

Catchwords:

TORTS – Trespass to the person – Assault – Battery – Claim based on distinct accounts of alleged strangulation APPEAL – From findings of fact – Credibility of witnesses – Appeal of factual decision turning on witness testimony following long hearing – Importance of contemporary evidence

Catchwords:

APPEALS – Leave to appeal from interlocutory decision – no issue of principle or any question of general public importance – no sufficiently arguable error on the part of the primary judge which warranted a grant of leave

Catchwords:

CONSUMER LAW — misleading and deceptive conduct — whether Chief Financial Officer of small proprietary company was a mere conduit of misrepresentations — causation CONSUMER LAW — misleading and deceptive conduct — knowing involvement — requisite degree of knowledge TORTS — deceit — exemplary damages

Catchwords:

ADMINISTRATIVE LAW – judicial review – jurisdictional error – extent of functions and powers of tribunal – Personal Injury Commission medical appeal panel – whether appropriate consideration given to late documents – no opportunity given to address panel regarding late documents – whether late documents could materially affect decision WORKERS COMPENSATION – medical dispute – extent of whole person impairment – appeal from certificate of medical assessor – scope of functions and powers of medical appeal panel – panel restricted to determining appeal on indicated grounds of appeal – panel restricted to reviewing injury the subject of referral to the medical assessor

Catchwords:

APPEALS – s 57(1) Land and Environment Court Act 1979 (NSW) – requirement for appeal to be from an order or decision on a question of law – deficiencies in the notice of appeal – whether any of the 24 grounds met this requirement COMPULSORY ACQUISITION – Compensation – vacant land acquired by local council for public purpose of stormwater harvesting project – highest and best use of land for rural residential development – appellants sought $160 million compensation below and on appeal

Catchwords:

ENVIRONMENT AND PLANNING— Land and Environment Court — Crown land — Management of Crown land — National Parks and Wildlife Act — Plan of management — statutory interpretation — whether Secretary has duties to implement individual policies in Plan of Management compellable by mandamus — whether delay implementing policies unreasonable — utility and appropriateness of relief

Catchwords:

APPELLATE REVIEW – appeal from Personal Injury Commission – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353(1) – nature of appellate review – whether error in point of law – meaning of aggrieved in point of law – requirement that appeal identifies a point of law in relation to the decision of the presidential member – failure to recognise error of law generally an error of law WORKERS' COMPENSATION – entitlement to compensation following death of worker – Workers’ Compensation Act 1987 (NSW) s 9A – alleged misdirection as to proper legal test – alleged constructive failure to exercise jurisdiction – alleged failure to give adequate reasons – limits of judicial review – causation involves evaluative question of fact – no constructive failure to exercise jurisdiction – no failure to give adequate reasons CAUSATION – meaning of “substantial contributing factor” in s 9A of Workers Compensation Act 1987 (NSW) – s 9A a more stringent causation test than “arising out of employment” in s 4(a) – Member found that causation not made out – issue of substantial contribution did not arise – requirement that risk “came home”– similarity to the position in tort – increase in risk insufficient of itself to establish causation for purposes of s 9A – meaning of “common sense” causation – common sense causation connotes a number of ideas – no error in use of common sense causation here

Catchwords:

CIVIL PROCEDURE — abuse of process — where former solicitors claim payment for legal costs — where client recovers legal costs as damages from third party in Court of Appeal — where client subsequently argues that not liable for the costs CIVIL PROCEDURE — Court of Appeal — application for leave to appeal — where applicant’s submissions do not raise any point of principle or general importance, or disclose any substantial injustice — where applicant’s success would make no practical difference APPEALS — appeal from Local Court under s 39 or s 40 of Local Court Act 2007 (NSW) — whether findings of fact can be made on appeal

Catchwords:

EQUITY – charitable trusts – relationship with statute – distinction between charitable trust created pursuant to statute and recognised in equity and “statutory trust” created by statute which ceased when statute repealed – Necropolis Act 1867 (NSW) authorised vesting of land in separate trustees for denominational burial grounds at Rookwood – whether charitable trust recognised in equity thereby created – Necropolis Act repealed – new provisions extinguish any charitable trust over the land – whether new provisions extinguish charitable trust over proceeds of operation of burial ground PARTIES – declaratory relief – absence of contradictor – plaintiffs join Attorney General and seek declaration over existence and nature of charitable trust – Attorney supports plaintiffs’ submission that charitable trust exists, but disputes plaintiffs’ submission that its purpose has changed – whether declaratory relief available and appropriate STATUTES – statutory consolidation – Necropolis Act 1867 (NSW) repealed and replaced by Necropolis Act 1901 (NSW) – whether change in wording effected a change in charitable purpose – principles of construction applicable to consolidating statutes

Catchwords:

ADMINISTRATIVE LAW –– jurisdictional error –– decision of National Rail Safety Regulator to grant application to vary rail operator’s accreditation under the Rail Safety National Law (NSW) –– whether decision maker erred in construing the consultation requirements in s 99(3)(a)(iii) of the Rail Safety National Law –– whether primary judge erred in declaring the decision maker’s decision invalid ADMINISTRATIVE LAW –– jurisdictional error –– decision of National Rail Safety Regulator to grant application to vary rail operator’s accreditation under the Rail Safety National Law (NSW) –– whether decision maker misunderstood the nature of the opinion required to be formed under ss 99(3)(a)(i) and 99(3)(a)(iii) of the Rail Safety National Law –– whether decision maker misapprehended nature of opinion required to be formed under ss 65(c)(iii) and 69(1)(a) of the Rail Safety National Law –– whether decision maker’s decision is invalid CIVIL PROCEDURE –– Court of Appeal –– leave to amend Notice of Contention –– whether respondent’s amendment prejudices the appellant –– whether respondent can raise new points on appeal –– leave to amend granted –– respondent constrained by evidence adduced at first instance COURTS AND JUDGES –– judges –– duty to accord procedural fairness –– obligation to decide the case on the bases argued STATUTORY INTERPRETATION –– Rail Safety National Law (NSW) –– meaning of s 99(3)(a)(i) –– whether primary judge erred in declaring s 99(3)(a)(i) a deeming provision –– consideration of the text, context and legislative purpose of s 99(3)(a)(i) –– effect of phrase “persons likely to be affected” STATUTORY INTERPRETATION –– Rail Safety National Law (NSW) –– meaning of s 99(3)(a)(iii) –– whether the term “representing” means “entitled to represent” –– consideration of the text, context and legislative purpose of s 99(3)(a)(iii)

Catchwords:

DEFAMATION – appeal from order granting leave to amend – adequacy of pleading and particulars – amendment to pleading introduced matters arising after commencement of Defamation Amendment Act 2020 (NSW) – operation of concerns notice to matters introduced by amendment – whether sufficient particulars of serious harm to reputation provided – whether sufficient particulars of publication provided – significance of claims of denial of procedural fairness in deciding points of law adversely to defendant

Catchwords:

APPEALS – costs – consequential orders – no question of principle

Catchwords:

APPEALS – point not taken below – pleadings –case dismissed on ground that whilst the respondent misappropriated moneys to be applied at her discretion for a unit trust or the fifth appellant, the fifth appellant had made no claim to the moneys – where appellants seek to amend statement of claim on appeal to bring claim by both the first and fifth appellants – whether case not fought at trial may be propounded on appeal – possibility that additional evidence might have been called at trial and different findings made if new issue had been raised at trial

Catchwords:

PROFESSIONS – Legal Practitioners – misconduct and discipline – legal practitioners directed to show cause why judgments and papers should not be referred to Legal Services Commissioner – no submissions provided by legal practitioners – judgments and papers referred to Legal Services Commissioner

Catchwords:

CONTRACTS – Construction – Interpretation – Construction of insurance contract – Whether appellant fell within definition of “Named Insured” in the Policy – Where appellant supplied labour to a sub-contractor undertaking demolition works for principal contractor – Whether “agent” in Policy bore the strict legal meaning of “agent” or more colloquial meaning of intermediary or someone who provides services for another – Whether as a sub-sub-contractor of principal contractor the appellant was a sub-contractor of the principal within the meaning of the policy – Whether appellant was an “agent” of the sub-contractor

Catchwords:

VALUATION OF LAND – Compulsory acquisition – land transferred to public authority as condition of development consent – Compensation – land valued according to principles of compulsory acquisition – Construction of s 56(1)(a) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – Determination of market value – decrease in land value attributed to public purpose – Statutory disregard – Identification of public purpose CAUSATION – whether public purpose caused decrease in land’s value – where owners sought and obtained development consent – whether owners proved a decrease in value of land by comparison with hypothetical use which would have occurred but for public purpose

Catchwords:

APPEALS – costs – consequential orders – no question of principle

Catchwords:

COSTS — Court of Appeal — party/party costs orders — application to vary costs order in favour of respondent — general rule that costs follow the event — where appeal allowed in part and only nominal damages awarded – where appellant failed on all other grounds of appeal — where costs awarded to respondent to reflect practical outcome of appeal — whether award of nominal damages justify a costs order in favour of appellant

Catchwords:

ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — order for access — where concurrent contempt proceedings — privilege against self-exposure to penalty — waiver of privilege against self-exposure to penalty — where affidavit served but not read.

Catchwords:

COSTS – security for costs – application for security for costs pending appeal – UCPR r 51.50 – whether “special circumstances” exist – application dismissed – no issue of principle

Catchwords:

ENVIRONMENT AND PLANNING – offences - waste disposal – pollution of land – time for commencement of proceedings – when evidence first came to attention of authorised officer – whether individuals appointed as authorised officers – proceedings dismissed as time-barred – appeal – misconstruction of applicable statute for appointment of authorised officers APPEAL – dismissal of proceedings for offences as time-barred – when evidence first came to attention of relevant authorised officer – whether individuals appointed as authorised officers – instrument of delegation of functions to individuals – delegation of functions not appointment as authorised officer – misconstruction of applicable statute for appointment of authorised officer - misdirection by consideration of non-applicable statute delegating functions – conflation of different statutory powers LIMITATION OF ACTIONS – limitation period for commencement of proceedings for offences – when evidence of offence first came to attention of authorised officer – appointment of authorised officer – delegation of functions not appointment as authorised officer

Catchwords:

COURTS AND JUDICIAL SYSTEM – Judges – Recusal – Bias – Where member of intermediate appellate bench had previously made findings adverse to applicant in previous cases – Where full bench should determine recusal application for single member – Whether previous adverse decisions can ground reasonable apprehension of bias – Recusal application refused as no reasonable apprehension of bias or actual bias established by previous judgments

Catchwords:

OCCUPATIONS — Nurses — Qualification and registration — Impairment — Competence — Where Tribunal found that a registered nurse suffered an impairment — Where registered nurse held not to be competent to act as a nurse — Where Tribunal found impairment rendered nurse a significant risk to health and safety of the public — Registration cancelled and non-review period imposed — Nurse prohibited from providing health services APPEALS — Leave to appeal — Appeal as of right on questions of law — Where no clear grounds of appeal advanced — No errors of law established — No errors in Tribunal’s finding of fact — Leave to appeal refused — Appeal dismissed

Catchwords:

APPEALS – leave to appeal – whether leave required – monetary threshold – where no realistic prospect of parties being awarded damages in excess of $100,000 EVIDENCE – witness evidence – reliability of witness evidence – fallibility of memory over time – where applicants had strong views as to evidence consistent with them having become entrenched in a factual position not necessarily based upon actual recollection – no error in primary judge’s assessment of evidence CONSUMER LAW – misleading or deceptive conduct – “likely” to mislead or deceive – where standard form cost plus contract prepared with price estimate of $300,000 – whether price estimate misleading or deceptive – clear warnings in contract CONSUMER LAW – misleading or deceptive conduct – contract for residential renovation works – requirement that plaintiff prove loss – where property partially renovated – price paid under contract less than value of building works completed – where plaintiff seeking damages to reflect increased cost of building works CONSUMER LAW – unconscionable conduct – whether conduct unconscionable – breach of terms of standard form cost plus contract – where respondent sent invoices and spreadsheets rather than budget reports – invoices issued by respondent in no way prevented applicants from querying costs claimed

Catchwords:

WORKERS COMPENSATION — damages for personal injury — Workers Compensation Act 1987 (NSW) s 151Z — whether employer able to claim recovery of compensation payments from third party tortfeasor under s 151Z(1)(d) in circumstances where employer was joint tortfeasor — construction of s 151Z(2)(e) — whether worker “does not accept satisfaction of the judgment against that employer” — liability of worker to repay compensation out of damages under s 151Z(1)(b) COSTS — where appellant enjoyed partial success on appeal — where multiple cross-claims dismissed — no issue of principle

Catchwords:

LAND LAW – Indigenous land rights – Aboriginal and Torres Strait Islander Act 2005 (Cth) – Conditional grant of land pursuant to statutory functions – Validity of conditions upon grant of land – Challenge to the validity of transfer of land by persons not party to the transfer LAND LAW – Indigenous land rights – Claims for general equitable Indigenous title separate to native title LAND LAW – Adverse possession – Consent of documentary owner CONSTITUTIONAL LAW – Commonwealth Constitution – Race – Scope of legislative power under s 51(xxvi) – Aboriginal and Torres Strait Islanders peoples as distinct “people of any race”

Catchwords:

CIVIL PROCEDURE — stay of judgment pending appeal — where primary judge dismissed claim for specific performance of contract for sale of land and discharged injunction restraining respondent Council from considering rescission motion — where respondent acknowledged that appeal raised serious issues — whether balance of convenience or balance of hardship favours stay of order discharging interlocutory injunction

Catchwords:

COSTS – application to vary costs order – UCPR, r 36.16(3A) – where question of costs addressed in submissions on appeal – whether basis for variation made out

Catchwords:

LAND LAW — Crown land — claim by Crown for possession of Crown land — where land previously subject to a permissive occupancy — whether claim statute barred on the basis that the land has been in adverse possession for over 30 years — ss 27 and 38 of the Limitation Act 1969 (NSW) — effect of s 65 Limitation Act — whether s 13.1 of the Crown Land Management Act 2016 (NSW) precludes the appellant’s defence that the Crown’s action is statute barred LAND LAW — Adverse possession — Intention to possess — where rent paid to the Crown — where occupant sought to regularise his occupation of the land by seeking a permissive occupancy or licence from the Crown

Catchwords:

CONTRACTS — Implied contract — Where agreement automatically terminates upon termination of another contract — Where party fails to notify that first contract has terminated and parties continue acting as if agreement in force — Where parties agree there was an implied agreement which continued after termination — Whether implied agreement terminable on reasonable notice CONSUMER LAW — Misleading or deceptive conduct — Where agreement automatically terminates upon termination of another contract — Whether party engaged in misleading or deceptive conduct by failing to notify other party that other contract had terminated and by representing that agreement was “binding” and remained in force — Whether but for this conduct other party would not thereafter have taken a specific course by entering into a particular agreement

Catchwords:

JUDGMENTS AND ORDERS – Motion to set aside or vary orders – Court of Appeal – Application under UCPR, r 36.16(3A) – Failure to comply with directions as to length of written submissions – Applicant seeking to reagitate issues – No basis for re-opening established

Catchwords:

COMPULSORY ACQUISITION — Compulsory acquisition of land — Compensation — Construction of s 56(1)(a) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) — Determination of market value — Decrease in land value claimed to be caused by public purpose — Statutory disregard — Owners advised of acquisition 17 months prior to acquisition and slowed then stopped development work — Issue of causation to be understood in statutory context — Strain on causal attribution where choices made by owners — Causal issue is re effects of public purpose not of acquisition — Potential for windfall to owners — Effects on value caused only by choices by owners because of possibility of the land being acquired not within s 56(1)(a) COMPULSORY ACQUISITION — Compensation — Disturbance — Construction of s 59(1)(f) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) — Stamp duty and mortgage costs only claimable as disturbance under ss 59(1)(d) and (e)

Catchwords:

BUILDING AND CONSTRUCTION — adjudication — whether adjudication determination was affected by jurisdictional error — whether adjudicator denied respondent to adjudication procedural fairness — whether basis of adjudicator’s determination regarding retention monies was in issue on the adjudication — whether respondent could reasonably anticipate basis of determination regarding retention monies — denial of procedural fairness material

Catchwords:

WORKERS COMPENSATION — Proceedings before Personal Injury Commission — Appeal against decision of presidential member in point of law — Where Deputy President confirmed determination of Member that employer liable to pay workers’ compensation to worker — Where worker suffered psychological injury — Where Member determined that employment was the main contributing factor to injury — Whether Deputy President erred in implicitly deciding there was evidence capable of supporting the Member’s factual finding — Whether Deputy President erred in implicitly deciding the Member did not misapply or misapprehend relevant legal principles on causation of injury — Whether Deputy President constructively failed to exercise jurisdiction by failing to respond to a substantial and clearly articulated argument

Catchwords:

CONTRACTS — Construction — Principles –Significance of poor drafting – whether a sum payable under a contract should be characterised as a “conventional deposit”, repayable in the event of the vendors’ default and recoverable in a claim for restitution, or as an option fee that became and remained the property of the grantor

Catchwords:

EDUCATION – financial assistance to non-government schools – entitlement conditioned on school not operating for profit – decision made to recover past financial assistance on the basis that the relevant school was non-compliant because it had operated for profit from 2015 to 2020 STATUTORY INTERPRETATION – where Minister made recovery decision under s 83J of Education Act 1990 (NSW) and non-compliance declaration under s 83F of that Act – whether Minister was empowered to make recovery decision in relation to the period prior to her making the non-compliance declaration because she had not reached the requisite state of satisfaction that the school was operating for profit under s 83E of that Act

Catchwords:

APPEALS – jurisdiction of appellate court – extension of time for filing and serving appeal under UCPR r 51.9(1)(b) – notice of intention to appeal filed and served – no notice of appeal filed and served – whether power under r 51.9(1)(b) may be exercised where no appeal or other proceeding commenced – in absence of filed notice of appeal there is no proceeding within which that power may be exercised

Catchwords:

CONTRACTS — deed of settlement and release — construction — where release restricted to claims “in connection with or arising out of” statement of agreed facts — whether claim released at law — whether necessary to consider equitable principle in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 where claim not released on proper construction of deed

Catchwords:

APPEALS – Leave to appeal – Principles governing – Whether arguable case – Where primary judge made a winding up order on just and equitable grounds APPEALS – Procedure – Whether stay pending summons seeking leave to appeal ought to be granted

Catchwords:

CIVIL PROCEDURE – Teoh order – where the applicants filed a notice of motion seeking to set aside and vary orders under UCPR, r 36.16 – where application does not raise any new issue and the issues raised have now been repeatedly determined against the applicants – where applicants directed to show cause why the Court should not summarily dismiss proceedings as vexatious and an abuse of process – whether application should be dismissed as vexatious and an abuse of process CIVIL PROCEDURE – Subpoena – where leave to issue a subpoena refused by Deputy Registrar on the basis that there were no active proceedings at the time when the subpoena was filed – where applicants made a further application for leave to issue that subpoena – where documents are being sought by the applicants to support contentions considered and rejected by this Court – whether leave to issue the subpoena should be granted

Catchwords:

APPEAL – application for leave – amount under threshold – whether challenge more than merely arguable – applying arguability criterion on a concurrent hearing – application by party not bearing onus of proof – no challenge to findings of primary fact GUARANTEE AND INDEMNITY – contract of guarantee – oral undertaking by principal of debtor company – repeated undertakings – contractual intention – implied contingent agreement – consideration – forbearance – continuing to trade

Catchwords:

GUARANTEE AND INDEMNITY — Scope of liability of guarantor — Construction — Where guaranteed loan agreement provided for interest accrual on drawdown — Where side letter agreed between borrower and lender provided for pre-drawdown interest — Where guarantor did not consent to side letter — Whether side letter altered borrower’s obligations under loan agreement pursuant to which funds were advanced GUARANTEE AND INDEMNITY — Discharge of guarantor — Where draft principal contract altered between borrower and lender prior to contract of guarantee — Whether rule discharging guarantee where principal contract varied without guarantor’s consent applied — Rule in Holme v Brunskill (1877) 3 QBD 495 GUARANTEE AND INDEMNITY — Contract of guarantee — Construction — Whether guarantee obligation properly characterised as indemnity — Where guarantee expressed to be principal obligation

Catchwords:

COSTS – Party/Party – Appeals – Where neither party wholly successful on appeal – Where appellant enjoyed some success with respect to discrete aspect of claim – Where appellant asserts there should be no order as to costs – Where respondent substantively successful on balance of contested issues – No issue of principle

Catchwords:

ADMINISTRATIVE LAW – Supervisory jurisdiction – Judicial review – Judicial review of confirmation in District Court of conviction entered in Local Court – Where applicant advances numerous grounds of review asserting jurisdictional error in conduct of trial and appeal to District Court – Where applicant asserts primary judge’s comments gave rise to apprehension of bias – Where applicant asserts denials of procedural fairness arising from inability personally to address Court and judge’s possession of extraneous information – Where applicant asserts constructive failures to exercise jurisdiction by failure to respond to substantial and clearly articulated arguments – Where applicant asserts mistaken denial of appellate jurisdiction in conduct of appeal – Where applicant asserts finding of fact made in absence of any evidence – Where applicant asserts diverse errors of law in conduct of appeal – Where applicant asserts legally unreasonable or irrational finding of fact made – Where none of applicant’s grounds has merit – No issue of principle – Application for judicial review dismissed

Catchwords:

APPEALS – Leave to appeal – Leave to appeal from costs orders following dismissal of application for mandatory interlocutory injunctive relief – Where parties entered into deed settling litigation in Equity Division – Where applicant covenanted to pay $3.25m to respondent in tranches – Where applicant charged shares in related company as security for payments due under deed – Where applicant subsequently sought rectification of deed and release of charge over shares or a declaration the deed was void ab initio by reason of mistake – Where mistake said to generate equity of rectification as to effect of granting charge on other financing arrangements between parties – Whether primary judge erred in refusing mandatory interlocutory injunctive relief against respondent – Whether applicant had identified question of principle of general importance or injustice or error going beyond one merely arguable – No issue of principle – Leave to appeal refused

Catchwords:

CHILD WELFARE – Aboriginal children at risk of significant harm – parental responsibility conferred on Minister – children placed in care of non-Aboriginal carers – carers’ temporary visas expired – Minister consented to temporary removal of children to the UK – application by mother for parental responsibility – orders conferring parental responsibility on carers in the UK COURTS and JUDGES – Children’s Court – jurisdiction – child not present nor ordinarily living in New South Wales – parental responsibility conferred on Minister – child living with carers in the UK – order conferring parental responsibility on Minister rescinded – whether Court can make order conferring parental responsibility on carers – whether jurisdiction of inferior court more extensive than Supreme Court’s parens patriae jurisdiction STATUTORY INTERPRETATION – jurisdiction-conferring provisions – not to be read down by implied limitations – application – specialist courts – inferior courts – judicial institutional arrangements – legislative history – comity of nations – conflict of laws rules giving effect to foreign law

Catchwords:

COSTS — party/party — appeals — exceptions to general rule that costs follow the event — apportionment of costs — where mixed outcome on appeal — where issues sufficiently discrete to warrant apportionment — unsuccessful appeal on causation — significant reduction of damages on appeal COSTS — party/party — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — whether offer of compromise complied with requirements of Uniform Civil Procedure Rules 2005 – whether offer complied with Calderbank principle

Catchwords:

EQUITY – breach of confidence – the respondent was the promoter of the boyband One Direction’s 2013 Australian concert tour – the appellant attended a meeting with representatives of the respondent on 26 February 2013 to pitch Cashtime concept – prior to pitching Cashtime concept there was a brief discussion about One Direction’s 2013 Australian concert tour – in early June 2013 the respondent announced an additional, free One Direction concert to be attended by Coles customers who purchased eligible products and were successful in an online draw as part of an arrangement between the respondent and Coles for Coles to provide sponsorship for the One Direction 2013 Australian concert tour – appellant claimed that in devising the additional, free One Direction concert, the respondent used confidential information he had supplied during the 26 February 2013 meeting – appellant alleged respondent breached equitable obligation of confidence – claim dismissed by primary judge – whether the primary judge erred in finding the information conveyed by the appellant was inherently unspecific – whether the primary judge erred in finding the information conveyed by the appellant was a very general and inchoate idea – whether the primary judge erred in finding that the information was not received by the respondent in circumstances importing an obligation of confidence – whether the primary judge erred in finding that there was no misuse of the information in question EVIDENCE – appellate review of witness evidence – where findings as to credibility and reliability of accounts given by various witnesses played a significant role in some of the primary judge’s key findings rejecting the claim for breach of confidence – where primary judge enjoyed very real advantages over an appellate court by reason of having seen the witnesses – to the extent the appellant seeks to challenge findings of fact influenced by the primary judge’s findings as to credibility and reliability he must establish findings were glaringly improbable or contrary to compelling inferences – whether primary judge’s findings were glaringly improbable or contrary to compelling inferences APPEALS – procedure – appellant’s claim would not exceed approximately $33,000 – where leave is required to appeal against a final judgment involving a claim or matter in issue of less than $100,000 – appellant sought leave to appeal out of time in his written submissions – appellant’s appeal raises points of principle of some importance in which the errors that he relies upon go beyond what is merely arguable – leave to appeal granted

Catchwords:

CIVIL PROCEDURE – permanent stay of proceedings – claim of vicarious liability for damages for child abuse – child abuse alleged to have occurred in 1976 at holiday camp – most relevant witnesses deceased – primary judge ordered permanent stay prior to decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 – whether GLJ changed applicable principles – whether fair trial possible of primary allegation of child abuse – where appellants intended to adduce further expert evidence concerning holiday camps – leave granted and timetable for further evidence and submissions ordered