Recent decisions for Court of Appeal

Catchwords:

Application for leave to appeal - Part 13 rule 5.

Catchwords:

LAND LAW — easements — construction of easements — general principles of construction — relevance of concept of “reasonable use” to task of construction — whether easement confers on dominant owners exclusive rights to use subject land for stated purposes — consideration of extent of rights retained by servient owner LAND LAW — easements — validity of easements — whether easement capable of forming subject matter of grant — where easement confers on dominant owners exclusive rights to use land for stated purposes — whether dominant owners’ rights inconsistent with servient owner’s possession and proprietorship of servient tenement

Catchwords:

EQUITY – trusts and trustees – two couples established unit trust for purpose of making property investments – equal division of units – equal board representation on corporate trustee – equal shareholdings in trustee – no provision to resolve deadlocks – trust deed contained clause based on s 3A(3B) of Land Tax Management Act 1956 (NSW) deeming it to be a fixed trust – clause provided that unit holders may require the trustee to wind up the trust and distribute the trust property – whether individual unit holder entitled to wind up trust PRECEDENT – appellate decision on similar clause in trust deed, in unit trust where one person held all units, construed to entitled unit holder to wind up trust – whether earlier decision authority for clause authorising one of a number of unit holders individually to wind up trust – decisions only authority for what was decided – Sayden Pty Ltd v Chief Commissioner of State Revenue (2013) 83 NSWLR 700; [2013] NSWCA 111 distinguished CORPORATIONS – members’ rights and remedies – oppression – construction and background to Corporations Act 2001 (Cth), s 232 and 233 – whether applicable to members of trustee companies – whether member’s capacity as person with indirect interest in trust assets relevant – trustee conducted agricultural business – whether ongoing disputes concerning management of business amounted to oppression – whether deadlock as to whether trust should be wound up amounted to oppression RECEIVERS – so-called “principle in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360” relied on to appoint receiver to wind up trust – nature of principle – whether principle of equity or statutory construction – nature of receivership – whether remedy interlocutory or final – differences between companies and trusts – court’s function to preserve trusts – equitable doctrines directed to preservation of trusts

Catchwords:

COSTS — where Class 4 proceedings in Land and Environment Court dismissed by consent — where on application under UCPR r 42.20(1) primary judge ordered “otherwise” by making no order as to costs — no question of principle or issue of public importance, no clear injustice which is more than merely arguable — leave to appeal refused, with costs

Catchwords:

ADMINISTRATIVE LAW – Jurisdictional error – Application to appear by audiovisual link under s 5B of the Evidence (Audio and Audiovisual Link) Act 1998 (NSW) – Convenience of applicant to be taken into account – Whether magistrate excluded consideration of applicant’s “convenience” APPEALS – Leave to appeal – Departure from arguments advanced before primary judge – Relevance to grant of leave to appeal – Importance of formal orders of lower courts being attained for purposes of appeals and applications for leave to appeal

Catchwords:

CONTRACT — agreement to commercialise intellectual property — repudiation — whether primary judge erred in finding no breach of obligation to reassign intellectual property — whether primary judge erred in finding no loss of valuable commercial opportunity CONTRACT — obligation to use best endeavours to offer further employment — whether primary judge erred in not awarding substantial damages

Catchwords:

COSTS – where respondents seek indemnity costs – where applicant advanced unmeritorious grounds in application for review – indemnity costs granted COSTS – where respondents seek gross sum costs order – where there is a real doubt about whether applicant can meet a costs order against it – gross sum costs order made

Catchwords:

BUILDING AND CONSTRUCTION — adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) — service of underlying payment claim and notice of intention to apply for adjudication — jurisdictional error — where primary judge found adjudication application filed prematurely — whether adjudicator lacked jurisdiction to hear and determine payment claim BUILDING AND CONSTRUCTION — service — service under s 31(1)(d) of the Building and Construction Industry Security of Payment Act 1999 (NSW) — whether email address “specified” for service of payment claim and notice of intention to apply for adjudication BUILDING AND CONSTRUCTION — adjudication — Home Building Act 1989 (NSW) — where statutory requirements for licence and insurance contravened — whether ss 10 or 94 of Home Building Act prevent enforcement of adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW)

Catchwords:

LAND LAW – adverse possession – where the first respondent’s land borders on land owned by the appellants (Lot 41) – where the first respondent sought a declaration that he was entitled to legal title of part of Lot 41 (the contentious land) by reason of decades of adverse possession – whether the first respondent and his predecessors in title had demonstrated continuous exclusive possession and an intention to possess the contentious land – whether the primary judge erred in concluding that the Lot 41 paper title owners lost title to the contentious land in 1989 LAND LAW – adverse possession – extent of relief – whether the court ought to declare any part of the contentious land beyond which the appellants conceded in an open offer as curtilage

Catchwords:

CORPORATIONS – voluntary administration – where respondents are said to be in possession of property belonging to the applicant – where the respondents are in administration – where administrators propose to move under s 442C of the Corporations Act 2001 (Cth) for leave to dispose of the property – whether applicant should be granted leave to proceed under s 440D of the Corporations Act 2001 (Cth) for delivery up of property – leave under s 440D refused APPEALS – application for leave to appeal – where decision concerns a matter of practice and procedure – whether application raises an issue of principle or a significant injustice will occur if leave is not granted – point of principle raised – leave to appeal granted

Catchwords:

LEASES AND TENANCIES – where Applicant was evicted from student accommodation – whether residence under residential agreement between Applicant and University exempt from Residential Tenancies Act 2010 (NSW) – meaning of “hall of residence” – residential agreement and residential premises excluded from operation of Residential Tenancies Act 2010 (NSW) APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused

Catchwords:

ADMINISTRATIVE LAW — Appeals — judicial review — whether the primary judge erred in holding that the medical assessor to whom the medical dispute was referred by the Personal Injury Commission under the Motor Accident Injuries Act 2017 (NSW) fell into jurisdictional error or error of law on the face of the record — where the primary judge did so err ADMINISTRATIVE LAW — Appeals — judicial review — whether the primary judge erred in holding that the delegate of the President of the Personal Injury Commission fell into jurisdictional error or error of law on the face of the record in concluding that he was not satisfied that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application under the Motor Accident Injuries Act 2017 (NSW) — where the primary judge did so err

Catchwords:

OCCUPATIONS – Health practitioners – Professional misconduct – Where appellant prescribed somatropin off-label – Where clinical records inadequate – Requirement for NSW Civil and Administrative Tribunal to provide adequate reasons – Requirement to afford procedural fairness by notifying appellant of allegations through amended complaint – Where findings of fact contradicted by contemporaneous clinical records

Catchwords:

CORPORATIONS – meetings – general meeting convened pursuant to Corporations Act 2001 (Cth), s 249F to remove directors – majority of members cast votes in favour of removal of three of four directors prior to meeting – directors appointed administrator on evening before meeting – chairman of meeting purported to adjourn meeting – no challenge to finding that purported adjournment invalid – authorised representative of major shareholder assumed chair – resolutions removing three directors and appointing replacements carried – whether authorised representative was appointed interim chair and was unable to chair meeting – whether other directors willing to act as chair – whether authorised representative, who was not himself a member, entitled to act as chair – whether grounds which had not been raised at trial ought be raised on appeal – whether s 1322 available to cure any defect

Catchwords:

MORTGAGES AND SECURITIES – Personal Property and Securities Act 2009 (Cth) – security interest – goods (solar panels) sold subject to retention of title – seller perfected purchase money security interest (PMSI) – buyer authorised to sell or dispose of goods in ordinary course of business – where buyer agreed under subcontract with contractor to design, supply and install solar photovoltaic equipment at principal’s premises – buyer supplied and delivered goods to site of works subject to retention of title – buyer transferred possession of goods to principal – whether dealing with collateral (panels) gives rise to proceeds – whether proceeds constituted buyer’s chose in action against contractor for milestone payment for delivery of goods – whether proceeds constituted monies paid by principal to contractor for delivery of goods by contractor to site – whether buyer has an interest in the proceeds – s 32, PPSA MORTGAGES AND SECURITIES – Personal Property and Securities Act 2009 (Cth) – taking free – grantor of security interest disposes of goods – where goods delivered to site of works under terms of subcontract – no transfer of title until seller paid in full invoice relevant to goods – ordinary course of seller’s business of selling goods of that kind – meaning of “sold” – whether “sold” requires a transfer of title – whether ordinary course buyer includes buyer under an agreement for sale – s 46, PPSA STATUTORY INTERPRETATION – Commonwealth and state legislation – meaning of “sold” in s 46, PPSA – whether “sale” as referred to in Sale of Goods Act 1923 (NSW) restricts the operation of ordinary course buyer protection in s 46, PPSA

Catchwords:

COURTS AND JUDGES – bias – application for recusal – actual or apprehended bias – where primary judge previously decided cases adversely to the applicant – where plaintiff alleged that primary judge altered transcripts – no actual or apprehended bias PROCEDURE – notice of motion – application to access audio recording of hearing – where applicant alleged that transcript had been altered – where applicant led no evidence – notice of motion dismissed

Catchwords:

COSTS – appellant enjoys partial success on appeal – common ground usual rule as to costs displaced – how costs order should reflect partial success

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – application under Uniform Civil Procedure Rules 2005 (NSW), (UCPR) r 36.16(3A) – application made within time and competent – motion to re-open judgment and set aside orders – whether Court overlooked two relevant legal principles – first issue not a focus of appeal or trial which turned on factual disputes – second issue dealt with in appeal judgment and not overlooked – application dismissed JUDGMENTS AND ORDERS – amending, varying and setting aside – application under UCPR, r 36.16(3A) – original application in time – proposed amendment to challenge different order out of time – Court lacks power to entertain further application JUDGMENTS AND ORDERS – application for reimbursement of costs paid under order set aside – failure to seek order under UCPR r 51.19 – application to vary orders made in time – orders generally made as of right

Catchwords:

NEGLIGENCE – historical sexual assault – whether error in process of making findings of primary fact – whether removal of limitation period alters obligation of plaintiff to establish elements of cause of action – whether primary judge sufficiently paid regard to inconsistencies in plaintiff’s account NEGLIGENCE – claim brought against “Diocese” – juristic nature of defendant – significance of defendant being proper defendant under Part 1B of Civil Liability Act 2002 (NSW) – whether defendant owed duty of care to plaintiff in 1969 – significance of litigation proceeding on basis that alleged abuser was a parish priest rather than an assistant priest – obligation to establish foreseeability of harm by assistant priest by evidence – no duty of care owed NEGLIGENCE – non-delegable duties – whether appellant could owe non-delegable duty of care for intentional criminal act of assistant priest

Catchwords:

CONTRACT – remedies – damages – measure of damages – contract for the sale of shares – where primary judge assessed damages by reference to lost expenditure – where breach results in uncertainty or difficulty of proof of loss – no error in primary judge’s approach CONTRACT – remedies – damages – time of assessment – where purchase price was paid but shares were not transferred in accordance with the contract – where respondents were unaware that shares were not transferred – no error in assessing damages by reference to events that occurred after the breach of contract RESTITUTION – ineffective transactions – general principles – restitution of money paid – failure of consideration– where parties’ relationship was governed by a valid contract – subsidiarity principle – where restitutionary claim did not undermine the parties’ allocation of risk

Catchwords:

COSTS – application for indemnity costs

Catchwords:

BUILDING AND CONSTRUCTION — adjudication — judicial review — money paid into Court when adjudication sought to be challenged by principal — principal’s challenge dismissed by primary judge and not the subject of appeal — whether adjudicator’s determination not to address parts of builder’s claim affected by jurisdictional error on the basis that he erroneously found that some submissions were not “duly made” or failed to consider submissions — issue on appeal whether Court has power to constrain any remitted adjudication to parts affected by jurisdictional error — stay pending appeal refused as builder has determination in its favour and principal does not challenge that part of the determination referable to amount paid into court — risk allocation favoured by Building and Construction Industry Security of Payment Act 1999 (NSW)

Catchwords:

ADMINISTRATIVE LAW — Appeals — judicial review — whether the primary judge erred in holding that a review panel of the Personal Injury Commission constituted under the Motor Accident Injuries Act 2017 (NSW) did not fall into jurisdictional error, fail to exercise its statutory powers or give adequate reasons ADMINISTRATIVE LAW — Appeals — judicial review — no failure to address clearly articulated submission in circumstances where there had been significant changes in the facts between the making of the submission and the decision under review TRAFFIC LAW AND TRANSPORT — traffic law — Motor Accident Injuries Act 2017 (NSW) — meaning of “threshold injury” under s 1.6 — whether claimant’s radiculopathy caused by motor accident — where Medical Assessor found radiculopathy present after motor accident

Catchwords:

INSURANCE – claim for work injury damages – pre-filing procedures under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where employer failed to serve pre-filing defence – where employer subsequently filed defence raising contributory negligence – where s 318(1)(c) prevents employer from filing a defence that wholly or partly disputes liability for the claim if employer has failed to serve a pre-filing defence – whether “wholly or partly disputes liability” includes raising a defence of contributory negligence – whether contributory negligence is an aspect of liability or damages – contributory negligence an aspect of liability – employer barred from raising contributory negligence – defence struck out STATUTORY INTERPRETATION – meaning of “wholly or partly disputes liability” – where statutory note in s 318A(2) in tension with plain interpretation of s 318 – where primary judge had regard to note in s 318A(2) – whether statutory note forms part of the Act – note not part of the Act – note may be considered as extrinsic material – note cannot displace the correct meaning of the section

Catchwords:

CIVIL PROCEDURE — Court of Appeal — stay of order for payment out of funds in Court — whether leave to appeal required — whether serious question to be tried — where balance of convenience lies

Catchwords:

PROCEDURE — stay pending appeal — whether the applicant has established an arguable case — whether stay should be granted where bankruptcy proceedings have already commenced — prejudice where applicant was not in a fit state to inform cross-examination — stay ordered in relation to the individual applicant but not the corporate applicants

Catchwords:

ADMINISTRATIVE LAW – Error of law on the face of the record – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 98(3) – application to appear in proceedings in Children’s Court dismissed – appeal to District Court dismissed – whether error of law on the face of the record of the District Court – whether sufficient for applicant to be found to have a genuine concern for the safety, welfare and well-being of the child or whether application was subject to a further discretion – conflict in decisions of Supreme Court on approach to s 98(3) – whether relief should be withheld for discretionary reasons

Catchwords:

STATUTORY INTERPRETATION – extrinsic material – significance of delegated legislation to construction of a statute – relevance to statutory construction of legislative facts and claims asserted from the bar table – multiple statutory purposes – issue determined by textual considerations where none of the purposive and contextual arguments raised assists greatly to resolve construction issue TRAFFIC LAW AND TRANSPORT – traffic law – motor accident legislation – definition of “threshold injury” – injury to the skin which is not also an injury to nerves is a soft tissue injury

Catchwords:

CONTRACTS — Construction — Whether contract imposed an obligation to elect between mutually exclusive scenarios — Whether valid election could be made after contract terminated CONTRACTS — Construction — Requirement of clear and unequivocal communication or conduct to exercise rights — Where no relevant communication or conduct within relevant period

Catchwords:

CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors — Whether director was validly appointed — where director appointed by purported exercise of casting vote of board chairperson — whether chairperson validly appointed by earlier agreement allegedly made during conversation — where primary judge not persuaded that director was validly appointed by earlier agreement made during conversation

Catchwords:

ADMINISTRATIVE LAW – powers of public authority – power to commence legal proceedings – court attendance notices issued by officer of Independent Commission Against Corruption – notices not signed by registrar – officer acting as “public officer” within s 3(1) of the Criminal Procedure Act 1986 (NSW) – whether officer acting in an “official capacity” – whether powers and functions of Commission extend to laying charges under the Crimes Act 1900 (NSW) for matters the subject of investigation into corrupt conduct – whether power and functions of Commission extend to laying charges for breaches of the Independent Commission Against Corruption Act 1988 (NSW) STATUTORY INTERPRETATION – implied powers and functions of public body – powers necessary or reasonably incidental to the exercise of functions and powers – legislation to be read harmoniously

Catchwords:

APPEALS – leave to appeal – leave not readily granted to challenge to discretionary exercise of power with respect to costs – as regards alleged error in not making a set-off costs order, not in interests of justice to grant leave given decision substantially founded on facts before primary judge, the position has since evolved, and it remains open to applicant to claim any amounts outstanding – applicant’s complaint also involves challenge to orders made in favour of persons not party to appeal proceedings – no point of principle or public important or reasonably clear injustice going beyond something merely arguable

Catchwords:

CORPORATIONS — Directors and officers — Fiduciary duties — Where directors of company resigned — Whether fiduciary duties of directors continued despite resignation — Whether the fact the company may not have been able to exploit commercial opportunity precluded a finding of breach of fiduciary duty by former directors EQUITY — Equitable remedies — Injunctions — Width of injunctive relief ordered against defaulting fiduciary and knowing assistant

Catchwords:

PROCEDURE — stay pending appeal — dispute as to composition of board of listed company — whether applicant had established proper basis for stay — appeal to be heard in 12 business days — applicant profferred undertaking to be personally liable for quantifiable costs — applicant provided security for liability on undertaking — stay ordered

Catchwords:

CORPORATIONS – directors and officers – directors’ duties – directors causing company to engage in fraudulent and unlawful practice – directors causing company to engage in commercial agreements and practices detrimental to company and beneficial to third parties in which directors had an interest – directors apprehending loss of control diverted business to third parties in which directors had an interest – whether directors breached obligations under Corporations Act 2001 (Cth), ss 181 and 182 – whether third parties involved in breach of ss 181 and 182 within the terms of s 79 – whether directors breached fiduciary duties CORPORATIONS – statutory construction – Corporations Act 2001 (Cth), ss 181, 182 – improper purpose need not be achieved – not necessary that director acts dishonestly – honest belief as to purpose only satisfied where belief is rational – unlawful conduct necessarily improper EQUITY – fiduciary duties – knowing assistance – liability of third parties under second limb of rule in Barnes v Addy – third parties owned or controlled by family members of fiduciaries – appropriate inferences as to knowledge of dishonest conduct of fiduciaries in absence of evidence to the contrary – no requirement of belief on part of the third party that conduct of fiduciaries was dishonest and fraudulent design – whether third parties operated independently of actions of fiduciaries

Catchwords:

CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – relevant to a fact in issue – justification for production concerns decision not impugned in summons – summons does not set out serious allegations invoked as basis for seeking documents – disputed documents not relevant to fact in issue CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – objection to production of documents or things – client legal privilege – whether waived for purposes of s 122 of Evidence Act 1995 (NSW) – filing of document content of which influenced by views of an expert does not establish disclosure of those views, nor does expert’s agreement to be bound by expert witness code of conduct, nor does provision of joint expert report to court – no prima facie evidence to found alleged misconduct under s 125 of Evidence Act 1995 (NSW) CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – objection to production of documents or things – document prepared for purposes of or in course of or as result of conciliation conference for purposes of s 34(11) of the Land and Environment Court Act 1979 (NSW) – s 34(11) enables production of documents to be resisted if relevant purpose dominant – protection ends when final version presented to commissioner for purpose of seeking s 34(3) decision

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings against solicitor – whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers – where Respondent convicted of participating in a criminal group, using a false document with the intention of inducing a person to accept as genuine and then to influence that person to exercise a public duty, and knowingly taking part in the supply of a prohibited drug – where Respondent served sentence by way of intensive correction order (ICO) – where ICO has expired – where Respondent opposes relief sought – whether Respondent likely to be unfit for the indefinite future – Court satisfied of unfitness to practice for the indefinite future

Catchwords:

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – insurance – “last resort” home warranty insurance policy – where insurer denied liability under policy on basis insureds failed to satisfy requirements of s 103BB(3)(a) – whether s 103BB was itself incorporated as a term of policy – whether s 103BB alters the effect of the policy so as to engage s 54 of the Insurance Contracts Act 1984 (Cth) – whether operation of s 54 of Insurance Contracts Act 1984 (Cth) was attracted where a refusal to pay is premised upon effect of s 103BB(3) and not upon the policy CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – whether Home Building Act 1989 (NSW), s 103BB inconsistent with Insurance Contracts Act 1984 (Cth) COSTS – party/party – bases of quantification – indemnity basis – primary judge ordered costs on indemnity basis – where proceedings ongoing for some time when offer of compromise made – offer had necessary element of compromise – no error

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application for stay – Burgandy Royale test – limited stay granted APPEAL — Security provided in form of bank guarantees — order that guarantees be released – limited stay of order

Catchwords:

COMPULSORY ACQUISITION OF LAND —compensation — market value of land — statutory disregard of certain increases or decreases in value of land — public purpose for which the land acquired — meaning of “public purpose” — where Transport for NSW acquired land pursuant to s 177 of the Roads Act 1993 (NSW) for the construction of the M12 motorway — whether broader purpose of developing area of the Western Sydney Airport was part of Transport for NSW’s “public purpose” for the purposes of s 56(1)(a) STATUTORY INTERPRETATION — Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 56(1)(a) — meaning of “public purpose” — whether public purpose in s 56(1)(a) is limited to purposes for which an acquiring authority is authorised by statute to acquire land

Catchwords:

CIVIL PROCEDURE — summary disposal — want of due despatch — delays by self-represented appellant in prosecuting an appeal — new circumstances come to light — not in the interests of justice to dismiss proceedings CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — uncertain whether leave to appeal required — appellant has attempted to comply with orders to file a summons seeking leave to appeal — appellant’s notice of appeal filed two days out of time — not in the interests of justice to dismiss proceedings CIVIL PROCEDURE — summary disposal — dismissal of proceedings — non-appearance of plaintiff — plaintiff withdrew legal representation mid-way through hearing and later left the courtroom— whether r 29.7 of the Uniform Civil Procedure Rules (2005) (NSW) applies where a party leaves the court room mid-way through a hearing CIVIL PROCEDURE — Court of Appeal — pro bono referral — party terminated previous pro bono referral — issue of principle emerged on appeal satisfying the “special reasons” requirement in r 7.36 of the Uniform Civil Procedure Rules (2005) (NSW)

Catchwords:

CONSUMER LAW — Application of the Australian Consumer Law — whether primary judge was required to, but did not, make a finding as to whether the representations made were “false or misleading” and fell within the ambit of s 29(1)(b) of the Australian Consumer Law and s 12DB(1)(a) of the Australian Securities and Investments Commission Act 2001 (Cth)

Catchwords:

CIVIL PROCEDURE – appeal – application for leave to appeal – respondent’s application for security for costs – whether corporate applicant unable to pay costs if unsuccessful – strength of applicant’s case for leave – stay until security paid into court CIVIL PROCEDURE – appeal – application to stay costs order made by primary judge – stay on basis of payment into court CIVIL PROCEDURE – application for leave to appeal – respondent’s application for security for costs – applicant issued notice to produce – respondent’s motion to set aside notice – documents sought to resist security for costs application – agreements between respondent and legal representatives – relevance not established – documents sought to show respondent owed money to applicant – relevance not established – to determine balance of account between parties would be to engage in satellite litigation

Catchwords:

PROCEDURE – judicial review of District Court’s dismissal of interlocutory appeal from Children’s Court – whether independent legal representative of child entitled to be heard – where divergence in submissions between Secretary and independent legal representative – where divergence of principle on face of authorities – where Court would be assisted by submissions from independent legal representative on questions of law – leave granted to be joined as intervener

Catchwords:

CIVIL PROCEDURE – hearings – application to expedite application for leave to appeal where final hearing below soon to commence – prolonged proceeding below with final hearing dates twice postponed on applicant’s application based on mental health arguments – applicant not yet filed materials on application for leave to appeal despite orders – application refused to avoid heavy burden on parties and interference in preparation for final hearing CIVIL PROCEDURE – Court of Appeal – whether should be concurrent hearing of leave application and appeal is administrative decision generally made by President of Court of Appeal – not open to applicant to seek that the decision be made by a judge of appeal determining a motion CIVIL PROCEDURE – hearings – adjournment – adjournment sought when very short period remains before commencement of final hearing

Catchwords:

CONTRACTS – Formation – Agreement – Whether an oral agreement of accord and satisfaction was formed – Lack of a genuine dispute between the parties CONTRACTS – Formation – Consideration – Where part payment of a debt is not good consideration EQUITY – Equitable interests in property – Priority disputes between competing equitable interests –Whether there was actual or constructive notice of the earlier equity – Whether there was a “registrable dealing” for the purposes of section 43A of the Real Property Act 1900 (NSW)

Catchwords:

COURTS AND TRIBUNALS – Mental Health Review Tribunal – whether Tribunal’s detention and revocation of conditional release were valid under ss 79 and 81 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) MENTAL HEALTH – forensic patient – forensic patient scheduled under s 19 of the Mental Health Act 2007 (NSW) – whether extension of time and leave to appeal should be granted – where conditional release breached – whether s 109 of Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) provides a mandatory scheme where conditional release breached STATUTORY INTERPRETATION – whether s 81 limited to detention orders – whether s 81 provides a general power to make orders as to detention of forensic patients – where orders being made after initial detention order – whether power to revoke conditional release implied from express power of detention in s 81 – Anthony Hordern principle of statutory construction considered – futility of order for apprehension under s 109 when forensic patient already detained – whether s 109 has a role to play

Catchwords:

CONTRACTS — construction and interpretation — letter of comfort — where parent company undertook to pay “any debts” of subsidiary — where liquidators of subsidiary admitted proofs of debt in respect of undetermined civil claims — whether “any debts” in the letter of comfort includes liabilities accepted by liquidators

Catchwords:

COSTS – review of decision of Judge of Appeal under s 46(4) of the Supreme Court Act 1970 (NSW) – where security for costs granted by Judge of Appeal – whether decision involved an error of principle or was plainly wrong – where Judge of Appeal found special circumstances were not required under s 1335 of the Corporations Act 2001 (Cth) – no error of principle

Catchwords:

APPEALS — Contracts — Construction — where two co-owners agreements (COA) govern relationship between co-owners of large suburban shopping centre — where pre-emption rights on defaults and deemed defaults by co-owners in dealing with that co-owner’s ownership interest entitle non-defaulting owners to purchase defaulting co-owner’s ownership interest — whether two separate transactions effecting a transfer of ownership interests were prohibited disposals triggering pre-emption rights — whether second COA had a greater effect than to substitute an outgoing co-owner with an incoming co-owner — whether ownership interest was acquired “under” clauses regulating dealing and establishing pre-emption rights — whether service provisions ought be construed as essential

Catchwords:

APPEALS – procedure – stay of orders in District Court pending outcome of judicial review application in Court of Appeal – serious issue may be raised – no significant prospects of success on broadbrush view – balance of convenience taking account of risk of prejudice militates against stay CORPORATIONS – practice and procedure – security for costs – some delay in seeking security – no inference that ordering security would stifle proceedings – security appropriate – case of confined issues – sufficient for one junior counsel to appear in short hearing – broadbrush assessment of costs to be allowed

Catchwords:

INSURANCE – Insurance Contracts Act 1984 (Cth) – non-disclosure and misrepresentation – duty of disclosure – where senior executive of Leighton made a file note in November 2010 detailing conversations with another senior executive (“Iraq File Note”) – where that executive advised he had an opportunity to extend/vary a contract for a major infrastructure project in Iraq but it would require payment to a third party nominated subcontractor of $50-$60 million where the real value of the work was less than 50% of the payment, and that the current contract was won by a payment to a nominated subcontractor “on the same terms” – where Iraq File Note not disclosed to insurers for 2011 year (“2011 Insurers”) – where Leighton subsequently entered into primary and excess layers of D&O Insurance for the 2011 year (“2011 Policies”) – whether Leighton breached its duty of disclosure under s 21 of the Insurance Contracts Act and made a misrepresentation to the 2011 Insurers INSURANCE – Insurance Contracts Act 1984 (Cth) – whether the 2011 Insurers were entitled to reduce their liability to nil under s 28(3) of the Insurance Contracts Act INSURANCE – Liability insurance – directors and officers – whether cll 5.3 and 7.1 of the 2011 Policy precluded the 2011 Insurers from reducing their liability under s 28 of the Insurance Contracts Act – whether cl 5.3(ii) of the 2011 Policy operated so that limit of liability under previous years policy (as reduced by amounts previously paid) applied to CIMIC’s claims INSURANCE – Insurance Contracts Act 1984 (Cth) – contribution – whether AIG entitled to equitable contribution of 50% from Berkley and Swiss Re – where, without recourse to s 54 of the Insurance Contracts Act, AIG could not have contribution from Berkley – whether an omission to form an expectation that a claim could arise is a relevant omission for the purposes of s 54 of the Insurance Contracts Act INSURANCE – Liability insurance – directors and officers – where primary judge granted declaratory relief against insurers for the 2010 year – whether Court had jurisdiction to grant declaratory relief or alternatively whether the exercise of jurisdiction to grant declaratory relief miscarried APPEALS – Procedural fairness – whether primary judge denied Berkley procedural fairness in limiting its cross-examination of two witnesses

Catchwords:

AGENCY – authority of agent – implied actual authority – reason to infer board’s authorisation for one of its directors to sign on its behalf – Jones v Dunkel inferences drawn where no evidence from board AGENCY – service requirement under s 55(1)(c) of the Property, Stock and Business Agents Act 2002 (NSW) – circumstances militating in favour of ordering relief under s 55A from disentitlement to commission and expenses CIVIL PROCEDURE – pleadings – failure to raise issue in pleadings below – unfair to respondent to hold that counsel’s attempt to meet a point on the run was a concession that the point was in issue

Catchwords:

COSTS – Party/Party – General rule that costs follow the event – Relevance of Model Litigant Policy for Civil Litigation – Where offer of compromise rejected – Where no better outcome achieved

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule – application to vary order made on 20 February 2025 – where respondents commenced new proceedings – where respondents sought a winding up order in relation to first appellant – where respondent alleged that the second appellant was not the beneficial owner of units recorded in relevant unit trust – whether court of appeal judgment set aside an unchallenged declaration regarding the second appellants’ beneficial ownership of units in relevant unit trust – whether orders should be corrected under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW)

Catchwords:

COSTS – receivers – privately appointed receiver of company in liquidation brought appeal against another company in liquidation seeking to overturn decision of primary judge to depart from pro rata distribution – appeal failed – whether receiver should be ordered to pay costs of successful respondent – where acknowledgement that receiver liable for adverse costs requested but not provided – where security for costs not sought

Catchwords:

APPEALS – leave to appeal – competency – monetary threshold – procedural irregularity in filing summons seeking leave not causing distinct prejudice APPEALS – procedure – time Limits – extension of time – reasonable explanation for delay in filing notice of appeal – delay significant but not substantial – no distinct prejudice to other party – no utility in granting extension for continuous failure to demonstrate reasonably or fairly arguable case on appeal CIVIL PROCEDURE – summary dismissal where no reasonable cause of action disclosed – pleadings – striking out – none of three attempts by appellant properly identify grounds of appeal beyond raising matters not in issue below or matters which would not establish that the proceeding was not statute-barred LIMITATION OF ACTIONS – suspension of time – plaintiff asserted to be under disability – restraint or detention in foreign country

Catchwords:

CIVIL PROCEDURE – respondent’s application for security for costs – applicant sought recusal – reasonable apprehension of bias – judge on court which dismissed separate appeal proceedings 15 years ago – previous judgment not concerned with merits of current proceeding – no findings as to credibility

Catchwords:

CONTRACTS – claim for unpaid legal fees – where primary judge determined that various alleged oral contracts and variations of terms of retainer were inconsistent with written record – where primary judge preferred contemporaneous documents over honest recollection – whether the primary judge erred in factual findings as to the timeline of meetings between the parties – whether the primary judge erred in failing to find that the oral agreements contended by the appellant did occur.

Catchwords:

NEGLIGENCE — personal injury — worker injured on building site when lifting a concrete hose with another worker — identification of risk of harm — whether findings of fact permitted elements of negligence of other worker to be established — identity of other worker undisclosed — uncertainty whether other worker was employee or supplied under labour hire agreement — whether employer vicariously liable for negligence of other worker — whether sufficient that other worker performed tasks “as if” an employee - whether transfer of control — whether evidence permitted finding that other worker was employee — assessment of contributory negligence NEGLIGENCE — damages — personal injury damages — assessment of future economic loss —plaintiff suffered from degenerative spine condition prior to incident — assessment of future domestic assistance — appropriate hourly rate

Catchwords:

ESTOPPEL – proprietary estoppel – encouragement – nature of promise – where parents promised to build house for son on farming property 30 years ago – whether the promise included skirt of land surrounding the house (the Lot) – detrimental reliance – in reliance on the promise the son forewent the parents’ offer to buy him another block of land and father-in-law’s financial contribution to the son’s marriage in favour of expenditure on improvements on the Lot – whether it would have been unconscionable for the parents to resile from the promise ESTOPPEL – Proprietary estoppel – encouragement – relief – where land jointly owned – where buy-out order made instead of appointing trustees for sale – whether sufficient evidence of value of land – where single joint expert appointed by the parties had valued the Farm and the Lot – whether procedural unfairness in ordering updated valuation after trial LAND LAW – real property – indefeasible title – in personam exception – whether personal equity in respect of unregistered interest in part of farming property (the Lot) – Farm owned by parents – where parents made promise to older son to build house on the Lot and “it will be yours” – where parents later transferred the Farm to older son and his brother as tenants in common in equal shares for nil consideration – transfer of land subject to conditions that the two sons continue the farming business as partners, not sell the Farm and parents have right of management veto – whether assurances of conduct by the brother that would have preserved older son’s interest in the Lot – where assurances given in knowledge that parents were giving the Farm to both sons subject to older son’s existing rights and interests COSTS – party / party – exceptions to general rule that costs follow the event – Calderbank offers – where split trial of partnership proceedings – where partnership accounts not yet finalised – whether premature to make special costs order – whether exercise of costs discretion miscarried

Catchwords:

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) 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) – whether procedural unfairness established – whether decision legally unreasonable

Catchwords:

APPEALS — leave to appeal — whether leave required LAND LAW — easements — construction of easements — general principles of construction — admissibility of information beyond the register — relevance of physical characteristics of land — range of physical characteristics which may be considered and as at what time, in light of Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 — whether account may be taken of physical characteristics revealed on building plans which can be accessed by the public LAND LAW — easements — validity of easements — whether easement capable of forming subject matter of grant — whether the right conferred under an easement would amount to right of joint occupation or would substantially deprive the servient owner of proprietorship or legal possession — consideration of effect on both the servient tenement as a whole and the burdened area — consideration of effect on the rights, positive and negative, of the servient owner

Catchwords:

TAXES AND DUTIES — land tax — liability —principal place of residence — unoccupied land concession — where multiple strata lots are claimed as principal place of residence — where strata lots are intended to be consolidated into a single lot — where taxable land does not exactly correspond to future lot intended to be occupied — whether subject matter of concession is existing land or future lot — whether substantial coincidence between existing land and future land is required

Catchwords:

PRACTICE AND PROCEDURE — Adjournment — application for adjournment of application for recusal

Catchwords:

PRACTICE AND PROCEDURE – urgent application for stay pending as yet unfiled application for special leave to appeal to the High Court – application of Burgundy Royale test – no substantial prospect of special leave being granted – stay refused

Catchwords:

PRACTICE AND PROCEDURE — application for recusal —apprehended bias — application declined

Catchwords:

PRACTICE AND PROCEDURE — application for recusal —apprehended bias — application declined

Catchwords:

COURTS AND JUDGES – significant delay in providing reasons for judgment by primary judge – where primary judge delivered written reasons three months after making final orders in proceedings – whether delay in providing reasons amounts to error – whether a retrial is required as a consequence of the delay – whether UCPR r 36.2 applies where reasons for judgment are not yet reduced to writing – whether a common law duty compels District Court judges to give written reasons for judgment contemporaneously with judgment or very soon thereafter – where common law rule in Palmer v Clarke (1989) 19 NSWLR 158 has evolved – no such common law duty – retrial not required TORTS – malicious prosecution – whether the tort is available in respect of the procuring of an Apprehended Domestic Violence Order (ADVO) – where ‘prosecutor’ for the purposes of the tort is the complainant – where provisional ADVO was issued by a police officer – where interim ADVO was consented to by respondent on a no admissions basis – where application for final ADVO was rejected by Magistrate – tort does not apply TORTS – trespass – where appellant claimed to suffer PTSD resulting from the trespass – where the appellant claimed the trespass damaged his house – where primary judge found trespass occurred – where appellant failed to establish that he suffered damage as a consequence of the trespass – where primary judge declined to award damages for trespass – nominal damages payable APPEALS – leave to appeal – where six instances of alleged battery occurred – where primary judge implicitly rejected the alleged battery – where damages not assessed by primary judge – whether failure to assess damages constituted error – where damages would likely be nominal and fall below $100,000 – whether leave should be granted – leave refused

Catchwords:

COSTS — Application to vary costs order — Where application to vary order brought out of time — Where application lacked merit

Catchwords:

SUCCESSION – informal wills – where deceased amended will leaving estate to children but did not comply with formalities required for a valid legal will – where deceased emailed “new will” to new executor – where deceased dies in boating accident in 2023 – where former de facto partner seeks probate of earlier signed will leaving estate to her – whether primary judge erred in determining that deceased intended for the amended will to form his will for purpose of requirements in s 8 of the Succession Act 2006 (NSW) – whether primary judge erred in concluding that deceased was not aware that will had to be executed and witnessed to be valid – whether primary judge erred in finding that relationship between the appellant and deceased had been definitively terminated in May 2019 – whether primary judge erred in inferring that deceased had told the appellant about the amended will immediately after it was made COSTS – whether costs of proceedings at first instance be paid of out of deceased’s estate – whether primary judge erred in determining that appellant pay 75% of respondent’s costs

Catchwords:

CIVIL PROCEDURE — Court of Appeal — review of decision of single judge of appeal — Supreme Court Act 1970, s 46(4) — Uniform Civil Procedure Rules 2005, r 51.58 —whether applicants demonstrated error of principle or that the decision was plainly wrong

Catchwords:

CIVIL PROCEDURE – costs – application for order against non-party – director of company with carriage of proceedings for company – director granted leave to appear – company unsuccessful – conduct not improper or unreasonable – no evidence that company insolvent – no evidence that director funded proceeding – application refused

Catchwords:

ADMINISTRATIVE LAW – judicial review – jurisdictional error – disposal of property on application to court – forfeiture of property to the Crown – construction of s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Catchwords:

EQUITY — fiduciary duties — solicitor — claim against solicitor personally by other side in litigation — whether client gave informed consent to solicitor continuing to act — solicitor subsequently in breach of duty by putting forward settlement deed in which solicitor received a benefit — whether error in finding by primary judge that breach not dishonest — whether primary judge could accept concession that liability in equity depended on finding of dishonesty — whether claim statute-barred absent dishonesty RECEIVERS — instrument appointing receivers expressed to be signed, sealed and delivered — whether a deed — whether primary judge erred in finding instrument was not a deed and therefore six year limitation period applicable — whether receivers breached fiduciary duties or were knowingly involved in breach of duty by solicitor — whether any breach was dishonest — whether any claim against receivers statute-barred PROCEDURE — appeals — notice of appeal — failure to identify grounds briefly and specifically — failure to comply with statement as to challenge to findings of fact — failure to comply with page limit — unnecessary to address numerous subgrounds of appeal and submissions

Catchwords:

TORTS — false imprisonment — whether power to arrest lawfully exercised under s 99, Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — whether police officers suspected on reasonable grounds that the person committed offences — where suspected offences comprised breaches of an ambiguous order — “reasonably necessary” criterion — whether arresting officer’s satisfaction that the arrest was reasonably necessary was manifestly unreasonable, or arbitrary, capricious, irrational or not bona fide CIVIL PROCEDURE — Court of Appeal — competency of appeal — whether appeal involves matter at issue amounting to or of the value of $100,000 or more — need for party seeking to appeal to demonstrate that the appeal is not limited by monetary sum

Catchwords:

TORTS – nuisance – private nuisance – plaintiffs claimed their properties were affected by construction of Sydney Light Rail – whether interference with enjoyment of plaintiffs’ property substantial and unreasonable – whether failure by plaintiffs to establish a failure to take reasonable care determinative – whether defendant bore onus of establishing that it took reasonable care – whether defendant failed to take reasonable care – significance to cause of action in nuisance of taking reasonable care – whether use of road for construction purposes exceptional – whether interference with plaintiffs’ enjoyment inevitable – whether delay in construction attributable to discovery of unknown utilities – whether damages should include a “recovery period” – whether s 43A of Civil Liability Act 2002 (NSW) applicable DAMAGES – pure economic loss – funded litigation – funding agreement included commission to funder – whether commission recoverable as component of damages

Catchwords:

WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor fabricated evidence or made factual errors resulting in jurisdictional error WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor failed to apply [1.32] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment resulting in an error of law on the face of the record WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor adopted wrong criteria in NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment resulting in jurisdictional error or error of law on the face of the record WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor had conflict of interest or decision was affected by actual or apprehended bias or he abused his power such that the assessment suffers from jurisdictional error WORKERS COMPENSATION — medical assessment — medical assessment certificate —decision of delegate of President of Personal Injury Commission not to allow appeal to proceed to Medical Appeal Panel — whether limited time to submit application to appeal constituted denial of procedural fairness — whether decision was open to delegate WORKERS COMPENSATION — medical assessment — certificate of determination — whether certificate of determination tainted by jurisdictional error or error of law on face of the record in decision of delegate of President of Personal Injury Commission not to allow appeal to proceed to Medical Appeal Panel

Catchwords:

CIVIL PROCEDURE — security for costs — non-resident applicant for leave to appeal — unpaid costs orders in other proceedings — no issue of principle

Catchwords:

CIVIL PROCEDURE - Court of Appeal - Expedited hearing - Where an expedited hearing of an application for leave to appeal and appeal against an order made on an interlocutory basis is sought - Where the order varied and deleted certain conditions of an Extended Supervision Order - Where it was contended that expedition should be ordered having regard to the public interest and so that the appeal not be rendered inutile - Where expedition was opposed on the grounds of prejudice

Catchwords:

CIVIL PROCEDURE - Court of Appeal - Judges of Appeal - Powers of - Power of single Judge of Appeal - Whether orders sought by motion are orders that could be properly made by a single Judge of Appeal

Catchwords:

APPEALS — leave to appeal – leave required because monetary threshold not met – alleged defamation in social media posts – posts removed after limited exposure – defence of justification upheld – defence of honest opinion also upheld – contingent assessment of damages of $15,000 – amount in issue not approaching $100,000 threshold – disproportion between amount of possible damages and legal costs – no significant error of law, issue of principle or matter of general importance identified – court invited to reconsider factual findings of trial judge – no clear prospect of a different outcome if leave were granted, the appeal allowed, and a retrial held

Catchwords:

COSTS – where plaintiff in the court below seriously injured in a fall on a building site – where parties disagree upon some aspects of the final calculations anticipated by the appeal judgment – whether a medical expense incurred after an award of damages can be claimed as an additional out-of-pocket expense – whether UCPR 42.15A should be applied – whether a differential costs order as to costs of appeal should be made

Catchwords:

COURTS AND JUDGES - Bias - Application for recusal – Claim of lack of independence – Whether actual or apprehended bias

Catchwords:

APPEALS — Contracts — Formation — where primary judge found intention to form a binding and enforceable contract in the terms of a letter — whether primary judge erred in assessment of circumstances — whether primary judge erred in assessment of parties’ intentions — whether contract excluded by prior agreements APPEALS — Procedural fairness — Evidence — where primary judge preferred evidence of plaintiff as to key disputed conversations — where primary judge regarded evidence of defendant as “self-interested” — whether error in treatment of evidence of witnesses APPEALS — Procedural fairness — where slight disparity between pleaded case and case as conducted — where counsel for defendant at first instance confirmed no prejudice — whether defendant denied procedural fairness APPEALS — Further evidence — Power to receive further evidence — where appellant made informal application to adduce fresh evidence on day of hearing — whether leave should be granted to admit fresh evidence

Catchwords:

APPEALS — Procedure — Summons seeking leave to appeal — Where President of Court of Appeal directed that application for leave be heard alone not concurrently with argument on the appeal — Where applicant for leave challenged administrative decision of single judge of appeal — Whether listing decision is a judgment or order or direction amenable to challenge or review APPEALS – Procedure – Application to vacate leave only hearing to provide more time to prepare – Unrepresented litigant – Where other party filed response to summons late – Where nothing in other party’s response capable of taking applicant by surprise

Catchwords:

COSTS — application for gross sum costs order pursuant to s 98(4)(c) of Civil Procedure Act 2005 (NSW) — application for indemnity costs — costs of two notices of motion

Catchwords:

CIVIL PROCEDURE - Court of Appeal - Objections to competency of appeal – Appeal purportedly brought as of right from interlocutory decision – Appeal dismissed as incompetent

Catchwords:

APPEALS — Leave to appeal — appeal from summary dismissal — where multiple prior proceedings brought on behalf of related parties — abuse of process — reflective loss — whether reflective loss applies to indirect but ultimate shareholders — whether distinct loss of applicants can be discerned — whether appeal demonstrates an issue of principle, question of public importance, or reasonably clear injustice

Catchwords:

COSTS – judicial advice – beneficiaries and non-beneficiary joined – beneficiaries’ costs to be paid on indemnity basis – whether non-beneficiary’s costs should be paid on indemnity basis – whether non-beneficiary’s costs necessarily incurred for benefit of trust – consideration of Re Buckton [1907] 2 Ch 406

Catchwords:

COURTS AND JUDGES — application for recusal — whether apprehended bias — where allegation of apprehended bias based on association — where allegation of apprehended bias arose from outcome of internal court administrative procedures — where complaint made to the Judicial Commission CIVIL PROCEDURE — summary disposal — dismissal of proceedings — where no reasonable cause of action disclosed — where proceedings are an abuse of process

Catchwords:

COSTS — security for costs — relevant factors — where no evidence of financial capacity — where trust monies used to pay costs of earlier application — whether special circumstances required under s 1335 of the Corporations Act 2001 (Cth) CIVIL PROCEDURE — stay of proceedings — pending application for leave to appeal — where trust monies used to pay costs of earlier application — whether stay should be conditional on payment into Court of the amount of previous unpaid costs order

Catchwords:

TRUSTS – existence of trust – funds comingled with personal funds of trustee – intended beneficiaries were wife of settlor and other members of settlor’s family in need – whether payment to trustee’s son during life of settlor’s wife constituted distribution of corpus of trust – evidence of trustee’s intention – original trustee deceased and administrator of estate new trustee – burden of proof that trust existed TRUSTS – trustee replaced by court order – retiring trustee’s claims for indemnity for costs incurred in protecting comingled funds – relevance of trustee’s subjective belief that trust no longer existed – whether indemnity available where trust obtained material benefit from expenditure – whether apportionment of costs appropriate according to ratio of trust funds to the general estate under administration

Catchwords:

APPEALS – leave to appeal – interlocutory orders – pleading dispute – striking out part of cross-claim – refusal of leave to amend statement of claim – whether arguable causal connection pleaded – whether questions reasonably arguable – whether injustice CIVIL PROCEDURE – pleadings – strike out application – amendment application – claims under Superannuation Industry (Supervision) Act 1993 (Cth), s 55(3) – causal requirement in statutory norm – causal connection between contravening conduct and loss – whether literal construction untenable – whether material facts plead arguable causal connection between contravening conduct and loss – whether pleading has tendency to cause prejudice, embarrassment or delay in proceedings

Catchwords:

CORPORATIONS – statutory derivative action – Corporations Act 2001 (Cth), s 237 – application to bring proceedings on behalf of company – where company is corporate trustee – leave sought by former director of company who is a discretionary object of trust – nature of good faith requirement – whether applies to application for leave and to the desire to bring the underlying proceedings – where impugned transaction occurred 11 years after applicant ceased to be a director and 19 years before applicant sought leave under s 237 – where unexplained delay APPEALS – nature of appeal – application for leave to bring statutory derivative action – standard of appellate review – correctness standard applies

Catchwords:

CONTRACTS – Formation – Intention to create legal relations – “Fourth category” of Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 – Whether emails exchanged prior to formal loan agreement established an intention immediately to be bound CONTRACTS – Formation – Consideration – Past consideration – Where advance made nine days prior to execution of formal loan agreement – Whether loan agreement supported by consideration – Whether earlier advance constituted past consideration in respect of the formal loan agreement ESTOPPEL – Conventional estoppel – Where purported concession made in cross-examination – Where purported concession conflicted with contemporaneous documents – Whether purported concession provided a basis for a conventional estoppel claim

Catchwords:

HIGH RISK OFFENDERS – extended supervision orders – appeal against Supreme Court’s refusal of application – whether offence against s 33A(1) of Crimes Act 1900 (NSW) is a “serious violence offence” defined in s 5A(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) – elements of claimed index offence necessarily such as to satisfy the requirements of s 5A(1)(a), even though not expressed in that way STATUTORY INTERPRETATION – principle of legality inapplicable to ss 5A and 5B of Crimes (High Risk Offenders) Act 2006 (NSW) – in any event would not outweigh significance of text, context and purpose CRIMES – attempt – if person discharges firearm with intent to cause grievous bodily harm they have necessarily at least undertaken an act not merely preparatory towards commission of crime of engaging in conduct causing grievous bodily harm with intent to do so

Catchwords:

TAXES AND DUTIES — Dutiable transactions — Dutiable value — Land — landholder duty — whether interest in pipeline is “land holdings” or “goods” — meaning of “land holdings” in s 155 of the Duties Act 1997 (NSW) — meaning of “goods” in s 155 of the Duties Act — nature of interest conferred by the Water Industry Competition Act 2006 (NSW) TAXES AND DUTIES — Dutiable transactions — dutiable value — whether interest in pipeline is indeterminate thus non-dutiable

Catchwords:

EQUITY – trusts and trustees – constructive trusts – property owned by respondent sold to the appellant trustee company controlled by respondent’s son – whether joint endeavour between respondent and son pursuant to which respondent could continue to reside at property after sale – where following sale respondent provided funds to cover costs associated with property and renovations – application of principles in Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 – challenges to findings as to existence of joint endeavour and end of joint endeavour without attributable blame of respondent EQUITY – remedies – constructive trust on basis of failed joint endeavour – constructive trust for sale of property and division of net proceeds – form of declaration – return of contributions – sharing of surplus

Catchwords:

APPEALS – leave to appeal – where respondent granted summary judgment at first instance under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) – where appeal has limited practical utility – appellant identified reference to issue of costs – monetary threshold – not satisfied

Catchwords:

APPEALS – procedure – application for stay of proceedings pending hearing of summons seeking leave to appeal – where proceedings commenced in Local Court – motor vehicle accident – where respondent admits liability – whether damages exceed the jurisdictional limit of the Local Court – whether merit in the appellant’s appeal – whether failure to grant a stay will render the appeal nugatory – consideration of the competing interests of the parties – whether grant of stay least likely to lead to an injustice

Catchwords:

EQUITY - equitable charges and liens – where debtor emails creditor offering a pledge of units in trust – where creditor does not accept pledge – whether debtor conferred an equitable charge over units as security for repayment of loans – whether the claim for an equitable charge fails under the requirements for signed writing in s 23C(1)(c) of the Conveyancing Act 1919 (NSW) EQUITY - trusts and trustees - unit trusts - whether trustee obliged to process redemption request in amount claimed by appellants

Catchwords:

CIVIL PROCEDURE – Interpleader – Sheriff – whether interpleader required to be brought by Sheriff’s alternate – whether proceedings are one to which the Sheriff is a party for the purposes of s 6(1)(a) of the Sheriff Act 2005 (NSW) – whether contravention of s 6 of the Sheriff Act 2005 (NSW) requires mandatory dismissal of proceedings – Summons dismissed with costs STATUTORY INTERPRETATION – Construction of s 6(1) of the Sheriff Act 2005 (NSW) – whether reference to “the Sheriff’s functions in relation to” refers to the function of commencing or maintaining legal proceedings to which the Sheriff is a party

Catchwords:

COSTS – Indemnity costs – Calderbank offer – where offer made between primary judgment and appeal hearing – whether rejection of offer unreasonable – whether to include post-judgment interest in determining whether offer is less favourable – whether post-judgment interest accrues from date of primary or appeal judgment

Catchwords:

APPEALS — application for leave to appeal — where applicant sought reduction of amount in payment claim served by respondent on account of an upfront payment made before the payment claim was served — whether defence alleging upfront payment as reduction was a defence prohibited by Building and Construction Industry Security of Payment Act 1999 (NSW), s 15(4)(b)(ii) or whether it raised a matter which was required to be taken into account to determine the unpaid portion of the claimed amount — leave, if required, refused — otherwise appeal dismissed

Catchwords:

WORKERS COMPENSATION — uninsured liability regime — Workers Compensation Act 1987 (NSW), s 140 — meaning of “work injury damages” — meaning of “injury” — where relevant injury is silicosis DUST DISEASES — dust diseases legislation — distinction between legislative treatment of dust diseases and general workers compensation

Catchwords:

PRACTICE AND PROCEDURE – Vexatious proceedings order – Whether vexatious proceedings order should be set aside – Whether leave required under ss 9(3) or 14 of the Vexatious Proceedings Act 2008 (NSW) – Basis for exercising jurisdiction to set aside vexatious proceedings order – Where application substantially repeated previously rejected submissions

Catchwords:

COSTS – leave to appeal – no question of principle

Catchwords:

APPEALS — Leave to appeal — Whether leave required LAND LAW — Easements — Substantial interference with easements — dominant owner proposes extended width of driveway on their own land — proposal that drivers from servient tenement will cross onto dominant owner’s land — alleged that the development application contains certain deficiencies— servient owner’s consent required for making of development application pursuant to s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) — whether servient owner’s refusal to consent to the making of a development application constitutes a substantial interference in the dominant owner’s rights

Catchwords:

CONTRACTS — construction — where parties entered into initial agreement for sale of two coconut milk production plants — where two parts of a plant were delivered — where initial agreement was terminated by deed of settlement and a new supply of two plants was to be provided — whether “new supply” meant a supply that was independent of the supply under the initial contract — whether vendor could rely on delivery of parts under initial agreement in part satisfaction of its obligations under settlement documents CONTRACTS — construction — construction of release clause in deed of settlement — application of Grant v John Grant & Sons Proprietary Limited (1954) 91 CLR 112; [1954] HCA 23 — where parties agreed they had “no further obligations” in respect of a primary contract for sale of two coconut milk production plants — where vendor released seller from “all Claims and actions arising from or in connection with” settled matters — where title to plants under initial agreement did not pass to purchaser until full purchase price was paid — whether release clause extinguished vendor’s claim to title to the plants in circumstances where full purchase price was not paid under initial agreement

Catchwords:

EQUITY — Equitable remedies — Specific performance — Contract for the sale and purchase of land 2022 edition — where vendor issued a notice to complete — where completion did not occur — where vendor issued a notice of termination — where purchaser sought specific performance of contract in circumstances where vendor said to be in breach of contract — where purported breach related to the requirement that a notice of attornment be served by the vendor and held in escrow at least two business days prior to completion — whether vendor’s failure to serve notice of attornment a “disentitling breach” such that it was relevant to or connected with the securing of completion

Catchwords:

LAND LAW — Compulsory acquisition of land — Compensation — Loss attributable to disturbance — costs incurred in connection with relocation — meaning of “relocation” — where lessee seeks costs of constructing landlord’s fixtures for use in lessee’s business — fit out costs — whether fit out costs encompass replacement of landlord’s fixtures LAND LAW — Compulsory acquisition of land — Compensation — market value — relationship between loss attributable to disturbance and market value of interest in land LAND LAW — Compulsory acquisition of land — compensation — Loss attributable to disturbance — costs incurred in connection with relocation — difference between rent at acquired premises and at the relocation premises — profit rental assessed for market value — whether compensation available as disturbance for difference in market rents

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application for pro bono referral – where application made shortly before listed hearing date – whether the respondent will suffer prejudice if hearing date is vacated – where applicant has recently directed substantial sums through his accounts – application refused

Catchwords:

TORTS – assessment of damages – injury caused by State Transit Authority bus colliding with bicycle – whether damages to be assessed under Ch 5 of the Motor Accidents Compensation Act 1999 (NSW) or under the Motor Accident Injuries Act 2017 (NSW) STATUTORY INTERPRETATION – scheme regulating awards of damages by reference to two distinct categories – scope of categories of “motor vehicle” accidents and “public transport” accidents – government bus capable of satisfying each criterion – special or specific category to prevail – result not inconsistent with primary purpose of later legislation

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:

JUDGMENTS AND ORDERS – Adjudication determination entered as a judgment – Adjudication determination affected by jurisdictional error – Judgment set aside on the basis that adjudication determination affected by jurisdictional error RESTITUTION – Where moneys paid under a garnishee order pursuant to a judgment – Where judgment subsequently set aside – Right to restitution of moneys paid under a judgment subsequently set aside – No discretion to refuse relief under general law – Alternative basis for restitution pursuant to s 124A of the Civil Procedure Act 2005 (NSW)

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – solicitor – whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers – where Respondent convicted of offences relating to misappropriation of trust funds – where Respondent engaged in, or represented that he was entitled to engage in, legal practice following the suspension of his practising certificate and the issue of Supreme Court injunctions restraining him from legal practice

Catchwords:

ADMINISTRATIVE LAW — judicial review — application to Local Court to revoke apprehended domestic violence order (ADVO) — where application brought before order expired — where extension of ADVO sought to enable it to be revoked — where Local Court allowed both applications — where Supreme Court dismissed summons seeking judicial review. STATUTORY INTERPRETATION — improper purpose — whether purported extension of ADVO for improper purpose where not for purpose of protecting a person — whether purported revocation of order for improper purpose where for purpose of disengaging prohibition in s 11(5)(c) of the Firearms Act 1996 (NSW) — Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 73. COSTS — appeals — whether proceeding seeking judicial review a “proceeding in the nature of an appeal” — Suitors’ Fund Act 1951 (NSW), s 6.

Catchwords:

PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – expulsion – whether expulsion valid – interpretation of Partnership Deed – where resolution to waive time and expulsion resolution were voted by a single voting button – whether resolutions required approval of not less than 80% of all Capital Partners PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – findings of fact – whether appellant lost the opportunity to increase calibration points – whether resolutions proposed for an improper purpose PARTNERSHIP AND JOINT VENTURES – dissolution – dissolution by court of partnership – whether date of dissolution is the date of the statement of claim or the date of the expulsion resolution – dissolution on just and equitable ground APPEALS – from exercise of discretion – separate question order – whether primary judge erred in making order for costs for hearing the separate question – whether appellant’s claim sufficiently heard – whether relief granted incomplete

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:

APPEALS — Procedure — Stay pending appeal

Catchwords:

TRUSTS – judicial advice – scheme established to compensate victims of asbestos-related diseases – two victims claimed damages for personal injury based on exposure to asbestos – victims obtain judgments – victims had previously received workers compensation payments from Queensland workers compensation insurer – WorkCover Queensland asserted an entitlement to reimbursement and a charge over the judgments – whether trustee justified in not making payments to discharge judgment debts of liable entity to the extent that they were subject to reimbursement by WorkCover Queensland

Catchwords:

REAL PROPERTY – Easements – Construction of the definition of the statutory terms of an easement for services – Where applicant had installed a CCTV camera to monitor passageway outside storage area – Where CCTV cables traversed benefited lot – Whether on proper construction of statutory terms of easement the CCTV camera was a “domestic service” “to or from” the benefited lot – Whether necessary that service provided by a third party provider – Appeal allowed

Catchwords:

APPEALS – apprehension of bias – procedural fairness – whether the trial judge’s interventions gave rise to apprehension of bias or procedural unfairness – whether excessive judicial questioning or comments – whether real danger that trial was unfair TORTS – malicious prosecution – where criminal proceedings result in acquittal – where police officer instituted proceedings by charging the accused – where proceedings taken over by Director of Public Prosecutions – whether police officer maintained the proceedings – whether in charging the accused police officer acted without reasonable and probable cause – whether officer acted with malice TORTS – misfeasance in public office – whether malice proved TORTS – false imprisonment – where plaintiffs detained for purpose of investigation – whether unlawfully detained beyond the maximum investigation period – whether permitted timeouts extended the investigation period – whether trial judge erred in findings as to period of false imprisonment – whether false imprisonment ended when respondents charged and refused bail APPEALS – damages for false imprisonment – whether trial judge failed to apply correct counterfactual scenario – whether error in awarding compensatory damages – whether nominal damages appropriate – whether error in awarding aggravated and exemplary damages APPEALS – from finding of fact – credibility of witnesses – whether primary judge erred in credibility and reliability findings

Catchwords:

COSTS – Application for gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – Whether appropriate to make such an order – Quantification of sum to be awarded

Catchwords:

TORTS – intentional torts – battery – appeal only as to assessment of damages – where respondent alleged his career as an actor had been affected by physical and psychological injuries caused by appellant – whether primary judge erred in finding that respondent suffers from chronic post-traumatic stress disorder – whether primary judge erred in determination of general damages, past economic loss, and future economic loss

Catchwords:

NEGLIGENCE - breach – discrete or hidden risk – where risk of a non-operational smoke alarm was foreseeable and highly significant – where precautions were not onerous NEGLIGENCE – intoxication – where relevant conduct or activity was being asleep in home – whether there was impairment of capacity to exercise reasonable care and skill due to intoxication APPEALS - from finding of fact - credibility of witnesses – where primary judge observed the appellant giving evidence - primary judge entitled to make adverse credibility findings

Catchwords:

LEGAL PRACTITIONERS — Disciplinary proceedings — Misappropriation of trust account funds — Practitioner convicted of larceny as a bailee under s 125 of the Crimes Act 1900 (NSW) — Declaration that the practitioner is not a fit and proper person to remain on the Roll of Australian Lawyers

Catchwords:

CIVIL PROCEDURE — stay of order to distribute estate sought pending appeal — where question of stay already determined — notices of motion impermissibly used to appeal from decision — no material change in circumstances — notices of motion dismissed

Catchwords:

CIVIL PROCEDURE — Court of Appeal — application for pro bono referral — where appellant terminated previous pro bono representation and has not been responsive to directions from the Court

Catchwords:

NEGLIGENCE – Duty of care – Public authorities – Police officers owe duty to take reasonable care to avoid risk of harm to class of persons in immediate vicinity of operational response during protest march – Risk of harm in police actions inflicting physical injury on identified class of persons – s 43A of Civil Liability Act 2002 (NSW) inapplicable NEGLIGENCE – Breach – Regard to be had to police obligations to take actions to prevent breaches of the peace even in crowded situations –Reasonable to effect arrest in the way done – No breach made out NEGLIGENCE – Causation – Novus actus interveniens – Third party actions leading to respondent’s injury not occurring in ordinary course of things which might flow from police actions – Issue of fact and degree in all circumstances – Distinct and significant criminal action of third party led to arrest leading up to injury – Chain of causation broken TORTS – Trespass to the person – Battery – Police “utterly without fault” in colliding with respondent – Battery not made out

Catchwords:

EVIDENCE — documentary evidence — proof of contents of documents — where parties agreed that certain specified documents would be treated as evidence of the contents, but not the truth of the matters set out in those documents — whether the primary judge erred in using those documents when making factual findings — where primary judge used those documents to corroborate or confirm other available evidence — where primary judge’s fact finding process not inconsistent with the agreement between the parties BUILDING AND CONSTRUCTION — Australian Consumer Law — misleading or deceptive conduct

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

Catchwords:

CORPORATIONS – winding up – liquidators – after paying all creditors, liquidator achieved a surplus – where company being wound up had large unsatisfied judgment debt against its majority shareholder – where majority shareholder also being wound up – application of “rule in Cherry v Boultbee” – where liquidator sought and obtained special leave to distribute whole of surplus to shareholders other than majority shareholder – relationship between common law, equity and statute – whether continuing operation of “rule in Cherry v Boultbee” incoherent with purposes and policy of the Corporations Act – consideration of history and nature of “rule in Cherry v Boultbee”

Catchwords:

CONTRACTS — construction — Facility Agreement between joint lenders and borrower company — where “Lender” in opening words of agreement refers to both individual lenders — whether reference to “Lender” in clause concerning issue of redemption notices by borrower to “the Lender” means either or both of them — where meaning of “Lender” throughout the agreement is a question of construction CONTRACTS — where Facility Agreement required two lenders nominate a bank account into which proceeds could be paid — where only one lender nominated an account — where proceeds of facility paid into nominated account in breach of requirements of agreement such that borrower did not obtain good discharge of its debt — where proceedings as between the two lenders were litigated — whether those proceedings amounted to ratification of rogue lender’s nomination such that the borrower obtained good discharge of its debt — whether right of action now lies against borrower

Catchwords:

CONTRACTS – Construction – Whether poorly drafted deed created charge over property owned by respondent named as guarantor – Label of “rectification by construction” to be avoided – Courts may “correct” language and punctuation of contract by way of construction where obvious mistake established by parties’ clear objectively ascertainable intention – Charge not created

Catchwords:

GUARANTEE AND INDEMNITY – Construction Scope of liability of guarantor – Where contract for sale of land and underlying businesses not completed by purchasers – Where vendor sought order for specific performance as against guarantor – Where order for specific performance granted by primary judge - Whether guarantor liable to perform purchasers’ principal obligations – Appeal allowed

Catchwords:

JUDGMENTS AND ORDERS – Remittal by Court of Appeal to Land and Environment Court – Scope of remitter – Where respondent sought to adduce further evidence on the remittal – Where primary judge refused to grant leave to adduce further evidence – Whether primary judge erred in law in refusing to admit further evidence – Appeal dismissed APPEALS – Jurisdiction of appellate court – Remittal to Land and Environment Court – Construction of remittal order – Whether a question of law for purposes of s 57(1) of the Land and Environment Court Act 1979 (NSW)

Catchwords:

NEGLIGENCE – Duty of care – Mental harm – Where respondent exposed to traumatic incident in the course of employment – Whether respondent’s exposure to incident was causative of post-traumatic stress disorder and major depressive disorder – Whether respondent actually exposed to incident – Whether respondent’s employer breached duty of care in failing to direct respondent not to attend incident – Whether duty of care negatived by s 32 of the Civil Liability Act 2002 (NSW) – Appeal allowed EVIDENCE – Expert evidence – Where assumptions made by experts called by respondent not proved on the facts – Where facts as proved dissimilar from expert assumptions – Where little to no weight can be attributed to expert evidence as to causation

Catchwords:

ASSOCIATIONS AND CLUBS — Council of the NSW Bar Association — Whether Bar Council has standing to institute and prosecute disciplinary proceedings in Tribunal and Supreme Court — Where Bar Council is not a separate legal entity to NSW Bar Association ADMINISTRATIVE LAW — NSW Civil and Administrative Tribunal — Occupational Division — Disciplinary decisions — Whether Tribunal erred in finding professional misconduct and unsatisfactory professional conduct — Whether Tribunal erred in recommending barrister be removed from the roll — Where practitioner instituted and maintained proceedings against another practitioner without reasonable justification on material available — Where deemed judgment upon lodgment of costs certificate in Supreme Court not paid by practitioner — Whether denial of procedural fairness — Whether apprehension of bias — Whether delegation of complaint by NSW Commissioner to Bar Council valid — Whether application for disciplinary findings and orders valid OCCUPATIONS — Legal practitioners — Disciplinary proceedings — Barristers — Application for removal from roll of barristers — Where unsuccessful appeal from Tribunal decisions finding professional misconduct and recommending removal from the roll — Where prior adverse findings against practitioner — Where lack of insight and absence of contrition for breach of Barristers Rules — Where practitioner not held practising certificate for over 6 years — Whether practitioner fit to practise — Whether removal from roll warranted in all the circumstances

Catchwords:

COURTS AND JUDGES — Application for recusal — Whether apprehended bias — Claim of lack of independence — Based on association with family member or other judges of Supreme Court — Claim of prejudgment — Based on conduct during the hearing — Recusal application made 10 weeks after judgment reserved and after notice of listing for judgment — Whether waiver of any right to object

Catchwords:

COSTS – application for gross sum costs order – where gross sum already agreed between the parties – application refused

Catchwords:

LAND LAW — Indigenous land rights — Aboriginal Land Rights Act 1983 (NSW) — claimable Crown lands — where primary judge found land was not claimable Crown lands under s 36(1)(c) because it was needed for an essential public purpose — whether primary judge applied s 36(1)(c) erroneously— where primary judge failed to address the absence of decision of executive government that the land was needed for a particular purpose — where primary judge identified essential public purpose as education provided by private community college — whether primary judge’s conclusion was legally unreasonable APPEALS — right of appeal — scope of right — error of law — where appeal from decision from Land and Environment Court only lies on question of law — whether appeal grounds raise questions of law — where grounds allege error in primary judge’s application of s 36(1)(c) of the Aboriginal Land Rights Act 1983 (NSW)

Catchwords:

ADMINISTRATIVE LAW – judicial review – supervisory jurisdiction over District Court determining criminal appeals – review limited by s 176 of District Court Act 1973 (NSW) to jurisdictional error – whether error in construing offence provision jurisdictional – whether error jurisdictional if question of construction is “core” issue in prosecution – no jurisdictional error established – inappropriate to determine questions of construction

Catchwords:

APPEALS – Leave to appeal – Summary dismissal – Proceedings barred by issue estoppel or Anshun estoppel – Proceedings instituted outside limitation period – No issue of principle or public importance – Leave refused

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Contract terms – Which of two entities in same corporate group is true employer of respondent – What reasonable person in position of all persons potentially party to contract would understand as to which entity was party as employer – Post-contract conduct relevant where contract unwritten – Factors still relevant in employee/independent contractor characterisation context may shed some light on issue – Question of control and direction significant though not definitive CIVIL PROCEDURE – Pleadings – Admission contrary to subsequent argument not withdrawn – Pleadings and particulars define issues for decision – Primary judge entitled to determine issue based on admission LIMITATIONS OF ACTIONS – Discoverability – Personal injury – Knowledge of fault of defendant – When plaintiff “ought to know” facts – No requirement that plaintiff knows capacity in which putative defendant might be liable – Reasonable steps to be taken by plaintiff, not plaintiff’s lawyers – Lawyers’ omissions not to rebound on plaintiff where he had taken all reasonable steps NEGLIGENCE – Damages – Non-economic loss, future economic loss for loss of earning capacity, future out-of-pocket expenses, past gratuitous domestic assistance

Catchwords:

CIVIL PROCEDURE — Court of Appeal — application for pro bono referral — where no appearance by applicant

Catchwords:

COSTS – security for costs – release of security following successful appeal – whether security should be continued pending potential application for special leave – no application made within time – security released

Catchwords:

CIVIL PROCEDURE – appeal – purported appeal from District Court judgment on appeal from Local Court – no right of appeal – whether proceedings should be treated as seeking judicial review – no grounds to support reasonably arguable case for review – summons dismissed CIVIL PROCEDURE – appeal – costs – incompetent appeal – no notice of motion filed by respondent objecting to competency – no order as to costs

Catchwords:

CIVIL PROCEDURE – appeal – application for order for determination of issue by way of a separate question – application by respondent – grounds to be resisted – strength of appellants’ case not conceded – likelihood that other grounds will need to be addressed – separation likely to be neither efficient nor cost-effective

Catchwords:

CIVIL PROCEDURE – appeal – application for costs capping order – need to show reason to anticipate disruptive or obstructive conduct by other party – insufficient to seek to protection from reasonable costs of other party to unsuccessful appeal CIVIL PROCEDURE – appeal – requirements for leave – challenge to interlocutory orders and costs orders – challenge to orders in working out of final judgment interlocutory

Catchwords:

ADMINISTRATIVE LAW — bias rule — actual or apprehended — apprehended bias — where bias alleged by reference to reasons for judgment — sole reliance on reasons inverts proper inquiry — transcript did not disclose bias ADMINISTRATIVE LAW — procedural unfairness — where applicant alleged denial of adjournment to obtain evidence — where primary judge informed applicant of relevant procedure — no application for adjournment made by applicant — procedural fairness did not require primary judge to independently adjourn hearing

Catchwords:

APPEALS — leave to appeal — decision involving a matter of practice and procedure — orders setting aside subpoena and Notice to Produce served by the applicant — where applicant has failed to identify a principle of general application or a question of public importance or any substantial injustice — where leave to appeal is refused

Catchwords:

COSTS – Party/Party – exceptions to general rule that costs follow the event – whether issues based costs orders should be made

Catchwords:

PROFESSIONS AND TRADES — health care professional — psychologist — complaints referred to NCAT constituted by legally-qualified member, two psychologists and one lay member — “Stage 1” hearing found complaints of unsatisfactory professional conduct and professional conduct established — prior to “Stage 2” hearing, one psychologist member advised she was unable to participate further — Deputy President ordered inquiry to continue and determination made by the remaining three members — respondent appealed — whether s 165C of National Law empowered such an order — whether “inquiry” had completed for purposes of s 165C — whether if order not authorised by s 165C findings of unsatisfactory professional conduct and professional misconduct should be set aside

Catchwords:

STATUTORY INTERPRETATION – definitions – Child Protection (Offenders Registration) Act 2000 (NSW), ss 3 and 3A – “sentence” – where s 3A(1) provides that a person sentenced in respect of a “registrable offence” is a “registrable person” – where appellant convicted of an offence under Criminal Code (Cth) which constituted a “registrable offence” – where conditional release order made under s 20(1)(a) of Crimes Act 1914 (Cth) – whether that order was a “sentence” so as to render appellant a “registrable person”

Catchwords:

CIVIL PROCEDURE – amendments – extension of time previously granted for statute-barred claim – whether proposed amendment pleaded the same cause of action – whether proposed amendment pleaded new cause of action arising out of the same or substantially the same facts – consideration of Civil Procedure Act 2005 (NSW), ss 64 and 65 – consideration of principles relevant to determining whether a proposed amendment arises out of substantially the same facts – whether further extension of time should be granted

Catchwords:

NEGLIGENCE – causation – where appellant slipped on steps in respondent’s factory – where changes to case as pleaded and at trial – where cause of slip alleged to be either potato debris on steps or slipperiness of steps when wet due to wear and tear – whether primary judge erred in failing to be satisfied that appellant had established cause of slip

Catchwords:

CONTRACTS – Interpretation – no question of principle – where right of rescission engaged if Environmental Report “indicates that the property does not fall within the NSW Environment Protection Authority guidelines in relation to the contamination levels in, on or under the property and which permits the property to be used as a Service Station” – whether necessary to engage right of rescission that there be indication in Environmental Report that land could not be used as a service station

Catchwords:

COURTS AND JUDGES – Supreme Court – Jurisdiction – Whether Supreme Court lacked jurisdiction to make declaration that condition of by-law unjust – Where statute conferred function of finding condition unjust on NSW Civil and Administrative Tribunal LAND LAW – Strata title – By-laws – Whether condition of by-law that exclusive use rights cease unless obligations complied with unjust – Whether condition harsh, oppressive or unconscionable – Whether respondents liable in damages under by-law for failure to comply with obligations under by-law – Whether respondents liable for reasonable costs and expenses incurred in recovering outstanding levies – Whether respondents liable for costs and expenses incurred in claiming damages under by-law

Catchwords:

JUDGMENTS AND ORDERS – gross costs order – stay of orders

Catchwords:

JUDGMENTS AND ORDERS – application to set aside orders under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) – the slip rule – no basis established to set aside orders

Catchwords:

LEGAL PRACTITIONERS — Disciplinary proceedings — misappropriation of trust money — practitioners convicted of offences under s 192E(1)(b) of the Crimes Act 1900 (NSW) —declarations that practitioners not fit and proper persons to remain on the Roll of Australian Lawyers – practitioners’ names removed from roll

Catchwords:

CONTRACTS — Construction — parties agreed to restructure ownership of family business — parties intended to negotiate a longer form agreement — where agreement outlines how shares of the business may be sold — where applicants argues there is a right to buy out other owners — whether the terms of the agreement properly construed confer on the applicants a right to purchase — whether every term of a legally binding agreement must be capable of enforcement

Catchwords:

COSTS – appeal costs – appellant partly successful – Calderbank offer of compromise by appellant – amount of offer substantial – whether reasonable compromise – whether offer unreasonably rejected COSTS – appeal costs – appellant partly successful – application by respondent to apportion costs – whether issue on which respondent succeeded dominant or separable – reduction to apply to portion of costs incurred before rejected offer of compromise COSTS – costs of trial where result varied on appeal – plaintiff (respondent on appeal) partly successful – extent to which conduct of defendant unreasonable – disentangling separable issues

Catchwords:

CIVIL PROCEDURE – application to strike out notice of appeal – parties self-represented – contents of notice of appeal – application to lift stay – application to lift stay in part

Catchwords:

PRACTICE AND PROCEDURE – Summary dismissal – Whether the plaintiffs’ claims for breach of statutory duty should not have been summarily dismissed – Where availability of action was a pure question of law involving no questions of fact and admitting of only one correct answer – Whether, in circumstances of particular case, there was utility in determining issue on a summary basis PRIVATE INTERNATIONAL LAW – Stay of proceedings – Exclusive jurisdiction clause – Where jurisdiction clause was elliptical in that its scope or extent was not spelt out – Where not all parties to proceedings bound by clause – Whether stay should still be granted – “Non-parties” and non-parties –Whether strong reasons not to give effect to exclusive jurisdiction clause through a stay of proceedings TORTS – Breach of statutory duty – Entertainment Industry Act 2013 (NSW), s 11 – Whether the legislature intended to create a private cause of action for breach of statutory duty – Where statute provided a range of remedies – No intention to create a private cause of action – Summary dismissal of claims for breach of statutory duty

Catchwords:

PRACTICE AND PROCEDURE – appeals –application to vacate hearing date – trial counsel briefed on appeal – dates fixed to suit applicants’ counsel – change of solicitors – dissatisfaction with legal representatives arose six months before change – delay unexplained – counsel unavailable – counsels’ obligation to appear if funds provided – unavailability likely due to parties not providing funds – earlier dates vacated where counsel available but not solicitor – loss of counsel no justification for vacation of dates

Catchwords:

APPEALS — leave to appeal — interlocutory orders setting substantive matter down for hearing — whether applicants have identified a principle of general application or a question of public importance or any substantial injustice — where leave to appeal denied

Catchwords:

CONTRACTS — Oral contract — Where oral agreement admitted but characterisation of agreement disputed — Whether monies transferred as loan or equity investment — Where both parties’ accounts of conversation found unreliable — Whether actual persuasion as to words said giving rise to oral contract required — Where inferences drawn from contemporaneous documents, objective facts and surrounding circumstances — Where findings expressing conclusions on the evidence — Whether plaintiff satisfied burden of proof

Catchwords:

APPEALS — leave to appeal — where defence struck out for abuse of process without leave to replead — whether injustice in preventing applicants from raising defence — where applicant focus on merits — failure to challenge correctness of finding of abuse of process — failure to establish arguable error in exercise of discretion to refuse leave to replead

Catchwords:

APPEALS — Leave to appeal — From interlocutory orders refusing to discharge injunctions and asset preservation orders and remove caveat — Where applicants proposed to pay into court a sum of money in lieu of existing injunctions and asset preservation regime — Where applicants alternatively sought removal of caveat to enable refinancing of real property — Where primary judge ordered temporary removal of caveat to permit refinancing to occur — Whether continued danger that prospective judgment debt will be unsatisfied — Whether interests of justice favour continuance of orders — Whether any arguable House v The King error

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Application to vacate appeal

Catchwords:

SUCCESSION – Family provision – where the deceased loaned significant sums of money on favourable terms and provided rent-free accommodation to enable the appellants to study in Australia – where the deceased made provision for the appellants in his will – where the appellants sought an order for provision in the sum of $300,000 to $450,000 out of the deceased’s estate – whether the primary judge erred in determining that the appellants had not demonstrated factors warranting under s 59(1)(b) of the Succession Act 2006 (NSW) – whether the primary judge erred in determining that adequate provision for the proper maintenance, education or advancement in life of the appellants had been made by the deceased under his will pursuant to s 59(1)(c) of the Succession Act CIVIL PROCEDURE – Appeals – appropriate standard of appellate review of a decision under ss 59(1)(b) and (c) of the Succession Act

Catchwords:

ADMINISTRATIVE LAW – jurisdictional error – refusal to submit questions of law to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW) – whether District Court judge considered irrelevant matters – whether identified questions of law arose on the appeal CRIMINAL PROCEDURE – stay – convictions and sentence confirmed on appeal from Local Court to District Court – sentence served – summons seeking judicial review dismissed – whether convictions could be stayed

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 — Where garnisheed amount paid into court after default judgment set aside — Civil Procedure Act 2005 (NSW) s 124A — Where defendant applied for payment out of funds in court — Uniform Civil Procedure Rules 2005 (NSW), r 41.3 — Where some funds released — Where defendant applied to vary order and obtain release of balance of funds in court — UCPR r 36.16 — Where variation application dismissed — Whether Court proceeded on misapprehension of facts or relevant law — Where inordinate delay in seeking leave — Whether prejudice occasioned to the respondent — Where underlying proceedings since been heard and judgment reserved — Whether utility in grant of extension of time or grant of leave to appeal

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted on two occasions of offences under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) of supply prohibited drugs, not less than commercial quantity and s 193C(2) of the Crimes Act 1900 (NSW) of dealing with the proceeds of crime – second set of offending occurred 14 months after first conviction, while respondent was serving an intensive correction order – sentence of imprisonment – relevance of principles in Council of the Law Society of NSW v Parente [2019] NSWCA 33 in circumstances of reoffending – declaration that respondent is not a fit and proper person to remain on the roll of Australian lawyers

Catchwords:

CIVIL PROCEDURE – appeal – strike out application – failure to state orders sought – failure to comply with rules as to statement of grounds of appeal – notice of appeal repleaded – unrepresented appellant – sufficient clarity achieved

Catchwords:

CIVIL PROCEDURE – appeal – leave to appeal – notice of appeal filed – satisfaction of threshold to appeal without leave – claim in defamation dismissed at trial – contingent assessment of damages well below threshold – pro forma certificate by solicitor

Catchwords:

APPEALS — leave to appeal — interlocutory orders — orders for preliminary discovery — whether applicants have identified principle of general application or a question public importance or any substantial injustice — where leave to appeal denied

Catchwords:

REAL PROPERTY — Claim to beneficial interest in land registered under the Real Property Act 1900 NSW — where primary judge made extensive credit findings — where documentary evidence inconsistent with alleged entitlement — whether primary judge entitled to draw Jones v Dunkel inference — where parties financially interdependent EVIDENCE — Credibility evidence — Cross-examination — collateral issue — where primary judge refused cross-examination — whether collateral issue substantially affected credit APPEALS — From finding of fact — Admission of further evidence — Evidence not available at hearing — informal applications — application refused

Catchwords:

STATUTORY INTERPRETATION – literal meaning gives way to contextual and purposive approach – powers of court – “at the time the order is made” – Succession Act 2006 (NSW), s 59(2) SUCCESSION – family provision – evidence – whether primary judge erred in failing to require the claimants to provide updating evidence –– whether Succession Act 2006 (NSW), s 59(2), required claimants to file updating evidence – evidence was over five years old – judge subsequently accepted updated valuation of the estate – impact of delay on assessment of provision SUCCESSION – family provision – claim by grandchildren for provision from deceased’s estate –weight to be given to deceased’s testamentary intentions – intentions expressed in unexecuted will – passage of 16 years – evidence of applicants’ financial circumstances and needs lacking currency COSTS – requirement for leave to appeal – offer of compromise before first trial – order sought for indemnity costs – failure to challenge costs order on prior appeal – offer contained no real compromise

Catchwords:

EQUITY – trusts and trustees – constructive trusts – joint endeavour – where both parties had contributed to costs of the construction of a house purchased in the name of one party – where that party did not reside in the house – where the basis for contemplated arrangement that the other parties and their children would continue to live in the house was removed on the legal owner falling into financial difficulties – whether unconscionable for the legal owner to retain the benefit of contributions made by the other parties and the rise in the value of the house where this was not intended.

Catchwords:

LAND LAW — Torrens title— exceptions to indefeasibility — omitted easements — compensation for omission — whether omission resulted in diminution in value — whether dealing fell within terms of environmental planning instrument —memorandum of transfer creating easement was an “agreement, covenant or other similar instrument” — whether easement restricted development

Catchwords:

EQUITY – breach of fiduciary duty – knowing receipt – whether primary judge erred in rejecting plaintiffs’ contention that defendants’ positive case was a fabrication – significance of absence of a reply alleging documents fabricated – significance of failure to issue subpoenas – whether primary judge reversed onus – whether plaintiff had established that recipients knew of breach of duty RESTITUTION – money had and received – whether recipients were volunteers – whether recipients made out cases that money was consideration for supply of sanitiser – whether claim available where money had been repaid to or at direction of person transferring the money PLEADINGS – reply – whether fabrication of documents relied on by defendant a pleadable issue – circumstances in which findings of fabrication available

Catchwords:

CIVIL PROCEDURE — time limits — extension of time — judicial review — multiple grounds of review — no reviewable error established — no explanation for delay — lack of merit — lack of public interest

Catchwords:

CIVIL PROCEDURE – appeal – security for costs of appeal – special circumstances – circumstances relevant to exercise of discretion

Catchwords:

PRACTICE – application to reopen under UCPR r 36.16 – no basis for reopening

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:

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:

NEGLIGENCE – Occupier’s liability – precautions reasonably required to be taken by occupier of retail store – where customer injured by heavy oversized box containing mountain bike falling from another customer’s shopping trolley – where no mandatory system preventing use of standard size shopping trolleys for heavy oversized items implemented by occupier – whether reasonable person would have implemented such a system requiring collection at the loading dock – whether lack of such a system was a necessary condition of the occurrence of harm

Catchwords:

COSTS – Security for costs – Relevant factors – Impecuniosity – risk of stultification – where director offers an undertaking as to costs – whether the primary judge erred in ordering security for costs

Catchwords:

BUILDING AND CONSTRUCTION – Contract – Home Building Act 1989 (NSW) – Statutory warranties – whether contract confined to negotiated scope of works or expanded to include other works by virtue of the implied statutory warranties – whether building in breach of statutory warranties CONTRACTS – Remedies – Damages – where loss claimed would have been suffered if contract had been properly performed

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Multiple issues — Where award in favour of plaintiff substantially reduced on appeal — Where issue on which defendant succeeded on appeal both severable and dominant — Costs award should reflect the parties’ degree of success — Impossibility of precisely assessing proportions of time spent and likely costs of different issues JUDGMENTS AND ORDERS — Amending, varying and setting aside — Costs order of appeal — Effect of entering or recording — Where notice of motion is not filed within 14 days of judgment being entered — Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) —Whether court can dispense with the rule — Civil Procedure Act 2005 (NSW), s 14 — Costs order not to be varied irrespective of whether there is power to do so

Catchwords:

CIVIL PROCEDURE — Stay of execution pending appeal — Judgment for possession — Where writs of possession issued in respect of two properties — Where interim stay granted for short period — Where one property scheduled for auction by mortgagee — Whether notice of appeal raises “serious issues” or “arguable grounds” — Balance of convenience or hardship — Whether postponing auction would be unfairly prejudicial to mortgagee — Whether enforcement of second writ of possession should be stayed

Catchwords:

COSTS — Security for costs — Application for provision of security by corporate appellant — Corporations Act 2001 (Cth) s 1335 — Where only quantum of security in issue — Whether security sought by respondent excessive or unreasonable — Where competing solicitor’s estimates of parties’ actual costs — Whether quantum of security proportionate to importance and actual complexity of issues on appeal — application of the proportionality principle — Civil Procedure Act 2005 (NSW), s 60

Catchwords:

PARTNERSHIPS AND JOINT VENTURES – partnership accounts – valuation of uncompleted insolvency administrations – where taking of account required hypothetical valuation of work in progress and residual goodwill of insolvency practice – whether lack of comparable transactions determinative – whether hypothetical vendor would pay a “discount” to hypothetical purchaser to acquire book of administrations – where impermissible for insolvency practitioner to require or accept a “discount” to take on book of administrations – where insolvency practitioner able to resign or seek leave to resign from unprofitable administrations.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Application to dismiss appeal as incompetent — Where plaintiff undischarged bankrupt — Where statement of claim dismissed on ground of lack of standing to sue — Bankruptcy Act 1966 (Cth) s 58 — Whether proceedings fall within exception in s 116(2)(g) — Whether matter for determination on appeal is a matter arising under an Act in the Schedule referred to in the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 7(4) — Whether Court of Appeal has jurisdiction to hear appeal

Catchwords:

APPEALS — procedure — time limits — whether delay in filing appeal of two days is sufficient basis to dismiss an appeal as incompetent where no prejudice suffered by respondent — appellant provided opportunity to file an application for an extension of time APPEALS — procedure — notice of appeal — where notice of appeal does not comply with formal requirements of the Uniform Civil Procedure Rules concerning specificity of grounds of appeal — non-compliant notice of appeal struck out — appellant provided opportunity to file compliant notice of appeal