Recent decisions for Court of Appeal

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

APPEALS – procedure – stay pending appeal

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

APPEAL – application for leave to appeal – no issue of principle or question of public importance identified – where amount in issue substantially less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)

Catchwords:

APPEALS – leave to appeal – applicant’s notice of motion dismissed by Registrar – whether primary judge in error in refusing to set aside that dismissal – whether applicant’s amended summons was taken to be dismissed by operation of the Vexatious Proceedings Act – relevant vexatious proceedings order later set aside on appeal – arguable basis for challenging those orders demonstrated – leave to appeal granted on a limited basis COURTS AND JUDGES – bias – application for recusal – ground of apprehended bias – applicant unable to identify any reason why a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues arising on the application – judge declined to recuse herself

Catchwords:

APPEALS – leave to appeal – applicant alleged assaults and batteries perpetrated on her by respondents – primary judge rejected applicant’s evidence and dismissed claims – need for applicant to show primary judge’s findings glaringly improbable or contrary to compelling inferences – no arguable basis for concluding applicant had a prospect of success on appeal if leave were granted COURTS AND JUDGES – bias – application for recusal – ground of apprehended bias – judge made adverse ruling against applicant in previous litigation – applicant unable to identify why that might cause a reasonable bystander to apprehend that the judge might not bring an impartial mind to the resolution of the issues – judge declined to recuse himself

Catchwords:

CHILD WELFARE – care proceedings – applicant alleged Children’s Court acted without jurisdiction and Supreme Court consequently erred in dismissing judicial review application – leave to appeal refused CHILD WELFARE – care proceedings – guardian ad litem appointed by Supreme Court – whether court required to appoint guardian ad litem if child or young person who is a party is incapable of giving proper instructions or whether court has discretion to do so – interaction between ss 98(2A) and 100 Care Act – reasonable argument and of some general importance – leave to appeal granted on limited basis

Catchwords:

APPEALS – application for leave – applicant brought proceedings against respondent in District Court claiming damages for alleged misconduct in other proceedings – where respondent acted for parties in hostile civil litigation involving the applicant – proceedings summarily dismissed as disclosing no reasonable cause of action – where no issue of principle or question of general importance raised by appeal – where applicant not demonstrated an injustice which is more than merely arguable – leave refused

Catchwords:

CONSUMER LAW - enforcement and remedies - compensation orders - proceedings brought by Commissioner on behalf of consumers - consumers purchased moveable dwellings and entered into occupation agreements with respondents - appellants represented that terms of agreements preventing permanent residence would not be enforced - permanent residence precluded by development consent - no challenge to findings of misleading or deceptive conduct and unconscionable conduct by corporate appellants - whether primary judge erred in making orders requiring payment of purchase price 85% of cost of improvements plus interest on terms that consumers reconvey title to moveable homes - whether need to quantify loss or damage before power to make orders under s 72 of Fair Trading Act or s 237 of Australian Consumer Law available - consideration of distinction between such orders and damages - consideration of relationship between such orders and orders for rescission in equity for fraudulent representation - whether primary judge erred in finding unconscionable conduct by director of corporate appellants - appeal dismissed

Catchwords:

CIVIL PROCEDURE — Stay of proceedings — Inherent power — Application for stay of proceedings in Children’s Court pending determination of summons seeking leave to appeal from summary dismissal of proceedings in the Supreme Court invoking parens patriae jurisdiction — Applicable test

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Show cause hearing – Failure to file written submissions – Stay of hearing – Where no procedural unfairness in setting down hearing – Where no medical grounds for stay established – Where pendency of other motions by applicant, including applications to issue subpoenas and to reopen previous appeal, no reason for not preparing submissions – Stay refused – Where consistent failure to comply with directions – Where no sufficient reason for failure to file submissions – Self-executing order for dismissal of appeal if submissions not filed within one month CIVIL PROCEDURE – Court of Appeal – Notice of motion – Application to issue subpoenas – Where already before full bench on application to reopen – Abuse of process – Application dismissed CIVIL PROCEDURE – Court of Appeal – Notice of motion – Application to refer persons to prosecuting authorities – Where such relief inappropriate and unavailable – Abuse of process – Application dismissed

Catchwords:

ADMINISTRATIVE LAW - judicial review - jurisdictional error - appeal to District Court from conviction and sentence imposed by Local Court - plaintiff granted bail pending determination of appeal - District Court dismissed appeal against conviction and revoked bail without hearing from plaintiff - District Court granted adjournment for sentence appeal - at subsequent hearing of sentence appeal, District Court refused disqualification application, gave Parker warning and sentence appeal was withdrawn - conceded breach of procedural fairness in revocation of bail - whether District Court decisions affected by apprehended bias - whether jurisdictional error in dismissing conviction appeal - summons dismissed

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:

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

Catchwords:

CONTRACTS — implied terms — terms implied in fact — necessity — numerous alternative possible constructions — agreement constituted by combination of oral, written and implied terms CONTRACTS — termination — repudiation of contract — acceptance of repudiation — allegations of fraud — whether terms of conversation amounted to repudiation — significance of pleadings inconsistent with terms of contract as later alleged MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagor — equity of redemption — mortgage over company share — contractual right to redemption extinguished on default — whether equitable right to redemption survived in spite of delay

Catchwords:

CIVIL LAW – judicial review – jurisdictional error – whether District Court erred in failing to state a case to the Court of Criminal Appeal – power of Judge to decline to state a question of law – tension in authorities – unnecessary to resolve conflict in authorities – where nine of ten questions raised were not relevant questions of law – whether questions frivolous or baseless – where remaining question raised a material question of law concerning admissibility of probative evidence – jurisdictional error established CRIMINAL LAW – evidence – exculpatory statement by accused to community corrections officer immediately after alleged assault – where statement recorded in Departmental record – whether hearsay – whether business record – where Magistrate excluded evidence as “self-serving” – where District Court refused leave to introduce evidence on appeal – whether admissibility of record raised a question of law alone

Catchwords:

COURTS AND TRIBUNALS – Mental Health Review Tribunal – whether Tribunal’s power to transfer forensic patients into a mental health facility includes power to specify when transfer is to occur and to what particular mental health facility a patient is to be transferred to. MENTAL HEALTH – Mental Health Review Tribunal – jurisdiction – whether Mental Health Review Tribunal had power to order the transfer of a forensic patient to a mental health facility “when a bed becomes available” – whether the Tribunal took into account an irrelevant consideration when it had regard to the availability of beds at a specific mental health facility in the course of exercising its power to make a transfer order under s 48 of the Mental Health (Forensic Provisions) Act 1990 (NSW) – where the relevant statutory context supported considerations of “practicability” as being relevant to the exercise of the transfer power under s 48 of the Act. STATUTORY INTERPRETATION – jurisdiction – Mental Health Review Tribunal – whether Mental Health Review Tribunal had power to order the transfer of a forensic patient to a mental health facility “when a bed becomes available” – where the relevant statutory context supported considerations of “practicability” as being relevant to the exercise of the transfer power under s 48 of the Act. STATUTORY INTERPRETATION – jurisdiction – Mental Health Review Tribunal – whether power to transfer a patient to or from a mental health facility includes power to specify when such a transfer should occur – implied incidental power – source of power – extent of implied incidental power.

Catchwords:

BUILDING AND CONSTRUCTION – contract – damages – defects – whether the contractor was responsible for defects in materials supplied by a third party – where the relevant contractual warranty was confined to “works required to be performed by the contractor” BUILDING AND CONSTRUCTION – contract – termination – quantum meruit – whether the contract operated to generate release and waiver of subsequent claims for payment by the contractor – where the contractor had suffered irreversible detriment by incurring liability to pay for materials prior to the principal’s insistence upon strict adherence to the contract BUILDING AND CONSTRUCTION – contract – variation – implied promise to pay – whether the works constituted “variations” as defined in the contract – where the principal requested that the contractor supply materials that it had originally insisted upon supplying itself – where written approval was sought by the contractor in respect of all other variation works CONTRACTS – breach of contract – consequences of breach – right to damages – estoppel – promissory estoppel – whether it was unconscionable for the principal to resist payment for the performance of certain works – where the principal was positively encouraging the contractor to complete outstanding works – where such encouragement followed the principal’s purported departure from the assumption that it had approved these works EQUITY – estoppel – promissory estoppel – general principles and maxims – equity will not permit detriment to be visited upon or remain with the party who has not been sufficiently clearly disabused of the counter-party’s intended departure from the relevant assumption inducing reliance ESTOPPEL – promissory estoppel – detrimental reliance – whether the principal discharged its duty to inform the contractor labouring under an assumption that the basis for that assumption had “materially changed” – where such material change must be communicated in sufficiently clear terms – where the relevant communication did not expressly refer to or address the topic of the assumption – where the principal was positively encouraging the contractor to complete outstanding works in respect of materials that the principal knew it had originally undertaken to supply itself

Catchwords:

NEGLIGENCE – duty of care – breach – standard of care – professional negligence – whether reasonable to leave medical hardware in situ after the injury had healed – differing opinions of orthopaedic surgeons – reliance on infectious diseases experts NEGLIGENCE – causation – medical negligence – later infection where medical hardware left in situ after earlier operation – whether later operation would have been required but for the foreign material – conclusion not dependent on whether infection caused by organisms present when first operation undertaken NEGLIGENCE – damages – economic loss – loss of earning capacity – business losses incurred by appellant’s employer – no evidence that plaintiff suffered loss of income for closed period

Catchwords:

ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner – adequacy of reasons EVIDENCE – standard of proof – civil cases – application of principles in Briginshaw v Briginshaw APPEALS – leave to appeal – on factual findings – whether appropriate to depart from a demeanour-based credit finding

Catchwords:

COSTS — Security for costs — Quantum and form

Catchwords:

COSTS – whether usual order for costs should be displaced – where respondent successful party overall – where primary judge apportioned costs – respondent awarded costs up to date shortly before hearing and thereafter no order for costs as between respondent and applicant – whether exercise of discretion miscarried – Uniform Civil Procedure Rules 2005 (NSW), r 42.1 APPEALS – new point on appeal – where applicant for leave sought to raise new and different costs application on appeal – inimical to the interests of justice to allow new argument APPEALS – leave to appeal – practice and procedure – challenge to costs order – no question of principle or general public importance – whether an injustice which is more than merely arguable – whether failure to consider material consideration – where reasonableness of applicant’s conduct of the proceedings not relied upon below – leave to appeal refused

Catchwords:

CONTRACT – written retainer of accountants – scope – whether primary judge erred in concluding retainer extended to all work for a client of an accounting and financial nature – opinion evidence – whether evidence of accounting partner that certain work “required” to complete task was opinion evidence – whether evidence was admissible as expert opinion – Held – primary judge correct – appeal dismissed

Catchwords:

APPEALS – procedure – informal urgent application for injunction pending appeal – applicant applied to stop trail running event in the Blue Mountains from proceeding the next day – primary judge dealt thoroughly with circumstances of proposed event and carefully weighed matters going to the balance of convenience – applicant did not show any reason for a different view to be taken than that taken by the primary judge

Catchwords:

CIVIL PROCEDURE — parties — vexatious litigants — stay of proceedings — appeal from stay —whether primary judge made any legal or factual error

Catchwords:

APPEALS – application for leave – amount in issue less than threshold of $100,000 – where dismissal of defamation proceedings involving two matters complained of – where no issue of principle or question of general importance – whether applicant demonstrated an injustice which is more than merely arguable – where likely costs of any appeal disproportionate to the small amount in issue

Catchwords:

SUCCESSION – family provision – claim by adult step-child of the deceased for provision under Ch 3 of the Succession Act 2006 (NSW) – whether primary judge did not make an order for provision in the applicant’s favour by reason of disentitling conduct – no question of principle

Catchwords:

APPEALS – Leave to appeal – Interlocutory decision disposing of appellant’s claim – Whether error resulting in injustice established – Leave granted TRAFFIC LAW AND TRANSPORT – Traffic law – Motor accident legislation – Time limits – Where leave under (NSW) Motor Accidents Compensation Act 1999, s 109, refused – Whether full and satisfactory explanation given for delay in circumstances where delay attributable to solicitors – Whether total damages likely to be awarded if claim succeeds not less than 25% of maximum amount awardable for non-economic loss – Calculation of future domestic assistance – Appeal allowed – Leave granted COSTS – Wasted costs order – Where solicitors responsible for failure to commence proceedings in time – Direction made that submissions be lodged as to costs and potential under (NSW) Civil Procedure Act 2005, s 99

Catchwords:

TORTS – negligence – Civil Liability Act 2002 (NSW), ss 5K, 5L – meaning of “recreational activity”, “dangerous recreational activity” – whether professional horse racing a recreational activity TORTS – negligence – Civil Liability Act 2002 (NSW), ss 5F, 5L – meaning of “obvious risk” – identification of risk – level of generality – principles to be applied TORTS – negligence – elements of cause of action in negligence – breach of duty – whether riding contrary to the Australian Rules of Racing breached jockey’s duty of care – whether liability defeated by s 5L of the Civil Liability Act 2002 (NSW) STATUTORY INTERPRETATION – definitions – interpretation of definition by reference to term defined – reference to the ordinary meaning of term WORDS AND PHRASES – “recreational” – recreational activity” – “obvious risk” – Civil Liability Act 2002 (NSW), s 5K

Catchwords:

CIVIL PROCEDURE — parties — vexatious litigants — stay of proceedings — application for leave to appeal from stay — application for stay of orders of primary judge

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – Stay of District Court costs orders – Where stay would halt costs assessment process – Where restitution available for costs incurred during assessment process – Where process well-advanced – Stay refused JUDGMENTS AND ORDERS – Court of Appeal – Stay of anticipated costs assessment award – Where enforcement likely to cause considerable inconvenience and financial stress – Where risk of non-recoverability resolved by undertaking – Where no evidence of hardship – Stay granted

Catchwords:

CONTRACTS - construction - mistake - whether mistake can be corrected by construction - contract for sale of proposed lot defined by reference to sketch plan - vendor obliged to procure subdivision in accordance with sketch plan - sketch plan showed area of 2001m2 - purchaser entitled to rescind if registered plan contained area of 2100m2 or more - whether literal meaning of language created absurdity or inconsistency - whether objective intention self-evident - consideration of relationship between construction and rectification - consideration of the term “rectification”

Catchwords:

APPEALS – application for leave – applicant convicted in Local Court of offences contrary to Inclosed Lands Protection Act 1901 (NSW) – District Court dismissed conviction and sentence appeal and confirmed orders in Local Court – where applicant refused leave to appeal to Supreme Court from interlocutory orders made in Local Court – no issue of principle or question of general importance – whether Court should extend time for filing of summons – no utility in an appeal where orders of District Court stand unreversed

Catchwords:

LAND LAW – Torrens title – Indefeasibility of title – Effects of indefeasibility – Construction of third party mortgages – Where executed pursuant to forged Powers of Attorney – Identification of secured money – Where no money advanced to or at the request of mortgagors – Where no acknowledgement of receipt – Mortgages held to have secured no money – Appeal dismissed – Balance of matter remitted MORTGAGES AND SECURITIES – Mortgages – Duties, rights and remedies of mortgagee – Possession CIVIL PROCEDURE – Court of Appeal – Leave to appeal – From separate questions – Practical effect of resolving claims finally and adversely to applicant – Leave granted

Catchwords:

LAND LAW – easements – imposition of easement by Court – standard of appellate review – requirement that proposed easement be “reasonably necessary for the effective use or development” of the land – Conveyancing Act 1919 (NSW), s 88K(1) LAND LAW – easements – validity – characterisation under general law – rights not to confer exclusive use of servient tenement – enclosure of community land for waste transfer and recycling facility – loss of owner’s use of enclosed land and limited use of residue – whether proposed easement capable of being characterised as an easement LAND LAW – community land – inability of Council to grant easement over community land – whether Court can impose easement where owner cannot grant it – Local Government Act 1933 (NSW), s 46 and Conveyancing Act 1919 (NSW), s 88K

Catchwords:

BUILDING AND CONSTRUCTION – payment claim by builder – false statutory declaration in support of payment claim – statement by builder that all subcontractors paid – claim paid by principal – principal liable to unpaid subcontractors – Contracts Debts Act 1997 (NSW), s 5 – proceedings against builder for moneys paid by principal directly to subcontractors EVIDENCE – admissibility – hearsay – exceptions – business records – where business records of subcontractor tendered to prove unpaid debt – whether authenticity of document may be determined on the basis of inferences drawn from its form, contents or source – whether production on subpoena necessary – provenance and accuracy of the documents not challenged EVIDENCE – admissibility – business records –records of a party – whether records of third party warrant discretionary exclusion – whether weight sufficient to establish deceit TORTS – deceit – misleading and deceptive conduct – false statutory declaration in support of payment claim – statement by builder that all subcontractors paid – statement known to be false – claim paid by principal – principal liable to unpaid subcontractors – loss suffered – payments to subcontractors recovered

Catchwords:

JUDGMENTS AND ORDERS – costs order made in chambers under special arrangements during the COVID-19 pandemic – whether order made “in the absence of a party” for the purposes of r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) COSTS – application for indemnity costs order –applicant did not accept offer of compromise – offer required applicant to capitulate with no compromise as to costs or otherwise offered – respondent not entitled to indemnity costs

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Where fresh evidence with indicia of authenticity raising serious question of miscarriage of justice in decision below produced at extremely late stage – Where interests of justice require exploration of evidence before taking irrevocable step of ejectment – Stay granted CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Referral made to allow for legal assistance in exploration of fresh evidence JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Where stay also sought by husband of applicant producing fresh evidence – Where husband unable to demonstrate any entitlement to remain in possession – Stay refused

Catchwords:

PRACTICE AND PROCEDURE – appeal – final orders – orders by consent – orders in default of agreement

Catchwords:

CONSTITUTIONAL LAW - State Constitution - extra-territorial operation of legislation - power to provide for - drafting techniques - desirability of providing explicit legislative guidance as to intended territorial reach of laws STATUTORY INTERPRETATION - legal presumptions - presumption of territoriality - Interpretation Act 1987 (NSW) s 12 - applicants were women of Yazidi ethnicity - plaintiffs claimed they were victims of acts of violence perpetrated upon them in Northern Iraq and Syria by a man who had previously lived in New South Wales - Commissioner and NCAT dismissed application for support because acts of violence did not occur in New South Wales - plaintiffs submitted sufficient connection with New South Wales - nature of territorial nexus of Victims Rights and Support Act 2013 (NSW) with New South Wales - consideration of history and construction of s 12 Interpretation Act, extraterritorial legislative capacity, counterparts and precursors to victims compensation schemes - displacement of legal presumptions - appeal dismissed

Catchwords:

CONTRACT – contract providing for ongoing negotiation between parties following an initial period of due diligence – contract providing for further due diligence to be undertaken – construction of clauses providing for reimbursement of a capped amount of due diligence costs – whether potential service provider entitled to be reimbursed for its due diligence costs – no issue of principle.

Catchwords:

LEGAL PRACTITIONERS – practising certificate subject to conditions relating to financial management and tax affairs – barrister contravened conditions – whether psychiatric disorder provided “reasonable excuse” to justify not treating contraventions as professional misconduct LEGAL PRACTITIONERS – barrister made representations to Bar Council – Tribunal found that those representations knowingly false – whether open to Tribunal to make those findings – whether Court of Appeal in position to make findings determining issue LEGAL PRACTITIONERS – barrister made representation as to future conduct namely that would sell property to discharge tax liabilities – where barrister acted contrary to representation – whether that conduct constituted professional misconduct LEGAL PRACTITIONERS – finding of professional misconduct – whether barrister a fit and proper person to remain on Supreme Court roll of lawyers

Catchwords:

CIVIL PROCEDURE – third party proceedings – motor vehicle collision – where plaintiff’s son driving vehicle at time of collision – where defendant driving a rental car – where defendant cross-claimed against rental car company seeking indemnity – where admission by defendant on the pleadings that plaintiff owned the vehicle – where third party contested plaintiff’s ownership on the cross-claim – whether ownership issue foreclosed by defendant’s admission on the pleadings – whether the parties were bound by issue estoppels arising from the judgment in the proceedings – Civil Procedure Act 2005 (NSW), s 22 APPEALS – finding of fact – where Magistrate found that plaintiff’s son owned the vehicle – where ownership finding informed by Magistrate’s assessment of the credibility and reliability of the plaintiff and his son – whether Magistrate’s decision was glaringly improbable or contrary to compelling inferences – where small amount in issue – whether leave to appeal should be granted COSTS – third party proceedings – “pass on” costs orders – where Local Court hearing took 8 days – where third party alleged motor vehicle collision fraudulently staged – where fraud allegation not established – where Magistrate implicitly found 50% of trial related to fraud allegations – where Magistrate ordered plaintiff to pay 50% of third party’s costs – whether exercise of costs discretion miscarried – whether leave to appeal should be granted – appropriate costs order in Local Court upon re-exercise of costs discretion COSTS – appeal to Supreme Court from Local Court – where mixed outcome in proceedings – where judge did not decide all grounds of appeal – where Court of Appeal decided remaining grounds of appeal – whether separate costs orders should be made COSTS – appeal to Court of Appeal from Supreme Court – where respondent belatedly conceded error at the hearing – where appellant successful on principal ground of appeal – whether respondent should pay appellant costs of the appeal

Catchwords:

ADMINISTRATIVE LAW – constructive failure to exercise jurisdiction – where appellant alleges primary judge failed to address “substantial, clearly articulated” arguments – whether arguments based on “established facts” – whether primary judge’s approach raised those arguments for separate determination EMPLOYMENT AND INDUSTRIAL LAW – public sector – police – Police Regulation (Superannuation) Act 1906 (NSW), s 10B(2) – where primary judge found appellant incapacitated by transient condition for short period at time of resignation from police force – whether it follows that appellant incapable from infirmity of body or mind of exercising the functions of a police officer at that time – meaning of “infirmity” in Police Regulation (Superannuation) Act

Catchwords:

APPEALS – procedure – stay pending special leave to appeal to the High Court – where orders for payment of money to trustee in bankruptcy – where trustee in bankruptcy gave undertaking not to distribute or deal with any funds paid to him – whether stay necessary to preserve subject matter of appeal – whether costs of motion seeking stay should be “costs in the cause in the High Court”

Catchwords:

AGENCY — Property, Stock and Business Agents Act 2002 (NSW) — where person performs services without real estate agent licence — whether services performed as “real estate agent” STATUTORY INTERPRETATION — Property, Stock and Business Agents Act 2002 (NSW) — definition of “real estate agent” — meaning of phrase “as an agent”

Catchwords:

CONTRACT – building and construction contracts – interpretation – expert determination clause – whether expert determination is final and binding – where parties’ precluded from commencing litigation following expert determination unless value of the determination exceeded a threshold amount – where value of the determination to be calculated without having regard to amounts paid under the Building and Construction Industry Security of Payment Act 1999 (NSW)

Catchwords:

PRACTICE AND PROCEDURE — appointment of guardian ad litem under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) — whether appointment could be delegated by Tribunal to the Secretary of the Department of Justice

Catchwords:

COURTS AND JUDGES – procedural fairness – judicial intervention – where expert witness conclave conducted via audio visual and audio link – whether excessive judicial questioning of experts – whether real danger that trial was unfair – whether the trial miscarried DAMAGES – assessment of damages in tort – personal injury – where respondent suffered injury to left knee when ferry collided with wharf – whether respondent suffered compensatory injury to right knee by favouring left – whether primary judge erred in awarding damages for injury to respondent’s right knee EVIDENCE – expert evidence – where competing medical evidence – whether primary judge substituted own medical opinion for that of the expert DAMAGES – assessment of damages in tort – personal injury – where respondent could no longer perform certain house maintenance tasks – where those tasks carried out by respondent’s brothers – whether primary judge erred in awarding respondent damages for commercial domestic assistance

Catchwords:

ADMINISTRATIVE LAW – jurisdictional error – challenge to determinations of Industrial Relations Commission – whether plaintiffs were denied procedural fairness – whether Commission failed to have regard to relevant consideration – whether Commission erred in placing onus on moving parties – whether decision was legally unreasonable

Catchwords:

NEGLIGENCE — Causation — Motor vehicle accident — Where plaintiff diagnosed with adjustment disorder secondary to back injury caused by accident — Where back injury consisted in the aggravation of existing degenerative changes — Whether psychiatric injury remained causally related to the accident even after physical restrictions attributable to the accident subsided

Catchwords:

APPEALS – from finding of fact – inferences from primary facts – two competing hypotheses on the evidence – where primary judge applied a process of inferential reasoning based on circumstantial evidence – whether primary judge erred in applying this process to make findings of fact – duty of an appellate court to decide for itself which of the two hypotheses was the more probable – appellate court to discharge this duty by weighing the conflicting evidence and drawing its own inferences and conclusions CORPORATIONS – directors and officers – fiduciary duties – duty to act in good faith in the best interests of company and for proper purpose – where board resolved to purchase a property for “visiting executives” of the group – appellants were sole occupants of the property – whether the appellants were “visiting executives” for the purposes of the resolution of the board EQUITY – fiduciary duties – fiduciary relationships – directors – conflict of interest and duty – no profit rule – whether the appellants improperly used their position as directors of the respondent to gain a benefit for themselves – whether the appellants intended to reside at the property on an exclusive, indefinite and continuous basis at the time of the resolution EVIDENCE – circumstantial evidence – inferential reasoning – between two competing hypotheses – no direct evidence as to the appellants’ intention at the relevant time – where primary judge constrained to rely on events post-dating the material resolution – reasoning by way of “links in the chain” – whether such “links” made it reasonable to conclude on the balance of probabilities that the appellants had breached their fiduciary duties EVIDENCE – inferences – Jones v Dunkel – where neither of the appellants gave evidence at trial – court entitled to infer that their evidence would not have assisted their case – court not entitled to infer that the evidence would have been adverse to the appellants EVIDENCE – standard of proof – the Briginshaw principle – where the nature of the breaches alleged amounted to serious wrongdoing on the appellants’ behalf

Catchwords:

OCCUPATIONS – Legal practitioners – Disciplinary proceedings – Removal of practitioner’s name from the roll – Having misappropriated trust money – Tribunal found respondent was probably not a fit and proper person to be an officer of the court and recommended removal from the roll – Appellant seeking an order that respondent’s name be removed from the roll

Catchwords:

COURTS AND JUDGES – bias – apprehended bias – judge declined to recuse himself from presiding at criminal trial of applicant – judge’s partner of 29 years a Crown prosecutor who gave advice to police as to laying of charges against applicant – that Crown prosecutor not involved in subsequent pre-trial steps – whether judge disqualified by interest or association – application of Ebner test – fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind to his conduct of forthcoming trial of applicant

Catchwords:

PRACTICE - stay of execution pending appeal - appropriateness of interlocutory relief - appeal concedely reasonably arguable - whether appellant had established significantly greater prospect of success - balance of convenience - application for stay pending appeal refused

Catchwords:

EQUITY — trusts and trustees — trust powers — powers of appointment — powers of removal — fraud on a power — intention — whether power exercised for a foreign or extraneous purpose

Catchwords:

CONTRACT – cost plus contract for building work – claim in debt following non-payment of final invoice – belated submission that condition precedent requiring provision of details of cost of building works accompany builder's invoice not satisfied – submission not made to trial judge – whether point available on appeal CONTRACT – building contract – claim for defective work – owner directed re-pouring of lowered slab – whether that work was a consequence of incorrectly built ceiling – whether owner entitled to damages CONTRACT – quantification of damages – building contract – delay in performance – whether owner entitled to damages for diminution in market value of residential house – whether owner entitled to general damages for limited use and loss of amenity while building works continued PLEADINGS – conditions precedent – implied allegation that all conditions precedent to plaintiffs’ claim satisfied – obligation on defendant to identify with specificity non-satisfaction of condition precedent to plaintiffs’ claim – Uniform Civil Procedure Rules 2005 (NSW) rr 14.11, 14.14 – history of rules – consequences of failure to comply with rules

Catchwords:

WORKERS COMPENSATION – compensation for non-economic loss – determining degree of permanent impairment – worker suffered injuries to shoulder and spine in an incident and suffered further injuries to spine in later incidents – whether WPI resulting from injuries should be aggregated – injuries from first incident materially contributed to injuries in later incidents – all injuries “resulted from” and “arose out of” first incident WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member in point of law – whether presidential member erred in construing s 322(2) and (3) of Workplace Injury Management and Workers Compensation Act 1998 – error of law established and issue in question potentially a matter of some significance – leave to appeal granted STATUTORY INTERPRETATION – presumption from amendment – whether absence of amendment indicates considered choice of legislature to adopt a certain interpretation – artificial and unpersuasive to attribute to Parliament a consciousness of the judicial interpretation contended to have informed the relevant amendments

Catchwords:

TORTS – negligence – duty of care – scope of duty of landowner to neighbouring landowner for fire – vicarious liability – non-delegable duty – controlled burn by Rural Fire Service on private land – reignition and spread of undetected fire – damage to neighbouring property – RFS with statutory immunity to liability – RFS exercised reasonable care – whether landowner liable TORTS – nuisance – private nuisance – controlled burning – whether controlled burning can constitute private nuisance – whether strict liability TORTS – property damage – apportionable claim – concurrent wrongdoers – whether a party with statutory immunity can be a concurrent wrongdoer

Catchwords:

APPEALS – Leave to appeal – No arguable case – Solicitors – Advocate’s immunity

Catchwords:

ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – appeal under Health Practitioner Regulation National Law (NSW) s 159 against decision of Council under s 150 – hearing de novo – essential task of the Tribunal in such an appeal – error conceded – remittal of matter to the Tribunal

Catchwords:

CIVIL PROCEDURE — Court of Appeal — leave to appeal — application for concurrent hearing of leave application and appeal — application for expedited hearing — no issue of principle CIVIL PROCEDURE — Court of Appeal — application for stay of care orders made by Children's Court pending determination of appeal proceedings — no issue of principle CIVIL PROCEDURE — Court of Appeal — application to set aside order appointing guardian ad litem — no issue of principle

Catchwords:

APPEALS – incompetence – where relief sought in notice of appeal includes setting aside money judgment against a defendant other than the appellant – where appeal not brought by or on behalf of other defendant – whether to strike out of notice of appeal reference to judgment against other defendant – inherent power to strike out APPEALS – procedure – parties on appeal – where consequential relief in appeal includes setting aside costs orders made against appellant and other defendant jointly and severally – where other defendant not party to the appeal – whether other defendant “directly affected by the relief sought” under Uniform Civil Procedure Rules, r 51.4 APPEALS – procedure – stay of appeal pending satisfaction of judgment and costs orders below – where quantity of costs not agreed or assessed – where judgment and other costs orders the subject of the appeal – whether appeal an abuse of process COSTS – security for costs – on appeal – where appellant impecunious – where evidence suggests order for security would not stultify appeal – whether “special circumstances” within Uniform Civil Procedures Rules, r 51.50

Catchwords:

CONTRACT - unitholders agreement - one unitholder wished to exit - agreement contained provision for valuation of units of exiting unitholder - unitholders agreement also contained provision prohibiting trustee from effecting decisions in respect of Major Policy Issues without unanimous unitholder resolution - construction of those provisions determined as separate questions - whether valuer required to be satisfied that decisions made by trustee had complied with clause concerning Major Policy Issues APPEAL - leave - cross-claim dismissed following answers to separate questions - whether appeal as of right - requirement to show matter at issue to value of $100,000

Catchwords:

STRATA TITLES – obligation of owners corporation to maintain common property in good repair – owners corporation breached obligation, causing damage to lot owner – NCAT authorised to make orders to “settle” a complaint or dispute about strata scheme – whether NCAT authorised to award damages to lot owner – consideration of nature of lot owner’s cause of action – consideration of conferral of jurisdiction and power upon NCAT – consideration of legislative history – consideration of interaction of jurisdiction of courts and NCAT – appeal allowed, NCAT authorised to award damages. TORT – breach of statutory duty – statute authorised lot owner to recover damages for breach of statutory duty – consideration of nature of lot owner’s cause of action.

Catchwords:

CRIME – work health and safety – application for judicial review of verdict of acquittal – risk of death or serious injury to other persons – conduct of employee in the course of his duties – prosecution of employer – employer acquitted due to dishonesty of employee – attempt by prosecutor to review acquittal – Work Health and Safety Act 2011 (NSW), s 19(2) JUDICIAL REVIEW – supervisory jurisdiction – acquittal – principle of double jeopardy – application for judicial review in supervisory jurisdiction of the Supreme Court by prosecutor following acquittal – circumstances in which the Court’s jurisdiction to review an acquittal is engaged JUDICIAL REVIEW – supervisory jurisdiction – discretion to refuse relief – opportunity to address trial judge or to seek stated case to the Court of Criminal Appeal prior to final orders – failure to apply to judge – subsequent attempt to invoke supervisory jurisdiction

Catchwords:

TORTS – general principles – contributory negligence – where respondent injured while driving a grader on a coal mine haul road after rain event at night – where respondent hit a lamination in the road – where other employees using the area had failed to notice hole in the road – whether respondent guilty of contributory negligence NEGLIGENCE – damages – personal injury damages – future attendant care – future economic loss – out of pocket expenses – where primary judge did not make deduction for vicissitudes for future medical expenses or future attendant care – whether appropriate to account for respondent’s pre-existing conditions when awarding future out of pocket expenses and costs of future attendant care NEGLIGENCE – damages – non-economic loss – s 151G Workers Compensation Act 1987 (NSW) – whether primary judge was required to determine extent to which respondent would have developed pain and disability due to underlying conditions COSTS – party/party – bases of quantification – indemnity basis – where offer purported to be made pursuant to UCPR r 20.26 – whether offer complied with requirements of r 20.26 – whether primary judge erred in ordering indemnity costs in reliance on offer

Catchwords:

CONTRACT – contractual construction – proper scope of jurisdiction agreement in employment contract – where jurisdiction clause elliptical as to its scope – where multiple agreements – where jurisdiction clause only contained in one agreement – whether jurisdiction clause in one agreement applied to claim in respect of alleged breach of post-employment restraints contained in a related agreement. EMPLOYMENT – restraints of trade – where senior executive employed pursuant to an Employment Agreement containing post-employment restraints of trade and an exclusive jurisdiction clause for courts of Singapore and a Singapore choice of law clause – where executive posted to Japan pursuant to a further contract but with his original contract continuing in effect – where executive also subject to a deed poll containing further post-employment restraints and governed by Japanese law – where employer sued to enforce only restraints contained in deed poll – whether proceedings caught by exclusive jurisdiction clause contained in original Employment Agreement – whether proceedings in New South Wales should be stayed. EQUITY – Injunctions – anti-anti-suit injunction – anti-suit injunction. PRIVATE INTERNATIONAL LAW – anti-anti-suit injunction – exclusive jurisdiction agreement – proper construction of scope of jurisdiction agreement – principles applicable to construction of jurisdiction agreements – relationship between jurisdiction agreement and choice of law clauses PRIVATE INTERNATIONAL LAW – concurrent proceedings in Singapore and New South Wales – whether New South Wales proceedings in relation to post employment restraints in a Deed Poll should be stayed by reason of an exclusive jurisdiction clause in a separate Employment Agreement.

Catchwords:

CONTRACT – contractual construction – whether promise in Binding Heads of Agreement (HOA) to enter into Business Sale Agreements was subject to a condition precedent, namely the approval of the Purchaser’s Board – whether consideration for HOA illusory – whether condition precedent permitted Purchaser’s Board to withhold approval capriciously – whether primary judge’s construction accorded with commercial common sense – whether primary judge erred in ordering specific performance of HOA.

Catchwords:

WORKERS COMPENSATION – coal miners – whether employment was a contributing factor to aggravation, acceleration, exacerbation or deterioration of a disease – where worker suffered from a degenerative condition of osteoarthritis to his right knee – whether primary judge erred in point of law in finding work injury – Workers Compensation Act 1987 (NSW), s 4(b)(ii)

Catchwords:

LEGAL PRACTITIONERS – Court’s inherent jurisdiction to supervise and discipline legal practitioners – application for removal of barrister’s name from the roll of Australian lawyers maintained by the Supreme Court of New South Wales – where barrister practised principally in New South Wales for six years holding a practising certificate from Queensland – whether representations to the Queensland Bar Association as to the barrister’s principal place of practice were made dishonestly – whether barrister a fit and proper person to remain on the Supreme Court roll CONSTITUTIONAL LAW – challenge by barrister to validity of certain provisions governing the legal profession in Tasmania and Queensland – where disciplinary proceedings against the barrister did not involve any allegation of breach of any of the impugned provisions – whether there is any “matter” arising under the Constitution in respect of the impugned provisions CONSTITUTIONAL LAW – challenge to validity of certain provisions governing the legal profession in New South Wales or their application to the barrister – whether impugned provisions have any extra‑territorial effect – whether s 117 of the Constitution operates to render the impugned provisions inapplicable to the barrister – whether impugned provisions invalid as contrary to s 92 of the Constitution – whether impugned provisions inconsistent with various provisions of the Judiciary Act 1903 (Cth) – whether impugned provisions inconsistent with Chapter III of the Constitution as compromising the institutional integrity of Federal and State Courts

Catchwords:

LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – re-categorisation by Council of farmland to mining land – relevance of impact of ongoing drought on cattle grazing – hiatus in activity on land different to abandonment – activity in rating years required to be considered in its context including what occurred previously on the land and what intended to occur after LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – easement burdening rateable land for benefit of adjacent mine – very small land area subject to easement and cattle grazing rights interrupted only to “trifling extent” – limited significance of easement to determination of dominant use of land LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – relevance of source of requirement to use land for a particular purpose – reason for existence relevant but not determinative – use of land as Aboriginal Cultural Heritage Offset and Habitat Enhancement Offset areas the antithesis of mining – offset areas not used “for a coal mine” under s 517 Local Government Act – consideration of Peabody Pastoral Holdings 211 LGERA 337

Catchwords:

NEGLIGENCE – breach of duty – Civil Liability Act, s 5B – whether failure of solicitors to commence proceedings for Family Provision Act provision against estate prior to mediation constituted breach – whether there was a relevant risk of harm NEGLIGENCE – causation – whether a readily enforceable settlement was reached at mediation – whether there was a realistic chance that the appellant would have recovered the full settlement sum but for the negligence – relevance of actions of a third party NEGLIGENCE – damages – loss of commercial opportunity contract claim – prospects of appellant recovering the full settlement sum NEGLIGENCE – defence of proportionate liability – Civil Liability Act, s 35 – concurrent wrongdoers – whether the loss sued for was a different loss to that caused by the alleged wrongdoer NEGLIGENCE – advocate’s immunity – whether alleged breach was intimately connected with the resolution of the proceedings by court decision – whether consent orders entered by registrar in Family Provision Act proceedings involved the exercise of an independent discretion

Catchwords:

ADMINISTRATIVE LAW – judicial review – inquiry into criminal convictions – challenge to opinion that no reasonable doubt attended the convictions – whether opinion arbitrary, capricious or irrational – whether relevant material disregarded ADMINISTRATIVE LAW – procedural fairness – improperly rejecting evidence – test of relevance for purposes of inquiry – failure to consider submissions – failure to consider good character evidence – failing to reopen inquiry CRIMINAL LAW – post-appeal review – petition to Governor – doubt or question as to person’s guilt – judicial officer appointed to conduct inquiry – legal test to be applied by judicial officer – “reasonable doubt as to guilt of convicted person” – Crimes (Appeal and Review) Act 2001 (NSW), s 82(2)(a) JUDICIAL REVIEW – justiciability – challenge to opinion of judicial officer holding inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 – whether exercise of prerogative of mercy – whether decisions of intermediate courts of appeal should be followed – whether procedure under Criminal Code (Qld), s 672A, distinguishable

Catchwords:

GAMING AND WAGERING – Public lottery – Applicant claiming to have entered winning numbers but unable to produce ticket – Substantial unclaimed prize from 1997 – Appeal from dismissal of claims – Appeal dismissed as incompetent CIVIL PROCEDURE – Pro bono referral – Where applicant impecunious and of limited capacity to conduct litigation – Where previous pro bono assistance provided on multiple occasions – Where complaints made to Legal Services Commissioner regarding previous legal representatives – Where absence of apparent merit to claims – Referral refused CIVIL PROCEDURE – Hearings – Suppression and non-publication – Where orders not appropriate at interlocutory stage – No orders made APPEALS – Procedure – Time limits – Extension of time to appeal – Where appeal initially discontinued without satisfactory explanation – Where substance of appeal has no merit – Application refused

Catchwords:

CONTRACTS – real estate agent agreement – non-exclusive agents – entitlement to commission – buyer introduced by first agent who then left for holidays when prospect of a sale appeared lost – buyer contacted second agent to look for other properties – sale then revived and completed – whether the first agent was the, or an, effective cause of the sale of the property – mere introduction of the buyer to the property is insufficient – appeal dismissed

Catchwords:

PRACTICE – variation of orders by consent – effect of application to delay winding up of companies – need to provide proper basis

Catchwords:

CONTRACT – Contract of employment – whether location of employment in a letter of offer of employment was an essential term, breach of which gave rise to a right to terminate and a claim for damages – where employee asserted that employer’s insistence upon changing the employee’s work location amounted to repudiatory conduct and purported to accept that repudiation. EMPLOYMENT & INDUSTRIAL LAW – Contract of employment – whether location of employment in a letter of offer of employment was an essential term, breach of which gave rise to a right to terminate and a claim for damages – where relevant Award contained mobility of staff clause which provided for employer to move employees around relevant District upon satisfaction of certain conditions – whether location as outlined in letter of offer ousted operation of mobility of staff clause in Award.

Catchwords:

APPEAL – application for leave to appeal – applicant subject to vexatious proceedings order – whether leave required to file summons seeking leave to challenge order – appeal heard – whether leave required to file notice of motion seeking to vary orders CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings – whether leave required to file application to appeal vexatious proceedings order – whether leave required to file notice of motion seeking to vary orders made on appeal JUDGMENT AND ORDERS – orders entered – application to vary orders – notice of motion not filed within 14-day period specified by rules – power to extend time – Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Application for leave to amend notice of appeal to add additional ground alleging invalid appointment of trustee – Where issue not raised before primary judge – Where no practical utility in agitating ground in circumstances where validity of subsequent appointment of same trustee unchallenged – Where application not made until day of hearing – Leave refused

Catchwords:

CIVIL PROCEDURE – parties – proper party – whether the Authority of the Insurers’ Guarantee Fund a proper party to the proceedings STATUTORY INTERPRETATION – amendment and repeal – references to repealed statute – deregistered company – where legislation providing power to reinstate company repealed – Companies (New South Wales) Code (NSW), s 459(6) – whether court has power to reinstate company STATUTORY INTERPRETATION – amendment and repeal – references to repealed statute – Corporations (New South Wales) Act 1990 (NSW), s 85 – whether section of its own force can render applicable repealed co-operative scheme law – where section is not a deeming provision STATUTORY INTERPRETATION – amendment and repeal – references to repealed statute – accrued statutory rights – Interpretation Act 1987 (NSW), s 30(1)(c) – nature of the rights – Companies (New South Wales) Code 1981 (NSW), s 459(6) – right to seek reinstatement – more than mere locus standi – where person aggrieved – where interests affected by the exercise of the right STATUTORY INTERPRETATION – literal meaning – natural and ordinary meaning – Workers Compensation Act 1987 (NSW), s 236 – entitlement to payment WORKERS COMPENSATION – insurance – Insurers’ Guarantee Fund – liability – Workers Compensation Act 1987 (NSW), s 236(2) – whether plaintiff entitled to proceed directly against the Authority – Workers’ Compensation Act 1926 (NSW), s 18(3) – precondition to liability

Catchwords:

TORTS — negligence — apportionment of responsibility and damages — adjustment to reflect concurrent wrongdoing by entity not party to proceeding COSTS — party/party — general rule that costs follow the event — application of the rule and discretion — where appellant partially successful in appeal involving multiple parties — reduction commensurate with hearing time spent on successful aspects of appeal COSTS — party/party — orders when proceedings involve multiple parties on appeal — allegations of concurrent wrongdoing by respondents — appeal successful against one respondent but not against another — appellant did not pursue concurrent wrongdoing allegations at hearing — whether appellant’s costs in respect of the successful respondent should be ordered against the unsuccessful respondents

Catchwords:

APPEALS – leave to appeal – where primary judge summarily dismissed originating process – whether originating process subject to cause of action estoppel

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Notice of motion – Interpretation of orders staying proceedings – Reasonable use of a motor vehicle and caravan – Where declaratory, not injunctive, relief sought – Where use was for service, repair, and camping – Motion dismissed

Catchwords:

CIVIL PROCEDURE – application for amendment to reasons in Court’s inherent jurisdiction – where reasons extracted the transcript of a recording authorised under the Surveillance Devices Act 2007 (NSW) and tendered in open court – where transcript not subject to a non-publication order or suppression order – whether publication of transcript contrary to s 40 of the Surveillance Devices Act – application dismissed

Catchwords:

COSTS — security for costs — costs of appeal where appellants’ lawyers stand to benefit from prosecution of appeal — where prospects of success of appeal questionable — whether security for costs should be ordered, and if so in what amount

Catchwords:

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

Catchwords:

LANDLORD AND TENANT - residential tenancy agreement - long term occupation of land in unadministered deceased estate - whether appellant entered into residential tenancy agreement with uncle who was in residence and entitled to 5/9 of estate - whether residential tenancy agreement can be with “estate” of deceased - whether appellant entered into residential tenancy agreement, 8 years later, with newly appointed administrator of deceased estate - no error in primary judge’s finding that no residential tenancy agreement entered into - appeal dismissed

Catchwords:

COSTS — party/party — court’s discretion — costs fixed on gross sum basis

Catchwords:

EQUITY — Breach of confidence — Concurrent confidentiality obligation in contract EQUITY — Breach of confidence — Necessary quality of confidence — Employment EQUITY — Breach of confidence — Necessary quality of confidence — Material in public domain COMMERCE — Restraint of trade — Particular cases — Protection of business connections COMMERCE — Restraint of trade — Particular cases — Protection of staff connections COMMERCE — Restraint of trade — Validity and reasonableness

Catchwords:

COURTS – jurisdiction – appeal requiring leave to appeal from the Common Law Division – Trade Marks Act 1995 (Cth) – whether appeal lay to Court of Appeal – whether prohibition on instituting and determining appeal other than in a federal court in s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applied – whether appeal involved a matter for determination arising under the Trade Marks Act – summons seeking leave to appeal dismissed for want of jurisdiction

Catchwords:

APPEAL – application for leave refused – costs ordered – application to vary order – offer of compromise – indemnity costs sought COSTS – indemnity costs – offer of compromise – whether offer open for reasonable period – whether offer involved compromise – default entitlement – power to order otherwise – onus on applicant to establish reasons for different costs order – Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.15A

Catchwords:

JUDGMENTS AND ORDERS – second application to set aside previous judgment of Court refusing leave to appeal – as with first application, no basis for reopening established

Catchwords:

APPEALS – appellate review of factual findings – appellate review of credit findings – interaction between contemporaneous documents and witness testimony – whether an adverse credit finding on one aspect of a witness’ evidence requires that his or her evidence should be rejected on all issues CORPORATIONS – directors’ duties – whether two directors breached their duties in relation to the sale of shares in a subsidiary of the company of which they were directors – whether transfer of shares in subsidiary company in 2012 transferred the beneficial ownership of those shares in all the circumstances of the case – whether shares transferred for nil consideration – whether sale of shares in subsidiary company in 2013 was at a gross undervalue CORPORATIONS – minutes of board meetings – disputed version of minutes – competing versions of minutes does not mean that one version is necessarily false – when party alleging false minutes did not challenge director who signed minutes with that allegation EQUITY – sham transfer of shares – whether beneficial interest in shares passed on registration of share transfer in circumstances where consideration for transfer of shares not paid – whether transfer of shares for nil consideration was a gift – where no intention on the part of directors to give away company property – where plausible explanation supported by context negated any suggestion that shares were intended to be given away TRUSTS – resulting trusts – whether presumption of a resulting trust over property transferred for nil consideration does not apply to personalty or shares

Catchwords:

ADMINISTRATIVE LAW - Health Care Complaints Commission - decision not to take further steps to progress complaint against psychiatrist - decision reviewed and confirmed by Commission - primary judge dismissed summons seeking judicial review - whether judicial review available - whether any judicially reviewable error disclosed by decisions - leave refused

Catchwords:

COURTS AND JUDGES – bias – application for recusal – application declined – judge commented on role of plaintiff’s expert at conclave – comments made during preliminary discussion as to amended pleading – whether a fair-minded lay observer might think judge might have pre-judged credibility of witness APPEALS – jurisdiction – appeal from “judgment or order” – refusal of a recusal application – application for disqualification made orally without notice of motion – whether refusal was a “judgment or order WORDS AND PHRASES — “judgment or order” – “fair-minded lay observer”

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of professional disciplinary authority – decision to discontinue inquiry into complaint – refusal of internal review of initial decision – review sought by complainant – availability of orders in nature of certiorari APPEAL – application for leave to appeal from judgment in supervisory jurisdiction – review of decision of Legal Services Commissioner discontinuing inquiries into aspects of complaint – complaint as to disciplinary matter – whether complainant had any right or interest affected by decision PROCEDURE – judicial review – role of decision-maker as contradictor in challenge to decision – exception to principle in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 – whether contravention would be appealable error

Catchwords:

EVIDENCE - expert evidence - trial judge rejected expert report as beyond witness’ expertise and not disclosing reasoning process - Evidence Act 1995 (NSW), s 79 - no error established NEGLIGENCE - personal injury - plaintiff’s horse fell while warming up before competing in equestrian events – plaintiff’s horse “spooked” by noise made by children near warm-up area - whether plaintiff participating in dangerous recreational activity - whether plaintiff’s harm resulted from materialisation of obvious risk - appropriate level of generality or particularity of “obvious risk of harm” and “dangerous recreational activity” - Civil Liability Act 2002 (NSW), ss 5F, 5K and 5L considered - whether plaintiff had established a reasonable person in defendant’s position would have taken precaution of stationing marshals in warm-up area - significance of risk warning signed by plaintiff as a precaution - Civil Liability Act s 5B(1)(c) considered - appeal dismissed

Catchwords:

APPEALS – leave to appeal – where primary judge refused leave to appeal to raise argument not dealt with by magistrate – whether argument made to magistrate – no error of primary judge in concluding not made

Catchwords:

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 (NSW), s 62 - application for further assessment - proper officer not to order further assessment unless additional relevant information capable of having a material effect on outcome of previous assessment - further medical opinions covering similar ground to opinions previously considered - further medical opinions accepted to be additional relevant information - whether judicially reviewable error in proper officer’s decision that further medical opinions not capable of having material effect - need for identification of jurisdictional error or error of law on face of record - primary judge erred in finding reviewable error - appeal allowed and decision of proper officer restored

Catchwords:

CIVIL PROCEDURE – parties – removal of parties – where no cause of action pleaded or articulated in argument on behalf of second to fourth plaintiffs – whether to remove as parties under Uniform Civil Procedure Rules, r 6.29 CIVIL PROCEDURE – pleadings – striking out – where most pleaded particulars of negligence covered by advocate’s immunity – where some pleaded claims possibly maintainable – whether to address advocate’s immunity on pleadings – whether to strike out entire statement of claim with leave to replead

Catchwords:

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

Catchwords:

APPEAL – breach of development consent –construction certificate part of development consent – drainage line not constructed in location shown on construction certificate plan – construction of construction certificate plan – whether misconstruction – judicial notice – whether common knowledge – refusal of leave to reopen – whether denial of procedural fairness – whether incorrect factual or legal assumption – leave to appeal refused

Catchwords:

APPEAL – application for leave – challenge to interlocutory ruling on access to documents – misconceived allegation of bias – unsubstantiated allegations of perjury by solicitor – delay in giving judgment – no demonstration of prejudice – no arguable ground of error identified CIVIL PROCEDURE – production of documents – documents in custody of the court – application pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 33.13 – files sought to support application under Vexatious Proceedings Act 2008 (NSW) – access to documents produced – parties to proceedings the subject of the filed notified – objection to access – grounds of objection

Catchwords:

CONSTITUTIONAL LAW — Judicial power — Whether decision of the NSW Civil and Administrative Tribunal as to its jurisdiction was an exercise of the judicial power of the Commonwealth – Nature of the anterior jurisdiction of the Tribunal to consider its authority to decide CONSTITUTIONAL LAW — Judicial power — Whether the Tribunal has power to order costs consequential on a dismissal or transfer of proceedings for want of Federal jurisdiction – Whether power to make such an order outside of the State’s legislative competence to confer on the Tribunal– Whether making such an order would occasion the Tribunal impermissibly exercising the judicial power of the Commonwealth

Catchwords:

CONVEYANCING – transfers in fraud of creditors – Conveyancing Act 1919 (NSW), s 37A – where property transferred sold by transferee – where part of proceeds of sale used to pay legal costs of transferee subject to undertaking to repay if appeal allowed – consequential orders and declarations COSTS – orders when proceedings involve multiple parties – where no relief sought against one defendant – where that defendant joined in defence with other defendant – whether to order plaintiff’s costs be paid by those defendants jointly COSTS – offers of compromise/Calderbank offers – whether time allowed for consideration of offer reasonable

Catchwords:

JUDGMENTS AND ORDERS – variation of reasons – change in circumstances – where appellant died after delivery of reasons but before making of final orders – where proposed relief based on appellant’s expected remaining lifetime – whether to reopen appeal – whether to vary proposed relief on account of appellant’s death ESTOPPEL – proprietary estoppel – where appeal against successful proprietary estoppel claim dismissed – where defendant now deceased – consequential orders COSTS – gross sum costs order – Civil Procedure Act 2005 (NSW), s 98(4) – order agreed

Catchwords:

EVIDENCE – standard of proof – balance of probabilities – where appellant alleged signature on transfer form was forged – whether necessary to establish “clear and cogent proof” of the fraud – application of Briginshaw v Briginshaw – Evidence Act 1995 (NSW), s 140 APPEAL – new point or issue raised on appeal not taken at trial – where neither party called attesting witness of transfer form – where allegation transferor’s signature forged – where appellant sought a Jones v Dunkel inference on appeal that the missing witness’ evidence would not have assisted the respondent – whether evidence could have been given which possibly could have answered the new point

Catchwords:

CIVIL PROCEDURE – parties – vexatious litigants – limited vexatious proceedings order in relation to applicant – primary judge extended vexatious proceedings order – Vexatious Proceedings Act ss 8, 9 – application for leave to appeal filed late – no sensible argument advanced nor any explanation for lateness

Catchwords:

CIVIL PROCEDURE — hearings — adjournment – application to vacate hearing of an appeal listed for three days – where appellants’ Senior Counsel travelled to United Kingdom in November 2020 and unlikely to return to Australia given the Covid-19 pandemic – assessment of the interests of justice where competing claims of prejudice – application refused

Catchwords:

APPEAL – application for leave to appeal – orders – where grant of application for leave to appeal conditioned on applicant agreeing not to press for an order setting aside the quashing of the conviction of the respondent – where resulting orders of Court of Appeal set aside an order allowing an appeal against conviction but also set aside an order dismissing charges under s 530(1) of the Crimes Act 1900 (NSW) and remit the matter to the Local Court for determination in accordance with law in circumstances where no express finding had been made in relation to the mental element of the charges preferred. COSTS – where mixed outcome of proceedings in Court of Appeal – costs in the discretion of the Court – no order as to costs.

Catchwords:

LAND LAW – Torrens title – indefeasibility of title – fraudster procured execution and registration of mortgages purportedly on behalf of mortgagor – whether mortgages properly construed secure anything against the lands LAND LAW – Torrens title – indefeasibility of title – effect of acknowledgment of receipt of payment in registered mortgage – acknowledgment prima facie evidence of receipt but must yield to the facts as proved – no advance actually made to mortgagor due to intervention of fraudster LAND LAW – Torrens title – indefeasibility of title – whether an unregistered document can be incorporated by reference into a registered mortgage – existence of Special Condition in registered mortgage excluding unregistered document where void – unregistered document void due to fraud

Catchwords:

NATIVE TITLE – extinguishment – compensation – whether extinguishment occurred (i) under legislation vesting land in South Australia or (ii) pursuant to resumption under the Public Works Act 1912 (NSW) STATUTORY INTERPRETATION – legislative purpose – whether land vested in South Australia for an estate in fee simple under the River Murray Waters Act 1915 (NSW) – right to compensation under the Public Works Act 1912 (NSW) – whether possessory title and any other interests extinguished STATUTORY INTERPRETATION – approaches – whether literal reading appropriate – whether a particular construction would be contrary to the purpose of an Act

Catchwords:

APPEALS – application for leave to appeal – no issue of principle, question of public importance or a reasonably clear injustice MENTAL HEALTH – appeals – appeal from dismissal of application to lift Community Treatment Order while plaintiff prepares for hearing challenging order – application dismissed PROCEDURE – litigants in person – unrepresented litigants – importance of adhering to length, content and form requirements for written submissions – no special rules or treatment for litigants in person

Catchwords:

EQUITY – trusts and trustees – professional trustee company trustee – where beneficiary “covenantholders” invested money in forestry scheme – where covenantholders entitled to share in proceeds of sale of timber – where scheme land subject to encumbrances securing covenantholders’ interests – where encumbrances trust property – where scheme land and standing timber sold to third party – where trustee acted in breach of trust by releasing encumbrances CONTRACTS – solicitors – where law firm retained to advise trustee concerning release of encumbrances over scheme land – where advice found to be negligent – whether advice causative of loss to covenantholders occasioned by trustee’s breach of trust EQUITY – equitable remedies – equitable compensation – causation – whether award of equitable compensation should be limited to the value of the scheme land – where challenge to factual findings relating to Payout counterfactual – whether award of equitable compensation should be reduced by certain adjustments and deductions EQUITY – equitable remedies – equitable compensation – whether defaulting trustee entitled to apportion loss to law firm – whether South Australian or New South Wales proportionate liability legislation applied – where South Australian law lex loci delicti – whether apportionment provisions procedural in nature or substantive

Catchwords:

CIVIL PROCEDURE – stay of proceedings – matter of practice and procedure – whether stay should be granted of Tribunal damages hearing

Catchwords:

STATUTORY INTERPRETATION — Amendment — where appellant’s entitlement to weekly workers compensation payments arose before but was not determined until after 2012 amendments to Workers Compensation Act 1987 (NSW) came into force — whether s 82A of Act as currently in force entitles the appellant to have pre-injury average weekly earnings indexed historically from the time she first became eligible to receive weekly payments in respect of the relevant injury or only from the time the amendments came into force in 2012

Catchwords:

TORTS – negligence – general principles – Civil Liability Act 2002 (NSW) – personal injury – operating a catching pen gate at a greyhound race – whether “recreational activity” – whether par (c) of the definition of “recreational activity” in Civil Liability Act, s 5K imposes an “artificial meaning” to the word “recreational” – potential anomalous consequence of literal construction – whether activity dangerous – obvious risk – whether respondent in breach of duty to appellant – whether respondent ought to have taken precautions against risk of harm – causation – contributory negligence STATUTORY INTERPRETATION – departure from literal meaning – whether additional words can be read into statute to avoid potential unintended consequences – whether ordinary meaning of defined terms can be used in construction of the statutory definition of the term – unreasonable consequences – activities caught under the definition of “recreational activity” asserted to have an unacceptable reach

Catchwords:

BUILDING AND CONSTRUCTION – claim for progress payment – reference date – whether claim with respect to an available reference date – inclusion of three days’ interest accruing after reference date – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8) BUILDING AND CONSTRUCTION – claim for progress payment – service of claim – supporting statement – requirements for valid supporting statement – consequence of failure to serve valid statement – whether payment claim invalid BUILDING AND CONSTRUCTION – claim for progress payment – variations – whether sums claimed under the contract or for quantum meruit – whether the claim invalid if amounts not owing under the contract – statutory scheme for adjudication of payment claim disputes – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14 and 15(4) STATUTORY INTERPRETATION – penalty provision – implied civil consequences – whether intention to invalidate step creating civil obligation – breach of requirement to serve compliant supporting statement – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8)

Catchwords:

TAXES AND DUTIES – administration of federal tax legislation – collection and recovery of taxes – PAYG tax – estimates provisions – where Notice of Estimate issued – where company did not pay the amount of the Notice of Estimate – where Director Penalty Notices issued – where appellants placed company into liquidation – whether Director Penalties were remitted pursuant to s 269-30(1) of Schedule 1 to the Taxation Administration Act 1953 – whether trial judge erred in finding that s 269-30(2) Item 2 of Schedule 1 to the Taxation Administration Act 1953 applied in respect of the Director Penalties TAXES AND DUTIES – administration of federal tax legislation – collection and recovery of taxes – PAYG tax – averments under s 255-50 of Schedule 1 to the Taxation Administration Act 1953 – where averments made as to unpaid PAYG amounts withheld – whether averments themselves sufficient evidence that the company had withheld PAYG amounts and not paid those amounts to the Commissioner

Catchwords:

DEFAMATION – defamatory matter – where news report on termination of General Manager of Council – where report referred to allegations of bullying and intimidation – whether imputation conveyed that General Manager bullied and intimidated staff DEFAMATION – defences – statutory qualified privilege – reasonableness – relevance of propositions stated in Morgan v John Fairfax Ltd [No 2] (1991) 23 NSWLR 374

Catchwords:

ENVIRONMENT AND PLANNING – development approval – variation of plans – formalities for approval of changes – whether requirement for written application – recording approval of certifying authority – notification of consent authority – effect of breach of regulations ENVIRONMENT AND PLANNING – enforcement proceedings – construction certificate – variation of development – whether construction certificate modified – whether work undertaken before approval by certifying authority – failure to notify consent authority – whether development unlawful

Catchwords:

PRACTICE AND PROCEDURE – appeal – stay – medical practitioner – finding of professional misconduct – order suspending registration – period of suspension likely to expire before appeal determined – appeal reasonably arguable – misconduct involved single incident three years before order made – order the suspension not commence for 30 days – no evidence of immediate risk to patients or parents

Catchwords:

PROCEEDS OF CRIME – Freezing orders – Proceeds of Crime Act 2002 (Cth) – application to exclude property from restraining order – whether frozen property was acquired in circumstances that would not arouse a reasonable suspicion that property was proceeds of an offence – whether exclusion order should have been made in relation to the property – where applicant had provided sufficient consideration and did not have actual knowledge that the property constituted proceeds of an offence – significance of failure to cross-examine – whether inferences sought to be drawn available in the absence of cross-examination.

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:

ANIMALS — prevention of cruelty to animals — private prosecution under Prevention of Cruelty to Animals Act — guilty verdict — charges subsequently dismissed under Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 TORTS — malicious prosecution — malicious criminal proceedings — elements of tort — application for summary dismissal — whether s 32 dismissal constitutes a termination of proceedings in favour of a plaintiff

Catchwords:

APPEALS – leave to appeal – utility – where substantive dispute concerns Greens list of nominees for election already held – whether any utility in considering whether list of nominees determined consistently with party constitution – whether dispute likely to recur – whether any errors sufficiently arguable to justify leave COSTS – party/party – exceptions to general rule that costs follow the event – public interest – where proceedings had a “public interest” element – whether arguable error in primary judge declining to make no order as to costs COSTS – party/party – multiple parties – whether arguable error in allowing multiple sets of costs to defendants with similar interests

Catchwords:

ADMINISTRATIVE LAW – writ of habeas corpus – to whom writ should be directed – who has custody of prisoners in correctional centres – whether prosecutor entitled to appear APPEAL – appeal against refusal to issue writ of habeas corpus – grounds on which appeal available – s 71 Supreme Court Act 1970 considered JUDGMENTS AND ORDERS – sentence of imprisonment – whether warrant for commitment required in addition to court order – s 62 Crimes (Sentencing Procedure) Act 1999 considered JUDGMENTS AND ORDERS – sentence of imprisonment – judicial review sought – release on bail – stay of execution of order – ss 69A-D Supreme Court Act 1970 considered

Catchwords:

APPEAL – practice and procedure – issue of subpoenas – application to review decision of single judge – no issue of principle

Catchwords:

CRIMINAL LAW – extended supervision order – Terrorism (High Risk Offenders) Act 2017 (NSW) – whether appellant was a “convicted NSW terrorism activity offender” – whether primary judge applied heightened standard of satisfaction imposed by Act – whether appellant had made statement advocating support for any terrorist act or violent extremism – deeming provision extended statements advocating support to “using or displaying images or symbols” associated with organisation that supports terrorist acts or violent extremism – whether images or symbols excluded alpha-numeric images or symbols – whether appellant’s posting on Facebook concerning new nasheed from Islamic State’s Ajnad Media engaged deeming provision – whether deeming provision should be read down on basis of constitutionally implied limitation on legislative power to restrict political communication – appeal dismissed

Catchwords:

ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner under Health Practitioner Regulation National Law – power of Tribunal to order that a complaint be heard on the papers – where National Law required notice of time and place of inquiry to be given – where National Law entitled practitioner to attend the inquiry – where National Law applied despite any provision in Civil and Administrative Tribunal Act ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner under Health Practitioner Regulation National Law – where Tribunal did not afford practitioner procedural fairness – where Tribunal erred in relation to its consideration of certain complaints – where Tribunal failed to give adequate reasons for its conclusions concerning certain complaints

Catchwords:

TORTS – general principles – Civil Liability Act 2002 (NSW) – personal injury – “spear tackle” or “dangerous throw” during a rugby league match – whether “intent to cause injury” – presumption that a wrongdoer intends the natural and probable consequences of his or her conduct. WORDS AND PHRASES – meaning of “intent to cause injury” – Civil Liability Act 2002 (NSW), s 3B(1) – actual, subjective, intention NEGLIGENCE – defences – Civil Liability Act 2002 (NSW) – s 5L materialisation of an obvious risk of a dangerous recreational activity – whether intentional act – whether effected with intent cause injury – recreational activity where an intention to cause some degree of injury is likely or common.

Catchwords:

APPEALS – orders on appeal – remittal – errors in trial judge’s conclusion on liability and contingent assessment of damages – case attended by significant and operative delays – conduct at issue occurred over 10 years ago – further trial pointless – Court of Appeal capable of resolving contested issues of fact PRACTICE AND PROCEDURE – expert evidence – joint report of experts – admission and tender versus weight – Uniform Civil Procedure Rules (NSW), r 31.26(3) TORTS – negligence – breach of duty – shopping centre – defect in perimeter security – gap above roller door – exposed entrance – previous break-in via the gap – awareness by owner of premises, security company, and employer of security guard of defect – no steps taken to rectify defect – Civil Liability Act 2002 (NSW), s 5B TORTS – negligence – causation – intruder enters shopping centre via gap – requirement to address gap – Civil Liability Act 2002 (NSW), s 5D TORTS – general principles – contributory negligence – security guard followed steps and was praised by management for conduct in securing premises against axe-wielding intruder which led to psychiatric injury – Civil Liability Act 2002 (NSW), ss 5R, 5S TORTS – negligence – damages – psychiatric injury – normal fortitude – whether person of normal fortitude might in the circumstances of the case suffer psychiatric harm – Civil Liability Act 2002 (NSW), s 32 TORTS – negligence – duty of care – security guard – duty of occupier of commercial shopping premises, security company, and company engaged by security company that employed the security guard TORTS – negligence – voluntary assumption of risk – security guard suffered psychiatric injury due to the approach of an axe-wielding intruder who approached him and threatened him with death – whether this risk was voluntarily assumed

Catchwords:

APPEALS – leave to appeal – whether leave required – monetary threshold of $100,000 under s 101(2)(r) Supreme Court Act – amount in issue $99,999 – strictly no right of appeal – closeness of sum in issue to the threshold relevant to discretion to grant leave CONTRACTS – remedies – damages – sub-contractor breached contract with builder by supplying and installing materials unfit for purpose – builder paid in full by proprietors and no prospect of it rectifying work – builder not exposed to risk of liability to proprietors – builder did not prove that it suffered loss

Catchwords:

APPEALS - appeal from orders imposed by NCAT cancelling solicitor’s practising certificate and preventing issue of a new certificate for 12 months - Law Society appealed seeking order removing solicitor’s name from roll - nature of appeal - whether necessary to show House v The King error LEGAL PRACTITIONERS - solicitors - appropriate orders following findings by NCAT of professional misconduct and unsatisfactory professional conduct - whether solicitor’s name should be removed from the roll - distinction between suspension of practising certificate, cancellation of practising certificate and removal from roll - significance of recommendations as opposed to conditions - whether NCAT failed to specify appropriate conditions to be satisfied before any new practising certificate issued

Catchwords:

APPEALS — Leave to appeal — parens patriae jurisdiction — where Secretary of the Department of Communities and Justice had assumed care responsibility for applicant’s child — care proceedings part-heard in the Children’s Court —finding by primary judge that the applicant had not established exceptional circumstances to justify interfering with orders made by Children’s Court — whether applicant established any issue of principle, question of general public importance or injustice such as to warrant a grant of leave to appeal

Catchwords:

PROCEEDS OF CRIME – award of costs – whether “all costs” should be awarded to the appellants who succeeded in securing an order that certain property be excluded from a freezing order

Catchwords:

CONTRACTS — Construction — Interpretation – whether contract for sale of a vessel with an annexed marina berthing agreement form a single agreement – whether special condition to contract for sale imposes an obligation to rent a marina berth for a fixed term – whether special condition is inconsistent with an implied right to terminate on notice arising from the standard terms of the annexed marina berthing agreement – primacy between inconsistent terms

Catchwords:

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

Catchwords:

JUDICIAL REVIEW – application to review numerous matters related to criminal prosecutions – need to identify decisions – need to identify grounds – repetition of grounds previously dismissed – abuse of process JUDICIAL REVIEW – application to review sentence imposed by district Court – operation of statutory stay – stay following grant of bail – Supreme Court Act 1970 (NSW), ss 69, 69A, 69C PRACTICE AND PROCEDURE – bail – pending application for special leave to appeal to the High Court – no evidence that application filed – special circumstances PRACTICE AND PROCEDURE – repeat application for judicial review – reopening dismissed application – whether frivolous and vexatious – Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Catchwords:

CIVIL PROCEDURE – undefended judgment – setting aside – where applicant did not appear at hearing of proceedings – whether primary judge erred in describing principles for setting aside an undefended judgment under r 36.16(2)(b) of Uniform Civil Procedure Rules – where applicant sought to rely on Vacuum Oil Pty Co Ltd v Stockdale – whether Vacuum Oil applied to application to set aside undefended judgment under UCPR – whether in 1942 principles for setting aside an undefended judgment different at common law and in equity – whether, with introduction of Supreme Court Act in 1972, a single set of rules applied at common law and in equity – no House v The King error shown CIVIL PROCEDURE – undefended judgment – setting aside – whether primary judge mischaracterised the nature and strength of applicant’s proposed defence – no House v The King error shown CIVIL PROCEDURE – undefended judgment – setting aside – whether prejudice caused to the respondent in setting aside orders – whether prejudice can be remedied by costs order – no House v The King error shown CIVIL PROCEDURE – undefended judgment – setting aside – whether adequate explanation offered for applicant’s non-appearance at hearing and delay – no House v The King error shown

Catchwords:

COSTS – partial success of appellants on appeal – determination of costs of appeal and re-exercise of discretion as to costs at trial – second appellant not originally joined to proceedings at trial – first appellant played no role in proceedings after hearing of principal appeal – successful point not raised until first day of trial – whether global order as to costs, or orders relating to particular aspects of the litigation, should be made

Catchwords:

CONTRACT – oral contracts concerning debt, joint venture to exploit inventions and rural properties – primary judge rejected claims in contract – no claim advanced in equity for partnership or breach of fiduciary duty – such claim renounced by senior counsel appearing at trial – no error in primary judge declining to address such claim – no error in rejection of oral contracts – appeal dismissed RESULTING TRUST – presumed resulting trusts – cross-appellant purchased rural lands and placed in joint names of him and first cross-respondent, or in sole name of second cross-respondent – primary judge found presumption of resulting trust rebutted – whether appellable error in so finding – testimonial evidence by cross-respondents – cross-appellant gave no evidence – one cross-respondent not cross-examined on her evidence of beneficial ownership – documents supported rebuttal of presumption – cross-appeal dismissed

Catchwords:

APPEAL – application for leave to appeal – no issue of principle or question of public importance identified

Catchwords:

APPEAL – application for leave to appeal – no issue of principle

Catchwords:

PRACTICE AND PROCEDURE – application for adjournment – no persuasive reason or basis to adjourn – application dismissed.

Catchwords:

APPEALS — Application for leave to appeal — principles to be applied in determining whether a person poses a risk to the safety of children under s 18 Child Protection (Working with Children) Act 2012 (NSW) – application of principles stated in M v M – whether allegations are to be assessed by three-step process – whether lingering doubt to count against applicant – whether Tribunal failed to consider accumulated weight of allegations – held, issue of principle raised – leave to appeal granted

Catchwords:

APPEALS – reopening application by non-party – stay of orders pending determination of reopening application – extension of stay granted by court making orders – admissibility of further evidence PRACTICE AND PROCEDURE – stay – joinder of affected party – whether opportunity to be heard – whether arguable case to adduce further evidence – balance of convenience

Catchwords:

CIVIL PROCEDURE – stay of proceedings – applicant a medical practitioner facing disciplinary proceedings in Tribunal and pending criminal proceedings – both proceedings to deal with the same alleged misconduct – application of Zhao (2015) 255 CLR 46 – applicant would suffer prejudice if disciplinary proceedings not stayed until criminal proceedings resolved – applicant’s registration as a medical practitioner suspended – delay in resolving disciplinary proceedings a relevant but not critical factor

Catchwords:

APPEALS — application for leave to appeal —interlocutory orders – issue of principle identified – application of rr 6.24, 6.29 UCPR – joinder and removal of parties – leave to appeal granted in respect of joinder of the State and removal of named defendants CIVIL PROCEDURE — Parties — Joinder of defendant — whether necessary party – application by State of New South Wales to be joined as party to action in which the State admitted vicarious liability in relation to torts pleaded against defendants – no conclusion that State ought to have been joined by plaintiff as a party – held, not necessary for resolution of all matters for State to be joined CIVIL PROCEDURE — Parties — Removal of parties – where primary judge ordered removal of two named defendants under r 6.29 UCPR after joinder of State – held, joinder of State did not mean that named defendants ceased to be necessary or proper parties CIVIL PROCEDURE — Jury — Availability of jury trial — Interests of justice – where plaintiff alleged apprehended bias on the part of judicial officers – where first defendant is “well known in legal circles” and second defendant is “high profile” – held, no reasonable apprehension of bias – application for leave to appeal refused

Catchwords:

COSTS – whether costs of an application for leave to appeal in relation to a question of discovery should be ordered to be paid forthwith – where application for leave to appeal unsuccessful – whether an “order otherwise” under Uniform Civil Procedure Rules 2005 (NSW) r 42.7 was necessary and, if so, criteria by reference to which it may be made.

Catchwords:

APPEALS – appeal from final judgment – review of interlocutory judgments – interlocutory judgments refusing amendments to pleadings CIVIL PROCEDURE – pleadings – requirement for particularity – conclusory statements in pleadings alleging collusion, fraud and gross negligence by mortgagee in exercise of power of sale MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – power of sale – challenge to sale process – claim that sale at undervalue – whether advertisements misleading MORTGAGES AND SECURITIES – mortgages – power of sale – property with development consent – whether purchaser entitled to development plans

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – application under UCPR, r 36.16(3) to vary appeal judgment to include pre-judgment interest – where interest not sought prior to application – whether to backdate judgment to date of decision under appeal

Catchwords:

CIVIL PROCEDURE – application to reopen judgment dismissing appeal – where application relies in part on “further” evidence not led at trial or on appeal – no issue of principle COSTS – ordinary or indemnity – offer of compromise – result less favourable to offeree – whether rejection of offer unreasonable – no issue of principle

Catchwords:

ADMINISTRATIVE LAW – Jurisdiction – Civil and Administrative Tribunal – whether the Tribunal has jurisdiction to review an occupation certificate whilst exercising its jurisdiction under the Home Building Act 1989 (NSW) – whether review of the occupation certificate collateral to the proceedings – capacity of the Tribunal to engage in collateral review of administrative action – where statutory scheme provides Land and Environment Court jurisdiction to remedy or restrain a breach of the Environmental Planning and Assessment Act 1979 (NSW) BUILDING AND CONSTRUCTION – Occupation Certificate – whether document purporting to be an interim occupation certificate authorised use and occupation of the whole of the building – where running of limitation period for breach of a statutory warranty under the Home Building Act contingent on such authorisation – whether occupation certificate issued in contravention of s 109H(2) of the Environmental Planning and Assessment Act invalid

Catchwords:

APPEALS – security for costs – appellants resident outside Australia – appellants without assets in Australia – merits of appeal balanced – order would not stifle appeal – costs not disproportionate to amount in dispute – relationship of UCPR r 42.21 and r 51.50(1) – effect of r 51.50(3)

Catchwords:

APPEALS — Nature of appeal — Appeal by way of rehearing — sentence appeal pursuant to ss 11 and 17 of the Crimes (Appeal and Review) Act 2001 — de novo hearing — requirement that judge engage in fresh sentencing task — where judge adopted lower court’s reasoning – whether judge failed to engage in task imposed by s 17 — whether constructive failure to exercise jurisdiction SENTENCING — Penalties — Intensive correction orders — where sentencing assessment reports indicated offender was a low risk of reoffending and was suitable for community service — whether community safety is a mandatory element for consideration under s 66(2) Crimes (Sentencing Procedure) Act — requirement for court to engage in assessment as to whether an ICO or full-time detention is more likely to address an offender’s risk of reoffending

Catchwords:

APPEAL – stay – application for stay of garnishee pending appeal – appeal from judgment in Division on appeal from Local Court – respondent seeking to enforce costs orders – garnishee order issued – whether application for leave had reasonable prospects of success – small amount relative to statutory threshold for appeal as of right – no statement of specific grounds – likelihood of success leading to reversal of costs orders – evidence of non-recoverability if payments obtained PRACTICE AND PROCEDURE – subpoenas and notices to produce – application to issue for purposes of appeal – need to show arguable case for adducing further evidence on appeal PRACTICE AND PROCEDURE – appeal – submissions – application for waiver of rule limiting length of summary of argument – straightforward factual case – no basis for lengthy submissions

Catchwords:

APPEALS – application for leave to appeal – proposed appeal incompetent – appeal from refusal of earlier application for leave to appeal – appeals limited to appeals from judgments in a Division

Catchwords:

CIVIL PROCEDURE – notices to admit – where formal admission made by the transferring party that transfer made with intent to defraud – whether admission binding on other parties to proceeding against whom intent to defraud must be proved CONVEYANCING – transfers in fraud of creditors – Conveyancing Act 1919 (NSW), s 37A – where partly encumbered properties transferred at undervalue – whether transferred with intent to defraud creditors – whether appellant a person prejudiced by transfers – whether transferee had notice of intent to defraud – meaning of “notice” in s 37A(3)

Catchwords:

APPEALS – procedure – stay pending appeal – argument that appeal will be stultified if enforcement of judgment permitted – stay granted on terms providing reasonable protection to respondent

Catchwords:

CONTRACTS – formation – intention to create legal relations – uncertainty and incompleteness – owners of three contiguous parcels of land dealt with development group in relation to proposed sale of land for redevelopment – where put and call option deeds entered into – where one owner entered into separate deed for the purchase back of five developed lots – where agreement reached on various matters between parties’ agents at later meeting– whether intention to create legal relations at later meeting – whether terms of agreement at meeting were void for uncertainty and incompleteness CONTRACTS – formation – whether deed which provided for purchase back of five lots abandoned by parties – whether purchaser entitled to damages for breach of deed – where primary judge left undetermined possible basis for finding damages for breach of deed – damages claim remitted for the determination

Catchwords:

PRACTICE AND PROCEDURE – recusal application – reasonable apprehension of bias – appeal from vexatious proceedings order – presiding judge having sat on prior appeal and leave application characterised as vexatious – reliance on transcript – other member of the earlier court dismissive of applicant’s case

Catchwords:

CIVIL PROCEDURE — Parties — Vexatious litigants – Vexatious Proceedings Act 2008 (NSW) – s 6 – meaning of “vexatious proceedings” – s 8(1) – meaning of “frequently instituted or conducted vexatious proceedings” – assessment of frequency CIVIL PROCEDURE — Parties — Vexatious litigants – exercise of discretion – balance between access to the processes of the law and restraint of unwarranted exercise of that access CIVIL PROCEDURE — Hearings — Procedural fairness – expansion of orders as compared to those sought – making an order in terms not foreshadowed during or after the hearing – no opportunity for parties to be heard

Catchwords:

PRACTICE AND PROCEDURE – leave to appeal – failure to address defence – absence of factual findings supporting defence – whether issue of principle raised – whether defence more than merely arguable TORTS – duty to warn – immunity from liability if risk “obvious” – whether immunity limited to verbal risk warnings – application of Civil Liability Act 2002 (NSW), ss 5F, 5H

Catchwords:

CIVIL PROCEDURE — leave to appeal – where proposed appeal turns upon findings of fact – where findings based on primary judge’s assessment of credibility – no issue of principle or question of public importance – leave refused

Catchwords:

OCCUPATIONS — Legal practitioners — Misconduct and discipline — where solicitor alleged to have deliberately misled statutory authority including by fraudulently altering a document in order to obtain a grant of funding for legal representation of a client — absence of any direct evidence that solicitor altered the document — whether circumstantial evidence capable of supporting allegations

Catchwords:

INSURANCE – life and disability insurance – where claim for total and permanent disablement – where definition required insured to be totally and permanently disabled after three month absence from “Own Occupation” – whether three month period must commence on date insured left employment – whether insured can satisfy definition due to psychological condition arising after initial three month absence from engaging in occupation INSURANCE – claims – proof – where claim for total and permanent disablement – whether medical evidence establishes insured unable and unlikely ever again to be able to engage in “Own Occupation”

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – motion under UCPR r 36.16 to set aside previous judgment of Court refusing leave to appeal – arguments advanced by applicant plainly groundless and either previously addressed by the Court or not advanced on the previous occasion when the opportunity to do so existed – public interest in the finality of litigation – no change in circumstances or other good reason to permit further leave application to be made

Catchwords:

CONTRACTS – construction and interpretation – where agreement as to “commercial arrangements” to apply to radiology practice conducted through corporate trustee of unit trust – where units held by doctors’ discretionary trusts – whether doctors liable to pay shortfall in event business runs at loss – whether loss had to be based on audited financial accounts – no question of principle

Catchwords:

TORT – trespass – trespass on two different sites subject to long term leases – one site comprising an undeveloped block of land on which lessee was to construct and operate a private hospital – one site comprising an established car park – inquiry as to damages – initial claim for damages for loss of opportunity to earn profits from hospital site and car park site – damages for mesne profits – user principle – whether damages by way of mesne profits assessed by reference to actual usage and existing state of premises. TORT – trespass – period of trespass – manner of assessment – where order for possession made but orders stayed – whether trespass continued – whether trespass continued on refusal by High Court of application for special leave to appeal from Court of Appeal decision – whether stay order terminated on refusal of special leave application. DAMAGES – damages for trespass to land – various measures of damages – damages sought by way of mesne profits – history of mesne profits – mesne profits and the user principle – manner of assessment – assessment by reference to market rental of land trespassed upon – whether damages by way of mesne profits assessed by reference to actual usage and existing state of premises. DAMAGES – taxation – grossing up for taxation of damages for mesne profits – where damages calculated were in effect compensation for a lost commercial opportunity – whether it would have been unjust not to take into account identifiable and quantifiable taxation impacts on damages, in line with fourth principle enunciated in Daniels v Anderson (1995) 37 NSWLR 438; (1995) 118 FLR 248. PROCEDURE – where orders for possession made pending further order – consequence of refusal of special leave application – whether refusal of application for special leave had the effect of lifting stay of orders made by Court of Appeal – whether stay of orders needed to be expressly lifted by Court of Appeal.

Catchwords:

COSTS – no issue of principle

Catchwords:

APPEALS – leave to appeal – summons seeking leave filed over three months earlier and no steps taken since – no identification of any ground upon which the proposed appeal might succeed – failure without adequate explanation to comply with Court’s directions – summons dismissed for want of prosecution

Catchwords:

CRIME – sentence – application for inquiry under Crimes (Appeal and Review) Act 2001 (NSW),Pt 7 – application for stay of sentence – power to stay sentence – Supreme Court Act 1970 (NSW), s 23 JUDGMENTS AND ORDERS – application for judicial review – custodial sentence of full time imprisonment – challenge to lawfulness of imprisonment – applicant on bail pending determination of judicial review proceedings – fresh application for judicial review filed while on bail –whether fresh application effected statutory stay – application out of time – Supreme Court Act 1970 (NSW), s 69C(4) JUDGMENTS AND ORDERS – custodial sentence –application for special leave to appeal to High Court – application for stay – criteria for grant of special leave – whether exceptional circumstances – Judiciary Act 1903 (Cth), s 35A

Catchwords:

RESTITUTION — Quantum meruit – whether necessary to establish “objective standard” or “market rate” for value of work performed – whether invoices prepared by builder capable of being evidence of reasonable remuneration – where unreasonableness of invoices denied by builder – where appeal confined to a question of law

Catchwords:

APPEAL – application for leave to appeal from a costs order – amount in issue substantially less than $100,000 – proper administration of justice required a grant of leave COSTS – party/party – rule in UCPR r 42.1 that costs prima facie follow the event – orders made by consent without contest or hearing as to the merits – no event for the purposes of UCPR r 42.1 – respondents’ commencement of proceedings precipitous – applicant did not act unreasonably – no order made as to first instance costs