Recent decisions for Court of Appeal

Catchwords:

APPEAL — Application for leave to appeal — Appeal from decision not to dismiss claim summarily — Whether claim so obviously untenable that it cannot succeed — No reasonably clear injustice that is more than arguable

Catchwords:

ENVIRONMENT AND PLANNING — subdivision — land swap deed negotiated by owners of neighbouring properties in Box Hill — negotiations instigated by owners of appellant to expand scope of proposed subdivision — appellant incurs range of expenses to satisfy conditions of development consent — no enforceable agreement about sharing burden of these costs — claim for restitution for unjust enrichment RESTITUTION — nature of restitutionary liability — quantum meruit — unjust enrichment — unjust or vitiating factors — express or implied request — failure to establish on the evidence RESTITUTION — unjust or vitiating factors — “free acceptance” — uncertainty in Australian law — provider of services also principal beneficiary — potential overlap with factors demonstrating implied request — failure to establish why a reasonable person in the circumstances would have known the service provider expected to be paid — unnecessary to resolve legal controversy

Catchwords:

CONSTITUTIONAL LAW – parliamentary privilege – Bill of Rights, Article 9 – recusal application for apprehended bias based on judge making submission to Parliamentary Committee – submission published by Committee – whether tender of submission for purposes of recusal application contrary to Article 9 – common ground between all parties save Commonwealth Attorney intervening pursuant to Judiciary Act 1903 (Cth) s 78A that Article 9 did not validly prevent the tender – whether presence of Commonwealth Attorney meant there continued to be a matter – whether dispute between parties as to whether Article 9 did not apply as a matter of construction or of legislative power meant there continued to be a matter – whether declaratory relief should be refused as a matter of discretion – whether alternatives available other than recusal – whether Constitution s 49 preserved applicability of Article 9 for freedom of speech in a State Parliament – whether if Article 9 would otherwise prevent a court from being constituted by a judge free from the apprehension of bias, Article 9 was cut down by reason of the principle in Kable v Director of Public Prosecutions (NSW) – limited declaratory relief issued

Catchwords:

TORT — negligence — trespass — where appellants in two separate appeals and their family members conducted excavation works on the development site causing the driveway of the first respondent’s property to collapse — where primary judge finds appellants liable in trespass for encroachment over the first respondent’s boundary and negligence constituting a breach of the duty of care pursuant to s 177(2) of the Conveyancing Act 1919 (NSW) — whether respondents established that the appellants encroached on the first respondent’s property and contributed to the collapse TORT — appeal — cross-appeal — trespass — apportionment of liability — whether Civil Liability Act 2002 (NSW) applies to alleged trespass TORT — appeal — negligence — principles of causation — tortious act need only have caused or contributed to harm — not necessary that it be the sole cause TORT — remedies — damages — whether compensation ought be measured by cost of rectification or diminution of value of affected land — relevance of proportionality and intentions of landowners — whether the affected land is the plaintiff’s residence CIVIL PROCEDURE — pleading — proportionate liability defence pursuant to Pt 4 of the Civil Liability Act 2002 (NSW) — importance of identifying concurrent wrongdoer and basis of claim — no error in primary judge holding appellants to pleaded defence APPEALS — from findings of fact — credibility of witnesses — oral evidence can be accepted without corroboration — no need for comprehensive photographic evidence — difficulties of judging distances and depth from photographic evidence

Catchwords:

APPEALS – leave to appeal – where application for leave to rely on expert report refused in the Land and Environment Court – whether leave to appeal should be granted to reconsider that decision

Catchwords:

CIVIL PROCEDURE – application to vacate hearing date – heavy burden to vacate shortly before the hearing – where appellants seek to adduce fresh evidence – application dismissed

Catchwords:

CONTRACT — loan agreement — whether payments made by lender to a third party fell within loan agreement — insufficient evidence to establish advances to borrower under loan agreement COMMERCE — money counts — onus of proof — plaintiff bears onus of proving elements of cause of action — rejection of defendants’ case does not assist in proof of plaintiff’s case APPEAL — nature of appeal — functions of appeal court — importance of identifying determinative question

Catchwords:

CIVIL PROCEDURE — Pleadings — Form and content of pleading — purposes served by pleadings — principles relating to pleading claims in negligence — pleading ordinary duty of care — pleading breach of duty — pleading vicarious liability CIVIL PROCEDURE — Pleadings — Form and content of pleading — Defects — necessity for ordinary duties of care to identify acts or omissions available to defendant which reasonable person would have taken to avoid identified risk of harm — whether respondent failed to plead facts establishing applicant’s provision of opportunity and occasion for wrongful act NEGLIGENCE — effect of High Court’s decision in AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 — matters plaintiff required to plead following AA — whether respondent’s pleadings sufficient

Catchwords:

CORPORATIONS — takeover bid — whether this proceeding commenced contrary to s 659B of Corporations Act 2001 (Cth) — whether this is a proceeding “in relation to a takeover bid” — s 659B(1) does not apply to this proceeding CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors – Notice — where respondent issued notice of intention to move a resolution at general meeting of shareholders removing directors of first appellant and notice of intention to nominate new directors — whether notices were valid

Catchwords:

CIVIL PROCEDURE – application for pro bono referral – where proceedings at an early stage – whether referral in the interests of the administration of justice – referral confined to the provision of advice

Catchwords:

CIVIL PROCEDURE — Notices to produce —whether requests for documents sufficiently specific — whether requests relevant to a fact in issue —whether requests amount to a “fishing expedition” — whether leave be granted for discovery — whether draft reasons of a statutory board prepared by a legal adviser attract legal professional privilege — where requests seek documents subject to claims of legal professional privilege — whether leave be granted for interrogatories — whether leave be granted to amend summons — where no form of proposed amended summons before the Court

Catchwords:

COSTS — security for costs — special circumstances and residual discretion — impecuniosity — whether appeal has real prospects for success — unsatisfactory explanation as to delay where notice of motion filed three weeks before hearing

Catchwords:

CIVIL PROCEDURE — application for pro bono referral under UCPR r 7.36 — where party has a history of non-appearance at hearings — application refused CIVIL PROCEDURE — non-publication order — application refused

Catchwords:

WILLS, PROBATE AND ADMINISTRATION – informal wills – Succession Act 2006 (NSW) s 8 – where a document saved on deceased’s iPhone in the Notes application – whether deceased intended document without more to operate as a will – evidence that the deceased considered the document final – where no publication of will prior to death – where will discovered after death

Catchwords:

CONTEMPT – fitness to plead – primary judge found applicant to have committed contempt – whether real and substantial question of fitness arose before primary judge – significance of proceedings being civil and contempt being civil – significance of appointment of a tutor PROCEDURE – appeals – fresh evidence – obligations in Supreme Court Act 1970 (NSW), s 75A(8) and UCPR, r 51.51 – failure to include transcript of hearings – documents sought to be relied on wrongly dated – importance of attending to obligation of preparing appeal papers

Catchwords:

APPEALS — practice and procedure — appellant unrepresented — consideration of extent of court’s role in relation to unrepresented parties APPEALS — procedural fairness — where primary judge refused to allow cross-examination of lay witness present in court — where no prejudice to witness in allowing cross-examination — denial of procedural fairness CONSUMER LAW — misleading or deceptive conduct — liability of intermediaries — where employee personally made misleading oral statements — where employee personally gave misleading document signed by employee on behalf of employer to representee — employee liable

Catchwords:

BUILDING AND CONSTRUCTION — payment claim — where parties engaged in two adjudicative processes — whether a decision by an adjudicator as to lack of jurisdiction to carry out the statutory functions of an adjudicator constitutes a “determination” — whether second adjudication determination is an abuse of process — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 22, 26

Catchwords:

EVIDENCE — Standard of proof — Civil cases — whether primary judge failed properly to apply standard of proof and reached erroneous conclusion — where primary judge did not so err APPEALS — From finding of fact — Credibility and reliability of witnesses — whether primary judge erred in treatment of evidence of appellant and two witnesses — where the weight to be given to the evidence of each witness was a matter for his Honour — where primary judge’s findings were based on his Honour’s assessment of the evidence as a whole — where primary judge did not so err APPEALS — From finding of fact — Credibility of witnesses — whether primary judge erred in finding respondent had not deliberately sought to create a false impression and gave inadequate reasons for so finding — where primary judge did not so err

Catchwords:

COSTS — Security for costs — Uniform Civil Procedure Rules 2005 (NSW), r 42.21 — Where appellant is a natural person ordinarily resident outside Australia

Catchwords:

CIVIL PROCEDURE — Court of Appeal — application for pro bono referral — application made by appellant — substantial judgment sum previously paid to appellant — whether test for pro bono referral satisfied

Catchwords:

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

Catchwords:

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

Catchwords:

GUARANTEE AND INDEMNITY — school for international students — non-payment of rent — company responsible for school liquidated — enforcement of guarantee against appellant by lessor — appellant claimed not to be subject to personal guarantee — defence struck out — summary judgment for lessor APPEALS — leave to appeal — principles governing — enforceability of express term of lease — application of well settled principles of contractual construction — no issue of principle or question of public importance — no reasonable defence raised by reliance on subjective understanding of agreement based on heads of agreement — significance of signature on lease — significance of entire agreement clause — insufficient doubt warranting reconsideration on appeal — no reasonably clear injustice

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:

CIVIL PROCEDURE — dismissal of proceedings — application for dismissal of proceedings on basis of non-payment of security for costs — where security for costs paid at the eleventh hour — whether the Court may still dismiss the proceedings on basis of late payment of security for costs CIVIL PROCEDURE — stay of proceedings — condition of payment — overturned where party benefitting from stay no longer seeks to rely on the order CIVIL PROCEDURE — adjournment — application to adjourn hearing of notice of motion COSTS — interim costs orders — application for costs orders to be paid forthwith — where the Court not persuaded to depart from usual practice LEGAL PRACTITIONERS — capacity to appear — where no record of solicitor on New South Wales Law Society website — where leave required to appear as a director of a corporation — where no leave sought

Catchwords:

TORTS — trespass to person — intentional tort — battery — police — unreasonable use of force during arrest — where applicant slammed to ground and punched — where applicant was handcuffed and weighed 55kg — failure to apply the rule in Browne v Dunn — where respondent failed to call or ascertain unidentified police officers — where trial judge failed to draw a Jones v Dunkel inference against the respondent — lawful justification defence — whether a new trial ought be ordered — damages — aggravated damages — exemplary damages

Catchwords:

CONSUMER LAW — misleading or deceptive conduct — contractual interpretation — price-capped gas contract — whether gas supplier represented that it would obtain third-party insurance — pre-contractual negotiations — cover email — two phone calls — whether “calculated ambiguity” in terms of contract — whether any ambiguity was exploited — significance of silence or non-disclosure.

Catchwords:

HEALTH — negligence — surgery — medical procedure on eye — liability of hospital for negligence of medical practitioners — tap and inject treatment for endophthalmitis — appellant alleges treating ophthalmic registrar made excessive number of attempts to tap vitreous fluid from eye — alleged failure to document procedure — submissions on whether failure to make clinical notes of procedure amounts to breach of duty — claim fails on the facts — no error in reasoning of trial judge demonstrated — failure to establish causal connection with harm allegedly suffered

Catchwords:

NEGLIGENCE — Professional negligence — Solicitors — Breach of duty — Whether solicitor should have advised proceedings were hopeless and doomed to fail — Whether solicitor should have advised appeal lacked any arguable basis CIVIL PROCEDURE — Effect of grant of “liberty to apply” with respect to costs order — Uniform Civil Procedure Rules 2005 (NSW), r 36.16 — Time limit for application to vary final order — Procedural fairness — Whether primary judge ought to have reserved the question of costs

Catchwords:

CIVIL PROCEDURE – Admissions – Withdrawal – unopposed amendment of Commercial List Statement during trial – whether amendment amounted to withdrawal of admission – construction of UCPR r 12.6(2) – rule does not apply to statements of claim – rule does not require provision of formal notice where court’s leave to amend a document is sought

Catchwords:

CORPORATIONS — directors and officers — appointment, removal and retirement of directors — employment of director purportedly terminated by executive chairman of another company — whether executive chairman had actual express or implied authority APPEALS — parties — obligation to join all persons directly affected by orders sought — appellants co-owned company and sought orders that employment contract between company and director validly terminated but joined neither to the appeal — joinder ordered

Catchwords:

APPEAL — sentencing — control orders — Children’s Court — whether a single aggregate control order may exceed two years — coherence between cumulative and aggregate sentencing — jurisdictional limit for aggregate control orders — construction of Children (Criminal Proceedings) Act 1987 (NSW), ss 33(1)(g), 33A(4), 33C — application of Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 53B CHILDREN — criminal law — sentencing — control orders — aggregate control order imposed for multiple offences — whether two-year limit in s 33(1)(g) applies — three-year jurisdictional limit under s 33A(4) — power to impose aggregate control order derived from Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A as applied by Children (Criminal Proceedings) Act 1987 (NSW) s 33C

Catchwords:

PROCEDURE – security for costs – application for leave to appeal – security ordered against company in earlier proceedings at first instance – no need for special circumstances – no ability to assess prospects of appeal – estimated amounts of costs excessive – security ordered, in much smaller amount than sought

Catchwords:

NEGLIGENCE — Medical negligence — Whether primary judge overlooked or incorrectly rejected expert radiological evidence — Whether doctor failed to take reasonable care — Whether hip prosthesis loose at time of revision surgery or thereafter until 2017

Catchwords:

CONSTITUTIONAL LAW – State legislative power – powers of Legislative Council to summon witnesses – Parliamentary Evidence Act 1901 (NSW) authorises President to certify that a witness has not complied with a summons without just cause or reasonable excuse – upon receiving such certification, Supreme Court judge required to issue warrant for detention of witness – warrant authorises holding witness in custody in accordance with subsequent orders of President – whether those provisions of Parliamentary Evidence Act contrary to limitations on State legislative power identified in Kable v Director of Public Prosecutions (NSW) – provisions held invalid

Catchwords:

CONTRACTS – Construction – Whether written agreement should be read together with earlier handwritten agreement – Where terms of both agreements related to the same transaction but were inconsistent – Where counsel for Appellant eschewed reliance on earlier handwritten agreement at trial CONSUMER LAW – Misleading or deceptive conduct – Where Appellant failed to disclose agreement with third party prior to entering Deed of Settlement with Respondent EVIDENCE – Admissibility – Credibility evidence – Where impugned evidence relevant to determining when the Respondent became aware of the undisclosed conduct which formed the basis of the misleading or deceptive conduct claim

Catchwords:

JUDICAL REVIEW – application for judicial review of a decision of District Court – application dismissed – no point of principle

Catchwords:

JUDICAL REVIEW – application for judicial review of a decision of the District Court – application dismissed – no point of principle

Catchwords:

COSTS — costs of proceedings in court below — where party made three offers to resolve proceedings — offer of compromise — Calderbank offer — ordinary costs — indemnity costs — interest — cross claim — discharge of mortgage — Uniform Civil Procedure Rules 2005 (NSW), rr 20.25, 20.26

Catchwords:

BUILDING AND CONSTRUCTION – claim by subcontractor against principal for recovery of amount outstanding in relation to debt certificates issued under Contractors Debts Act 1997 (NSW) – where obligation of principal (the Club) to pay money owed to contractor (Builder) under construction contract was assigned to subcontractor pursuant to s 8(1) of the Contractors Debts Act 1997 (NSW) – where defence by principal raised set-off – determination of separate question by primary judge as to construction of s 11(4) of Contractors Debts Act 1997 (NSW) – where subcontractor contended s 25(4)(a) of Building and Construction Industry Security of Payment Act 1999 (NSW) constrains operation of s 11(4) of Contractors Debts Act 1997 (NSW) such that principal not entitled to raise any contractual defences arising under the construction contract between principal and defaulting contractor – application for leave to appeal from decision of primary judge rejecting subcontractor’s contention – leave to appeal refused with costs – obiter dicta as to construction of s 11(4) of Contractors Debts Act 1997 (NSW)

Catchwords:

APPEALS – Procedure – Application for interim stay – Enforcement of costs orders – Proposed appointment of a tutor – Applicant’s legal incapacity unresolved – No material changes in circumstances justifying longer stay

Catchwords:

APPEALS — from finding of fact — documentary evidence —contemporaneous correspondence — logic of events — inferences from objectively determined facts — application of rule in Jones v Dunkel — whether primary judge erred in making factual findings CORPORATIONS — directors and officers — whether first respondent was an officer of the first appellant — upheld primary judge’s finding that first respondent was not an officer of the first appellant CORPORATIONS — statutory duties under ss 180–183 of the Corporations Act 2001 (Cth) — fiduciary duties — whether first and second respondents breached fiduciary and statutory duties owed to first appellant — upheld primary judge’s finding that no breach of duties established — held that first respondent did not owe duties to the first appellant — held that second respondent not involved in alleged conduct at relevant time EQUITY — trusts and trustees — constructive trusts — whether constructive trust should be ordered over first and second respondent’s competing business — held that no breach of duties established — no basis for constructive trust CONSUMER LAW — misleading or deceptive conduct — whether deed of settlement executed by reason of misleading or deceptive conduct by first respondent — where first respondent negotiated deed on behalf of own interests — held that first respondent’s conduct was not misleading or deceptive

Catchwords:

CONTRACTS — remedies — damages — mitigation of loss — whether conduct was unreasonable in the circumstances such that some or all of the claimed loss should be disregarded — legal and evidentiary onus on the party asserting a failure to mitigate — no “positive obligation” to provide builder an opportunity to rectify damage — invocation of a “shifting” or “tactical onus” misconceived and should be avoided CIVIL PROCEDURE — alternative dispute resolution — court referral to referee — claimed denial of procedural fairness — no procedural unfairness established

Catchwords:

APPEALS — procedure — stay pending appeal — urgent stay of execution upon judgment for possession and writ of possession — stay previously granted following undertaking to pay money into court within 21 days — money not paid — application to vary undertaking to extend time — evidence to explain failure to pay deficient — evidence about prospects of payment by alternative date deficient --- application refused

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of offence under s 400.3(1) of the Criminal Code (Cth) of dealing in proceeds of crime – sentence of imprisonment – declaration that the practitioner is not a fit and proper person to remain on the roll of Australian lawyers – order that practitioner’s name be removed from roll – orders not opposed

Catchwords:

DEFAMATION — Practice and procedure — Trial by jury — Discharge of jury — Application for trial to continue without jury — Defamation Act 2005 (NSW), s 21 — Applicable principles — Whether primary judge identified incorrect source of power — Whether primary judge failed to take into account argument that change in mode of trial would occasion prejudice to applicant

Catchwords:

PROCEDURE – application to set aside judgment entered in absence of party – whether primary judge erred in dismissing application – defendants unrepresented after failed adjournment application at commencement of 10 day trial – no challenge to finding that no satisfactory explanation for failure to appear at trial – whether primary judge erred in failing to consider matters outside scope of pleadings – no basis for grant of leave made out

Catchwords:

CRIMINAL LAW — proceeds of crime — proceeds assessment order — assessment of expenditure under Criminal Assets Recovery Act 1990 (NSW) — whether market value of drugs in appellant’s possession properly included as proceeds — compulsory examination — maintenance payments — weight of admissions — credibility — objective probabilities — alleged loans — failure to discharge onus under s 28(3) — Browne v Dunn — alleged denial of procedural fairness — beneficial ownership of property — judicial notice — objective probabilities — whether inference open — appeal dismissed EVIDENCE — compulsory examination — admissibility of transcript to prove truth of admissions — operation of ss 59, 81, 82 of the Evidence Act 1995 (NSW) — effect of s 54(5) of the Criminal Assets Recovery Act 1990 (NSW) — first-hand versus second-hand hearsay — probative value of admissions — use of admissions against interest — weight of evidence concerning maintenance payments — availability of Jones v Dunkel inference — whether appellant “gave evidence” by being examined under s 12

Catchwords:

APPEALS — leave to appeal from stay of judgment — where quantum of costs under review — whether primary judge misapprehended effect of orders — whether primary judge erred in description of applicant’s conduct — whether express reference to principles governing grant of stay was required

Catchwords:

COSTS – gross sum costs orders – assessment of gross sum – orders made – quantum of order COSTS – gross sum costs order – second and third respondents each retained a firm in which they were employed to act for them – whether second and third respondents entitled to costs for their own time

Catchwords:

APPEAL — leave to appeal — leave required as the amount does not exceed $100,000 —failure to establish issue of principle, question of public importance or reasonably clear injustice — by consent leave granted in respect of proposed ground 5 and appeal allowed for failure to award separate amounts for damages and order judgment against each applicant separately — leave to appeal otherwise refused DEFAMATION — defamatory matter — multiple publications — emails — Facebook comments — alleged misuse of charitable funds for personal financial benefit — applicants held to have published defamatory material — Wild2Free — wildlife care — common law qualified privilege — reply to attack — triviality defence — Defamation Act 2005 (NSW), ss 33, 39

Catchwords:

ADMINISTRATIVE LAW – judicial review – jurisdictional error – review of interlocutory decisions of District Court in its appellate criminal jurisdiction – effect of s 176 of District Court Act 1973 (NSW) on judicial review of decisions of District Court – decision not to grant an adjournment pursuant to s 40 of the Criminal Procedure Act 1986 (NSW) – decision not to allow fresh evidence on appeal pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) – subsequent decision not to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) – whether denial of procedural fairness or natural justice – whether constructive failure to exercise jurisdiction – whether reasonable apprehension of bias APPEAL AND REVIEW – application for extension of time for filing of summons – where applicants self-represented – application to rely in judicial review proceedings on all of the evidence that was before Local Court and District Court

Catchwords:

CONTRACTS – contract for the sale and purchase of Crown lease – defects – cracks in concrete slab – measure of damages – rectification damages – where multiple methods of rectification are available – where evidence led only in respect of one method of rectification – reasonableness of methods of rectification

Catchwords:

BUILDING AND CONSTRUCTION — design and construct contract — apartment development — payment for variations —construction of “variation”, “direction” and contractual pricing mechanism CONTRACTS — interpretation — whether parties agreed to exclude consultants’ fees from contract sum — practical completion — whether date for practical completion varied by agreement — claim for liquidated damages for delay EQUITY — contribution — co-ordinate liability — deed of settlement — whether settlement conferred benefit on builder requiring reduction of damages — valuation dispute as to alleged undervalue of transferred properties

Catchwords:

WORKERS COMPENSATION – claim for compensation following injury – alleged constructive failure to exercise jurisdiction – alleged failure to properly consider submissions – no error established

Catchwords:

CONTRACTS — construction — where parties entered into deed for staged sale by put and call options of parcels of land identified as Properties 6 to 10 — where appellants were required to provide respondents with plan of subdivision — whether primary judge erred in finding that plan of subdivision must be “based upon” draft plan annexed to deed — whether primary judge erred in finding that rights to acquire Properties 7 to 10 are lost when right to acquire Property 6 is lost

Catchwords:

SUCCESSION – Probate and administration – Missing original will – presumption of revocation by destruction – testator assumed the original was held by solicitors – testator assumed the will remained current – presumption not engaged – presumption rebutted in any event.

Catchwords:

APPEALS — issue not argued below — conduct of trial — enforceability of agreement — offer and acceptance and intention to create legal relations only issues of contractual formation raised below — alleged absence of consideration raised on appeal — principles against allowing new points to be run on appeal — question of construction with factual aspects — possibility of further evidence below — additional possibility of alternative claim being pursued if the point had been raised — inimical to administration of justice — argument not entertained CONTRACTS — formation — consideration — forbearance to sue — respondent previously sued as guarantor for appellant under Chinese loan agreement — appellant agreed to pay respondent for judgment debts incurred in Chinese litigation — right to commence legal proceedings if payment not made — appellant fails to pay — respondent sues under agreement — whether forbearance to sue on proper construction of agreement — unnecessary to decide

Catchwords:

CIVIL PROCEDURE – abuse of process – want of due despatch – application for leave to appeal against summary dismissal of proceedings – where primary judge dismissed proceedings pursuant to r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) – where instructions of plaintiff’s pro bono legal representatives terminated part way through hearing – where primary judge refused adjournment sought by unrepresented plaintiff and plaintiff then absented himself from courtroom – whether r 29.7 conferred power to dismiss proceedings where plaintiff absented himself after initially appearing – where alternative source of power under rr 12.7 or 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) – whether refusal to adjourn unreasonable or plainly unjust – leave to appeal refused

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Application for judicial review of decision of District Court – Dispute as to costs assessment – Whether proceedings an abuse of process after applicant’s debt compromised by Deed of Company Arrangement – Whether proceedings should be dismissed for want of due despatch COSTS – Whether costs should be ordered of proceedings as whole where matter not determined on the merits – third-party costs order – Where solicitor on the record in the proceedings is the sole shareholder of represented party and has effectively funded the proceedings – Where solicitor is associated with incorporated legal practices which stand to benefit as creditors of the defendant company

Catchwords:

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

Catchwords:

CONTRACTS — building and construction — earthworks contract — termination prior to completion — whether respondents overpaid for work performed — payment claims under Building and Construction Industry Security of Payment Act 1999 (NSW) RESTITUTION — common money count — money paid under mistake — pleadings — necessary elements for pleading restitution — whether payment claims overstated percentage of work completed — recovery of differential between claimed and actual work — Uniform Civil Procedure Rules 2005 (NSW), r 14.12 AUSTRALIAN CONSUMER LAW — misleading or deceptive conduct — alleged misrepresentations in payment claims as to extent of work completed — whether representations in payment claims were representations of fact APPEALS — appeal from District Court — whether primary judge erred in upholding restitution and misleading or deceptive conduct claims

Catchwords:

APPEALS — procedure — stay pending appeal — urgent application for stay of execution upon judgment for possession and writ of possession — stay previously refused on the basis no application for leave to appeal filed — timing of effective filing unclear — prejudice established — undertaking by applicants to pay money into Court in satisfaction of respondents’ claim within 21 days — undertaking decisive —temporary stay granted

Catchwords:

MENTAL HEALTH — forensic patient — schizophrenia — substance use disorder — appeal from refusal to extend status — interim extension order — whether Court of Appeal judge had power to make interim extension order — whether unacceptable risk can be adequately managed by less restrictive means — whether primary judge applied correct statutory test — conditional release — Community Treatment Order — psychiatric evidence — disagreement between court-appointed experts — whether primary judge erred in approach to expert evidence — alleged rule as to calling experts — Jones v Dunkel inferences — Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 121, 122

Catchwords:

INSURANCE – interpretation – standard business insurance policy – insurance of petrol station – meaning of “building” within policy – whether underground pipes fall within definition of “building” INSURANCE – interpretation – meaning of “contract value” – whether “contract value” distinguishable from “contract price”

Catchwords:

ADMINISTRATIVE LAW – appeal from judicial review decision – legal unreasonableness –certificate under Costs in Criminal Cases Act 1967 (NSW) – determination of costs that should be paid by Secretary of Department – whether Secretary bound to award “costs reasonably incurred” – application of Attorney General’s payment rates for solicitors and counsel – standard of legal unreasonableness – advertence to policy considerations – statutory purpose – no error in reasoning of primary judge

Catchwords:

CIVIL PROCEDURE — Dismissal of proceedings — Want of due despatch — Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 51.5 — Where applicant failed to file White Folder — Where applicant has explanation of delay and is now legally represented CIVIL PROCEDURE — Expedition of proceedings — Where respondent of advanced age — Where respondent suffers anxiety and is kept out of funds

Catchwords:

APPEAL — appeal against liability in the tort of deceit — whether primary judge erred in concluding that the appellant had knowledge of, or was reckless as to, falsity — where primary judge’s conclusion was based on inferences — inferences not to be disaggregated — appellate review of witness evidence — whether primary judge’s findings were glaringly improbable or contrary to compelling inferences — advantage of primary judge in seeing and hearing the witnesses give evidence

Catchwords:

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

Catchwords:

DAMAGES – assessment of damages for statutory unconscionable conduct and breach of fiduciary duties in acquisition of company – valuation of start‑up company – where primary judge rejected expert valuation reports from plaintiff and defendants – whether primary judge erred in relying on statements by defendant to creditor as to the value of the company

Catchwords:

COSTS – security for costs on appeal – impecunious appellant – where appellant’s impecuniosity was in part caused by his own conduct in related proceedings – where security may stifle appeal – limited prospects of success on appeal – security ordered

Catchwords:

BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — Whether there was a “construction contract” within meaning of s 4 of the Act — Whether payment claim complied with s 13(2)(a) — Whether payment claim validly served — Whether subcontractor liable to pay amount claimed COSTS — Whether primary judge erred in ordering costs on indemnity basis in relation to entire proceedings — Where court in position to re-exercise discretion — Whether unreasonable not to accept Calderbank offer

Catchwords:

ADMINISTRATIVE LAW — judicial review — District Court — whether primary judge’s decision affected by jurisdictional error — legal unreasonableness — alleged denial of procedural fairness — alleged errors in assessment of evidence and credibility — whether such errors capable of founding jurisdictional error — Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18 CRIMINAL LAW — intimidation with intent to cause mental harm — residents of aged care facility with dementia — circumstantial case — use of photographic evidence as corroborative of eyewitness account — tendency evidence — Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)

Catchwords:

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

Catchwords:

JUDGMENTS AND ORDERS — Application to vary orders — Where head of claim dismissed by primary judge on particular basis — Where basis successfully disturbed on appeal — Where head of claim not reagitated on appeal — Where Court of Appeal referred “remaining amounts claimed” to referee — Whether head of claim included in reference — Whether orders should be varied to include head of claim in reference

Catchwords:

CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – where respondent is a National Disability Insurance Scheme participant – where respondent became a forensic patient pursuant to s 73(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act) – where the applicant seeks the respondent’s status as a forensic patient to be extended by 18 months – whether material obtained by the applicant from a registered NDIS service provider pursuant to s 138 of the MHCIFP for the purpose of that application is admissible – whether there is an operational inconsistency between s 138 of MHCIFP Act and s 67G of the National Disability Insurance Scheme Act (2013) (Cth) such that to that extent the former is invalid pursuant to s 109 of the Commonwealth Constitution

Catchwords:

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Actions on judgments prior to expiry of deadline for enforcement – Proceedings brought four days before expiry of limitation period – Whether bringing an action on a judgment instead of enforcing the judgment debt is necessarily an abuse of process – No manifest unfairness or oppression from mere delay LIMITATION OF ACTIONS – Action on a judgment – Interaction with enforcement provisions in Civil Procedure Act 2005 (NSW), Pt 8 and Limitation Act 1969 (NSW), s 17 – Whether commencement of action on judgment circumvents time restrictions which would otherwise apply – No circumvention

Catchwords:

LEGAL PRACTITIONERS — disciplinary proceedings — application by Prothonotary for removal of name from roll — practitioner convicted of criminal offences — breach of undertakings to Law Society — failure to complete practice management course — practising without a practising certificate — holding-out as solicitor — misappropriation of trust monies — forgery and uttering of false court orders — subsequent criminal offending including breaches of bail, common assault and driving offences — practitioner unfit to remain on roll

Catchwords:

APPEALS – Procedure – Application for interim stay – Enforcement of costs orders – Proposed appointment of a tutor – Applicant’s legal incapacity unresolved – Evidence of applicant’s psychological condition apt to deteriorate – Balance of convenience favours applicant

Catchwords:

EQUITY – Trusts and trustees – Trust instrument – interpretation – where the object of an 1873 deed was to “provide an efficient course of education for youth” – whether “youth” referred to boys only or was gender-neutral – unambiguous gender-neutral meaning – “ancient document rule” not enlivened – no compelling surrounding circumstances

Catchwords:

CIVIL PROCEDURE – Application for pro bono referral – Relevant considerations discussed – Referral confined to the provision of advice in relation to proceedings

Catchwords:

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — interim extension order granted pending resolution of Attorney General’s application for extension order — application for extension order refused by Supreme Court — refusal appealed to Court of Appeal — notice of motion filed by Attorney General seeking new interim extension order — whether three month limit on interim extension orders prevents granting of new interim extension order in appeal proceedings — meaning of “proceedings”

Catchwords:

WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member – Presidential member dismissed appeal on basis that findings made at first instance were “open” prior to decision in State of New South Wales v Culhana [2025] NSWCA 157 – whether the error was material – where there was no realistic possibility that appeal would have been upheld had the correct standard of review been applied WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member – alleged constructive failure to exercise jurisdiction – where no constructive failure to exercise jurisdiction

Catchwords:

PUBLIC ASSEMBLY — Palestine Action Group organising public assembly to advocate for the humanitarian crisis in Gaza — Proposed procession to the Sydney Opera House forecourt — Summary Offences Act 1988 (NSW) Pt 4 — Commissioner of Police seeking prohibition order pursuant to s 25(1) — Effect of such a prohibition order —Principles underlying the making of prohibition order — Application granted CONSTITUTIONAL LAW — Commonwealth Constitution — Constitutional freedoms — Implied freedom of political communication — Sydney Opera House Trust Act 1961 (NSW) — Sydney Opera House Trust By-law 2021 (NSW) — Whether provisions impermissibly burden implied freedom of political communication — Unnecessary to decide

Catchwords:

CRIME — appeal and review — application for review of District Court judgment dismissing appeal from Local Court ruling — where apprehended personal violence order made against applicant — whether District Court judgment involved jurisdictional error — whether District Court extended term of apprehended personal violence order in excess of jurisdiction — whether applicant unfairly denied opportunity to make submissions on term of apprehended personal violence order and costs COSTS — application for review of District Court order awarding costs to respondents — whether appeal judge wrongly relied on Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 99 and 99A — whether order involved jurisdictional error

Catchwords:

PRACTICE AND PROCEDURE — security for costs — application for order for security for costs of appeal — where appellant bankrupt and impecunious — where appellant has history of non-appearance, non-payment of costs orders and unsuccessful litigation — where appellant has not identified any arguable ground of appeal — where there is significant risk of unrecoverable costs — Uniform Civil Procedure Rules 2005 (NSW), r 51.50

Catchwords:

EQUITY — Trusts and trustees — intention to create — real property purchased by one company with funds provided by another company — existence of express, resulting, “Quistclose” and/or constructive trusts alleged — intention to create trust determinative of each alternative trust claim — significance of evidence subsequent to claimed agreement to create trust — whether evidence established intention to create trust COSTS — Costs assessment — Determination — Review/appeal — primary judge accepted some of appellants’ claims in court below but did not conclusively determine — whether appellants should be liable for entirety of costs of proceedings below

Catchwords:

CORPORATIONS — application for leave to intervene in proceedings and to conduct appeal on behalf of company— builder’s claim against developer — where company unable to act due — constitution requiring joint directors to be unanimous — Corporations Act 2001 (Cth), ss 236, 237

Catchwords:

CIVIL PROCEDURE — Time — Extension of time to commence judicial review proceedings ADMINISTRATIVE LAW — Whether reviewable decision — Jurisdictional error — where decision to issue a construction certificate legally unreasonable ENVIRONMENT AND PLANNING — Consent — Conditions — Construction certificate — plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent – effect of decision in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 in circumstances where jurisdictional error has been established

Catchwords:

APPEALS — Leave to appeal — whether any issue of principle, question of public importance or reasonably clear injustice going beyond something that is merely arguable has been shown — application refused COSTS — Party/Party — application of the general rule that costs follow the event — no error in ordering that the applicant pay the respondents’ costs of the notices of motion he unsuccessfully brought

Catchwords:

EVIDENCE – advanced ruling by primary judge that two reports and their contents were not “restricted information” within the meaning of the Transport Safety Investigation Act 2003 (Cth) – whether primary judge erred in ruling the reports were not inadmissible – no error by primary judge APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused

Catchwords:

APPEALS – leave to appeal – where primary judge requested parties provide orders as to distribution of money paid into Court – where parties agreed that a specified sum should not have been paid into Court – where order made in accordance with the parties’ indication – where party now appeals against this order – party bound by conduct of counsel and solicitors – leave to appeal refused

Catchwords:

CONTRACTS — contractual construction — authorised financial services agreement terminated for cause — clause requiring parties to keep other party’s confidential information confidential and not use — whether disclosure of client portfolio information to competitor following termination was breach of confidentiality clause — whether client portfolio information was confidential information as defined — where parties were in the relationship of principal and agent — where authorised representative provided financial services under principal’s Australian financial services licence — where authorised representative retained goodwill in the business during the currency of the agreement but not post-termination CONTRACTS — contractual construction — whether disclosure was required by law — where licensee had obligations to clients under Corporations Act 2001 (Cth), Part 7.6 DAMAGES — whether primary judge was entitled to conclude loss not proved where experts produced joint report and were not cross examined — whether denial of procedural fairness — where primary judge not satisfied of assumptions underpinning expert evidence — no denial of procedural fairness in primary judge’s approach

Catchwords:

CIVIL PROCEDURE – appearance – submitting appearance – withdrawal of appearance – appeal from refusal to grant application for compliance certificate – where the LPAB filed a submitting appearance upon the Law Society being joined to the proceedings – whether the Law Society can now vacate or set aside the order granting it leave to intervene – whether the LPAB can withdraw its submitting appearance and file an appearance under UCPR 6.10 – application of Hardiman principles – where there was no appearance for the applicant when the motions were heard – where the Court would be without a contradictor unless LPAB participates – Law Society removed as a party – leave granted to LPAB to withdraw submitting appearance

Catchwords:

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

Catchwords:

COSTS — where appellant enjoyed partial success on appeal — where retrial ordered — whether to apply usual rule as to costs for costs of appeal — whether costs of trial should be costs in cause — whether to order security for costs for the retrial CIVIL PROCEDURE — Court of Appeal — where retrial ordered — whether orders should be made affecting ambit of retrial

Catchwords:

CIVIL PROCEDURE—Application for further extension of stay to prevent funds paid into court being released to successful party in satisfaction of judgment debt—Short extension granted on previous motion to allow unsuccessful party to consider seeking review—No application for review—No justification for further extension—Prejudice asserted on behalf of third party which is aware of proceedings--Further extension an arbitrary and unjustifiable frustration of successful party’s right to take benefit of orders below—Motion dismissed

Catchwords:

PROCEDURAL RULINGS – Use of private solicitors by government agency – Request for order prohibiting use of private solicitors – Request for sound recording – Request for protective costs order – Oaths of office of judicial officers – De facto officers doctrine

Catchwords:

Removal of practitioner from roll of Australian lawyers – Declaration that practitioner is not a fit and proper person to remain on the roll – Misappropriation of trust funds – Need for consideration of factual circumstances warranting removal from Roll – Entitlement of Council of the Law Society to costs of application

Catchwords:

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

Catchwords:

Appeal — leave to Appeal — where summary judgment granted in favour of plaintiff for possession of land — failure to establish arguable error in reasoning — failure to establish issue of principle, question of public importance or reasonably clear injustice — failure to establish error in the Courts exercise of jurisdiction — leave refused

Catchwords:

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

Catchwords:

LAND LAW — easements — substantial interference with easements — whether cropping over a right of carriageway constituted a substantial interference with dominant owner’s rights — remedies for substantial interference — whether dominant owner entitled to construct proposed crowned road — width of road which the dominant owner is entitled to undertake work on — whether 14 day notice period prior to undertaking work expressed as part of declaration is justifiable TORTS — nuisance — trespass — whether appellant entitled to have the full width of the right of carriageway cleared — whether appellant entitled to greater amenity damages — whether appellant entitled to exemplary damages APPEALS — point not taken below — pleadings — whether issue of substantial interference raised before primary judge and understood to be in issue

Catchwords:

CONTRACT — Deed of release — Construction — Whether right to employment bonus released by deed

Catchwords:

CONTRACTS — construction — written contract for supply of aviation fuel and services for aerial fire fighting — aircraft supplied to third parties pursuant to separate contracts — whether contract automatically terminated when contract with third parties came to end — whether obligations under contract automatically ceased when contract with third parties came to end — contract permitted termination for convenience — respondent entitled to liquidated fee if contract terminated for convenience within 100 days of “start of the fire season” — construction of “start of the fire season”

Catchwords:

APPEALS — amendment of notice of appeal — where proceedings ought not be remitted to Court below — where appellate court to determine quantum of damages — damages determined on the papers DAMAGES — measure of damages — misleading or deceptive conduct — where reliance on misleading conduct caused the appellants to agree to a contractual variation — measure of loss or damage suffered as a result of variation — cost of rectification — rectification costs for installation of cladding — reliance on expert quantity surveyor evidence — proportionate liability — whether reduction required under principles of proportionate liability — where respondents bound by case put in court below

Catchwords:

PRACTICE — security for costs — review of decisions of Judge of Appeal to order security for costs — applicant located in British Virgin Islands — no evidence of Australian assets against which a costs order could readily be executed — applications dismissed PRACTICE — adjournment — applicant seeks to adjourn hearing of application to review orders for security for costs — whether decision of English court likely to alter outcome of review — consideration of ss 56 and 60 of Civil Procedure Act 2005 (NSW) — applications dismissed OCCUPATIONS — legal practitioners — solicitor for applicant maintained ground of review that judge should have recused himself — transcript not provided — transcript provided by Court to parties — transcript established that after disclosure by judge, solicitor had not advanced any application — applicant’s further submission confirmed ground of review, without addressing the transcript or decision not to advance application — other unsatisfactory aspects of conduct and presentation of case by solicitor — opportunity to show cause why judgment should not be referred to Legal Services Commissioner

Catchwords:

APPEAL — dismissal of proceedings for want of due despatch — application for leave to appeal from an interlocutory decision on matter of practice and procedure — limitation period for defamation proceedings now expired — no issue of principle or question of general public importance — no material error of fact

Catchwords:

OCCUPATIONS — legal practitioner directed to show cause why judgment should not be referred to Legal Services Commissioner — submissions supplied confirm appropriateness of referral COSTS — indemnity costs — gross sum costs order — costs of applications for security for costs — significance of proportionality — whether third party order against solicitor should be made — significance of referral of solicitor to Legal Services Commissioner to exercise of jurisdiction

Catchwords:

SUMMARY DISMISSAL – Leave to appeal from order for summary dismissal – Requirement for leave – Absence of any factor warranting the grant of leave – Defects in claim seeking to re-litigate workers compensation entitlements

Catchwords:

CIVIL PROCEDURE – Costs orders – Applicant seeking gross costs assessment pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW) – Assessed gross sum of $16,000

Catchwords:

APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused

Catchwords:

CONTRACTS – Construction – Deeds – Scope of appellant’s assumption of third party’s royalty obligation under separate deed entered between unrelated parties – Whether “proportionate share or interest” could refer to a 100% interest.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — application for leave to appeal — whether primary judge constructively failed to exercise jurisdiction in determining whether the respondent had breached its obligations under s 106 of the Strata Schemes Management Act 2015 (NSW) — where none of the applicant’s contentions of error identified any arguable constructive failure to exercise jurisdiction by primary judge — where applicant therefore failed to identify issue of principle, question of public importance or reasonably clear injustice going beyond something merely arguable — where leave to appeal refused with costs

Catchwords:

CIVIL PROCEDURE — whether relevant misapprehension of facts or law affecting decision of single Judge of Appeal or some matter calling for review or interests of justice require that orders should be set aside under UCPR r 36.15 — where no such misapprehension or error calling for review and interests of justice do not so require CIVIL PROCEDURE — whether interests of justice require that orders of single Judge of Appeal be set aside or whether real likelihood that it would be unjust to applicant to allow judgment to stand such that orders should be set aside under UCPR r 36.16(2)(b) — where no real likelihood of injustice to applicant and considerations of utility weigh heavily against applicant being permitted to reinstate proceedings

Catchwords:

CIVIL PROCEDURE — motion to set aside orders of Court of Appeal — whether orders made irregularly, unlawfully or in bad faith — procedural fairness — where judge put proposition of law to counsel — whether denial of opportunity to respond — no basis to set aside orders

Catchwords:

CIVIL PROCEDURE — application for extension of stay to prevent monies paid into court being paid to successful party in satisfaction of judgment debt — where unsuccessful parties absent themselves from substantive hearing — where application made to set aside judgment on the basis of absence of unsuccessful parties — where unsuccessful parties seek to rely on evidence which is irrelevant because it is outside extant pleadings — motion dismissed — Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Public sector – Crown and ministerial employees — respondent employed as staffer pursuant to the Members of Parliament (Staff) Act 2013 (NSW) — respondent’s services “dispensed with” — whether s 26(5) excludes application to Industrial Relations Commission for relief from victimisation under ss 210 and 213 of the Industrial Relations Act 1996 (NSW) — whether member of Parliament acts on behalf of the State to terminate staffer’s employment — whether member of Parliament is staffer’s “employer” for the purposes of the Industrial Relations Act

Catchwords:

CONTRACTS — master franchise agreement — renewal clause — construction of clause permitting franchisor to decline renewal of agreement — where franchisor declined request for renewal by master franchisee — whether decision to decline renewal properly made — whether franchisor had to consider best interests of master franchisee in declining renewal — whether non-renewal decision based on grounds “honestly and reasonably held” — findings by primary judge inadequate — inadequate findings unable to be cured on appeal — retrial necessary CONTRACTS — repudiation — whether master franchisee repudiated agreement by establishing competitor business after franchisor refused renewal — no repudiation CONSUMER LAW — statutory unconscionable conduct under s 21 of the Australian Consumer Law — non-renewal alleged to be unconscionable — finding of unconscionable conduct by primary judge — where finding of unconscionable conduct necessarily reliant on correct construction of non-renewal clause — where primary judge erroneously construed non-renewal clause — where success on argument that renewal was improperly refused would give rise to same relief as success on unconscionable conduct — no utility in remitting issue EVIDENCE — expert evidence — admission of expert reports — valuation evidence — where expert relied on reports from industry bodies in drafting expert valuation report — reports of industry bodies admissible under s 60 of the Evidence Act 1995 (NSW) — reliance on industry reports permissible in circumstances — no error in admitting expert reports DAMAGES — quantum of damages — valuation methodology — where primary judge criticised valuation evidence at a high level but did not identify specific errors in approach taken by expert — approach that should be taken in complex damages calculations that depend on multiple assumptions — finding on damages cannot be supported — error established — question of damages to be remitted in retrial

Catchwords:

CONTRACT — Local council licensed car parking spaces to owners corporation — Council claim for unpaid licence fees — Owners corporation cross-claim to recover licence fees paid under mistaken belief of obligation to pay — Construction of licence agreement — No mistaken payment — Owners corporation liable for unpaid licence fees TORTS — Trespass and private nuisance — Roller door restricting potential incorporation of spaces into public car park — Loss of car park revenue — Substantial and unreasonable interference with rights of access and use – Obligations of owners corporation in respect of common property LIMITATION OF ACTIONS — Unpaid electricity charges — Whether running account between the parties — Existence of running account not shown — No factual basis to consider different approach to operation of limitations period — Claim out of time

Catchwords:

PRACTICE — review of Registrar’s decision — appeal dismissed as incompetent, subject to applicant’s entitlement to file summons seeking leave within specified period — whether applicant enjoyed appeal as of right from dismissal of application for judicial review of a refusal to grant a permanent stay of summary criminal proceedings — whether summons seeking leave not filed within specified period, but sent by registered post arriving at court after expiry of period, satisfied order — nature of order made confirmatory of dismissal of appeal

Catchwords:

ESTOPPEL — proprietary estoppel — estoppel by encouragement — family farm — representations by father to son concerning eventual ownership of farm — whether representations concerned testamentary intentions or inter vivos transfer — whether representations sufficiently certain — whether plaintiff relied upon representations — whether plaintiff incurred detriment — whether constructive trust on terms appropriate remedy

Catchwords:

APPEALS – orders on appeal – appeal from conviction in Local Court to District Court – where appeal to District Court dismissed under s 21 of the Crimes (Appeal and Review) Act (NSW) for want of prosecution – whether dismissal of appeal by District Court operates as confirmation of conviction by Local Court – dismissal under s 21 operates as confirmation of conviction – judicial review of Local Court decision unavailable in these circumstances ADMINISTRATIVE LAW – judicial review – whether decision of Local Court reviewable by Court of Appeal where District Court dismissed appeal for want of prosecution – clear jurisdictional error in Local Court – where Magistrate held private discussion in Chambers with Prosecutor during cross-examination of Defendant – Local Court conviction confirmed by dismissal of appeal by District Court – judicial review of Local Court conviction not available – no jurisdictional error in District Court – application dismissed

Catchwords:

JUDICIAL REVIEW — District Court dismissed appeal of applications for interim apprehended personal violence orders — whether District Court fell into jurisdictional error in making costs orders — whether there was a mistake in the statutory source of power — Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 99 and 99A — Crimes (Appeal and Review) Act 2001 (NSW) s 28(3)

Catchwords:

CIVIL PROCEDURE – application for expedition – significant delay in bringing application – application dismissed

Catchwords:

TAXES AND DUTIES – payroll tax – liability – application pursuant to s 97 of the Taxation Administration Act 1996 (NSW) to review decision of the appellant disallowing the respondent’s objection to a payroll tax assessment pursuant to the Payroll Tax Act 2007 (NSW) – the primary judge held that the amounts paid by the respondent to drivers were not paid for or in relation to the performance of work under the relevant contract – where the primary judge held that the amounts paid by the respondent were not taken to be wages paid or payable – where the primary judge held that payroll tax was not payable on those amounts and revoked the tax assessment – where the primary judge held that, if payroll tax was payable, premium interest should be remitted in full – following issues raised on the appeal/cross-appeal: whether driving was a service supplied by drivers to the respondent under the driver contracts – whether the primary judge erred in finding that rating was a service supplied to Uber “under” the driver contracts – whether the act of rating and referring was de minimis – whether the primary judge erred in implicitly concluding that the referrals were supplied or provided to the respondent under the driver contracts – whether the primary judge erred in accepting that the driving service was one and the same as the use of the vehicle – whether rating was ancillary to the use of the driver’s vehicle – whether amounts collected by the respondent from riders and remitted to drivers were “for or in relation to the performance of work” – whether amounts collected by the respondent from riders and remitted to drivers were “paid or payable” by the respondent – whether the primary judge erred in ordering remission of any premium interest payable – re-exercise of discretion as to remission of premium interest – appeal by the Chief Commissioner allowed and cross-appeal by Uber dismissed with costs

Catchwords:

CIVIL PROCEDURE – application for leave to appeal from interlocutory orders – where primary judge dismissed strike out motion brought under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) – whether primary judge failed properly to consider strike out motion – whether primary judge erred in assessing pleadings issues in respect to collateral contract claim – leave to appeal refused. COSTS – security for costs – application for leave to appeal – where primary judge ordered a security for costs against overseas plaintiff in the sum of $53,300 – whether primary judge erred by limiting security for costs on basis of amount respondent had readily accessible to avoid stultification of proceedings – leave to appeal refused.

Catchwords:

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

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – application to vacate hearing date – no question of principle

Catchwords:

CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge denied applicant procedural fairness in contravention of rule in Browne v Dunn — where no such procedural unfairness CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge elided two components of test in s 19 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) in deciding whether to make an apprehended violence order — where no such jurisdictional error established CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge applied incorrect standard of appellate review on an appeal against finding that conduct insufficient to warrant making of an apprehended personal violence order — where correctness standard applies to finding that the court has jurisdiction to make an apprehended violence order under s 19 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) — where primary judge did not apply incorrect standard of appellate review CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge took into account irrelevant factors or failed to take into account relevant factors in applying s 19 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) — where no such jurisdictional error made out CIVIL PROCEDURE — Court of Appeal — supervisory jurisdiction — whether primary judge erred in finding that ss 7, 19 and 35(2)(f) of Crimes (Domestic and Personal Violence) Act 2007 (NSW) did not impermissibly burden the constitutionally protected implied freedom of political communication — where burden limited and of minor significance — where purpose accepted as legitimate in relevant sense — where impugned provisions suitable in relevant sense and burden outweighed by benefits

Catchwords:

PROCEDURE – application to amend – amendments advanced new claim against existing defendant – existing claims sued defendant as employer – new claims sued defendant as occupier or controller – defendant appointed new solicitors to appear in response to new claims – new solicitors claimed trial of new claims could not be conducted fairly – Dust Diseases Tribunal granted leave to amend – whether injustice warranting grant of leave in matter of practice and procedure made out – no updating evidence about readiness of defendant – in fact, no hearing date as yet allocated, three months after ruling – no suggestion that hearing date would be allocated so as to give rise to injustice - no basis for grant of leave PROCEDURE – parties – circumstances in which same defendant may be represented by more than one legal practitioner – such representation only to occur in exceptional cases – steps to be taken to prevent prejudice to other parties

Catchwords:

ADMINISTRATIVE LAW – Appeals – judicial review – decision of review panel – motor vehicle accident – where respondent injured during attempted theft of motorcycle – psychological injury – whether primary judge erred in finding procedural fairness afforded to appellant – no practical injustice – whether primary judge erred in finding cl 6.41 of the Motor Accident Guidelines did not apply – where appellant asserted inconsistencies in respondent’s reporting history – whether primary judge erred in finding review panel performed its statutory function – single causative event – whether primary judge erred in finding review panel exposed actual path of reasoning – whether primary judge erred in finding review panel responded to substantial clearly articulated argument

Catchwords:

ENVIRONMENT AND PLANNING – development applications – judicial review – whether development consent validly granted – mandatory considerations under s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) and cl 2.20 of the State Environmental Planning Policy (Resources and Energy) 2021 (NSW) – whether Independent Planning Commission failed to consider whether to impose conditions to minimise Scope 3 greenhouse gas emissions resulting from the development – whether Independent Planning Commission failed to consider the likely impact on the locality of Scope 3 greenhouse gas emissions resulting from the development JUDGMENTS AND ORDERS – where judicial review proceedings dismissed in Land and Environment Court and orders under Pt 3 Div 3 of the Land and Environment Court Act 1979 (NSW) not there considered – whether to remit matter subject of appeal brought pursuant to s 58 of the Act – whether to make orders under Pt 3 Div 3 of the Act COSTS – where matter remitted to Land and Environment Court – order sought as to costs of first instance proceedings

Catchwords:

CORPORATIONS –– whether repayment of informal loans repayable on demand constituted unreasonable director-related payments contrary to s 588FDA of the Corporations Act – where company solvent – where company had no other trade creditors and no ongoing rent or employee expenses – where company had no existing contractual obligations – where company contemplating entering into future contracts for export of chickpeas to India

Catchwords:

COSTS – Application for gross sum costs order – Lack of justification for gross sum costs order – Need for firm foundation for Court to be satisfied as to quantum – Inappropriateness of awarding gross sum costs in respect of proceedings below

Catchwords:

APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused

Catchwords:

COSTS — special costs order — offer of compromise by respondent not accepted — whether offer open for such time as reasonable in circumstances — Uniform Civil Procedure Rules r 20.26 COSTS — costs of appeal — consequence of offer of compromise made prior to trial — indemnity costs — Uniform Civil Procedure Rules r 42.15A

Catchwords:

COSTS – Application to vary costs order – Where respondent successful in outcome of proceedings – Where applicant was an intervenor in one set of proceedings, and applicant in another – Where applicant’s submissions rejected – Orders in relation to costs of appeal should, in the absence of special circumstances, be sought in submissions filed on the appeal – Examples of special circumstances.

Catchwords:

APPEALS – appeal from summary dismissal – leave to appeal required under s 101(2)(e) of Supreme Court Act 1970 (NSW) where decision is interlocutory – no question of principle, no clear injustice which is more than merely arguable, leave to appeal be refused, with costs

Catchwords:

SUCCESSION – Family provision – Respondent grandchild beneficiary under will of deceased grandmother – Respondent lived with and cared for deceased – Respondent dissipated $200,000 obtained unconscionably from the deceased – Whether primary judge erred in granting further provision to the respondent – Provision unreasonable and plainly unjust

Catchwords:

EQUITY — Trusts — Resulting trust - whether primary judge wrongly failed to apply presumption that appellant did not intend respondent to obtain beneficial interest in property – whether respondent’s legal interest subject to purchase money resulting trust EQUITY — Trusts — Constructive trust — joint endeavour constructive trust — de facto relationship — relationship broken down —investment property purchased in co-ownership as joint tenants — whether primary judge erred in characterising scope of the joint endeavour — whether the primary judge erred in determining beneficial entitlements of two thirds for appellant and one third for respondent — whether appellant entitled to larger beneficial interest APPEALS — From finding of fact — Documentary evidence — text messages between the appellant and respondent — whether primary judge erred in making factual findings having regard to contemporaneous written records APPEALS — From finding of fact — Credibility of witnesses — whether primary judge erred in assessing respondent’s credit UNREPRESENTED LITIGANTS – Use of Generative AI – Hallucinated case reference – irrelevant case references – where Generative AI used to prepare script for oral submissions – where oral submissions so generated misconceived or irrelevant

Catchwords:

PARLIAMENT – where member of Legislative Assembly convicted in District Court on one count of sexual assault and three counts of assault with act of indecency – where Leader of Government in Legislative Assembly notified convicted member of intention to introduce a motion for his expulsion from the Assembly – where member obtained urgent ex parte injunction – power to expel under the Standing Orders not precluded by s 13A of the Constitution Act 1902 (NSW) - power to expel expressly preserved by s 13A(3) of the Constitution Act – no basis for conclusion that proposed power of expulsion being engaged for punitive purposes - if procedural fairness required, no denial of procedural fairness – representative democracy not impaired by proposed motion – principle in Kable v Director of Public Prosecutions (NSW) neither engaged nor infringed. INJUNCTIONS – approaching the Court ex parte – limited circumstances where proceeding without notice appropriate – urgency of matter is no excuse for non-notification where to do so would not defeat the purpose of the interlocutory relief sought – obligation to provide meaningful notification of time and place of urgent application and electronic service of documentation to be relied upon.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — where appeal purportedly brought as of right from interlocutory decision and from decision as to costs — where appeal dismissed as incompetent

Catchwords:

JUDGMENTS AND ORDERS — amending, varying and setting aside — application under Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) — motion to vary costs orders — whether misapprehension on part of Court warrants orders being varied

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – undefended judgment – setting aside – where respondent did not appear at hearing of proceedings – whether primary judge erred in describing the principles for setting aside an undefended judgment under r 36.16(2)(b) – primary judge did not err having regard to the transcript of the hearing as a whole CIVIL PROCEDURE – undefended judgment – setting aside – explanation for non-attendance – whether primary judge erred in taking into account or giving inappropriate weight to the medical evidence – primary judge did not err

Catchwords:

ENVIRONMENT AND PLANNING — Construction of consent — Whether use for the purpose of a gym separate and independent from use for the purpose of a registered club CONTRACT — Termination — Repudiation of contract — Whether failure to issue lease in registrable form was repudiation CONTRACT — Remedies — Damages — Anticipatory breach — Whether party ready, willing and able to perform obligation to enter new lease — Loss of opportunity — Whether the commercial opportunity denied by repudiation had any value

Catchwords:

REAL PROPERTY — conveyancing — where land was transferred by director to his mother on same day that company entered voluntary administration — whether property transferred with intent to defraud creditors — whether first respondent was purchaser for good faith without notice — whether first respondent had notice of intent to defraud creditors at time of transfer — alienation of property — Conveyancing Act 1919 (NSW), s 37A

Catchwords:

NEGLIGENCE – causation – professional negligence – where contract for sale of land provided for 5-year deferred settlement and life estate in favour of vendor – where purchaser did not complete on completion date and vendor died two days later – sale contract subsequently rescinded by vendor’s legal representative – where solicitor found to have breached duty of care by failing to identify difficulties with grant of a legal life estate over a portion only of unsubdivided land but primary judge found no loss caused by that breach – whether primary judge erred in concluding that appellants did not discharge their onus of establishing that any negotiations with vendor prior to exchange of contracts in 2012 would likely have resulted in vendor agreeing not to require a life estate – whether primary judge erred in concluding that problem with life estate played no part in the purchaser’s failure to complete in 2017 and was thus not causative of loss – appeal dismissed.

Catchwords:

WORKERS COMPENSATION - limitation period - extension of time - scope of discretion - test for reasonableness of delay - conduct of applicant for leave - fully informed decision to allow statutory period to expire - Workers Compensation Act, s 151D(2) - APPEAL - interlocutory appeal capable of disposing of entire case - time when appeal should be heard - PRACTICE AND PROCEDURE - decision to dispense with jury - decision within discretion - District Court Act 1973, s 79A. D

Catchwords:

CIVIL PROCEDURE – Application to adjourn hearing of urgent appeal – Where notice of motion filed day prior to the hearing – Where Applicant’s counsel briefed one day prior to hearing due to previous counsel returning brief as a result of Applicant’s alleged failure to hold moneys on trust to secure the previous counsel’s fees – Where Applicant’s previous counsel had settled submissions and amended notice of appeal – Application dismissed

Catchwords:

WORKERS COMPENSATION — appeal to Deputy President — where Deputy President dismissed appeal on basis that findings were “open” — where Court recently departed from established authority in State of New South Wales v Culhana [2025] NSWCA 157 — where appeal under s 352 governed by principles in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 — Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353

Catchwords:

CIVIL PROCEDURE — Court of Appeal — whether appeal should be dismissed as incompetent where leave to appeal not sought — whether leave to appeal required — Supreme Court Act 1970 (NSW), s 101(2)(r) — whether $100,000 jurisdictional limit satisfied — assessment of the value of the matters realistically in contest in the appeal — realistic assessment of the merit of relief claimed HUMAN RIGHTS — discrimination — grounds — sexual-orientation discrimination — homosexual vilification — whether damages in default of compliance with an order pursuant to Anti-Discrimination Act 1977 (NSW), s 108(7) payable to third party COSTS — whether costs should follow the event where purported intervener successful on motion

Catchwords:

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

Catchwords:

CIVIL PROCEDURE — rule in Browne v Dunn — whether inferences drawn by primary judge contradicted witness’s evidence — whether rule extends to any construction of conduct legally adverse to a party’s case RESTITUTION — quantum meruit — fair and reasonable remuneration — whether sufficient evidence that rates and hours were fair and reasonable

Catchwords:

NEGLIGENCE — duty of care — breach of duty — causation — nature and scope of a school’s duty of care — student attacked after school outside school grounds by other students, instigated by a student with previous history of incidents — alleged breaches involving lack of teacher supervision or available staff assistance and inadequate risk assessment process — whether a school’s duty is breached with respect to an injury sustained outside of school hours beyond school grounds is dependent on the particular facts — issue here is at borderline between identifying scope of the duty and whether or not it has been breached — breach established — causation established

Catchwords:

SUCCESSION – Family provision claim – No provision made for respondent in father’s will due to estrangement – Whether primary judge erred in granting provision to the respondent – Significance of comparison to provision made for sibling – Whether provision unreasonable and plainly unjust – Where appellant cites failure to give reasons but does not seek remittal – Where litigation costs have severely eroded estate

Catchwords:

EQUITY — Fiduciary duties — Fiduciary relationships — whether primary judge erred in finding fiduciary duties are owed — whether directors owe a fiduciary duty to shareholders in issuing shares — where director holds special position EQUITY — Fiduciary duties — Fiduciary relationships — whether appellants not given fair opportunity to address finding that fiduciary duty was owed — whether issue raised in pleadings — allegation of fiduciary duties raised at trial without objection EQUITY — Equitable remedies — Equitable compensation — causation and loss — whether loss would not have been suffered “but for” the breach of duty — whether speculation that capital raising would have proceeded identically save for the conduct found in breach of fiduciary duty — uncontradicted expert evidence about valuation of shares EQUITY — Equitable remedies — Equitable compensation — reflective loss — whether loss claimed was reflective of a loss that could have been claimed by company — application of Central Coast Council v Norcross Pictorial Calendars Pty Ltd (2021) 391 ALR 157; [2021] NSWCA 75

Catchwords:

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

Catchwords:

BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) ss 13, 14 and 31 — a written construction contract between the parties provides that if a payment claim under s 13 is made by email after 5:00pm on a business day it is deemed to have been received at 9:00am on the next business day (the Deeming Clause) — s 14 of the Act provides that if a payment schedule in response to service of a payment claim is not provided by the respondent to the claimant within the time provided by the relevant construction contract or within 10 business days of the time it is served, whichever time expires earlier, the respondent is liable to pay the amount claimed — the payment claim was served after business hours on Friday 28 February 2025 and the payment schedule was provided on 17 March 2025 — if the Deeming Clause operated to deem service of the payment claim to have been on the next business day ie. 3 March 2025, the payment schedule was within 10 business days of that day, but if service took place on 28 February 2025 it was out of time — HELD — service of the payment claim took place on Friday 28 February 2025 — the Deeming Clause did not operate to change that time for service to 3 March 2025 because on its proper construction s 14 of the Act permits the parties to agree a shorter period for service of a payment schedule than 10 business days from service of the payment claim but not a longer period — the payment schedule provided was out of time and the respondent became liable to pay the amount of the payment claim

Catchwords:

SUCCESSION – wills, probate and administration – contested probate – testamentary capacity – knowledge and approval of will – where deceased suffering cognitive impairment – evidence that deceased expressed intention to disinherit sole beneficiary under previous will – whether primary judge erred in making various factual findings and evidentiary rulings – whether primary judge erred in not accepting unchallenged expert evidence as to capacity and giving weight to lay evidence and that of solicitor witnessing the new will – whether primary judge erred in obiter finding that if new will invalid the evidence as to capacity as at that time would raise a doubt, which was not resolved by the evidence, as to capacity at time of previous will COSTS – whether primary judge erred in making costs order against appellant personally and not applying so-called probate exception to costs

Catchwords:

PARTNERSHIPS AND JOINT VENTURES – existence of partnership – whether primary judge erred in failing to find that there was an unwritten “overarching” partnership sitting above corporate and trust structure under which many of the properties within the Mir Group business were held – whether open to appellant to contend on appeal that the unwritten overarching agreement between the three Mir brothers (as declared by the primary judge after further hearings, having rejected the pleaded partnership claim) itself gave rise to a partnership between the three brothers EQUITY – trusts and trustees – appointment and removal of trustees – whether House v The King error established on the part of the primary judge in declining to remove trustees notwithstanding misconduct by trustees in denying that certain property held on trust and where serious findings made against one of the trustees in relation to his conduct

Catchwords:

LEGAL PRACTITIONERS — Disciplinary proceedings — Where practitioner communicated directly with opposing lawyers’ client on numerous occasions — Where practitioner’s communications with lawyers, Law Society and the NSW Civil and Administrative Tribunal (NCAT) were routinely offensive and discourteous — Breach of rr 4.1.2 and 33 of Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) — Where NCAT made finding of professional misconduct and recommended the practitioner’s removal from the Roll of Australian lawyers – Lack of insight by practitioner – Finding that respondent not a fit or proper person to remain on the Roll.

Catchwords:

COSTS — basis of quantification — indemnity basis — letter of offer — where appeal had no reasonable prospects of success — whether to make personal costs order — whether to order gross sum costs

Catchwords:

PRACTICE AND PROCEDURE — leave to appeal — interlocutory decision — dismissal of application for proceeding to be tried by jury — dismissal of application to further amend pleading — dismissal of application to reinstate paragraphs of proposed pleading previously abandoned — dismissal of application to join additional defendants — significant procedural history — no question of principle — no demonstrated injustice

Catchwords:

WORKERS COMPENSATION — appeal to Presidential member — nature of appeal to Presidential member — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 — Presidential member dismissed appeal on basis that findings made at first instance were "open" and it was insufficient that he would have drawn a different inference — whether appeal governed by principles in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 — effect of amendments in 2011 altering nature of appeal in response to court decisions — subsequent decisions held that right of appeal under s 352 was narrower — whether this Court should depart from those decisions — Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 disapproved WORKERS COMPENSATION — entitlement to compensation — death benefit — worker sustained post-traumatic stress disorder during employment — death caused by adenocarcinoma — whether death resulted from workplace injury — whether reasoning in Commission wrongly relied merely on an increased risk of death — no error in findings of causation

Catchwords:

EQUITY — trusts — rural properties said to be held on trust — plaintiff aware of letter saying he was beneficiary of trust many years ago — plaintiff made deliberate decision not to advance claim based on trust in earlier litigation seeking family provision orders — litigation compromised by release approved by Court — whether claims barred by release — whether claims barred by res judicata or Anshun estoppel — whether claims made out on merits PROCEDURE — appeals — further or fresh evidence — whether plaintiff should be permitted to rely on further evidence — relationship between application for tender of further evidence on appeal and ground of appeal challenging rejection of same evidence at trial — whether plaintiff had established evidence not available by reasonable diligence and whether evidence likely to be material

Catchwords:

CIVIL PROCEDURE – application for expedition of summons seeking leave to appeal – where first respondent has limited life expectancy – loss of claim for future economic loss – expedition granted

Catchwords:

APPEALS – interlocutory decision on a question of practice and procedure – not to order separate questions – no error of principle CIVIL PROCEDURE – separate determination of questions – application for separate questions under UCPR r 28.2 – where plaintiff applied under Part 1C of the Civil Liability Act 2002 (NSW) to set aside settlement agreements for historical child abuse as part of a claim for damages for personal injury – whether set aside application must be heard separately before hearing of underlying claim STATUTORY INTERPRETATION – Part 1C of the Civil Liability Act 2002 (NSW) – whether application for setting aside “affected agreement” required to be determined by separate determination prior to final hearing TORTS – liability for historical child sexual abuse – two prior proceedings involving substantially the same allegations – both settled by payment of money by the State of NSW – Part 1C of the Civil Liability Act 2002 (NSW) – new proceedings commenced including applications to have prior settlement agreements set aside – application under UCPR r 28.2 to have set aside applications determined as separate questions – separate questions not ordered

Catchwords:

COSTS – gross sum costs order – assessment of gross sum – no issue of principle – order made

Catchwords:

CONTRACT – contract – summary dismissal – allegations of sexual harassment and workplace bullying – whether Appellant engaged in a “haka” or a pelvic thrust – where conduct relied upon to found summary dismissal held not be established COSTS – Calderbank offer – where successful party did not “better” financial terms of offer by unsuccessful defendant made shortly prior to trial – relevance of issues going to public vindication in assessing reasonableness of rejection of offer – where argument going to this issue inadvertently overlooked – nature of judgment awarding of costs – even if matter dealt with summarily, key arguments need to be addressed DAMAGES – contract of employment – where conduct relied upon to found summary dismissal held not to be established – whether employer would have terminated employment following expiry of fixed term of employment on three months’ notice under termination without cause provisions in circumstances where employee had elected to continue employment following expiry of fixed term – proper basis for assessment of damages in such circumstances – loss of a chance or balance of probabilities EMPLOYMENT LAW – contract of employment – summary dismissal – allegations of sexual harassment and workplace bullying – whether Appellant engaged in a “haka” or a pelvic thrust – where conduct relied upon to found summary dismissal held not be established

Catchwords:

COSTS – costs recoverable by litigant in person – where litigant in person successful in District Court in appealing conviction from Local Court – where District Court ordered Director of Public Prosecutions (DPP) pay litigant in person’s costs – whether costs for printing, travel and accommodation recoverable by litigant in person – meaning of “professional costs” in s 211 of the Criminal Procedure Act 1986 (NSW) ADMINISTRATIVE LAW – judicial review – jurisdictional error – where now impugned costs were conceded as payable by DPP in District Court – where small quantum of costs in dispute – where no evidence of the costs incurred are before this Court – where matter would have to be remitted to District Court if applicant successful – discretion to refuse claim exercised – summons dismissed

Catchwords:

APPEAL — whether leave to appeal ought be granted from decision of primary judge dismissing appeal from NSW Civil and Administrative Tribunal — no issue of principle, question of public importance or serious injustice demonstrated GUARDIANSHIP — Public Guardian appointed to VY — decision reviewable in October 2025 — grant of leave not warranted

Catchwords:

APPEALS — orders on appeal — whether proceedings should be remitted to Court below — where Court ought determine quantum finally CONSUMER LAW — misleading or deceptive conduct — supply and assembly of prefabricated home — reliance on misleading conduct caused the appellants to agree to a contractual variation — measure of loss or damage suffered as a result of variation CONSUMER LAW — enforcement and remedies — action for damages — measure of damages — loss of bargain — whether cost of rectification is unreasonable — Australian Consumer Law, ss 236, 237 CONTRACTS — breach of contract — breach of express terms — contractual variation based on misleading or deceptive conduct

Catchwords:

APPEALS — leave to appeal — whether leave required — summary dismissal — whether summary dismissal interlocutory in nature — whether appeal otherwise by right

Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal – interlocutory decision – decision to grant freezing orders – whether primary judge erred in determining that the Court had jurisdiction to grant freezing orders against the appellant – whether ‘ordinary course of business’ transactions can ground the requisite danger for the purpose of Uniform Civil Procedure Rules 2011 r 25.14 – whether application raised a point of general principle

Catchwords:

LAND LAW – easements – protracted dispute between neighbours – where primary judge ordered applicants to disable audio recording on CCTV camera which pointed at easement – where primary judge made orders curtailing applicants’ rights under easement for four year period APPEALS – leave to appeal – no issue of principle, question of public importance or reasonably clear injustice – leave refused

Catchwords:

PRACTICE – interlocutory relief pending appeal – appellant a subsidiary of respondent – respondent called members’ meeting to replace directors – primary judge determined meeting valid and found appellant’s efforts to adjourn it motivated by improper purpose – appellant had also made off-market takeover offer for respondent, conditional on its directors not being removed – appellant sought injunctive relief pending appeal preventing meeting from occurring – consideration of strength of appeal – whether primary judge erred concerning exclusive jurisdiction of Takeovers Panel – whether primary judge erred concerning appellant’s Constitution – whether primary judge erred in failing to find respondent motivated by improper purpose – prospects of success weak at best – consideration of balance of convenience – significance of failure by appellant’s directors to become parties or offer any undertaking – ongoing breach of s 201A(2) of Corporations Act 2001 (Cth) – unchallenged finding that earlier attempt to vacate meeting for improper purpose – costs thrown away – interlocutory relief refused

Catchwords:

CIVIL PROCEDURE – interim preservation – freezing orders – freezing orders discharged

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – order sought under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to recall and replace order declaring scope of extended curtilage with a declaration extending the curtilage to enable vehicular access across appellants’ land – perceived misapprehension as to matters relating to vehicular access – application to vary costs orders COSTS – party/party – application for variation of costs orders – application for indemnity costs of motion

Catchwords:

PROCEDURE – appointment of amicus curiae – suggested by respondent and unopposed by applicant – questions of general principle arising – matter referred to Registrar for purpose of appointing amicus

Catchwords:

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

Catchwords:

APPEALS — leave to appeal — principles governing — where proceedings raise questions of public importance — leave to appeal granted — time limits — extension of time — extension of time granted CIVIL PROCEDURE — effect of admission in points of defence in NCAT — where applicant admitted lessee was an impacted lessee under COVID-19 regulatory regime — Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 53 — Evidence Act 1995 (NSW), s 191 LEASES AND TENANCIES — retail leases — retail shop lease — termination of retail lease covered by COVID-19 Regulation — whether lessee an impacted lessee under COVID-19 regulatory regime — application of Retail and Other Commercial Leases (COVID-19) Regulation 2021 (NSW), cll 6A, 6B, 6C, 6D

Catchwords:

CIVIL PROCEDURE – application to amend summons seeking declaratory relief – leave to amend summons – marked differences between proposed amended pleadings and current pleadings – whether amended pleadings disclosed reasonable cause of action – whether amended pleadings embarrassing – where allegations of dishonesty, collusion and abuse of process – whether arguable evidential basis for allegations – dictates of justice – whether applicant’s changes in position caused significant injustice – whether procedural unfairness CIVIL PROCEDURE – costs – whether applicant should pay costs of settled strike out motions – whether offers of compromise were relevant to costs application – whether applicant’s conduct unreasonable – whether applicant should pay costs on the motion to re-plead

Catchwords:

BUILDING AND CONSTRUCTION — adjudication — judicial review — whether adjudicator’s opinion that a submission was not “duly made” was reviewable — whether the adjudicator erred in law — whether adjudicator’s determination affected by jurisdictional error on the basis that he found certain submissions were not “duly made” — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 14, 17, 20, 22, 26, 32A

Catchwords:

BUILDING AND CONSTRUCTION – progress payments – Building and Construction Industry Security of Payment Act 1999 (NSW) – validity of payment claim – identification of work to which progress claim relates – payment claim operating by reference to contents of earlier invoices – identification, in a reasonable way, of the work to which claim relates – no express or implied requirement in the Act that purported payment claim have the objective character of being a claim “for” construction work or for related goods or services CIVIL PROCEDURE – summary disposal – judgment for plaintiff – requisite material and necessary assistance from parties to enable Court to reach definite and certain conclusion – only defence identified is one bound to fail – final hearing would be otiose

Catchwords:

APPEALS – Challenge to underlying findings of fact and credit-based findings – Where appellant unrepresented – Consideration of extent of court’s role in relation to unrepresented parties SUCCESSION – Where probate not granted in respect of a 2013 Will – Where primary judge not satisfied that deceased had testamentary capacity at time of making of 2013 Will – Where clinical notes recorded cognitive defects both before and after execution of 2013 Will – Significance of such evidence – Where will witnessed by a solicitor – Where testatrix unaware about why she was attending solicitor’s office – Application of Banks v Goodfellow (1870) LR 5 QB 549 COSTS – Where family provision claim rejected on basis that 1998 Will provided adequately for the appellant – Where primary judge may have held differently if appellant ordered to pay costs – Where primary judge unaware of Calderbank offer and formal offer of compromise made well prior to trial – Where different judge revisited costs order following primary judge’s retirement – Where, notwithstanding holding that Calderbank offer and offer of compromise unreasonably rejected, respondent awarded less than one quarter of his costs – Whether exercise of discretion vitiated by error or otherwise miscarried – Relevance of notional “buffer” that had been referred to by primary judge

Catchwords:

APPEALS – leave to appeal – where the applicant seeks to appeal two District Court decisions made on 23 September 2024 relating to the applicant’s criminal proceedings – where the related criminal proceedings have since been resolved – whether the District Court had jurisdiction to hear the appeal from the decision of the magistrate –whether the present appeal lacks utility – leave refused APPEALS – leave to appeal – where the applicant was a party to parenting proceedings before the Federal Circuit and Family Court of Australia – where the applicant sought to commence a private prosecution against the judge who made the parenting proceeding orders – where the applicant seeks leave to appeal from orders made on 10 October 2024 and on 15 August 2024 dismissing an application for review of a Local Court Registrar’s decision to refuse to issue the Court Attendance Notice for the applicant’s private prosecution – leave refused

Catchwords:

CONTRACTS – construction of standard form contract – terms in standard form contract may make provision for eventualities only to apply to the extent activated by parties – parties’ choice not to activate those provisions is not to be undermined by seeking to stretch other words in the contract to fill the purported gap EVIDENCE – onus of proof – language of “shifting” onus apt to deceive – notion of doubtful utility at the end of a hearing or in an appeal

Catchwords:

INSURANCE – policy for life and total and permanent disability (TPD) cover – where life insured provided services to appellant as a construction manager and project supervisor – where life insured undertook hip replacement – where appellant made claim for TPD under policy – meaning of “Own Occupation” under policy – whether primary judge erred in construing “Own Occupation” – no error EVIDENCE – whether primary judge erred in finding the life insured exaggerated his evidence – whether primary judge failed to give adequate weight to expert and documentary evidence – no error

Catchwords:

ADMINISTRATIVE LAW — jurisdictional error — procedural fairness — where District Court refused application to re-examine complainant on conviction appeal — where prosecution case depended on evidence of complainant — whether refusal amounted to denial of procedural fairness ADMINISTRATIVE LAW — jurisdictional error —relevant considerations — whether District Court failed to take into account matters supportive of applicant’s case ADMINISTRATIVE LAW — jurisdictional error — irrelevant consideration — whether District Court incorrectly assumed existence of evidence corroborating complainant’s account — whether District Court failed to take into account evidence inconsistent with complainant’s account ADMINISTRATIVE LAW — jurisdictional error — whether District Court failed to consider all elements of offence — whether sufficient evidence to find conduct was “towards” another person — whether sufficient evidence to find defendant knew of lack of consent

Catchwords:

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

Catchwords:

NEGLIGENCE — non-delegable duty of care — liability — where appellant injured back during primary school long jump competition — where appellant felt feet hit hard surface — whether failure to take reasonable precautions to ensure adequate amount of properly raked sand in landing area — whether failure to take reasonable precautions was a necessary condition of occurrence of harm NEGLIGENCE — damages — assessment of damages — assessment of loss of earning capacity for injury negligently occasioned to child — whether injury likely to be productive of financial loss — assessment of damages for non‐economic loss — whether primary judge erred in assessing damages at 20% of a most extreme case

Catchwords:

CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — where notice of appeal filed out of time — whether value of claim sufficient for purpose of s 101(2)(r) of the Supreme Court Act 1970 (NSW)

Catchwords:

APPEALS — Leave to appeal — leave required — no issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable — leave refused

Catchwords:

EVIDENCE — certificate of conviction — where certificate of conviction is admissible to prove elements of offences for which the perpetrator was convicted — where primary judge misled a litigant in person as to the effect of the Evidence Act 1995 (NSW) — where primary judge denied appellant procedural fairness — whether Court of Appeal ought approach the matter as if the certificate of conviction had been tendered — where primary judge misapprehended the effect of ss 91, 92 and 178 of Evidence Act — where primary judge’s failure to appreciate the admissibility of certificate of conviction to prove elements of offences compromised assessment of the credibility and reliability of the appellant — Evidence Act 1995 (NSW), ss 91, 92, 178 EVIDENCE — tendency evidence — civil proceedings — tendency rule — whether certificate of conviction had significant probative value — Evidence Act 1995 (NSW), ss 97, 100, 135 NEGLIGENCE — duty of care — vicarious liability — whether the State breached its duty of care to the appellant by failing to apply for an adoption order — whether the State breached its duty of care to the appellant by placing her with the perpetrator — whether the State breached its duty of care to the appellant by failing to foster her relationships with her natural siblings — whether the State is vicariously liable for the conduct of the appellant’s former foster carers — whether third respondent breached her duty of care to the appellant by failing to prevent or report the abuse TORTS — trespass to the person — assault — battery — sexual assault — where appellant was physically and sexually abused by her foster carer while a ward of the State — where second respondent had been convicted of criminal offences against the appellant APPEALS — where appellate court has found error — whether court should resolve issue to avoid economic and emotional costs of re-trial — Supreme Court Act 1970 (NSW), s 75A TORTS — general principles –– damages –– aggravated damages –– buffer for past and future economic loss – earning capacity

Catchwords:

PRACTICE AND PROCEDURE – application for recusal – whether apprehended bias – application declined

Catchwords:

ADMINISTRATIVE LAW — Appeals — judicial review — decision of medical assessor referred to review panel — whether primary judge erred in finding that review panel determined the question of causation according to law — where primary judge did not so err ADMINISTRATIVE LAW — Appeals — judicial review — decision of medical assessor referred to review panel — whether primary judge erred in finding that review panel exposed its actual path of reasoning — where primary judge did not so err