Recent decisions for Court of Appeal

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – Costs – Judgment in favour of applicant stayed pending assessment of respondent’s costs – Whether condition for operation of stay satisfied – Whether respondent’s costs set off against judgment debt – Application for review dismissed

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Application to extend interlocutory injunction restraining possession – Injunction granted for short period to enable determination of a stay application

Catchwords:

APPEALS – failure to consider evidence – whether the primary judge failed to consider affidavit evidence filed by the Commissioner of Corrective Services as to arrangements made for the Respondent to access word processing and printing facilities – where orders were made by the primary judge requiring the Commissioner to provide the Respondent with a laptop with such facilities – whether there was a real controversy between the parties at the time the primary judge made those orders CIVIL PROCEDURE – court administration – court powers – control of proceedings – scope of the court’s powers to make orders to ensure effective access to civil proceedings – whether orders made by the primary judge were necessary to ensure the Respondent’s effective access to civil proceedings – where arrangements had been made for the Respondent to access a desktop computer with word processing and printing facilities – where the orders made by the primary judge would affect the operations of a correctional facility

Catchwords:

APPEALS — application for leave to appeal — where applicant made payment claim relating to construction works — where respondent sought reduction of amount on account of payment to third-party supplier — whether respondent sought to “bring any cross-claim” in contravention of Building and Construction Industry Security of Payment Act 1999 (NSW), s 15(4)(b)(i) — leave refused

Catchwords:

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

Catchwords:

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

Catchwords:

APPEALS – Leave to appeal required under s 101(2)(h) and (r) of Supreme Court Act 1970 (NSW) where no readily ascertainable monetary value – Granting of leave matter of discretion ultimately in interests of justice – Dispute substantially resolved prior to hearing below – Disproportional disputation must come to an end APPEALS – Procedure – Parties on appeal – Unrepresented litigants – Court’s function is to ensure fair trial for all parties and does not extend to giving judicial advice to unrepresented litigant JUDGMENTS AND ORDERS – Reasons – Reasons refusing leave to appeal need not be extensive

Catchwords:

CONTRACTS – construction – whether the term “arrears” in Handover Agreement means amount actually owing under Leases or the amount owing under Rent Reduction Arrangements – whether appellants proved the amount owing under Rent Reduction Arrangements CONTRACTS – accord and satisfaction – whether obligation to pay Rental Arrears under Leases was released by an accord, constituted or evidenced by Handover Agreement, which the appellants satisfied APPEAL – where counsel for the appellants at first instance conceded second respondent was not party to Handover Agreement – whether appellants should be permitted to resile from that concession on appeal APPEAL – where appellants contend primary judge should have found entitlement to payment of Rental Arrears was a joint entitlement of first and second respondents – where that contention was not pleaded at first instance – where submissions to this effect were not made to the primary judge – whether appellants should be permitted to raise this contention for the first time on appeal

Catchwords:

CORPORATIONS – authority of company officers – statutory assumptions – Corporations Act 2001 (Cth), ss 128, 129 – loan agreements between property developer and multiple lenders – agreements signed by director without authority of company – agreements also signed by secretary not validly appointed by company – notification of appointment of secretary by ASIC agent of company – reliance on assumptions of authority – exception where party knew or suspected statutory assumptions were incorrect – whether knowledge of lenders’ solicitor was imputed to them for purpose of Corporations Act, s 128(4)

Catchwords:

CONTRACTS – solicitor client retainer – construction of retainer– where the appellant acted for the respondent in various capacities – where the appellant acted for the lender in respect of a loan to the respondent – where the appellant communicated that it would not act for the respondent on a previous transaction involving similar parties – where the transaction contemplated the respondent receiving independent legal advice – where the respondent received independent legal advice – whether primary judge erred in finding that the appellant was retained to act for the respondent in respect of a loan transaction EQUITY – fiduciary duties – breach – whether the primary judge erred in finding that the appellant owed a fiduciary duty to the respondent in respect of entering the loan transaction – whether the primary judge erred in finding that the appellant was relevantly in a position of conflict of interest EQUITY – fiduciary duties – causation – whether the primary judge erred in assessing causation by reference to what would have happened if informed consent was obtained – whether the primary judge erred in finding that the breach of fiduciary duty caused the respondent to enter the loan transaction EQUITY – fiduciary duties – informed consent – whether the primary judge erred in finding that the appellant required the consent of both directors to establish informed consent to it acting for the lender PROCEDURAL FAIRNESS – whether the primary judge erred by determining issues on a basis that was neither pleaded nor run at trial – whether there was any practical injustice arising from the primary judge’s findings PROPORTIONATE LIABILITY – apportionable claims – whether s 34(1) of the Civil Liability Act 2002 (NSW) requires a failure to take reasonable care to be an element of the cause of action

Catchwords:

SUCCESSION – contested probate – testamentary capacity – lack of knowledge and approval – where primary judge’s findings were predicated upon his view of the credibility of the witnesses assessed in the context of the whole body of evidence including contemporaneous medical records and the views of joint experts – Fox v Percy – where lay evidence was diametrically opposed – where no contemporaneous file notes made by the solicitor who prepared the will LEGAL PRACTITIONERS – solicitors – whether the primary judge erred in his assessment of the evidence of the solicitor who prepared the will on the basis that the solicitor was also the solicitor on record for the Respondents – where the primary judge held that the solicitor should have ceased to act earlier than he did APPEALS – from findings of fact – inferences from primary facts – Jones v Dunkel inference – where a witness swore affidavits in support of the Respondents’ case but was not called by the Respondents – where the witness was called by the Appellant but did not appear and a bench warrant was not issued – whether it was natural to expect the witness to have been called – where the witness was a family member with mental health issues and associated vulnerability EVIDENCE – witness evidence – affidavits – use of direct speech to recount past conversations of which a witness recalls only the gist – where direct speech is prefaced with the phrase “words to the following effect” ESTOPPEL – equitable estoppel – estoppel by encouragement – proprietary estoppel – estoppel by acquiescence – where primary judge’s findings as to estoppel expressed in the alternative and as a contingency – no issue of principle

Catchwords:

JUDGMENTS AND ORDERS — Enforcement — Application for stay of writ of possession — Where execution of writ previously stayed based on evidence later found to be a forgery — Where concurrent hearing of application for leave to appeal and substantive appeal was stayed until determination of criminal proceedings against first applicant relating to the forged evidence — Whether writ of possession ought be stayed pending determination of appeal — No reasonable arguable grounds for appeal — Stay least likely to lead to injustice when all relevant factors balanced — Application rejected and notice of motion dismissed

Catchwords:

APPEALS — Leave to appeal — Where statutory right to appeal confined to “a question of law” — Where applicants contend that the application for leave to appeal is brought under “a question of fact, law and jurisdiction” — Where no error or question of law is clearly identified ADMINISTRATIVE LAW — Supervisory jurisdiction — Where summons also sought certiorari for error of law on the face of the record — Conduct of judicial review refused where applicants also sought leave to appeal

Catchwords:

BIAS — Apprehended bias — Application for recusal of judge — Whether previous adverse decisions can ground apprehended bias — Whether comments by judge at commencement of hearing gave rise to reasonable apprehension of bias — recusal application refused

Catchwords:

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

Catchwords:

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

Catchwords:

PERSONAL PROPERTY – Property (Relationships) Act 1984 (NSW) – Domestic relationship between father and adult daughter – Deed entered into for father to transfer family house to daughter while retaining continuing right of occupation – Father moved out given dispute with daughter’s son – Error in taking account of inheritance – Error in undervaluing father’s contribution pursuant to the Deed – Incomplete reasoning – Consideration of matters not properly in issue and of little weight – Making of unfair and irrelevant findings – Re-exercise of discretion on appeal COSTS – Failure to make an offer of compromise not to be held against a party

Catchwords:

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

Catchwords:

SUCCESSION — Mandatory interlocutory injunction Succession Act 2006 (NSW), s 62 — Leave to appeal refused

Catchwords:

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

Catchwords:

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

Catchwords:

COSTS — appeal allowed on terms — whether plaintiff acted unreasonably in rejecting Calderbank offer — whether partial success of plaintiff warranted favourable costs order — whether successful appellants’ obligation to pay compensation should be stayed pending assessment of costs

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Objection to competency of appeal – Where leave to appeal required but not sought COSTS – Costs of appeal which dismissed as incompetent – Minor and inconsequential delay in service of motion – No reason costs not to follow event

Catchwords:

CONSUMER LAW – Misleading conduct under statute – Misleading or deceptive conduct – Whether positive representations made as to contamination on land – Whether there was a reasonable expectation of disclosure – Whether disclosures made amounted to half-truths CONTRACTS – Construction – Whether primary judge erred in construing “as far as possible” in the context of an obligation to assist in due diligence process – Whether vendor under positive obligation to disclose all matters which may be relevant – Appeal dismissed with costs

Catchwords:

EQUITY – trusts – estoppel – siblings transferred assets to parent – ongoing businesses operated by trustee of discretionary trust – parent the sole director and shareholder of trustee – siblings found to be shadow directors of trustee – whether primary judge erred in finding that assets held by parent on trust for siblings – whether primary judge erred in finding that trustee estopped from distributions with less than 50% to one sibling – whether breach of non-fettering principle – trustee made determinations in favour of one sibling’s spouse – whether primary judge erred in finding that distributions not paid and were owing – whether unpaid distributions should attract interest – whether credit should be given for tax paid

Catchwords:

SUCCESSION – Contested grant of Thai will – Executed in circumstances where testatrix ill with cancer – Primary judge held testator had capacity – Relevance of absence of medical records suggesting a lack of capacity – Primary judge taking into account universe of evidence – Suspicious circumstances – Whether established – Desirability of pleading or particularising suspicious circumstances

Catchwords:

OCCUPATIONS – medical practitioners – professional negligence – bariatric surgery – patient discharged with intra-abdominal haematoma – peer professional opinion – whether discharge widely accepted as competent professional practice by peer professional opinion in Australia – Civil Liability Act 2002 (NSW), s 5O

Catchwords:

ASSESSMENT OF DAMAGES – where plaintiff in the court below seriously injured in a fall on a building site – whether plaintiff contributed by his own negligence to his loss and damage or was merely inadvertent when performing work duties – whether plaintiff retained residual earning capacity – whether damages awarded for future economic loss, future domestic assistance and out-of-pocket expenses were manifestly excessive TORTFEASORS – contribution between tortfeasors – whether trial judge erred in assessment of respective liability between occupier of building site and plaintiff’s employer CROSS-APPEAL – damages for non-economic loss – whether trial judge erred in assessment of percentage of a most extreme case – whether plaintiff established that gratuitous attendant care services would not have been provided but for his injury

Catchwords:

CIVIL PROCEDURE – appeal from decision of Appeal Panel of NCAT – application for leave to appeal pending – stay of issue of writ of possession sought pending determination of appeal – writ issued and executed before stay sought – stay no longer available

Catchwords:

LEGAL PRACTITIONERS — Disciplinary proceedings — Misappropriation of trust accounts — Practitioner convicted of three offences under s 192E(1)(b) of the Crimes Act 1900 (NSW) —Declaration that the practitioner is not a fit and proper person to remain on the Roll of Australian Lawyers

Catchwords:

COSTS – re-exercise of costs discretion after partially successful appeal

Catchwords:

PROCEDURE – stay of execution – whether any purpose served in application being heard prior to imminent hearing of summons seeking final relief

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:

CONTRACT – contracts for residential building work – trial of claims for damages following dispute between owners and builder resolved by work being completed by builder – whether pleaded case extended to claim for damages for breach of contract, as opposed to deceit and statutory unconscionability – whether trial conducted on basis which departed from pleadings – whether primary judge erred in excluding valuation evidence and concluding no evidence of loss – effect of owners’ delayed payment of progress claims on their claims for damages – calculation of damages

Catchwords:

APPEALS – Adequacy of reasons – Brief ex tempore reasons – Distinct claim in tort not addressed – No substantial wrong or miscarriage occurred due to failure to address – Appellant not deprived of possibility of successful outcome APPEALS – From findings of fact – Finders of fact entitled to degree of practical judgment with respect to certain matters – Limits of judicial notice – No substantial wrong or miscarriage – Failure to address claimed tendency to violence – Not necessary in every case for judge to determine whether to accept version of events given by party not bearing the onus

Catchwords:

COSTS – Indemnity costs – Offer of compromise – Calderbank offer – Real and genuine element of compromise – Degree of compromise assessed cumulatively – No explanation as to significant costs asserted to have been incurred before exchange of submissions – No reason first respondent should obtain advantage of consensus later broken out to alter precise sums awarded COSTS – Active role played by second and third respondents appropriate and useful

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule – application to vary orders made in February 2024 – composite sum payable by appellants – assumption that each appellant liable for particular sums – interest calculable from different dates – reformulation of orders

Catchwords:

APPEALS – leave to argue point not raised below – need for statement of findings challenged – Uniform Civil Procedure Rules 2005 (NSW), r 51.36 CONTRACTS – express terms – incorporation of terms – written contract – customer required to tick box on sales agreement agreeing to agree to supplier’s standard terms – link to standard terms not working at time of execution – whether link was to document produced in evidence by supplier CONTRACTS – construction – commercial context – prior dealings between parties – whether specific terms consistent with minimum annual quantity clause in standard terms – operation of exclusivity clause

Catchwords:

COSTS – Indemnity costs – on appeal – Calderbank offer – offer open for two days – where offer made before service of appellant’s written submissions – whether respondents’ non-acceptance was reasonable

Catchwords:

APPEALS – procedure – stay pending appeal – where bankruptcy notices issued against appellant and second respondent in respect of costs order made below – whether risk that enforcement of costs order would stultify appeal and cross-appeal

Catchwords:

ADMINISTRATIVE LAW — Jurisdictional error — Environmental Planning and Assessment Act 1979 (NSW) — where development consent granted for mine that was State significant development under Div 4.7 — where consent authority did not turn its mind to the likely effects of a necessary power transmission line which was not part of the development application in circumstances where it was proposed that it be included in a later application under Pt 5 — where the precise alignment of the power transmission line was described as unknown — whether transmission line was part of a “single proposed development that is State significant development” under s 4.38(4) — whether the likely environmental impacts of the transmission line were a matter for the consent authority or the court — whether likely environmental impacts of the transmission line were required to be considered by the consent authority — transmission line part of “single development”, but could be subject to later separate application under Pt 4 — likely impacts of the transmission line were nonetheless required to be considered as likely effects of the mine the subject of the development application — the consent authority failed to exercise its jurisdiction by failing to consider the transmission line in its determination — appeal allowed.

Catchwords:

PRACTICE AND PROCEDURE – Security for costs – Application for review of decision of Adamson JA – Review of decision of Registrar ordering security for costs of appeal – Consideration of public importance – Prospects of appeal – Issue of stultification – Obligations as model litigant

Catchwords:

ESTOPPEL — proprietary estoppel — standing by — where appellants registered proprietors — where appellants allowed respondents to occupy property long term for no rent — whether first appellant paid for property — whether first appellant asserted ownership of property to respondents — proprietary estoppel not made out APPEALS — review of findings of primary fact — whether primary judge erred by failing to make findings of fact — where evidence lost to passage of time — where multiple conflicting witnesses — error in finding on basis not put to parties or supported by evidence — evidence sufficient to support finding — findings made pursuant to s 75A of the Supreme Court Act 1970 (NSW)

Catchwords:

COSTS – party/party – offers of compromise – where the appellants seek variations to the costs orders made on appeal – where appellants issued offers of compromise to the respondent prior to the commencement of the appeal proceedings – where no notice of motion to vary the costs orders was filed within 14 days of the orders being entered as required by r 36.16(3A) UCPR – whether a letter sent between the parties can be characterised as an application or an intention to make an application to vary a costs order – requirement for a notice of motion dispensed with pursuant to s 14 Civil Procedure Act 2005 (NSW) – where the appellants obtained a judgment that was no less favourable to them than the terms of the offers issued to the respondent – where offers of compromise not renewed between the trial and the appeal

Catchwords:

VALUATION – Compensation for compulsory acquisition of strip of land used for road to Sydney Airport – Market value – Procedural fairness in rejecting valuation method proposed – Notice of basis of rejection – Issue raised both in submissions and on the facts – Running commentary on submissions not required VALUATION – Market value – Statutory disregard of change in value caused by public purpose – Challenge partly overtaken by subsequent case law – No disregard for change in value resulting from owner’s free choice due to suspected acquisition VALUATION – Special value and disturbance – Tax gross up – Issue not raised – No basis for criticism for failing to give reasons with respect to claim not made APPEALS – Jurisdiction of appellate court – Appeal from Land and Environment Court – Question of law – Claimed constructive failure to exercise jurisdiction to make allowance for potentialities – Matter not put as part of appellant’s case below – Complex factual issue necessitating further evidence – No constructive failure – In substance appellant had been seeking to reopen its case

Catchwords:

CONTRACTS – Interpretation – Whether payments totalling $1.3 million were made by respondent to appellant as a loan – Whether evidence established common assumption between parties as to nature of sum – Whether private uncommunicated views inconsistent with asserted characterisation – Appeal dismissed COSTS – Appeal from costs order of primary judge – Where primary judge ordered each party to bear own costs on the basis that the result was “mixed” – Where final result in proceedings was judgment in favour of AGT – Identification of relevant “event” for purposes of r 42.1 of Uniform Civil Procedure Rules 2005 (NSW) where result mixed – Apportionment of costs on an impressionistic basis – Proportionate reduction appropriate – Cross-appeal allowed APPEALS – Where cross-appeal initially brought with respect to grounds other than strictly costs – Where substantive grounds subsequently fall away – Whether leave to appeal necessary

Catchwords:

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

Catchwords:

LEASES – whether a sub-clause of the leases entered into between the appellant (lessee) and each of the respondents (lessors), which provided for restrictions on the lessee dealing with its interest and rights/obligations under the leases, applied to the grant of a proposed licence by the lessee to a third party granting access rights – where that sub-clause was contained within a clause dealing with restrictions on assignment of the leases without the relevant lessor’s consent LEASES – if the sub-clause applied – whether the lessors unreasonably withheld their consent to the grant of the proposed licence deed CONTRACTS – construction – whether the lessee was entitled to grant the proposed licence without the lessors’ consent – where the lessee and lessors had shared rights to use the land the subject of the leases – where the lessee failed to exercise an option granted to it for the creation of an access easement, which would have resolved the issue of access by the third party

Catchwords:

APPEALS — procedure — time limits — whether notice of appeal ought be dismissed for failure to serve on respondent in time CIVIL PROCEDURE — summary disposal — notice of motion seeking striking out or dismissal of proceedings — abuse of process — no reasonable cause of action — frivolous or vexatious proceedings — where self-represented appellant failed to adequately draft grounds of appeal

Catchwords:

COSTS – Application to vary costs order under Uniform Civil Procedure Rules (NSW), r 36.16 – where no notice of motion filed seeking such variation – where requirement to file notice of motion dispensed with pursuant to Civil Procedure Act 2005 (NSW), s 14 – where appellants seek an order that the respondents pay the appellants’ costs of the appeal proceedings on an ordinary basis up to 11 June 2024 and thereafter on an indemnity basis COSTS – Where appellants successful on appeal – where prayers 1-4 in the appellants’ summons remitted to primary judge for determination – whether respondents should pay the appellants’ costs of the proceedings at first instance – whether appellants will be entitled to the whole of their costs of the proceedings at first instance – whether order as to costs of the proceedings at first instance premature

Catchwords:

ADMINISTRATIVE LAW — Jurisdictional error — Children and Young Persons (Care and Protection) Act 1998 (NSW) — where care orders made by the Children’s Court removed parental responsibilities from mother — where care orders confirmed on appeal by the District Court — where no appeal lies to the Court of Appeal — where part of applicant’s evidence not considered by judge — no cross-examination or argument addressed to judge on evidence not considered — whether judge displayed apparent bias — whether applicant denied procedural fairness — whether decision was legally unreasonable — nothing in transcript of hearing under review demonstrates reasonable apprehension of bias or procedural fairness — findings of judge were not unreasonable in any sense of the word — summons dismissed.

Catchwords:

INSURANCE – liability insurance – professional indemnity insurance – legal practitioners’ “approved insurance policy” for purposes of s 210 of Legal Profession Uniform Law (NSW) – whether s 95(2) of Legal Profession Uniform Law Application Act 2014 (NSW) confers power on Attorney General to approve insurer under policy – whether, for purposes of s 210(1)(a), s 95 is a “legislative arrangement for the approval or selection of insurers”

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – solicitor – whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers - where Respondent convicted of six offences involving false and misleading conduct and participation in a criminal group and sentenced to a term of imprisonment – where Respondent did not oppose relief sought

Catchwords:

ESTOPPEL – Proprietary estoppel – Where representations made by appellants to respondents (their daughter and son-in-law) as to ownership of various farming properties and interest in family farming business – Where following a “catastrophic falling out” of the relationship between them, appellants resiled from those representations – Whether representations were sufficient to ground a proprietary estoppel – Whether respondents reasonably relied on representations – Whether respondents suffered detriment – Whether representations were conditional such that the change in circumstances following the falling out between the parties meant that the appellants’ departure from their representations was not unconscionable APPEALS – Leave to appeal – Whether leave required for cross-appeal solely as to costs COSTS – Party/Party – Where primary judge ordered that each party bear his or her own costs – Where respondents were substantially successful at first instance but did not receive entirety of relief sought – Re-exercise of discretion as to costs

Catchwords:

ADMINISTRATIVE LAW – Jurisdictional error –Whether District Court should have declined to hear appeal from application to extend apprehended domestic violence order – Whether applicant denied natural justice and procedural fairness – Whether primary judge applied correct test – Whether primary judge’s ex tempore reasons adequate – Summons dismissed

Catchwords:

LIMITATION OF ACTIONS – breaches of fiduciary duty by director – claims by company for equitable relief against director and associated third parties – when company “first discovers” facts giving rise to claim for purposes of Limitation Act 1969 (NSW), s 47(1)(e) – principles applicable to attribution of director’s knowledge to company – whether those principles involve application of general rule in favour of attribution subject to “fraud exception” turning on whether company received benefit from director’s conduct – director’s knowledge of circumstances of breaches not attributed to company where attribution sought to defeat company’s claims EQUITY – equitable remedies – where director misappropriates company funds – where director subsequently characterises payment to him of company funds as a “loan” – whether later payment by director to company should be treated as reducing amount of equitable compensation to which company entitled – not established that later payment when made was to be applied in reduction of “loan”

Catchwords:

CONTRACTS – Construction of a commercial lease – Whether COVID public health restrictions prevented tenant from “opening” the premises for business – Paramount clause to be construed before paramountcy can take effect – Not construed to require illegal activity CONTRACTS – Termination – Frustration – Impossibility of performance – Frustration does not apply as COVID public health orders as supervening event was risk for which tenant had assumed responsibility under the lease – Relevant orders did not require radical or fundamental change in what contracted for in any event

Catchwords:

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

Catchwords:

COSTS – Security for costs – delay in making application for security – appeal date vacated if order for security made - motion dismissed

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Whether primary judge erred in finding jurisdictional error and error of law – Failure of medical assessor to assess relevant material and make deduction based on previous injury – Whether Medical Appeal Panel of the Personal Injury Commission exceeded scope of grounds of appeal – Whether assessment de novo within grounds of appeal

Catchwords:

APPEALS – motor vehicle accident – whether primary judge erred in rejecting appellant’s evidence – whether factual error involved a finding contrary to incontrovertible facts – whether the matter should be remitted for retrial in the District Court

Catchwords:

NEGLIGENCE — Workplace injury — Where worker fell in a stormwater drain on construction site — Whether accident occurred as alleged — Competing testimony of witnesses — Whether director of appellant knew or ought to have know that the drain was uncovered — Director knew the drain was uncovered NEGLIGENCE — Duty of care — Duty of occupier to employee of subcontractor — Whether it was reasonable for occupier to assume that that a competent contractor would have addressed the risk — Occupier owes a duty to use reasonable care to avoid physical injury to individuals on site — Occupier was negligent NEGLIGENCE — CLA s 5D — Whether the negligence was a necessary condition of the occurrence of the harm — Proximate cause irrelevant WORKERS COMPENSATION — Common law remedies — Workers Compensation Act 1987 (NSW) ss 151A and 151Z — Damages payable by a non-employer — Proper operation of s 151Z(2) — Consensual adjustment of figures

Catchwords:

APPEALS – point not taken below – whether argument sought to be run on appeal was outside the pleadings and the manner in which the case was run at first instance – where evidence relied upon by the Respondent on appeal was not challenged by the Appellant at first instance given the way the case has been formulated and run CONTRACTS – formation – consideration – forbearance to sue – whether there was a presently owing debt as at the date when the agreement was entered into – whether the primary judge made a finding that there was a presently owing debt as at the date when the agreement was entered into – where pleadings were silent as to how any indebtedness was said to have arisen – where the Respondent sought to advance a different argument on appeal that was not pleaded at first instance and did not reflect the way the trial was conducted at first instance

Catchwords:

CIVIL PROCEDURE — parties — removal of parties — application to remove employee of the registry of the New South Wales Civil and Administrative Tribunal (NCAT) as party to proceedings — where claim was for judicial review of an NCAT decision — whether employee was a necessary and proper party

Catchwords:

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — frivolous or vexatious proceedings — no reasonable cause of action disclosed — abuse of process — whether primary judge erred in dismissing proceedings — where applicant sought government grant for sporting achievements CIVIL PROCEDURE — summary disposal — dismissal of proceedings — incompetence — where leave to appeal was required — where a summons seeking leave was not filed

Catchwords:

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

Catchwords:

EQUITY – fiduciary duty – existence – whether employee owes fiduciary obligations to employer – whether employee recognised as accepted category of fiduciary – separate element as to whether employee’s conduct falls within scope of fiduciary obligation – whether open to Australian courts below the High Court to reject separate elements of existence and scope of fiduciary obligations of senior employees – Nottingham University v Fishel [2000] EWHC 221 (QB); [2000] IRLR 471 disapproved EQUITY – fiduciary duty – knowing involvement in breach – level of assistance sufficient to render third party liable – extent of knowledge sufficient to render third party liable – circumstances when knowledge imputed to third party – scope of “fraud exception” EQUITY – fiduciary duty – breach – causation – where loss of opportunity turned upon alleged further breach of trust by trustee to which fiduciary obligations were owed by employees – whether such further breach of trust stood in way of assessment of liability of fiduciaries and knowing assistants – whether proposition produces incoherence and leaves dishonest fiduciaries with a windfall – whether allegation of further breach of trust put to trustee – whether there was informed consent to any further breach of trust EQUITY – fiduciary – breach – loss of a chance – whether any lost opportunity caused by breaches was so speculative that it was not valuable – assessment of loss of chance – discounts for future contingencies – appropriateness of “global” discount because future contingencies not independent – significance of paucity of evidence being a consequence of breaches of fiduciary duty – appropriateness of drawing inferences and resolving doubtful questions against fiduciary

Catchwords:

ADMINISTRATIVE LAW — judicial review — decision of medical appeal panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where appeal panel revoked medical assessor’s assessment of whole person impairment —whether primary judge erred in finding no jurisdictional error in appeal panel’s decision — whether primary judge erred in finding no denial of procedural fairness in appeal panel’s decision WORKERS COMPENSATION — injury — dispute as to assessment of whole person impairment — deduction for previous injury pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where medical assessor did not refer to evidence of previous injury — powers of medical appeal panel to revoke and issue new certificate of assessment

Catchwords:

CONSUMER LAW – Misleading or deceptive conduct – Purported termination of contract – “No transaction” case – Termination unavailable where breach of contract was minor and innocent party affirmed the contract COURTS AND JUDGES – Bias – Alleged “differential” treatment of parties – Adverse credibility assessments not evidence of bias COSTS – Where a judge other than the trial judge determines costs – Offer of compromise unreasonably rejected – Discretion as to costs not constrained by Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) where primary judge expressly provided opportunity to apply to vary costs order under that rule.

Catchwords:

PROFESSIONS AND TRADES – medical practitioners – application for reinstatement – deregistered medical practitioner applied for reinstatement order – NCAT made order – Medical Council appealed, purportedly as of right – appeal as of right confined to questions of law – notice of appeal failed to identify any questions of law – belated application for leave to appeal on other grounds – whether error of law in NCAT’s decision – whether any other error disclosed – appeal dismissed

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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