NSWCA

Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2022] NSWCA 108 (28 June 2022) (Ward P, Gleeson and Mitchelmore JJA, Basten AJA and Preston CJ Of Lec)

Catchwords: LAND LAW – compulsory acquisition of land – compensation – compensable interests in land – bare licence to occupy land terminable at will by owners – interest had no market value – meaning of “privilege over, or in connection with, land” – claim for compensation for losses attributable to disturbance – Land Acquisition (Just …

Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2022] NSWCA 108 (28 June 2022) (Ward P, Gleeson and Mitchelmore JJA, Basten AJA and Preston CJ Of Lec) Read More »

Morsingh v Health Care Complaints Commission [2022] NSWCA 106 (28 June 2022) (White and Mitchelmore JJA, Basten AJA)

Catchwords: APPEAL – disciplinary proceedings – finding of professional misconduct – order of NCAT cancelling registration of medical practitioner – appeal as of right restricted to question of law – challenge to acceptance of complainant’s evidence – challenge to severity of disciplinary order – whether a lesser order would have served the public interest – …

Morsingh v Health Care Complaints Commission [2022] NSWCA 106 (28 June 2022) (White and Mitchelmore JJA, Basten AJA) Read More »

Henderson v Capita Mortgage Pty Ltd [2022] NSWCA 107 (27 June 2022) (Meagher JA)

Catchwords: APPEALS – procedure – where notice of appeal consists of 50 paragraphs in form of lengthy narrative statements which do not identify asserted errors of primary judge or challenged facts (cf UCPR r 51.18) – where most of those paragraphs vexatious and abuse of process – notice of appeal struck out and direction made …

Henderson v Capita Mortgage Pty Ltd [2022] NSWCA 107 (27 June 2022) (Meagher JA) Read More »

Centuria Property Funds Ltd v Thorn Australia Pty Ltd [2022] NSWCA 104 (23 June 2022) (Ward P, Gleeson and White JJA)

Catchwords: CONTRACTS — Deeds — Whether binding lease or agreement for lease came into existence prior to withdrawal by respondent from proposed lease transaction — Where heads of agreement reserved parties’ right to withdraw from and terminate negotiations at any time prior to execution of lease documents by both parties — Where respondent provided executed …

Centuria Property Funds Ltd v Thorn Australia Pty Ltd [2022] NSWCA 104 (23 June 2022) (Ward P, Gleeson and White JJA) Read More »

Amgad v Cairns [2022] NSWCA 101 (22 June 2022) (Gleeson JA)

Catchwords: CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where proposed appeal is devoid of merit – where Applicant has a prolonged grievance against his former counsel – where applicant unlikely to accept advice explaining defects in his case

Chisak v Presot [2022] NSWCA 100 (21 June 2022) (Macfarlan, Gleeson and White JJA)

Catchwords: SUCCESSION – Alleged lack of testamentary capacity – Alleged lack of knowledge and approval SUCCESSION – FAMILY PROVISION – Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 – Whether appellant is an ‘eligible person’ under s 57(1) of the Succession Act 2006 (NSW) – Whether appellant was wholly …

Chisak v Presot [2022] NSWCA 100 (21 June 2022) (Macfarlan, Gleeson and White JJA) Read More »

Daley v Donaldson [2022] NSWCA 96 (17 June 2022) (Leeming, White and Mitchelmore JJA)

Catchwords: SUCCESSION – application for family provision order by biological son of deceased – approval of compromise under Succession Act 2006 (NSW) s 98 – parties entered into compromise following mediation – executrix opposed making orders giving effect to compromise – shortly after compromise reached, executrix came to believe applicant had been formally adopted – …

Daley v Donaldson [2022] NSWCA 96 (17 June 2022) (Leeming, White and Mitchelmore JJA) Read More »

Morris v Leaney [2022] NSWCA 95 (17 June 2022) (Payne, White and Beech-Jones JJA)

Catchwords: PROFESSIONAL NEGLIGENCE – architect – respondent was engaged as architect for appellant’s home renovations – appellants indicated initial budget of $300,000 which was later revised to $600,000 – respondent provided “opinion on probable cost” of $590,000 excluding GST and other items in April 2015 for preliminary design – further additions to design thereafter – …

Morris v Leaney [2022] NSWCA 95 (17 June 2022) (Payne, White and Beech-Jones JJA) Read More »

O’Connor v O’Connor [2022] NSWCA 97 (17 June 2022) (Bell CJ, Ward P and Leeming JA)

Catchwords: APPEAL – plaintiffs claimed damages for breach of agreement to issue shares – primary judge dismissed claim but indicated alternative case which might succeed – whether primary judge ought to have upheld claim based on alternative case – whether alternative case subject of concession at trial – whether concession wrongly elicited by primary judge …

O’Connor v O’Connor [2022] NSWCA 97 (17 June 2022) (Bell CJ, Ward P and Leeming JA) Read More »

Smith v The Council of Trinity Grammar School [2022] NSWCA 93 (14 June 2022) (Gleeson and Leeming JJA)

Catchwords: CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assault in 1981 – alleged perpetrator died before defendant on notice of any allegation – no other witnesses to assaults – many critical witnesses deceased or unavailable – absence of documents – no basis for grant of leave to appeal …

Smith v The Council of Trinity Grammar School [2022] NSWCA 93 (14 June 2022) (Gleeson and Leeming JJA) Read More »

Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92 (09 June 2022) (Ward P, Meagher JA and Basten AJA)

Catchwords: JUDICIAL REVIEW – review of judgment of District Court on appeal from Local Court – criminal jurisdiction – jurisdictional error – failure of judge to refer to submission of defendant – failure of judge to refer to absence of corroborative evidence – no basis for concluding judge mistook the extent or limits of his …

Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92 (09 June 2022) (Ward P, Meagher JA and Basten AJA) Read More »

BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd [2022] NSWCA 82 (03 June 2022) (Ward P, Leeming, White and Brereton JJA, Basten AJA)

Catchwords: BUILDING AND CONSTRUCTION – adjudication – payment claim – existence of “one contract” rule – whether entitlement to serve payment claim must arise under one contract – whether “one contract” rule conditions validity of payment claim CONTRACTS – construction – where contract provided that each work order constituted a new agreement – whether there …

BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd [2022] NSWCA 82 (03 June 2022) (Ward P, Leeming, White and Brereton JJA, Basten AJA) Read More »

Irlam v Byrnes [2022] NSWCA 81 (03 June 2022) (Simpson AJA, N Adams and Cavanagh JJ)

Catchwords: JUDGMENTS AND ORDERS — Reasons — Uniform Civil Procedure Rules 2005 (NSW), r 36.2(2) — Delivery of reasons subsequent to delivery of judgment — Delay APPEALS — From finding of fact — Impermissible inferences — Improper admission or rejection of evidence TORTS — Intentional torts — Trespass to the person — Battery — Statutory …

Irlam v Byrnes [2022] NSWCA 81 (03 June 2022) (Simpson AJA, N Adams and Cavanagh JJ) Read More »

Zong v Wang [2022] NSWCA 80 (01 June 2022) (Leeming, White and Brereton JJA)

Catchwords: CONSUMER LAW – Misleading or deceptive conduct – Whether conduct is “in trade or commerce” – Requirement that conduct is commercial in character – No requirement of an extant commercial operation – Negotiations may be commercial even though the setting is social CONSUMER LAW – Misleading or deceptive conduct – Whether primary judge erroneously …

Zong v Wang [2022] NSWCA 80 (01 June 2022) (Leeming, White and Brereton JJA) Read More »

The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 (01 June 2022) (Macfarlan, Brereton and Mitchelmore JJA)

Catchwords: CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assault in 1968 – where alleged perpetrator died before applicant on notice of allegation – where no other witnesses to alleged assault – where no documents dating back to or around the time of the alleged assault relating to allegation …

The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 (01 June 2022) (Macfarlan, Brereton and Mitchelmore JJA) Read More »

Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2022] NSWCA 79 (31 May 2022) (Macfarlan JA)

Catchwords: COSTS – application for security for costs of appeal – respondent did not establish that there is reason to believe that the appellant will be unable to pay the costs of the appeal (see UPCR r 42.21(1)(d) and Corporations Act s 1335(1)) or that the appellant has divested assets with the intention of avoiding …

Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2022] NSWCA 79 (31 May 2022) (Macfarlan JA) Read More »

Barbieri v Pirovic [2022] NSWCA 76 (25 May 2022) (Gleeson and Mitchelmore JJA)

Catchwords: LEAVE TO APPEAL – whether extension of time should be granted – where significant delay of 10 months – where applicant had legal advice – where applicant’s earlier notice of appeal challenging principal judgment and costs orders dismissed as incompetent – where applicant now sought extension of time to challenge only costs orders – …

Barbieri v Pirovic [2022] NSWCA 76 (25 May 2022) (Gleeson and Mitchelmore JJA) Read More »

S&C Nicola Pty Ltd v Peter Holmes Investment Pty Ltd [2022] NSWCA 72 (06 May 2022) (Macfarlan, Leeming and White JJA)

Catchwords: CONTRACTS – construction and interpretation –partnership agreement – whether interest on funds provided to the partnership by one partner to be treated as a partnership expense or as an independent debt to be paid by the other partner – whether inconsistency between agreement’s recitals and operative provisions and how any such inconsistency to be …

S&C Nicola Pty Ltd v Peter Holmes Investment Pty Ltd [2022] NSWCA 72 (06 May 2022) (Macfarlan, Leeming and White JJA) Read More »

Twigg v Twigg [2022] NSWCA 68 (04 May 2022) (Bell CJ, Payne and Brereton JJA)

Catchwords: EQUITY – Fiduciary duties – Breach – Where director of corporate trustee caused trust funds to be distributed to himself – Whether written resolutions effecting valid distribution were adopted by relevant date – Whether director had been delegated authority to make distributions alone – Whether trust monies held on constructive trust EQUITY – Trusts …

Twigg v Twigg [2022] NSWCA 68 (04 May 2022) (Bell CJ, Payne and Brereton JJA) Read More »

Li v Liu [2022] NSWCA 67 (29 April 2022) (Meagher, White and Beech-Jones JJA)

Catchwords: RESTITUTION – illegal contract – contract involving “investment” in local company in return for employing foreign national to fulfil visa criteria – agreement rendered unlawful by Migration Act 1958 – recovery of amounts “invested” in restitution – amount paid to Director on behalf of counter party company – whether restitution permissible – whether Director …

Li v Liu [2022] NSWCA 67 (29 April 2022) (Meagher, White and Beech-Jones JJA) Read More »

Edwin Davey Pty Ltd v Boulos Holdings Pty Ltd [2022] NSWCA 65 (26 April 2022) (Macfarlan and Gleeson JJA, Simpson AJA)

Catchwords: CONTRACT – breach of contract – land sale contract – nature of breach – failure to complete by fixed date – where time not of the essence – whether failure to complete on time a continuing breach – substantive and temporal nature of obligation to complete CONTRACT – remedies – damages – causation – …

Edwin Davey Pty Ltd v Boulos Holdings Pty Ltd [2022] NSWCA 65 (26 April 2022) (Macfarlan and Gleeson JJA, Simpson AJA) Read More »

Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (14 April 2022) (Bell CJ, White JA and Harrison J)

Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – appeal against decision of Medical Council of NSW to suspend the registration of a medical practitioner – construction of s 150 of the Health Practitioner Regulation National Law (NSW) – where no complaint had been made about the practice of the …

Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (14 April 2022) (Bell CJ, White JA and Harrison J) Read More »

The Owners – Strata Plan 87265 v Saaib; Alexandrova v The Owners – Strata Plan 87265 [2022] NSWCA 63 (14 April 2022) (Basten, Macfarlan and Gleeson JJA)

Catchwords: APPEALS – from findings of fact – primary judge assessed credibility and reliability of two witnesses – findings not expressed to be based on demeanour – applicable test for appellate intervention – whether primary judge gave sufficient weight to combined effect of relevant circumstances EVIDENCE – tendency evidence – whether evidence relating to a …

The Owners – Strata Plan 87265 v Saaib; Alexandrova v The Owners – Strata Plan 87265 [2022] NSWCA 63 (14 April 2022) (Basten, Macfarlan and Gleeson JJA) Read More »

Camenzuli v Morrison (No 2) [2022] NSWCA 62 (14 April 2022) (Basten, Leeming and Payne JJA)

Catchwords: COSTS – party/party – award in favour of jointly represented active defendants against unsuccessful plaintiff – claim by non-active defendants in same interest – principle favouring single award where parties in same interest – claim by proposed defendants on joinder motion which lapsed with rejection of primary claim – whether plaintiff should pay costs …

Camenzuli v Morrison (No 2) [2022] NSWCA 62 (14 April 2022) (Basten, Leeming and Payne JJA) Read More »

Jandson Pty Ltd v Edmonds [2022] NSWCA 61 (13 April 2022) (Bell CJ, Macfarlan and White JJA)

Catchwords: CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where alleged that primary judge had overlooked and or not dealt with a particular argument in relation to costs – where it had been open to the applicant for leave to have approached the primary judge pursuant to UCPR 36.16 to …

Jandson Pty Ltd v Edmonds [2022] NSWCA 61 (13 April 2022) (Bell CJ, Macfarlan and White JJA) Read More »

Marlin Brands Australia Ltd v Brando Aus Holdco Pty Ltd [2022] NSWCA 59 (12 April 2022) (Meagher, Leeming and Brereton JJA)

Catchwords: APPEAL – interlocutory decision – joinder of additional defendants back-dated to commencement of proceedings – challenge to decision to back-date joinder – consequent upon potential contractual limitation defence – where outcome of appeal would not prevent trial – variety of ways in which issue might not arise – absence of full argument on construction …

Marlin Brands Australia Ltd v Brando Aus Holdco Pty Ltd [2022] NSWCA 59 (12 April 2022) (Meagher, Leeming and Brereton JJA) Read More »

Franklin v Director of Public Prosecutions [2022] NSWCA 58 (12 April 2022) (Basten, Macfarlan and Brereton JJA)

Catchwords: CRIME — appeal and review — appeal from Local Court to District Court — privative clause precludes judicial review unless jurisdictional error — whether refusal by a District Court judge to state a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW) amounted to a jurisdictional …

Franklin v Director of Public Prosecutions [2022] NSWCA 58 (12 April 2022) (Basten, Macfarlan and Brereton JJA) Read More »

Hrdavec v State of New South Wales [2022] NSWCA 52 (07 April 2022) (Bell P, Basten and White JJA)

Catchwords: TORTS – trespass to the person – false imprisonment – wrongful arrest – reasonable grounds to suspect –genuine belief of arresting officer – appellant named and described by victim – statement by co-accused placed appellant at scene – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 TORTS – malicious prosecution – laying …

Hrdavec v State of New South Wales [2022] NSWCA 52 (07 April 2022) (Bell P, Basten and White JJA) Read More »

Camenzuli v Morrison [2022] NSWCA 51 (05 April 2022) (Basten, Leeming and Payne JJA)

Catchwords: ASSOCIATIONS AND CLUBS – jurisdiction of courts – justiciability – whether party pre-selection process justiciable – application of Cameron v Hogan (1934) 51 CLR 358; [1934] HCA 24 – whether statutory provisions create an interest in members allowing Court to enforce procedures under Party Constitution ASSOCIATIONS AND CLUBS – unincorporated political party – pre-selection …

Camenzuli v Morrison [2022] NSWCA 51 (05 April 2022) (Basten, Leeming and Payne JJA) Read More »

Todorovska v Brydens Lawyers Pty Ltd [2022] NSWCA 47 (29 March 2022) (Basten, Leeming and White JJA)

Catchwords: APPEALS – leave to appeal – principles governing – public importance – regulation of legal practitioners’ dealings with clients – where costs two-thirds of judgment amount LEGAL PRACTITIONERS – costs – personal injury claims – statutory cap on costs – removal of cap on solicitor/client costs – removal by entering into costs agreement – …

Todorovska v Brydens Lawyers Pty Ltd [2022] NSWCA 47 (29 March 2022) (Basten, Leeming and White JJA) Read More »

Starr v Miller [2022] NSWCA 46 (29 March 2022) (Macfarlan, Meagher and White JJA)

Catchwords: SUCCESSION — contested probate application —whether the deceased had testamentary capacity at the time she gave instructions for and executed the will — whether the deceased knew and approved of the terms of the will — whether deceased’s statement that she was not agreeable to one of her daughters getting any money was a …

Starr v Miller [2022] NSWCA 46 (29 March 2022) (Macfarlan, Meagher and White JJA) Read More »

Quach v Horvarth [2022] NSWCA 49 (28 March 2022) (Basten JA)

Catchwords: PRACTICE AND PROCEDURE – vexatious proceedings order – prohibition on commencement of fresh proceedings in specified matters – judicial review application dismissed in a specified matter – fresh claim for damages based on unlawfulness of same conduct – claim dismissed under vexatious proceedings order – notice of appeal dismissed as incompetent under vexatious proceedings …

Quach v Horvarth [2022] NSWCA 49 (28 March 2022) (Basten JA) Read More »

Boros v Pages Property Investments Pty Ltd (No 2) [2022] NSWCA 43 (24 March 2022) (Bell CJ, Basten and Meagher JJA)

Catchwords: COSTS – Security for costs – moneys paid into court by appellant – appellant succeeded on appeal – whether certain sums should not be released because of costs orders in favour of respondent in relation to application for security for costs and unsuccessful variation and adjournment application – moneys ordered to be released without …

Boros v Pages Property Investments Pty Ltd (No 2) [2022] NSWCA 43 (24 March 2022) (Bell CJ, Basten and Meagher JJA) Read More »

Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 (18 March 2022) (Meagher, White and Brereton JJA)

Catchwords: COSTS – application for specified gross sum costs order under Civil Procedure Act 2005 (NSW), s 98(4)(c) – where history of delay and aggravation in litigation between parties – where unchallenged evidence as to actual costs incurred – where expert costs assessor’s evidence challenged – whether appropriate to make order – quantification of gross …

Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 (18 March 2022) (Meagher, White and Brereton JJA) Read More »

Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 (15 March 2022) (Leeming JA, Simpson AJA and N Adams J)

Catchwords: NEGLIGENCE – workplace injury – plaintiff employee sustained injury following years of operating machine requiring him to drive tractor while turning his head – plaintiff gave divergent accounts of how frequently and how long he turned his head – primary judge dismissed claim on basis that injury not foreseeable – reasons for judgment very …

Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 (15 March 2022) (Leeming JA, Simpson AJA and N Adams J) Read More »

Bowers v NSW Legal Services Commissioner [2022] NSWCA 34 (11 March 2022) (Basten and Brereton JJA)

Catchwords: ADMINISTRATIVE LAW – decisions of Legal Services Commissioner – judicial review – whether decisions reviewable – whether decisions perverse or legally unreasonable APPEALS – judicial review – proceeding summarily dismissed – order interlocutory – leave to appeal –grant of leave where judgment effectively a final determination of proceeding – whether reasonable cause of action …

Bowers v NSW Legal Services Commissioner [2022] NSWCA 34 (11 March 2022) (Basten and Brereton JJA) Read More »

Petch v Director of Public Prosecutions (NSW) [2022] NSWCA 33 (11 March 2022) (Basten, Macfarlan and Payne JJA)

Catchwords: COURTS AND JUDGES – jurisdictional error – District Court – crime – appeal from Local Court – offence of knowingly giving false evidence before the Independent Commission against Corruption – failure to consider substantial component of defendant’s case – significance to defendant of subject-matter of false statement – significance first raised by prosecutor COURTS …

Petch v Director of Public Prosecutions (NSW) [2022] NSWCA 33 (11 March 2022) (Basten, Macfarlan and Payne JJA) Read More »

Tahmoor Coal Pty Ltd v Visser [2022] NSWCA 35 (11 March 2022) (Basten, Gleeson and Payne JJA)

Catchwords: APPEALS – leave to appeal – interlocutory order in Land and Environment Court – refusal to join new party – strongly arguable case of error – need to identify proper parties – amount in issue sufficient to justify court proceedings ENERGY AND RESOURCES – mining – subsidence – compensation claimed from proprietor of active …

Tahmoor Coal Pty Ltd v Visser [2022] NSWCA 35 (11 March 2022) (Basten, Gleeson and Payne JJA) Read More »

Insurance Australia Ltd v Marsh [2022] NSWCA 31 (07 March 2022) (Basten, Macfarlan and White JJA)

Catchwords: ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether decision maker exceeded statutory role by determining asserted error on the merits ADMINISTRATIVE LAW – judicial …

Insurance Australia Ltd v Marsh [2022] NSWCA 31 (07 March 2022) (Basten, Macfarlan and White JJA) Read More »

Lambourne v Baker (No 3) [2022] NSWCA 25 (02 March 2022) (Basten and Gleeson JJA, Emmett AJA)

Catchwords: JUDGMENT AND ORDERS – costs – costs payable by party entitled to judgment debt – joint and several liability for costs – entitlement to set-off – stay of payment of judgment debt pending assessment of costs – payment into court CIVIL PROCEDURE – slip rule – failure to address issue raised by a notice …

Lambourne v Baker (No 3) [2022] NSWCA 25 (02 March 2022) (Basten and Gleeson JJA, Emmett AJA) Read More »

Flowers v State of New South Wales [2022] NSWCA 28 (02 March 2022) (Basten, White and Beech-Jones JJA)

Catchwords: APPEAL – leave to appeal – whether statutory threshold met – no affidavit supporting right to appeal – no objection to competency – matter deemed to be leave application APPEAL – motion to adduce further evidence – where appellant sought to examine opponent’s lawyers as to conduct of trial – full transcript of trial …

Flowers v State of New South Wales [2022] NSWCA 28 (02 March 2022) (Basten, White and Beech-Jones JJA) Read More »

Aslan v Stepanoski [2022] NSWCA 24 (25 February 2022) (Macfarlan, Gleeson and Payne JJA)

Catchwords: CONTRACTS – repudiation – whether the Builder repudiated the Lump Sum Contract – whether the Builder’s claim for payment under the Lump Sum Contract constituted repudiation – whether the Builder’s “failure to resume work” constituted repudiatory conduct RESTITUTION – mistake – restitution of money paid by the Owners to the Builder – whether a …

Aslan v Stepanoski [2022] NSWCA 24 (25 February 2022) (Macfarlan, Gleeson and Payne JJA) Read More »

Cheng v Pan; Cheng v Zhou [2022] NSWCA 21 (24 February 2022) (Basten and Payne JJA, Simpson AJA)

Catchwords: DEFAMATION – defamatory matter – series of letters published conveying defamatory imputations – inference that all of the letters were published by the same person – whether the appellant the publisher of any or all of the letters DEFAMATION – remedies – where primary judge awarded general and aggravated damages – whether primary judge’s …

Cheng v Pan; Cheng v Zhou [2022] NSWCA 21 (24 February 2022) (Basten and Payne JJA, Simpson AJA) Read More »

Holland v Attorney General of NSW [2022] NSWCA 17 (24 February 2022) (Meagher, Payne and McCallum JJA)

Catchwords: CRIME — Appeal and review — Judicial review — Where Supreme Court refused to consider or otherwise deal with applicant’s third application for inquiry into convictions under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) — Where decision-maker considered that the matters raised by the applicant had been dealt with in …

Holland v Attorney General of NSW [2022] NSWCA 17 (24 February 2022) (Meagher, Payne and McCallum JJA) Read More »

Johnson v Mackinnon (No 2) [2022] NSWCA 22 (24 February 2022) (Macfarlan and Brereton JJA, Simpson AJA)

Catchwords: JUDGMENTS AND ORDERS – Court of Appeal – Review of previous decision of the Court of Appeal – Application to set aside decision pursuant to UCPR r 36.16 or court’s inherent jurisdiction – No identified matter raised in appeal overlooked – No misconception, misapprehension, oversight or inadvertence – Application dismissed COSTS – Party/Party – …

Johnson v Mackinnon (No 2) [2022] NSWCA 22 (24 February 2022) (Macfarlan and Brereton JJA, Simpson AJA) Read More »

Turner v O’Bryan-Turner [2022] NSWCA 23 (24 February 2022) (Meagher, White and McCallum JJA)

Catchwords: EQUITY — Trusts and trustees — Constructive trusts — Rule in Barnes v Addy — Whether the in personam exception to indefeasibility applies to the first and second limb of Barnes v Addy EQUITY – Breach of fiduciary duty – where fiduciary held interest transferred to herself on constructive trust for principal – assessment …

Turner v O’Bryan-Turner [2022] NSWCA 23 (24 February 2022) (Meagher, White and McCallum JJA) Read More »

Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16 (23 February 2022) (Bathurst CJ, Basten and Leeming JJA)

Catchwords: ADMINISTRATIVE LAW – judicial review – construction of regulations – validity of regulation – construction of regulation-making power – whether regulations which cut down common law rights authorised – grounds to refuse visits – application to communications with legal practitioners – Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 94 CONSTITUTIONAL LAW – inconsistency …

Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16 (23 February 2022) (Bathurst CJ, Basten and Leeming JJA) Read More »

Balagiannis v Balagiannis [2022] NSWCA 18 (22 February 2022) (Meagher, Brereton and McCallum JJA)

Catchwords: CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – where first respondent assigned $18.5 million debt to daughters for no consideration – where pressed to do so to avoid potential claims to asset – where demand for repayment of debt would require sale of some of assignor’s substantial business assets – where …

Balagiannis v Balagiannis [2022] NSWCA 18 (22 February 2022) (Meagher, Brereton and McCallum JJA) Read More »

Woolworths Group Ltd v Gazcorp Pty Ltd [2022] NSWCA 19 (22 February 2022) (Bathurst CJ, Bell P and Meagher JA)

Catchwords: CONTRACTS – termination – abandonment – agreement for lease executed in 2008 – period of years during which landlord did not perform works under the agreement – performance by landlord not insisted upon during this period – where certain rights under the agreement for lease expired during this period – where development consent allowing …

Woolworths Group Ltd v Gazcorp Pty Ltd [2022] NSWCA 19 (22 February 2022) (Bathurst CJ, Bell P and Meagher JA) Read More »

Dhupar v Lee [2022] NSWCA 15 (18 February 2022) (Brereton and McCallum JJA, Simpson AJA)

Catchwords: TORTS – Medical negligence – Gynaecological surgery for elective sterilisation – Failed Filshie clip tubal ligation leading to unwanted pregnancy – Circumstantial case – Reconciliation of inconclusive medical imagery with other evidence – Whether onus of proof reversed by trial judge – Requirement to prove ultimate question rather than subsidiary issues – Conclusion that …

Dhupar v Lee [2022] NSWCA 15 (18 February 2022) (Brereton and McCallum JJA, Simpson AJA) Read More »

Rigby v State of New South Wales [2022] NSWCA 14 (17 February 2022) (Bell P, Basten and Macfarlan JJA)

Catchwords: APPEAL AND REVIEW – extended supervision order – appeal – error conceded – appeal by rehearing – whether appeal court should determine application or remit to primary judge – Crimes (High Risk Offender) Act 2006 (NSW), s 22 – Lynn v State of New South Wales [2016] NSWCA 57 HIGH RISK OFFENDERS – extended …

Rigby v State of New South Wales [2022] NSWCA 14 (17 February 2022) (Bell P, Basten and Macfarlan JJA) Read More »

Murdoch v Mudgee Dolomite and Lime Pty Ltd (in liq) [2022] NSWCA 12 (16 February 2022) (Macfarlan, Gleeson and Leeming JJA)

Catchwords: EQUITY – fiduciary obligations – scope of duty – company’s contracts to provide crushing services to a mine were performed by a director’s and employee’s own companies without disclosure – whether constituted a breach of duty – whether inability of company to perform its obligations a defence – whether acquisition of separate quarry in …

Murdoch v Mudgee Dolomite and Lime Pty Ltd (in liq) [2022] NSWCA 12 (16 February 2022) (Macfarlan, Gleeson and Leeming JJA) Read More »

Osei v P K Simpson Pty Ltd [2022] NSWCA 13 (14 February 2022) (White and McCallum JJA, Garling J)

Catchwords: NEGLIGENCE — Negligent advice to settle claim for weekly workers’ compensation payments — whether claim for damages for professional negligence was “for personal injury damages” as defined COSTS — Whether costs capped at $10,000 — Legal Profession Uniform Law Application Act 2014 (NSW), cl 2 of Sch 1 WORDS AND PHRASES — “for personal …

Osei v P K Simpson Pty Ltd [2022] NSWCA 13 (14 February 2022) (White and McCallum JJA, Garling J) Read More »

State of New South Wales v Skinner [2022] NSWCA 9 (08 February 2022) (Basten, Brereton and McCallum JJA)

Catchwords: NEGLIGENCE – vicarious liability of State – persons in service of Crown – police officers NEGLIGENCE – breach – standard of care – mental illness – major depressive disorder – post-traumatic stress disorder – traumatic events – employer’s systems of work – whether plaintiff should have been referred for psychiatric assessment NEGLIGENCE – breach …

State of New South Wales v Skinner [2022] NSWCA 9 (08 February 2022) (Basten, Brereton and McCallum JJA) Read More »

Makowska v St George Community Housing Ltd [2022] NSWCA 5 (07 February 2022) (Meagher and Payne JJA, N Adams J)

Catchwords: ADMINISTRATIVE LAW — judicial review — requirement to demonstrate jurisdictional error or error of law on the face of the record — no error demonstrated ADMINISTRATIVE LAW — remedies — discretionary factors — where statutory right of appeal not availed of — absence of satisfactory explanation — avoidance of need to obtain leave to …

Makowska v St George Community Housing Ltd [2022] NSWCA 5 (07 February 2022) (Meagher and Payne JJA, N Adams J) Read More »

Burton v Secretary, Department of Communities and Justice (formerly Family and Community Services) [2022] NSWCA 7 (07 February 2022) (Gleeson and White JJA)

Catchwords: APPEAL – application for leave to appeal – challenge to interlocutory decision refusing summary dismissal of proceedings – where no issue of principle or general public importance – no injustice shown – costs – challenge to costs order where no ground of appeal directed at costs – no reasonably arguable error in exercise of …

Burton v Secretary, Department of Communities and Justice (formerly Family and Community Services) [2022] NSWCA 7 (07 February 2022) (Gleeson and White JJA) Read More »

Royal Caribbean Cruises Ltd v Rawlings [2022] NSWCA 4 (04 February 2022) (Bell P, Meagher and Leeming JJA)

Catchwords: TORTS – trespass to the person – false imprisonment – defences – where respondent passenger on applicant’s cruise ship – where respondent detained in guest cabin for five days pending return of ship to port where alleged sexual assault would be investigated by local police – whether captain justified in detaining respondent “for the …

Royal Caribbean Cruises Ltd v Rawlings [2022] NSWCA 4 (04 February 2022) (Bell P, Meagher and Leeming JJA) Read More »

Dickinson v Chapman [2022] NSWCA 2 (03 February 2022) (Basten, Macfarlan and McCallum JJA)

Catchwords: CONTRACTS – formation – intention to create legal relations – agreement evidenced by course of conduct – regular rate of payment – record of hours worked – whether payment for work performed gave rise to contractual rights or obligations on a quantum meruit TORTS – negligence – workplace injury – whether injured party a …

Dickinson v Chapman [2022] NSWCA 2 (03 February 2022) (Basten, Macfarlan and McCallum JJA) Read More »

Zamattia v Jainti Pty Ltd (in liq) in its capacity as Trustee of the Zambito Trust [2022] NSWCA 3 (31 January 2022) (Leeming JA)

Catchwords: PRACTICE – leave to proceed against company in liquidation – Corporations Act 2001 (Cth), s 500 – appeal from orders obtained by company in liquidation concerning title to property – whether appeal required extension of time and leave – where new point sought to be advanced on appeal – leave granted, subject to security …

Zamattia v Jainti Pty Ltd (in liq) in its capacity as Trustee of the Zambito Trust [2022] NSWCA 3 (31 January 2022) (Leeming JA) Read More »

The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1 (28 January 2022) (Basten, Gleeson and McCallum JJA)

Catchwords: APPEALS – application for leave – whether grant of leave should be revoked – whether reasonably clear injustice going beyond something that is merely arguable CIVIL PROCEDURE – pleadings and particulars – pleadings in defamation – adequacy of particulars of publication, identification and extrinsic facts – where plaintiffs alleged five posts in WeChat group …

The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1 (28 January 2022) (Basten, Gleeson and McCallum JJA) Read More »

Hardy v State of New South Wales [2021] NSWCA 338 (22 December 2021) (Basten, White and McCallum JJA)

Catchwords: HIGH RISK OFFENDERS – extended supervision orders – definition of eligible offender – advocating support for “terrorist act” or “violent extremism” – carrying out violent acts not sufficient – delivery of letters threatening member of State Parliament – threat visible to staff who received letters – transient delusional disorder not sufficient to negate intention …

Hardy v State of New South Wales [2021] NSWCA 338 (22 December 2021) (Basten, White and McCallum JJA) Read More »

Scrivener v Cappello [2021] NSWCA 330 (21 December 2021) (Bathurst CJ, Bell P and Macfarlan JA)

Catchwords: PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was an accessory to breaches of fiduciary obligations owed to the respondents – where the appellant caused the third respondent to fail to account to the second respondent for one half of the profits derived …

Scrivener v Cappello [2021] NSWCA 330 (21 December 2021) (Bathurst CJ, Bell P and Macfarlan JA) Read More »

Council of the New South Wales Bar Association v Efa (a pseudonym) [2021] NSWCA 339 (21 December 2021) (Bathurst CJ, Leeming JA and Simpson AJA)

Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – New South Wales Civil and Administrative Tribunal – Occupational Division – subject matter of power or decision – disciplinary decisions – legal practitioners – barristers – misconduct and discipline – professional misconduct – where respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at …

Council of the New South Wales Bar Association v Efa (a pseudonym) [2021] NSWCA 339 (21 December 2021) (Bathurst CJ, Leeming JA and Simpson AJA) Read More »

Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 (21 December 2021) (Bell P, Basten, Leeming, McCallum and Beech-Jones JJA)

Catchwords: CRIME – appeal and review – appeal against sentence from Local Court to District Court – District Court dismissed appeal – where District Court judge decided not to order that full-time custodial sentence be served by way of intensive correction order – judicial review – limited to review for jurisdictional error by privative clause …

Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 (21 December 2021) (Bell P, Basten, Leeming, McCallum and Beech-Jones JJA) Read More »

Dyco Hotels Pty Ltd v Laundy Hotels (Quarry) Pty Ltd [2021] NSWCA 332 (21 December 2021) (Bathurst CJ, Basten and Brereton JJA)

Catchwords: CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – where cl 50.1 required the business to be conducted in its “usual and ordinary course” – the meaning of “usual and ordinary course” – whether the phrase refers to the usual and ordinary course of hotel businesses …

Dyco Hotels Pty Ltd v Laundy Hotels (Quarry) Pty Ltd [2021] NSWCA 332 (21 December 2021) (Bathurst CJ, Basten and Brereton JJA) Read More »