NSWCA

Catchwords: DEFAMATION – defamatory matter – capacity to convey pleaded imputations DEFAMATION – online publication – Facebook post – extent of publication – where proof of publication to only two online readers – relevance to damages DEFAMATION – defences – common law qualified privilege –reply to online attack – where parties agreed matter complained of …

Eppinga v Kalil [2023] NSWCA 287 (01 December 2023) (Payne, Kirk and Stern JJA) Read More »

Catchwords: COURTS AND JUDGES — Apprehended bias —Where complaints on appeal concerning evidentiary rulings and time limitation on cross-examination of witness — Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to issues — Where no basis identified for finding that judge decided case other …

Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288 (01 December 2023) (Gleeson, Leeming and Adamson JJA) Read More »

Catchwords: CORPORATIONS — priorities — circulating assets — insufficiency of assets — Commonwealth subrogated rights of employees of company being wound up — whether liquidator’s claim for remuneration, costs and expenses ranks ahead of priority creditor — whether order of priority established by ss 556 or 561 of Corporations Act 2001 (Cth) CORPORATIONS — statutory …

Commonwealth of Australia v Tonks [2023] NSWCA 285 (30 November 2023) (Bell CJ, Adamson JA and Griffiths AJA) Read More »

Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule – correction after notice of motion within 14 days – where on Court of Appeal’s reasoning the respondent remained entitled to $138,629 in rental arrears and $22,817.76 in outgoings (together with interest) – where orders disposing appeal set aside entire …

Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd (No 2) [2023] NSWCA 286 (29 November 2023) (Payne and Stern JJA, Basten AJA) Read More »

Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal – application to vary orders under UCPR, r 36.16(3A) – where notice of motion filed within 14 days – where amended notice of motion filed more than 14 days after orders entered – power of court to entertain amended application –power …

State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 (28 November 2023) (Mitchelmore and Stern JJA, Basten AJA) Read More »

Catchwords: JUDGMENTS AND ORDERS – Inconsistency – where funds misappropriated from partnership – where proceedings commenced by appellants claiming existence of partnership and entitlement to amounts from estate of partner who misappropriated the funds – where proceedings commenced by others seeking distributions from constructive trusts declared over estate funds – where inquiry ordered into what …

Lowe v Sze Tu as Administrator of the Estate of the late Fung Chun Chow; Lowe v Pascoe as Administrator of the Estate of the late Kut Sze Tu [2023] NSWCA 282 (27 November 2023) (Bell CJ, Mitchelmore JA and Griffiths AJA) Read More »

Catchwords: PROCEDURE – Teoh order – whether further application to set aside orders vexatious or an abuse of process – applicant’s motion dismissed as an abuse of process

Catchwords: PRACTICE AND PROCEDURE – reference on appeal – adoption of referee’s report – whether referee erred in construction of contract COSTS – at trial and on appeal – Calderbank offer at trial – joint offer by multiple parties – offer of compromise not renewed on appeal – late concessions by party on appeal – …

Rialto Sports Pty Limited (Admins Apptd) v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Armmam Pty Limited (No 3) [2023] NSWCA 279 (24 November 2023) (Bell CJ and Gleeson JA) Read More »

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: APPEALS – Leave to appeal – Leave to appeal from interlocutory decision striking out applicant’s Amended Statement of Claim with limited liberty to replead – Where Amended Statement of Claim asserted fraud and conspiracy on part of respondent – Where no basis for allegations of fraud and conspiracy – Leave to appeal refused

Catchwords: APPEALS – Leave to appeal – Leave to appeal from interlocutory decision striking out applicant’s Amended Statement of Claim with limited liberty to replead – Where Amended Statement of Claim asserted fraud and conspiracy on part of respondent – Where no basis for allegations of fraud and conspiracy– Leave to appeal refused JUDGMENTS AND …

Odtojan v Glynn t/as Glynns Lawyers [2023] NSWCA 276 (21 November 2023) (White JA and Basten AJA) Read More »

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 …

Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2023] NSWCA 275 (21 November 2023) (Leeming, Payne and Mitchelmore JJA) Read More »

Catchwords: EQUITY – Set-off – Where the appellant had been ordered to account to the respondent in respect of moneys drawn under a mortgage facility secured over property held for the respondent’s benefit and the respondent had been ordered to re-pay the appellant sums owing under a loan unrelated to the mortgaged property – Whether …

Mao v Bao [2023] NSWCA 278 (21 November 2023) (Ward ACJ, White and Mitchelmore JJA) Read More »

Catchwords: COSTS – party/party – appeals – general rule that costs follow the event – whether costs orders below should be amended where part of the appeal is successful

Catchwords: APPEALS — Procedure — Vexatious litigants — Where allegations of bias and misconduct without merit — Whether ss 6(a), (c) and (d) of the Vexatious Proceedings Act 2008 (NSW) depend on subjective intent — Whether ss 14 or 17 of the Limitation Act 1969 apply to vexatious proceeding orders — Whether proceedings conducted in …

Collier v Attorney General (NSW) [2023] NSWCA 273 (16 November 2023) (Ward P, Kirk JA and Griffiths AJA) Read More »

Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Superannuation – where respondent was a NSW Police Officer who resigned in 1999 – where respondent applied for superannuation allowance under Police Regulation (Superannuation) Act 1906 (NSW), s 10B, relying on depressive illness – where Act amended after resignation but before application – whether question of …

SAS Trustee Corporation v Learmont [2023] NSWCA 272 (15 November 2023) (Mitchelmore JA, Basten AJA and Rothman J) Read More »

Catchwords: APPEALS — TORTS — DAMAGES — motor vehicle accident — successful plaintiff appealing judgment sum — application to adduce further evidence available at time of hearing in Court below — damages calculated based on actual earnings where plaintiff had not paid tax for several years — future economic loss based on past performance of …

Alldinger v Du Ranot [2023] NSWCA 271 (10 November 2023) (Gleeson, Leeming and Adamson JJA) Read More »

Catchwords: EQUITY – Proprietary estoppel – Estoppel by encouragement – Knowledge of detriment – Where the deceased promised to leave the property to a sharefarmer who had worked on the property for approximately 40 years – Where the deceased’s will did not do so – Where the sharefarmer continued to share farm on the property …

Kramer v Stone [2023] NSWCA 270 (10 November 2023) (Ward P, Leeming and Kirk JJA) Read More »

Catchwords: ADMINISTRATIVE LAW – error of law – error of jurisdiction – judicial review of decision to refuse application for post-conviction inquiry pursuant to Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) – where Applicant was convicted of conspiring to import a commercial quantity of a border controlled precursor drug

Catchwords: APPEALS — TORTS — Negligence — child killed by memorial headstone falling on her at bowling club — monument poorly constructed — whether club liable in negligence — whether club owed duty to undertake reasonable enquiries to ensure fixation of monument was sound — whether club failed to test stability of structure by pushing …

Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267 (09 November 2023) (Payne and Adamson JJA, Simpson AJA) Read More »

Catchwords: NEGLIGENCE – duty of care – duties owed by occupier of licensed premises and security contractor to patrons – breach – whether defendants had knowledge of aggressive character of particular patrons – whether defendants should have turned out particular patrons before plaintiff arrived –distinction between RSA marshals and licensed security guards – whether defendants …

Bondi Beach Foods Pty Ltd v Chadwick [2023] NSWCA 265 (09 November 2023) (Gleeson, Leeming and Payne JJA) Read More »

Catchwords: JUDGMENTS AND ORDERS — Amending, varying and setting aside – application to reopen and vary orders under UCPR r 36.16 after judgments published – where applicants sought to reagitate arguments – no basis for reopening – application dismissed DIRECTIONS – Teoh direction – Show cause direction – Where Teoh direction made to prevent an …

Arjunan v Neighbourhood Association DP No 285853 (No 3) [2023] NSWCA 266 (08 November 2023) (Ward P and Mitchelmore JA) Read More »

Catchwords: APPEALS – leave to appeal – interlocutory decision – submission not made to primary judge – absence of any material error – absence of utility of appeal having regard to proximity of final hearing – leave refused

Catchwords: PLANNING AND ENVIRONMENT – development application for mixed use development – repeal and replacement of environmental planning instrument – savings provision for development application “made, but not yet determined” by commencement date – when development application “made” – requirements to comply with prescribed form and manner – whether compliance with requirements – interpretation and …

Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 (02 November 2023) (Gleeson JA, Basten AJA and Preston CJ of LEC) Read More »

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 …

Corliss v Director of Public Prosecutions (NSW) [2023] NSWCA 263 (02 November 2023) (Adamson and Stern JJA, Basten AJA) Read More »

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 …

Demex Pty Ltd v McNab Building Services Pty Ltd [2023] NSWCA 261 (02 November 2023) (Mitchelmore, Kirk and Adamson JJA) Read More »

Catchwords: APPEALS – Procedure – Leave to appeal – Application out of time – Application for leave to appeal from summary dismissal of proceedings – Serious allegations of fraud – Deficiencies in pleading allegations of fraud – Proceedings seeking to re-agitate issues determined over 30 years ago

Catchwords: CIVIL PROCEDURE – Appeals – Applications to discharge or vary orders and directions given by Judge of Appeal – No issue of principle – Applications dismissed

Catchwords: EQUITY – fiduciary duties – whether fiduciary relationship overlay contractual relationship between the principal and attorneys – duty of attorneys not to act in conflict with interests of their principal not inconsistent with contractual terms EQUITY – fiduciary duties – breach by attorneys – which breaches were part of a dishonest and fraudulent design …

Garslev Holdings Pty Ltd v Overdean Developments Pty Ltd [2023] NSWCA 259 (30 October 2023) (Meagher and Kirk JJA, Griffiths AJA) Read More »

Catchwords: LEASES AND TENANCIES – retail lease –executed agreement for lease and lease for period of 10 years – whether lessor entitled to terminate lease – whether termination prohibited by COVID-19 pandemic regulation – whether lessor elected to waive certain grounds for terminating lease – where lease not registered – whether parties bound by contractual …

Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256 (27 October 2023) (Payne and Stern JJA, Basten AJA) Read More »

Catchwords: LEGAL PRACTITIONERS – solicitors – personal misconduct – criminal convictions – misconduct involving aggravated sexual abuse – whether the practitioner not “a fit and proper person” to remain on the roll – whether the practitioner “likely to be unfit for the indefinite future” – orders not opposed

Catchwords: NEGLIGENCE — Breach — Where first appellant injured hand in electric anchoring mechanism of boat — Whether owners of boat failed to take reasonable precautions such as installation of chain stripper and extension of spurling pipe — Whether warning needed to be given about use of anchor mechanism NEGLIGENCE — Causation — Failure to …

Farriss v Axford [2023] NSWCA 255 (26 October 2023) (Meagher and Mitchelmore JJA, Simpson AJA) Read More »

Catchwords: PRACTICE AND PROCEDURE — security for costs — application for review of Registrar’s decision ordering security for costs of appeal — stultification of proceedings — whether review application should be adjourned — whether prospects of success arguable — undertaking offered by alter ego of appellant company currently in custody for drug-related offences — whether …

Eco-Pact Pty Ltd v Law Society of New South Wales [2023] NSWCA 257 (26 October 2023) (Adamson JA) Read More »

Catchwords: CIVIL PROCEDURE – representative proceedings – claims based on breast augmentation surgery performed by defendant/appellant medical practitioners – whether litigation should continue to proceed as representative proceedings – whether claims in statement of claim gave rise to substantial common questions of law and fact – whether representative plaintiffs’ and group members’ claims “common” or …

Nguyen v Rickhuss [2023] NSWCA 249 (26 October 2023) (Ward P, Leeming JA and Basten AJA) Read More »

Catchwords: PROCEDURE – parties directed to supply submissions as to appropriate orders after interlocutory appeal determined – one party seeks special leave – whether orders should be made at all – other party seeks interlocutory relief – such relief should be sought in the Equity Division – whether all of numerous questions asked by judge …

Jaken Properties Australia Pty Ltd v Naaman (No 2) [2023] NSWCA 254 (26 October 2023) (Bell CJ, Leeming and Kirk JJA) Read More »

Catchwords: CIVIL PROCEDURE – Subpoenas – Notices to produce – Where applicant seeks leave to issue subpoenas and notices to produce to respondents requiring production of certain emails and related metadata – Where applicant seeks such leave to identify third parties alleged to have hacked into applicant’s email accounts – Where previous applications for leave …

Chandrasekaran v Western Sydney Local Health District (No 4) [2023] NSWCA 253 (25 October 2023) (White JA) Read More »

Catchwords: PRACTICE AND PROCEDURE – costs – whether costs should follow the event – identifying “event” – party obtaining relief unsuccessful on certain issues – whether to be deprived of proportion of costs – reassessing costs of trial

Catchwords: LEAVE TO APPEAL — appeal against order for security for costs — discretionary matter of practice and procedure at interlocutory level — whether discretion miscarried — whether substantial risk of injustice to applicant if the Court were not to intervene — hearing of appeal directed by Chief Justice pursuant to s 46A(2) of Supreme …

Nadeem v Bindaree Food Group Pty Ltd [2023] NSWCA 250 (23 October 2023) (Leeming and Adamson JJA) Read More »

Catchwords: ADMINISTRATIVE LAW – Statutory construction – Relevant considerations – Gaming Machines Act 2001 (NSW) ss 39-40 – Application for reduction of mandatory shutdown period – Whether Authority misconstrued Ministerial Guideline – Whether the term “venues” in the Ministerial Guideline encompassed the singular – Whether Authority was wrong to reject application STATUTORY INTERPRETATION — Interpretation …

Granville Hotel Operations Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 248 (20 October 2023) (Bell CJ, Kirk JA and Griffiths AJA) Read More »

Catchwords: CIVIL PROCEDURE – Teoh direction – Referral of further motion seeking to reagitate matters determined in prior proceedings and to set aside final orders to Judge in Chambers for consideration of summary dismissal – Where orders sought in motion irreconcilable with prior judicial determinations of applicant’s claim – Whether motion ought to be summarily …

Proietti v Proietti (No 4) [2023] NSWCA 251 (20 October 2023) (White JA) Read More »

Catchwords: COSTS — Costs on appeal — Where appeal allowed in part — Apportionment of costs where mixed outcome on appeal — Where lack of commonality between parties interested in successful and unsuccessful parts of appeal — Whether separate orders or one set of costs appropriate

Catchwords: CORPORATIONS — Voluntary administration —Moratorium on proceedings against company under administration — Leave to proceed sought for motion to adopt referee’s report — Leave opposed — Where respondents’ claims not easily dealt with under proof of debt procedure — Whether administrators likely to be distracted from statutory duties by motion to adopt referee’s report …

Rialto Sports Pty Limited v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Armmam Pty Limited (No 2) [2023] NSWCA 246 (16 October 2023) (Gleeson JA) Read More »

Catchwords: APPEALS — Leave to appeal — Proceedings dismissed for failure to comply with order to provide security for costs — Where plaintiff failed to provide security for costs after two extensions of time — Whether reasonably clear injustice — UCPR, r 42.21(3)

Catchwords: COMMERCIAL ARBITRATION — appeal against decision to set aside arbitral award — dissolution of family farming partnership — parties retained accountants to review partnership accounts — respondent filed amended statement under s 23(1) of Commercial Arbitration Act 2010 (NSW) seeking finding that certain properties were partnership assets and variations to partnership accounts — parties …

Lieschke v Lieschke [2023] NSWCA 241 (13 October 2023) (Leeming, Payne and Beech-Jones JJA) Read More »

Catchwords: CORPORATIONS – Members’ rights and remedies – Oppression – Where one shareholder has control over family company through management shares and position as Governing Director – Whether no oppression if self-dealing transaction was necessary to bring about acquisition of property accepted to be in the best interests of the company – Whether primary judge …

Soulos v Pagones; Soulos v Soulos; Soulos v Soulos; Soulos v Pagones; Kristallis v Soulos; Kristallis v Soulos; Kristallis v Pagones [2023] NSWCA 243 (13 October 2023) (Ward P, Meagher and Mitchelmore JJA) Read More »

Catchwords: LEAVE TO APPEAL — TORTS — applicant charged in Local Court for posting material in apparent breach of suppression order — charges withdrawn as order unenforceable — proceedings commenced against respondents for damages for malicious prosecution — elements of tort not made out — alleged failure of District Court judge to provide reasons, in …

Burton v Babb [2023] NSWCA 242 (12 October 2023) (Adamson JA and Simpson AJA) Read More »

Catchwords: PRACTICE – vexatious litigant – whether making vexatious proceedings order without separate oral hearing contravened statute – whether proceedings vexatious – where matter sought to be relitigated had previously been determined on a final basis from which an appeal was dismissed – application dismissed

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 …

Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell [2023] NSWCA 244 (12 October 2023) (Bell CJ, Adamson JA and Griffiths AJA) Read More »

Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) – party seeking to vary orders gave notice of application to Court and other parties within 14 days – Civil Procedure Act 2005 (NSW), s 14 – order made dispensing with requirement for filing of notice …

C&v Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd (No 2) [2023] NSWCA 240 (10 October 2023) (Kirk, Adamson and Stern JJA) Read More »

Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) – party seeking to vary orders gave notice of application to Court and other parties within 14 days – Civil Procedure Act 2005 (NSW), s 14 – order made dispensing with requirement for filing of notice …

C&v Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd [2023] NSWCA 240 (10 October 2023) (Kirk, Adamson and Stern JJA) Read More »

Catchwords: APPEALS — Leave to appeal — no issue of principle or any question of general public importance — no error on the part of the primary judge which warrants a grant of leave — grounds of appeal raised by applicant not sufficiently arguable CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Vexatious …

Batterham v Goldberg [2023] NSWCA 237 (06 October 2023) (White JA and Griffiths AJA) Read More »

Catchwords: APPEALS — ADMINISTRATIVE LAW — judicial review — denial of procedural fairness — appeal against interlocutory decision of Appeal Panel of Civil and Administrative Tribunal against decision of Tribunal refusing application to be joined to guardianship proceedings concerning applicant’s child — failure to adjourn directions hearing at which joinder application was determined because applicant …

GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 (06 October 2023) (Adamson JA at [1]; Basten AJA at [131]; Griffiths AJA at [205]) Read More »

Catchwords: EVIDENCE — appellate review of witness evidence — competing accounts of central factual issue — whether primary judge’s findings were most likely affected by impressions about the credibility and reliability of the witnesses — advantage of primary judge in seeing and hearing the witnesses give evidence — whether primary judge’s findings also informed by …

J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 (05 October 2023) (Mitchelmore, Adamson and Stern JJA) Read More »

Catchwords: CIVIL PROCEDURE – Dismissal of proceedings – where first defendant applied for security for costs order – where second defendant joined to proceedings when security for costs order made – no security for costs order in favour of second defendant – security for costs not provided – construction of Uniform Civil Procedure Rules 2005 …

Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2023] NSWCA 233 (05 October 2023) (Bell CJ, Mitchelmore and Adamson JJA) Read More »

Catchwords: CONTRACTS — Implied contract — Where agreement automatically terminates upon termination of another contract — Where party fails to notify that first contract has terminated and parties continue acting as if agreement in force — Where parties agree there was an implied agreement which continued after termination — Whether implied agreement terminable on reasonable …

United Resource Management Pty Ltd v Par Recycling Services Pty Ltd [2023] NSWCA 236 (05 October 2023) (Ward P, Meagher and Gleeson JJA) Read More »

Catchwords: APPEAL – special federal matters – exclusive jurisdiction of federal courts – whether appeal involved a matter “arising under” a Scheduled Commonwealth Act – appeal arising under Vexatious Proceedings Act 2008 (NSW) – Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7(5) not engaged APPEAL – application for leave to appeal – failure to …

Riva NSW Pty Limited v Official Trustee in Bankruptcy [2023] NSWCA 235 (05 October 2023) (Adamson JA; Simpson AJA; Basten AJA) Read More »

Catchwords: NEGLIGENCE – breach of duty of care – lawful occupant of gym – foot plate of leg press collided with head of user – duty to warn – whether failure to decide material issue – where primary judge made findings relevant to duty to warn – no evidentiary basis that warning would have prevented …

Karaoglu v Fitness First Australia Pty Ltd [2023] NSWCA 229 (03 October 2023) (Mitchelmore and Stern JJA, Simpson AJA) Read More »

Catchwords: ADMINISTRATIVE LAW — Judicial review — Jurisdictional error — Application for review of District Court decision dismissing appeal against sentence imposed by Local Court — Where applicant pleaded guilty to charge of dishonestly obtaining financial advantage by deception — Where applicant claimed he was criminalised for no reason — Where leave to appeal against …

Alves v State Insurance Regulatory Authority [2023] NSWCA 232 (29 September 2023) (Ward P, Gleeson and Leeming JJA) Read More »

Catchwords: CONTRACT – interpretation – entitlement to fees under an introducer mandate agreement – whether loan offer complied with interest rate requirement – offer contained “standard rate” and “concessional rate” – standard rate so described to avoid penalty – intention that standard rate be within prescribed range – fees not payable for non-compliant offer ESTOPPEL …

Horizon Hotels Pty Ltd v Australian Secured & Managed Mortgages Pty Ltd [2023] NSWCA 231 (28 September 2023) (Payne and Adamson JJA, Basten AJA) Read More »

Catchwords: INSURANCE — Claims — Where insurer denied insured’s claim to total and permanent disablement benefit on basis that it was not “on risk” for injury or illness causing disablement — Where parties consented to determination of separate questions which could not decide that issue — Issue remitted to Equity Division for decision CIVIL PROCEDURE …

Hart v MetLife Insurance Limited [2023] NSWCA 230 (28 September 2023) (Meagher, Leeming and Mitchelmore JJA) Read More »

Catchwords: APPEALS – leave to appeal – Workers Compensation Act 1987 (NSW) s 151A – whether payment made under a deed of settlement recovered in respect of an injury – whether payment inclusive of costs constituted “damages” under Workers Compensation Act 1987 (NSW) s 149 – appeal filed as of right – amount in issue …

Ritson v State of New South Wales [2023] NSWCA 226 (27 September 2023) (Meagher JA at [1], Simpson AJA at [2], Griffiths AJA at [74]) Read More »

Catchwords: PRACTICE AND PROCEDURE — interlocutory application — freezing order — orders made by consent

Catchwords: JUDICIAL REVIEW – judicial review of decision under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – where primary judge dismissed applicant’s request for inquiry into his convictions ADMINISTRATIVE LAW – Jurisdictional error – where applicant claimed primary judge’s dismissal of his application was unreasonable – where applicant claimed primary judge …

Yenuga v Attorney General (NSW) [2023] NSWCA 227 (26 September 2023) (Ward P, Adamson JA and Griffiths AJA) Read More »

Catchwords: COSTS — Appeals — offer of compromise — whether applicants entitled to indemnity costs on basis of two offers — first offer made prior to applicants retaining lawyers after Defamation proceedings first commenced by respondent — second offer made before hearing of appeal — whether genuine compromise — whether respondent unreasonably failed to accept …

CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow (No 2) [2023] NSWCA 225 (25 September 2023) (Ward P, Mitchelmore and Adamson JJA) Read More »

Catchwords: ADMINISTRATIVE LAW – gambling regulation – applications to transfer or lease gaming machine entitlements – applications to increase gaming machine thresholds – conditions imposed on hotel licenses – whether declarations as to construction of statute were appropriate – whether order requiring grant of application was appropriate – scope of discretions under ss 19, 25 …

Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd; Independent Liquor and Gaming Authority v Area Hotel UT Pty Ltd; Independent Liquor and Gaming Authority v The Griffith Hotel Pty Ltd [2023] NSWCA 224 (20 September 2023) (Meagher and Kirk JJA, Griffiths AJA) Read More »

Catchwords: CIVIL PROCEDURE – Application to set aside orders – where appellant complains Court overlooked submissions – where appellant fails to account for how case conducted below – where Court did not fail to address complaint in any case COSTS – Party/Party – Appeals – appeal allowed only in relation to minor issue which took …

Tzavaras v Tzavaras & Sons Pty Ltd (No 2) [2023] NSWCA 222 (14 September 2023) (Gleeson and Adamson JJA, Griffiths AJA) Read More »

Catchwords: CIVIL PROCEDURE — Court of Appeal — Stay of judgment pending appeal — Judgment for possession of Crown land — Where applicant claims adverse possession — Whether proposed appeal raises an arguable case — Whether balance of convenience favours stay of enforcement of judgment

Catchwords: COURT OF APPEAL — procedure — application to reopen judgment — where Court inadvertently omitted to deal with application to review decision of Registrar — whether error in case management decision of Registrar CIVIL PROCEDURE — stay of proceedings — stay pending determination of special leave application to the High Court — whether sufficient …

Sebie v Krejci (No 3) [2023] NSWCA 221 (13 September 2023) (Gleeson JA and Basten AJA) Read More »

Catchwords: PRACTICE AND PROCEDURE – application for recusal – claim of prejudgment – no basis for claim presented – request refused

Catchwords: OCCUPATIONS — Legal practitioners — Barristers — Qualifications and admission — Refusal of grant of practising certificate as a barrister — Where Bar Council determined applicant not fit and proper person to hold practising certificate — Where applicant held practising certificate as a solicitor — Whether Bar Council bound by Law Society Council’s determination …

Picos v Council of the New South Wales Bar Association [2023] NSWCA 218 (13 September 2023) (Gleeson, Leeming and Payne JJA) Read More »

Catchwords: COMMERCE — Restraint of trade — Deed of settlement of litigation involving allegations of misleading or deceptive conduct, passing off, and unconscionable conduct — Where respondent instituted proceedings to restrain appellant and company controlled by him from “raptorising” its vehicles — Where “raptorisation” connotes affixing materials to respondent’s vehicles — Where appellant undertakes that …

Creak v Ford Motor Company of Australia Ltd [2023] NSWCA 217 (13 September 2023) (Gleeson, Kirk and White JJA) Read More »

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 – …

Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215 (12 September 2023) (Ward ACJ, Payne JA and Basten AJA) Read More »

Catchwords: CIVIL PROCEDURE – notices to produce – whether documents “specified” in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 34.1 – whether legitimate forensic purpose for issue of notices to produce – no question of principle

Catchwords: APPEALS – leave – costs – plaintiff discontinues proceedings – primary judge declines to depart from default order as to costs – whether issue of general importance – whether clear injustice – summons dismissed

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 …

Jaken Properties Australia Pty Ltd v Naaman [2023] NSWCA 214 (08 September 2023) (Bell CJ, Leeming and Kirk JJA) Read More »

Catchwords: LICENSING — Gaming Machines Act 2001 (NSW) — gaming machine entitlements (“GMEs”) — gaming machine threshold — application to Independent Liquor & Gaming Authority (“Authority”) to increase gaming machine threshold from 20 to 24 — application accompanied by “Local Impact Assessment” (LIA) — application and LIA approved — subsequent applications to transfer seven GMEs …

Independent Liquor & Gaming Authority v 4 Boys (NSW) Pty Ltd [2023] NSWCA 210 (07 September 2023) (Meagher and Beech-Jones JJA, Basten AJA) Read More »

Catchwords: NEGLIGENCE — breach of duty of care — non-delegable duty of care — employer and employee — labour-hire company — where services of employee contracted out — contractor failed to provide a safe system of work — relevance of steps by employer to ensure that the contractor instituted a safe system of work — …

Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 (07 September 2023) (Meagher and Kirk JJA, Simpson AJA) Read More »

Catchwords: ADMINISTRATIVE LAW – judicial review – crime – application to set aside decision of judge to refuse to consider or otherwise deal with an application for an inquiry into a conviction – whether error of law on the face of the record or jurisdictional error ADMINISTRATIVE LAW – judicial review – boundary of legal …

Clark v Attorney General of New South Wales [2023] NSWCA 208 (06 September 2023) (Gleeson and White JJA, Basten AJA) Read More »

Catchwords: APPEALS — Leave to appeal — interlocutory decision in Land and Environment Court to summarily dismiss judicial review proceedings — applicant advanced no discrete basis for grant of leave — proposed grounds of appeal relied on in support of leave — leave refused

Catchwords: CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee of acceptable quality — Australian Consumer Law (ACL), s 54 — Whether vehicles of acceptable quality to reasonable consumer — Whether vehicles not safe or free from defects given installation of airbags — Where asserted risk of rupture of airbags — Whether appellant …

Dwyer v Volkswagen Group Australia Pty Ltd [2023] NSWCA 211 (05 September 2023) (Gleeson, Leeming and White JJA) Read More »

Catchwords: COSTS – party/party – offers of compromise – application under r 36.16(3A) to vary costs order – party seeking to vary costs order gives notice of application to Court and the other parties within 14 days – order made dispensing with filing of notice of motion – costs order varied

Catchwords: DAMAGES — misleading or deceptive conduct — contractual warranties and other representations — ownership or control of intellectual property — “no transaction” case — whether respondents would have entered into transaction if true position known — adequacy of reasons on no transaction case DAMAGES — assessment of damages — misleading or deceptive conduct — …

Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust; Taylor v LK Group Investments Pty Ltd [2023] NSWCA 204 (01 September 2023) (Mitchelmore JA at [1]; Simpson AJA at [128]; Basten AJA at [129]) Read More »

Catchwords: APPEALS — competency of appeal — where claimed damages at first instance below statutory threshold — where appellant seeks to justify assessment of damages above threshold — whether further evidence sufficient to establish that amount in issue exceeds threshold — appeal dismissed as incompetent APPEALS — application for leave to appeal — where applicant …

Toth v State of New South Wales [2023] NSWCA 206 (01 September 2023) (Meagher, Payne and White JJA) Read More »

Catchwords: CONSTITUTIONAL LAW – federal jurisdiction – whether Personal Injury Commission exercised judicial power when determining claim brought by resident of Queensland against employer State of New South Wales – common ground that Commission exercised administrative power in this case – appeal allowed by consent – short reasons given

Catchwords: CONTRACTS – construction – share purchase agreement to be understood objectively having regard to commercial purpose and object CONTRACTS – construction – meaning of business revenue for purpose of determining whether second performance conditions satisfied – business revenue includes revenue from internal supply – internal supply calculated by transfer price as agreed by the …

Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 201 (30 August 2023) (Leeming and Mitchelmore JJA, Stern JA) Read More »

Catchwords: PRACTICE and PROCEDURE – appeal – application for stay pending hearing of appeal – appellant owned 18 lots in strata plan subject to mortgage to bank – appeal reasonably arguable – appeal likely to be heard and determined in four months – attempts to sell lots likely to trigger default on mortgage – sales …

Rabah Enterprises Pty Ltd v LCM Operations Pty Ltd [2023] NSWCA 203 (30 August 2023) (Basten AJA) Read More »

Catchwords: PROCEDURE – Teoh order – whether further application to set aside orders made appointing trustees for sale vexatious or an abuse of process – motion dismissed

Catchwords: COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers — where applicant was defendant/cross-claimant in substantive proceedings resolved by consent — where motion seeking personal costs order against solicitor dismissed — where case below put on basis that defence was woefully prepared — where case on appeal put on basis …

Kalloghlian v Mitry [2023] NSWCA 198 (29 August 2023) (Gleeson, Mitchelmore and Adamson JJA) Read More »

Catchwords: APPEALS – Appeal from Land and Environment Court – Requirement for appeal to be from an order or decision on a question of law – Whether all grounds meet this requirement STATUTORY INTERPRETATION – Conventional approaches to interpretation – Meaning of “the surface of the overlying soil is disturbed” – Text, context and purpose …

Sydney Metro v Expandamesh Pty Ltd [2023] NSWCA 200 (29 August 2023) (Leeming JA and Griffiths AJA at [1]; Simpson AJA at [91]) Read More »

Catchwords: PROCEDURE — application for permanent stay of proceedings — where in earlier proceedings respondent was successful in establishing breach of fiduciary duty against a separate party — where current proceedings seek to establish that applicants are accessorily liable for conduct of other party — whether forensic decision made not to join applicants to earlier …

Pitcher Partners Holdings Pty Ltd v Twigg [2023] NSWCA 193 (23 August 2023) (Meagher and Adamson JJA, Basten AJA) Read More »

Catchwords: NEGLIGENCE — Damages — Workplace injury of mining engineer — Where liability admitted —Primary judge’s assessment of damages — Assessment of future economic loss, non-economic loss and future expenses — Whether House v The King error shown

Catchwords: HUMAN RIGHTS – Privacy and Personal Information Protection Act 1998 (NSW) – personal information collected by university – application for postgraduate study by overseas student – university participated in Simplified Student Visa Framework – whether university collected personal information on behalf of Commonwealth – whether university collected personal information in order to form a …

Norkin v University of New England [2023] NSWCA 194 (22 August 2023) (Leeming JA at [1]; Basten AJA at [78]; Griffiths AJA at [79]) Read More »

Catchwords: COSTS – Party/Party – Bases of quantification – offer of compromise/Calderbank offer – where global offer made to resolve appeal and two related bankruptcy proceedings – reasonableness of conduct – limited information before the Court concerning other proceedings – conduct of appellants not so unreasonable as to justify an order for indemnity costs

Catchwords: COURTS AND JUDGES — Supreme Court — Supervisory jurisdiction — availability of judicial review — no issues of principle

Catchwords: NEGLIGENCE – occupier’s liability – plaintiff slipped while descending stepped aisle at outdoor stadium – whether reasonable occupier would have installed a handrail – identification of risk of harm – significance of obviousness of risk – no evidence of other persons slipping on stepped aisle – stadium certified as compliant with Building Code of …

Venues NSW v Kane [2023] NSWCA 192 (18 August 2023) (Leeming and Adamson JJA, Simpson AJA) Read More »

Catchwords: CONSTITUTIONAL LAW — Federal jurisdiction — Diversity jurisdiction — Dispute between a State and a resident of another State — Jurisdiction of NSW Civil and Administrative Tribunal — Proceedings were of a kind falling within ss 75(iv) of the Constitution — Nature of the Burns v Corbett restriction CONSTITUTIONAL LAW — Federal jurisdiction — …

Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 (17 August 2023) (Mitchelmore and Kirk JJA, Griffiths AJA) Read More »

Catchwords: CIVIL PROCEDURE – cross-vesting – transfer to Federal Court – whether special federal matter – whether a matter arising under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether a matter within the original jurisdiction of the Federal Court – where underlying proceedings concern an application for judicial review of a decision of …

Huynh v Attorney General (NSW) [2023] NSWCA 190 (16 August 2023) (Bell CJ, Kirk JA and Simpson AJA) Read More »

Catchwords: LEGAL PRACTITIONERS – solicitors – personal misconduct – criminal convictions – misconduct involving sexual abuse of young boys overseas – offending over a period of years – lengthy sentence of imprisonment – whether practitioner not “a fit and proper person” to remain on roll – whether “likely to be unfit for the indefinite future” …

Prothonotary of the Supreme Court of New South Wales v Hansen [2023] NSWCA 189 (15 August 2023) (Gleeson and Kirk JJA, Basten AJA) Read More »

Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – powers of NCAT – correction under slip rule –proceedings remitted by Appeal Panel without considering fundamental jurisdictional issue – power to vary order and issue second decision LAND LAW – strata title – caretaker agreements – power to terminate – agreement entered into prior …

Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners Strata Plan No 64807 [2023] NSWCA 188 (14 August 2023) (Meagher and Stern JJA, Basten AJA) Read More »

Catchwords: COSTS – fixed costs – perusing and scanning documents – schedule of costs identified $15 per page for perusing court documents, and $36 per page for scanning documents not necessary to peruse – previous versions of schedule identical in every respect except rate for scanning documents $3 per page – whether schedule read literally …

Coal & Allied Operations Pty Ltd v Crossley [2023] NSWCA 182 (10 August 2023) (Leeming and Stern JJA, Simpson AJA) Read More »