NSWCA

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 »

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 »

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 »

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 »

Catchwords: COSTS – application for order as to costs at first instance following outcome on appeal – costs of appeal – costs of late amendment to notice of appeal

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

Catchwords: CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where grounds of appeal do not identify a question of law – where applicant unlikely to accept advice as to defects in her case – where applicant not completely lacking financial means

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 »

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 »

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 »

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 »

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 »

Catchwords: LEAVE TO APPEAL – slip and fall case – whether an injustice in rejecting plaintiff’s claim – proposed challenge to factual findings underpinning findings of obvious risk, no breach of duty and limitation defence – no issue of principle

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 »

Catchwords: COSTS – offer of compromise – offer more favourable than judgment obtained – whether basis for displacing default costs orders – Calderbank offer – whether failure to accept offer warranted departure from ordinary rules as to costs

Orders: See at [23].

Catchwords: CIVIL PROCEDURE – preliminary discovery – to identify potential cause of action – application for preliminary discovery pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) – whether preliminary discovery is available against a person who is already a defendant in proceedings brought by the applicant for preliminary discovery

Catchwords: HIGH RISK OFFENDERS – extended supervision order – whether the respondent is a “supervised offender” within the meaning of the Crimes (High Risk Offenders) Act 2006 (NSW), s 5I – whether an extended supervision order can commence earlier than when the respondent’s current sentence expires

Catchwords: COSTS – application for special costs orders made after delivery of judgment – Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) – principle of finality favours refusal of belated application

Catchwords: CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where grounds of appeal do not describe or identify any relevant question of law necessary to engage the right of appeal under Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 – application refused

Catchwords: CIVIL PROCEDURE – summary dismissal of proceedings commenced against applicant’s former legal representatives – whether an advocates’ immunity defence can form basis of a summary dismissal application – whether the defence applies to administrative aspects of the retainer

Catchwords: NEGLIGENCE — Defences — Civil Liability Act 2002 (NSW), s 45 — Whether defendant had actual knowledge of the particular risk the materialisation of which resulted in the harm — Extent of specificity required by phrase “particular risk”

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 »

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 »

Catchwords: ADMINISTRATIVE LAW — road traffic infringement notice — application for judicial review of District Court decision on appeal from Local Court — whether applicant denied procedural fairness in relation to admission of further evidence in District Court

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 »

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 »

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 »

Catchwords: CIVIL PROCEDURE – Notices to produce – where notice to produce requires disclosure to a party of protected information under s 355-30 of the Taxation Administration Act 1953 (Cth) – whether party can obtain protected information by compulsion where exception in s 355-75 to disclosure to a court not engaged

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 »

Catchwords: COSTS — Security for costs — relevant factors — deficiency of appeal — where applicant for security for costs concedes irregularity in orders of court below

Catchwords: BUILDING AND CONSTRUCTION – contract – whether claimed variations within contractual scope of work – builder’s margin – GST – no question of principle

Catchwords: APPEALS — Leave to appeal — question of principle — whether person who has instigated, if not formally commenced, legal proceedings liable for tort of abuse of process

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 »

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 »

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 »

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 »

Catchwords: COSTS — party/party — exceptions to general rule that costs follow the event — offer of compromise — where offer made to compromise claim and cross-claim — where no separate offer made in relation to appeal proceedings — circumstances in which it is appropriate to “otherwise order”

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 »

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 »

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 »

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 »

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 »

Catchwords: ADMINISTRATIVE LAW — Bias rule — Actual or apprehended ADMINISTRATIVE LAW — Procedural fairness ADMINISTRATIVE LAW — Judicial review — whether primary judge’s order was a final order CIVIL PROCEDURE — section 127 of the District Court Act 1973 (NSW) — “action”

Catchwords: LEGAL PRACTITIONERS — disciplinary proceedings — practitioner convicted of offences under s 192E(1)(b) of the Crimes Act 1900 (NSW) of dishonestly obtaining an advantage — sentence of imprisonment — declaration that the practitioner is not a fit and proper person to remain on the roll of Australian lawyers

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 »

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 »

Catchwords: CIVIL PROCEDURE — Court of Appeal — variation of costs order — whether non-acceptance at first instance of an Offer of Compromise and Calderbank offers warranted departure from ordinary cost consequences — whether the Court should “order otherwise” for the purposes of UCPR r 42.15(2)

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 »

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 »

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 »

Catchwords: PROCEDURE – application to reopen judgment – no basis shown – application dismissed

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 »

Catchwords: JUDGMENTS AND ORDERS – Orders to give effect to reasons in principal judgment

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 »

Catchwords: PRACTICE AND PROCEDURE – review of decision of Registrar – show cause direction – proceeding dismissed for non-compliance – failure to comply with directions and attend directions hearings – proceedings lacking utility

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 »

Catchwords: APPEAL – application for leave – interlocutory decision dismissing application for summary dismissal of summons – no question of principle – leave refused

Catchwords: CIVIL PROCEDURE – appeal – security for costs – stay of proceedings pending provision of security – jurisdictional requirement – criteria relevant to exercise of power – corporate trustee appellant – unpaid gross sum costs order – stay not sought

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 »

Catchwords: PROCEDURE – application for disqualification – application refused – no question of principle

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 »

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 »

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 »

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 »

Catchwords: APPEAL – civil procedure – stay of judgment pending appeal – undertaking proffered by appellant – stay granted

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 »

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 »

Catchwords: APPEAL – stay application refused – no issue of principle

Catchwords: APPEAL – stay application refused – no issue of principle

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 »

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 »

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 »

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 »

Catchwords: NEGLIGENCE – Causation – Purely psychiatric injury – Post-traumatic stress disorder – Where trial judge disbelieved plaintiff’s evidence as to the event she witnessed and as to her symptoms – Whether error in fact-finding established – importance of paying due deference to the trial judge’s advantage in hearing the evidence

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 »

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 »

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 »

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 »

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 »

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 »

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 »

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 »

Catchwords: CIVIL PROCEDURE – Judgments – Suppression and non-publication – Application for redaction – Possible identification of children through identification of parent – Possible identification of children through reference to related proceedings – Order for use of pseudonym in judgment

Catchwords: TORTS — General principles — Damages — Requirement to assess damages following successful appeal — Whether assessment should be undertaken by Court of Appeal in circumstances where adverse credit findings made by primary judge — Where quantification of damages turns primarily on expert medical evidence — Proportionality and convenience

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 »

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 »

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 »

Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal – motion seeking variation of final orders – where judgment left open a number of outstanding issues – whether outstanding issues need to be determined by a judge of the Equity Division

Catchwords: CIVIL PROCEDURE — application for leave to appeal against summary dismissal of — no reasonable cause of action — where applicant sued his former solicitors — advocates’ immunity — no question of principle

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 »

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 »

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 »

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 »

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 »

Catchwords: COSTS – party/party – appeals – whether the respondent should pay its costs of the proceedings in the court below – whether there should be no order as to costs – where the primary judge’s conclusions in favour of the respondent on some issues was upheld

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 »

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 »

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 »

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 »