NSWCA

Mohareb v Health Care Complaints Commission [2024] NSWCA 79 (11 April 2024) (Kirk JA and Griffiths AJA)

Orders: By consent, the Court makes the following orders: 1. Set aside the orders (1) and (2) made by Justice Weinstein on 16 October 2023 in the proceedings below. 2. Declare that the review decision made by the Respondent on 25 November 2022 is invalid on the basis that the decision lacked a rational foundation […]

Mohareb v Health Care Complaints Commission [2024] NSWCA 79 (11 April 2024) (Kirk JA and Griffiths AJA) Read More »

Wright v State of New South Wales [2024] NSWCA 77 (11 April 2024) (Gleeson, Mitchelmore and Stern JJA)

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

Wright v State of New South Wales [2024] NSWCA 77 (11 April 2024) (Gleeson, Mitchelmore and Stern JJA) Read More »

Huynh v Ledinh Sovereign Super Pty Ltd [2024] NSWCA 78 (11 April 2024) (Bell CJ, Payne and Kirk JJA)

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

Huynh v Ledinh Sovereign Super Pty Ltd [2024] NSWCA 78 (11 April 2024) (Bell CJ, Payne and Kirk JJA) Read More »

Johnston v Boyd [2024] NSWCA 75 (10 April 2024) (Adamson JA and Basten AJA)

Catchwords: APPEAL AND REVIEW – appeal from judicial review of costs assessment – application for leave – judicial review refused on discretionary grounds – failure to follow prescribed procedure for review and appeal – allegation of procedural unfairness for failure to grant further adjournment not established – no arguable error on part of primary judge

Johnston v Boyd [2024] NSWCA 75 (10 April 2024) (Adamson JA and Basten AJA) Read More »

Oliveri Legal Pty Ltd t/as Oliveri Lawyers v Cassegrain Tea Tree Oil Pty Ltd [2024] NSWCA 74 (09 April 2024) (Gleeson and Mitchelmore JJA, Basten AJA)

Catchwords: CORPORATIONS — directors and officers — ostensible authority — whether company held out managing director as having authority to bind it to indemnity — where nature of indemnity was not outside of the normal course of the company’s activities CORPORATIONS — directors and officers — actual authority — whether managing director had actual authority

Oliveri Legal Pty Ltd t/as Oliveri Lawyers v Cassegrain Tea Tree Oil Pty Ltd [2024] NSWCA 74 (09 April 2024) (Gleeson and Mitchelmore JJA, Basten AJA) Read More »

Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 2) [2024] NSWCA 72 (04 April 2024) (Ward P, Gleeson and White JJA)

Catchwords: COSTS – Party/Party – as to the costs of the proceedings at first instance, whether should be deduction to reflect costs incurred prior to amendment of summons in relation to claims or contentions then abandoned – Whether parties should bear their own costs in respect of a notice of motion filed by the second

Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 2) [2024] NSWCA 72 (04 April 2024) (Ward P, Gleeson and White JJA) Read More »

Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 (04 April 2024) (Leeming, Kirk and Stern JJA)

Catchwords: TRAFFIC LAW AND TRANSPORT – traffic law – motor accident legislation – Motor Accident Injuries Act 2017 (NSW) – meaning of “medical dispute” under Act – actual medical dispute between the claimant and the insurer about the relevant medical assessment matter – question of fact depending on the ambit of dispute between the parties

Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 (04 April 2024) (Leeming, Kirk and Stern JJA) Read More »

Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70 (04 April 2024) (Leeming and Mitchelmore JJA, Basten AJA)

Catchwords: BAIL – breach of condition – arrest without warrant – applicant convicted of resisting officer in execution of duty – police officer reasonably believed applicant had not complied with bail condition – s 77(1) of Bail Act 2013 (NSW) empowered officer to take one of six actions, one of which was arrest – s

Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70 (04 April 2024) (Leeming and Mitchelmore JJA, Basten AJA) Read More »

Bluth v Boyded Industries Pty Ltd [2024] NSWCA 67 (04 April 2024) (Bell CJ, Gleeson and Harrison JJA)

Catchwords: APPEALS – from finding of fact – credibility of witness – where credibility informed assessment of competing contemporaneous documentary, affidavit, and oral evidence at trial – where credibility fell to be assessed having regard to evidentiary inconsistences in an individual’s affidavit and oral evidence at trial in determining what he would have done in

Bluth v Boyded Industries Pty Ltd [2024] NSWCA 67 (04 April 2024) (Bell CJ, Gleeson and Harrison JJA) Read More »

Mohareb v State of New South Wales (No 2) [2024] NSWCA 69 (28 March 2024) (Gleeson and Stern JJA)

Catchwords: JUDGMENTS AND ORDERS — Court of Appeal — motion to set aside order refusing leave to appeal —application under UCPR, rr 36.15, 36.16, 36.17 — whether orders made against good faith — where no misconduct or dishonourable conduct by the respondents — whether Court misapprehended the applicant’s evidence or submissions — where no basis

Mohareb v State of New South Wales (No 2) [2024] NSWCA 69 (28 March 2024) (Gleeson and Stern JJA) Read More »

Jackson v Furner [2024] NSWCA 66 (27 March 2024) (Payne and Mitchelmore JJA, Griffiths AJA)

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

Jackson v Furner [2024] NSWCA 66 (27 March 2024) (Payne and Mitchelmore JJA, Griffiths AJA) Read More »

Mohareb v Office of the Director of Public Prosecutions (NSW) [2024] NSWCA 68 (27 March 2024) (Griffiths AJA)

Catchwords: CIVIL PROCEDURE – Service – application for substituted service under r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) – where not practicable to serve originating process and related documents personally CONTEMPT – Arrest – application for Court to issue warrant for arrest of contemnor under Pt 55 r 10 of the Supreme

Mohareb v Office of the Director of Public Prosecutions (NSW) [2024] NSWCA 68 (27 March 2024) (Griffiths AJA) Read More »

AAI Limited trading as GIO v Amos [2024] NSWCA 65 (26 March 2024) (Kirk and Adamson JJA, Basten AJA)

Catchwords: ADMINISTRATIVE LAW — procedural fairness — decision of medical review panel made pursuant to Motor Accident Injuries Act 2017 (NSW) regarding percentage whole body impairment suffered by claimant in motor accident — decision quashed at first instance based on a denial of procedural fairness to the claimant — whether primary judge erred in finding

AAI Limited trading as GIO v Amos [2024] NSWCA 65 (26 March 2024) (Kirk and Adamson JJA, Basten AJA) Read More »

South East Forest Rescue Incorporated v Forestry Corporation of New South Wales [2024] NSWCA 64 (22 March 2024) (Griffiths AJA)

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

South East Forest Rescue Incorporated v Forestry Corporation of New South Wales [2024] NSWCA 64 (22 March 2024) (Griffiths AJA) Read More »

McDonald v MAK Constructions and Building Services Pty Ltd [2024] NSWCA 63 (21 March 2024) (Payne and Adamson JJA, Griffiths AJA)

Catchwords: CIVIL PROCEDURE — Stay of proceedings — whether the home owner’s proceedings claiming damages should be stayed until payment of the judgment debt in favour of the builder obtained by filing an adjudication certificate under s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) — operation and

McDonald v MAK Constructions and Building Services Pty Ltd [2024] NSWCA 63 (21 March 2024) (Payne and Adamson JJA, Griffiths AJA) Read More »

Secretary, Department of Communities and Justice v Stewart [2024] NSWCA 59 (20 March 2024) (Leeming and Stern JJA, Griffiths AJA)

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

Secretary, Department of Communities and Justice v Stewart [2024] NSWCA 59 (20 March 2024) (Leeming and Stern JJA, Griffiths AJA) Read More »

Franks v Cameron [2024] NSWCA 56 (15 March 2024) (Leeming, Adamson and Stern JJA)

Catchwords: PROCEDURE – dismissal for default – summons seeking appointment of trustees for sale of co-owned land – cross-claim seeking orders that defendant/cross-claimant was sole owner – cross-claimant did not appear at hearing – formal application for adjournment based on loss of legal representation, not being supplied with documents and psychiatric injury – informal application

Franks v Cameron [2024] NSWCA 56 (15 March 2024) (Leeming, Adamson and Stern JJA) Read More »

Trinh v Medical Council of New South Wales [2024] NSWCA 58 (15 March 2024) (Mitchelmore JA; Basten AJA; Griffiths AJA)

Catchwords: ADMINISTRATIVE LAW – functions conferred on professional council – power to delegate functions – no power to delegate power to delegate – delegation of function to persons appointed by Executive officer – whether delegation valid OCCUPATIONS – medical practitioners –misconduct and discipline – power to suspend registration – delegation of power – delegation to

Trinh v Medical Council of New South Wales [2024] NSWCA 58 (15 March 2024) (Mitchelmore JA; Basten AJA; Griffiths AJA) Read More »

Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary [2024] NSWCA 57 (15 March 2024) (Mitchelmore JA at [1]; Stern JA at [114]; Harrison CJ at CL at [115])

Catchwords: NEGLIGENCE — personal injury — patient conveyed in hospital bed impacting with a wall — challenges to factual findings — foreseeability of risk NEGLIGENCE — causation — whether impact caused patient’s symptoms — conflicting expert evidence on causation NEGLIGENCE — assessment of damages — past economic loss — assessment of earnings of respondent but

Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary [2024] NSWCA 57 (15 March 2024) (Mitchelmore JA at [1]; Stern JA at [114]; Harrison CJ at CL at [115]) Read More »

C & v Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd [2024] NSWCA 52 (13 March 2024) (Leeming and Stern JJA)

Catchwords: APPEALS – leave to appeal – monetary threshold – principles governing grant of leave to appeal below monetary threshold – whether application identified issue of principle, question of general public importance or reasonably clear injustice – whether application goes beyond being merely arguable

C & v Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd [2024] NSWCA 52 (13 March 2024) (Leeming and Stern JJA) Read More »

Dalton and Schaeffer as Executors of the Estate of the Late John Herman Schaeffer v Naegeli [2024] NSWCA 51 (13 March 2024) (Ward P, Stern JA and Griffiths AJA)

Catchwords: GUARANTEE AND INDEMNITY – actions to enforce guarantee – defences to – unconscionable conduct – whether primary judge erred in finding that respondent did not act unconscionably in procuring Deed of Guarantee and Indemnity – s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) GUARANTEE AND INDEMNITY – actions to enforce

Dalton and Schaeffer as Executors of the Estate of the Late John Herman Schaeffer v Naegeli [2024] NSWCA 51 (13 March 2024) (Ward P, Stern JA and Griffiths AJA) Read More »

Wilson v SAS Trustee Corporation [2024] NSWCA 53 (12 March 2024) (Leeming and Kirk JJA, Griffiths AJA)

Catchwords: WORKERS COMPENSATION – Police Superannuation Scheme – where a member seeks to have a further infirmity certified under s 10B(1) or his earlier certification of infirmity amended to include an additional infirmity for the purpose of being entitled to increased annual superannuation allowance pursuant to ss 10 and 10B of the Police Regulation (Superannuation)

Wilson v SAS Trustee Corporation [2024] NSWCA 53 (12 March 2024) (Leeming and Kirk JJA, Griffiths AJA) Read More »

Kitoko v Sydney Local Health District [2024] NSWCA 49 (12 March 2024) (Ward P and Gleeson JA)

Catchwords: APPEALS – Leave to appeal – Arguable case CIVIL PROCEDURE – Jurisdiction – Where applicant alleged that primary judge had exercised Federal jurisdiction to the exclusion of State jurisdiction CIVIL PROCEDURE – Summary disposal – Where applicant had sought summary judgment – Where respondents had not yet been required to file evidence in defence

Kitoko v Sydney Local Health District [2024] NSWCA 49 (12 March 2024) (Ward P and Gleeson JA) Read More »

Cooke v Tweed Shire Council [2024] NSWCA 50 (11 March 2024) (Ward P, Gleeson JA and Basten AJA)

Catchwords: APPEALS – judgment of Land and Environment Court – standard of review – characterisation of land use – evaluative judgment – correctness standard applied ENVIRONMENT AND PLANNING – civil enforcement proceeding – Local Environment Plan – permissible uses not requiring consent – characterisation of land use – cultivation of low-THC hemp – processing hemp

Cooke v Tweed Shire Council [2024] NSWCA 50 (11 March 2024) (Ward P, Gleeson JA and Basten AJA) Read More »

Fong Bhnf Fong v Weller [2024] NSWCA 46 (08 March 2024) (Gleeson, Mitchelmore and Kirk JJA)

Catchwords: COSTS — Assessment procedure — Competing costs agreements — Second costs agreement with tutor — Tutor’s right of indemnity from incapacitated person APPEALS — Right of appeal — Relationship with judicial review — Whether right of appeal is reason to deny judicial review JUDGMENTS AND ORDERS — Judicial review application of decision made under

Fong Bhnf Fong v Weller [2024] NSWCA 46 (08 March 2024) (Gleeson, Mitchelmore and Kirk JJA) Read More »

Proietti v Proietti [2024] NSWCA 48 (08 March 2024) (Bell CJ, Kirk and Stern JJA)

Catchwords: PRACTICE AND PROCEDURE — whether a vexatious proceedings order should be made — where litigant had reagitated the same points on multiple occasions after proceedings in the Court of Appeal and rejection of special leave application — whether sufficient frequency of institution of proceedings for the purposes of s 8(1) of the Vexatious Proceedings

Proietti v Proietti [2024] NSWCA 48 (08 March 2024) (Bell CJ, Kirk and Stern JJA) Read More »

The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) (No 2) [2024] NSWCA 45 (04 March 2024) (White and Kirk JJA, Griffiths AJA)

Catchwords: JUDGMENTS AND ORDERS – Consequential orders – Where order made that parties seek to agree on declaratory relief to give effect to reasons – Where parties unable to agree on form of declaratory relief – Where declarations proposed in primary judgment include a slip – Whether matter should be remitted to primary judge –

The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) (No 2) [2024] NSWCA 45 (04 March 2024) (White and Kirk JJA, Griffiths AJA) Read More »

Islam v Linfox Australia Pty Ltd [2024] NSWCA 39 (29 February 2024) (White JA at [1]; Simpson AJA at [2]; Basten AJA at [126])

Catchwords: NEGLIGENCE – claim for work injury damages for back condition – challenges to factual findings – whether breach of duty of care – whether injury caused by employment COSTS – claim for work injury damages against employer and third party – application of Workers Compensation Regulation 2016 (NSW), Pt 17 Div 3

Islam v Linfox Australia Pty Ltd [2024] NSWCA 39 (29 February 2024) (White JA at [1]; Simpson AJA at [2]; Basten AJA at [126]) Read More »

State of New South Wales v Madden [2024] NSWCA 40 (29 February 2024) (Bell CJ, Leeming and Stern JJA)

Catchwords: APPEALS – Procedural fairness – Bias or apprehension of bias – Where primary judge intervened during the examination of witnesses and made comments in relation to the State’s submissions – Where no issue of apprehended bias was raised or application for disqualification made at trial TORTS – Trespass to the person – Battery –

State of New South Wales v Madden [2024] NSWCA 40 (29 February 2024) (Bell CJ, Leeming and Stern JJA) Read More »

Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41 (29 February 2024) (Ward P, Gleeson and White JJA)

Catchwords: ENVIRONMENT AND PLANNING – Development applications – Delegation of assessment function of local council – Whether delegate had authority to determine application – Interpretation of relevant instruments of delegation and sub-delegation and policy – Whether primary judge erred by interpreting “submission by way of objection” by reference to the statutorily directed time period under

Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41 (29 February 2024) (Ward P, Gleeson and White JJA) Read More »

Hadden v Inline Partners Pty Ltd [2024] NSWCA 42 (29 February 2024) (Gleeson, White and Stern JJA)

Catchwords: APPEALS — leave to appeal — where relatively modest claim — whether injustice reasonably arguable — where applicant sought to raise new point on appeal CONTRACTS — parties — identifying parties to contract implied from conduct of the parties — where accounting services provided to several companies and also to individuals — whether individual

Hadden v Inline Partners Pty Ltd [2024] NSWCA 42 (29 February 2024) (Gleeson, White and Stern JJA) Read More »

Riechelmann v McCabe [2024] NSWCA 37 (23 February 2024) (Mitchelmore, Kirk and Stern JJA)

Catchwords: TORTS – Trespass to the person – Assault – Battery – Claim based on distinct accounts of alleged strangulation APPEAL – From findings of fact – Credibility of witnesses – Appeal of factual decision turning on witness testimony following long hearing – Importance of contemporary evidence

Riechelmann v McCabe [2024] NSWCA 37 (23 February 2024) (Mitchelmore, Kirk and Stern JJA) Read More »

Kudrynski v Orange City Council [2024] NSWCA 33 (22 February 2024) (Meagher and Kirk JJA, Griffiths AJA)

Catchwords: APPEALS – s 57(1) Land and Environment Court Act 1979 (NSW) – requirement for appeal to be from an order or decision on a question of law – deficiencies in the notice of appeal – whether any of the 24 grounds met this requirement COMPULSORY ACQUISITION – Compensation – vacant land acquired by local

Kudrynski v Orange City Council [2024] NSWCA 33 (22 February 2024) (Meagher and Kirk JJA, Griffiths AJA) Read More »

Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35 (22 February 2024) (Bell CJ, Stern JA and Basten AJA)

Catchwords: CONSUMER LAW — misleading and deceptive conduct — whether Chief Financial Officer of small proprietary company was a mere conduit of misrepresentations — causation CONSUMER LAW — misleading and deceptive conduct — knowing involvement — requisite degree of knowledge TORTS — deceit — exemplary damages

Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35 (22 February 2024) (Bell CJ, Stern JA and Basten AJA) Read More »

Scone Race Club Ltd v Cottom [2024] NSWCA 34 (22 February 2024) (Gleeson and Mitchelmore JJA, Basten AJA)

Catchwords: ADMINISTRATIVE LAW – judicial review – jurisdictional error – extent of functions and powers of tribunal – Personal Injury Commission medical appeal panel – whether appropriate consideration given to late documents – no opportunity given to address panel regarding late documents – whether late documents could materially affect decision WORKERS COMPENSATION – medical dispute

Scone Race Club Ltd v Cottom [2024] NSWCA 34 (22 February 2024) (Gleeson and Mitchelmore JJA, Basten AJA) Read More »

Neilson v Secretary, Department of Planning and Environment [2024] NSWCA 28 (21 February 2024) (Ward P, Payne and White JJA)

Catchwords: ENVIRONMENT AND PLANNING— Land and Environment Court — Crown land — Management of Crown land — National Parks and Wildlife Act — Plan of management — statutory interpretation — whether Secretary has duties to implement individual policies in Plan of Management compellable by mandamus — whether delay implementing policies unreasonable — utility and appropriateness

Neilson v Secretary, Department of Planning and Environment [2024] NSWCA 28 (21 February 2024) (Ward P, Payne and White JJA) Read More »

Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 (20 February 2024) (Meagher and Kirk JJA, Simpson AJA)

Catchwords: APPELLATE REVIEW – appeal from Personal Injury Commission – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353(1) – nature of appellate review – whether error in point of law – meaning of aggrieved in point of law – requirement that appeal identifies a point of law in relation to the decision

Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 (20 February 2024) (Meagher and Kirk JJA, Simpson AJA) Read More »

Rahme v Kekatos Lawyers Pty Ltd [2024] NSWCA 31 (19 February 2024) (Payne and Mitchelmore JJA, Simpson AJA)

Catchwords: CIVIL PROCEDURE — abuse of process — where former solicitors claim payment for legal costs — where client recovers legal costs as damages from third party in Court of Appeal — where client subsequently argues that not liable for the costs CIVIL PROCEDURE — Court of Appeal — application for leave to appeal —

Rahme v Kekatos Lawyers Pty Ltd [2024] NSWCA 31 (19 February 2024) (Payne and Mitchelmore JJA, Simpson AJA) Read More »

Whittington v Newman [2024] NSWCA 27 (16 February 2024) (Leeming and Stern JJA, Simpson AJA)

Catchwords: DEFAMATION – appeal from order granting leave to amend – adequacy of pleading and particulars – amendment to pleading introduced matters arising after commencement of Defamation Amendment Act 2020 (NSW) – operation of concerns notice to matters introduced by amendment – whether sufficient particulars of serious harm to reputation provided – whether sufficient particulars

Whittington v Newman [2024] NSWCA 27 (16 February 2024) (Leeming and Stern JJA, Simpson AJA) Read More »

Aurizon Operations Limited v Australian Rail Tram and Bus Industry Union NSW Branch; The Office of the National Rail Safety Regulator v Australian Rail Tram and Bus Industry Union NSW Branch [2024] NSWCA 24 (16 February 2024) (Mitchelmore and Adamson JJA, Griffiths AJA)

Catchwords: ADMINISTRATIVE LAW –– jurisdictional error –– decision of National Rail Safety Regulator to grant application to vary rail operator’s accreditation under the Rail Safety National Law (NSW) –– whether decision maker erred in construing the consultation requirements in s 99(3)(a)(iii) of the Rail Safety National Law –– whether primary judge erred in declaring the

Aurizon Operations Limited v Australian Rail Tram and Bus Industry Union NSW Branch; The Office of the National Rail Safety Regulator v Australian Rail Tram and Bus Industry Union NSW Branch [2024] NSWCA 24 (16 February 2024) (Mitchelmore and Adamson JJA, Griffiths AJA) Read More »

Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30 (16 February 2024) (Bell CJ, Ward P and Leeming JA)

Catchwords: EQUITY – charitable trusts – relationship with statute – distinction between charitable trust created pursuant to statute and recognised in equity and “statutory trust” created by statute which ceased when statute repealed – Necropolis Act 1867 (NSW) authorised vesting of land in separate trustees for denominational burial grounds at Rookwood – whether charitable trust

Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30 (16 February 2024) (Bell CJ, Ward P and Leeming JA) Read More »

Odtojan v Glynn t/as Glynns Lawyers; Odtojan v Ford (No 2) [2024] NSWCA 25 (14 February 2024) (White JA and Basten AJA)

Catchwords: PROFESSIONS – Legal Practitioners – misconduct and discipline – legal practitioners directed to show cause why judgments and papers should not be referred to Legal Services Commissioner – no submissions provided by legal practitioners – judgments and papers referred to Legal Services Commissioner

Odtojan v Glynn t/as Glynns Lawyers; Odtojan v Ford (No 2) [2024] NSWCA 25 (14 February 2024) (White JA and Basten AJA) Read More »

Xie v Qin [2024] NSWCA 26 (14 February 2024) (Meagher and White JJA, Basten AJA)

Catchwords: APPEALS – point not taken below – pleadings –case dismissed on ground that whilst the respondent misappropriated moneys to be applied at her discretion for a unit trust or the fifth appellant, the fifth appellant had made no claim to the moneys – where appellants seek to amend statement of claim on appeal to

Xie v Qin [2024] NSWCA 26 (14 February 2024) (Meagher and White JJA, Basten AJA) Read More »

Mie Force Pty Ltd v Allianz Australia Insurance Ltd [2024] NSWCA 23 (13 February 2024) (Ward P, White and Kirk JJA)

Catchwords: CONTRACTS – Construction – Interpretation – Construction of insurance contract – Whether appellant fell within definition of “Named Insured” in the Policy – Where appellant supplied labour to a sub-contractor undertaking demolition works for principal contractor – Whether “agent” in Policy bore the strict legal meaning of “agent” or more colloquial meaning of intermediary

Mie Force Pty Ltd v Allianz Australia Insurance Ltd [2024] NSWCA 23 (13 February 2024) (Ward P, White and Kirk JJA) Read More »

Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) (No 2) [2024] NSWCA 21 (12 February 2024) (Gleeson, Leeming and Adamson JJA)

Catchwords: COSTS — Court of Appeal — party/party costs orders — application to vary costs order in favour of respondent — general rule that costs follow the event — where appeal allowed in part and only nominal damages awarded – where appellant failed on all other grounds of appeal — where costs awarded to respondent

Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) (No 2) [2024] NSWCA 21 (12 February 2024) (Gleeson, Leeming and Adamson JJA) Read More »

Coffs Harbour City Council v Noubia Pty Ltd [2024] NSWCA 19 (12 February 2024) (Payne and Kirk JJA, Preston CJ of LEC)

Catchwords: VALUATION OF LAND – Compulsory acquisition – land transferred to public authority as condition of development consent – Compensation – land valued according to principles of compulsory acquisition – Construction of s 56(1)(a) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – Determination of market value – decrease in land value attributed to

Coffs Harbour City Council v Noubia Pty Ltd [2024] NSWCA 19 (12 February 2024) (Payne and Kirk JJA, Preston CJ of LEC) Read More »

Sader v Elgammal [2024] NSWCA 20 (08 February 2024) (Ward P, Meagher JA and Simpson AJA)

Catchwords: ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — order for access — where concurrent contempt proceedings — privilege against self-exposure to penalty — waiver of privilege against self-exposure to penalty — where affidavit served but not read.

Sader v Elgammal [2024] NSWCA 20 (08 February 2024) (Ward P, Meagher JA and Simpson AJA) Read More »

Schrader v Broach [2024] NSWCA 14 (07 February 2024) (Gleeson, Leeming and Stern JJA)

Catchwords: APPEALS – leave to appeal – whether leave required – monetary threshold – where no realistic prospect of parties being awarded damages in excess of $100,000 EVIDENCE – witness evidence – reliability of witness evidence – fallibility of memory over time – where applicants had strong views as to evidence consistent with them having

Schrader v Broach [2024] NSWCA 14 (07 February 2024) (Gleeson, Leeming and Stern JJA) Read More »

Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11 (07 February 2024) (Meagher and Kirk JJA, Simpson AJA)

Catchwords: WORKERS COMPENSATION — damages for personal injury — Workers Compensation Act 1987 (NSW) s 151Z — whether employer able to claim recovery of compensation payments from third party tortfeasor under s 151Z(1)(d) in circumstances where employer was joint tortfeasor — construction of s 151Z(2)(e) — whether worker “does not accept satisfaction of the judgment

Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11 (07 February 2024) (Meagher and Kirk JJA, Simpson AJA) Read More »

Anderson v Indigenous Land and Sea Corporation [2024] NSWCA 9 (07 February 2024) (Kirk and Stern JJA, Simpson AJA)

Catchwords: LAND LAW – Indigenous land rights – Aboriginal and Torres Strait Islander Act 2005 (Cth) – Conditional grant of land pursuant to statutory functions – Validity of conditions upon grant of land – Challenge to the validity of transfer of land by persons not party to the transfer LAND LAW – Indigenous land rights

Anderson v Indigenous Land and Sea Corporation [2024] NSWCA 9 (07 February 2024) (Kirk and Stern JJA, Simpson AJA) Read More »

Clarke v Health Care Complaints Commission (No 2) [2024] NSWCA 15 (07 February 2024) (White, Mitchelmore and Kirk JJA)

Catchwords: OCCUPATIONS — Nurses — Qualification and registration — Impairment — Competence — Where Tribunal found that a registered nurse suffered an impairment — Where registered nurse held not to be competent to act as a nurse — Where Tribunal found impairment rendered nurse a significant risk to health and safety of the public —

Clarke v Health Care Complaints Commission (No 2) [2024] NSWCA 15 (07 February 2024) (White, Mitchelmore and Kirk JJA) Read More »

Carver v State of New South Wales [2024] NSWCA 10 (06 February 2024) (Meagher and Gleeson JJA, Griffiths AJA)

Catchwords: LAND LAW — Crown land — claim by Crown for possession of Crown land — where land previously subject to a permissive occupancy — whether claim statute barred on the basis that the land has been in adverse possession for over 30 years — ss 27 and 38 of the Limitation Act 1969 (NSW)

Carver v State of New South Wales [2024] NSWCA 10 (06 February 2024) (Meagher and Gleeson JJA, Griffiths AJA) Read More »

Piety Developments Pty Ltd v Cumberland City Council [2024] NSWCA 18 (05 February 2024) (Gleeson JA)

Catchwords: CIVIL PROCEDURE — stay of judgment pending appeal — where primary judge dismissed claim for specific performance of contract for sale of land and discharged injunction restraining respondent Council from considering rescission motion — where respondent acknowledged that appeal raised serious issues — whether balance of convenience or balance of hardship favours stay of

Piety Developments Pty Ltd v Cumberland City Council [2024] NSWCA 18 (05 February 2024) (Gleeson JA) Read More »

A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2024] NSWCA 7 (01 February 2024) (Leeming, White and Mitchelmore JJA)

Catchwords: BUILDING AND CONSTRUCTION — adjudication — whether adjudication determination was affected by jurisdictional error — whether adjudicator denied respondent to adjudication procedural fairness — whether basis of adjudicator’s determination regarding retention monies was in issue on the adjudication — whether respondent could reasonably anticipate basis of determination regarding retention monies — denial of procedural

A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2024] NSWCA 7 (01 February 2024) (Leeming, White and Mitchelmore JJA) Read More »

Sydney Metro v G & J Drivas Pty Ltd [2024] NSWCA 5 (01 February 2024) (Payne and Kirk JJA, Griffiths AJA)

Catchwords: COMPULSORY ACQUISITION — Compulsory acquisition of land — Compensation — Construction of s 56(1)(a) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) — Determination of market value — Decrease in land value claimed to be caused by public purpose — Statutory disregard — Owners advised of acquisition 17 months prior to acquisition and

Sydney Metro v G & J Drivas Pty Ltd [2024] NSWCA 5 (01 February 2024) (Payne and Kirk JJA, Griffiths AJA) Read More »

Secretary, Department of Education v Dawking [2024] NSWCA 4 (31 January 2024) (Gleeson, Mitchelmore and Kirk JJA)

Catchwords: WORKERS COMPENSATION — Proceedings before Personal Injury Commission — Appeal against decision of presidential member in point of law — Where Deputy President confirmed determination of Member that employer liable to pay workers’ compensation to worker — Where worker suffered psychological injury — Where Member determined that employment was the main contributing factor to

Secretary, Department of Education v Dawking [2024] NSWCA 4 (31 January 2024) (Gleeson, Mitchelmore and Kirk JJA) Read More »

J&Z Holding (Aust) Pty Ltd v Vitti Pty Ltd [2024] NSWCA 2 (30 January 2024) (Payne and Kirk JJA, Griffiths AJA)

Catchwords: CONTRACTS — Construction — Principles –Significance of poor drafting – whether a sum payable under a contract should be characterised as a “conventional deposit”, repayable in the event of the vendors’ default and recoverable in a claim for restitution, or as an option fee that became and remained the property of the grantor

J&Z Holding (Aust) Pty Ltd v Vitti Pty Ltd [2024] NSWCA 2 (30 January 2024) (Payne and Kirk JJA, Griffiths AJA) Read More »

Christian Community Ministries Ltd v Minister for Education and Early Learning [2024] NSWCA 1 (30 January 2024) (Gleeson and Mitchelmore JJA, Griffiths AJA)

Catchwords: EDUCATION – financial assistance to non-government schools – entitlement conditioned on school not operating for profit – decision made to recover past financial assistance on the basis that the relevant school was non-compliant because it had operated for profit from 2015 to 2020 STATUTORY INTERPRETATION – where Minister made recovery decision under s 83J

Christian Community Ministries Ltd v Minister for Education and Early Learning [2024] NSWCA 1 (30 January 2024) (Gleeson and Mitchelmore JJA, Griffiths AJA) Read More »

Arjunan v Neighbourhood Association DP No 285853 (No 4) [2023] NSWCA 329 (22 December 2023) (Stern JA)

Catchwords: CIVIL PROCEDURE – Teoh order – where the applicants filed a notice of motion seeking to set aside and vary orders under UCPR, r 36.16 – where application does not raise any new issue and the issues raised have now been repeatedly determined against the applicants – where applicants directed to show cause why

Arjunan v Neighbourhood Association DP No 285853 (No 4) [2023] NSWCA 329 (22 December 2023) (Stern JA) Read More »

Protheroe v Protheroe [2023] NSWCA 328 (21 December 2023) (Meagher and Mitchelmore JJA, Basten AJA)

Catchwords: CONTRACTS — deed of settlement and release — construction — where release restricted to claims “in connection with or arising out of” statement of agreed facts — whether claim released at law — whether necessary to consider equitable principle in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 where claim

Protheroe v Protheroe [2023] NSWCA 328 (21 December 2023) (Meagher and Mitchelmore JJA, Basten AJA) Read More »

Lee v ATL (Australia) Pty Ltd [2023] NSWCA 327 (21 December 2023) (Meagher and Gleeson JJA, Griffiths AJA)

Catchwords: GUARANTEE AND INDEMNITY — Scope of liability of guarantor — Construction — Where guaranteed loan agreement provided for interest accrual on drawdown — Where side letter agreed between borrower and lender provided for pre-drawdown interest — Where guarantor did not consent to side letter — Whether side letter altered borrower’s obligations under loan agreement

Lee v ATL (Australia) Pty Ltd [2023] NSWCA 327 (21 December 2023) (Meagher and Gleeson JJA, Griffiths AJA) Read More »

Kearney v Grow Choice Pty Ltd [2023] NSWCA 325 (21 December 2023) (Meagher and Mitchelmore JJA, Basten AJA)

Catchwords: APPEAL – application for leave – amount under threshold – whether challenge more than merely arguable – applying arguability criterion on a concurrent hearing – application by party not bearing onus of proof – no challenge to findings of primary fact GUARANTEE AND INDEMNITY – contract of guarantee – oral undertaking by principal of

Kearney v Grow Choice Pty Ltd [2023] NSWCA 325 (21 December 2023) (Meagher and Mitchelmore JJA, Basten AJA) Read More »

Khatib v Director of Public Prosecutions (NSW) [2023] NSWCA 324 (20 December 2023) (White JA at [1]; Simpson AJA at [101]; Griffiths AJA at [102])

Catchwords: ADMINISTRATIVE LAW – Supervisory jurisdiction – Judicial review – Judicial review of confirmation in District Court of conviction entered in Local Court – Where applicant advances numerous grounds of review asserting jurisdictional error in conduct of trial and appeal to District Court – Where applicant asserts primary judge’s comments gave rise to apprehension of

Khatib v Director of Public Prosecutions (NSW) [2023] NSWCA 324 (20 December 2023) (White JA at [1]; Simpson AJA at [101]; Griffiths AJA at [102]) Read More »

Creak v Ford Motor Company of Australia Ltd (No 2) [2023] NSWCA 323 (20 December 2023) (Gleeson, White and Kirk JJA)

Catchwords: COSTS – Party/Party – Appeals – Where neither party wholly successful on appeal – Where appellant enjoyed some success with respect to discrete aspect of claim – Where appellant asserts there should be no order as to costs – Where respondent substantively successful on balance of contested issues – No issue of principle

Creak v Ford Motor Company of Australia Ltd (No 2) [2023] NSWCA 323 (20 December 2023) (Gleeson, White and Kirk JJA) Read More »

Alamin v Islam [2023] NSWCA 326 (20 December 2023) (White JA and Simpson AJA)

Catchwords: APPEALS – Leave to appeal – Leave to appeal from costs orders following dismissal of application for mandatory interlocutory injunctive relief – Where parties entered into deed settling litigation in Equity Division – Where applicant covenanted to pay $3.25m to respondent in tranches – Where applicant charged shares in related company as security for

Alamin v Islam [2023] NSWCA 326 (20 December 2023) (White JA and Simpson AJA) Read More »

DN v Secretary, Department of Communities and Justice [2023] NSWCA 321 (19 December 2023) (Mitchelmore and Stern JJA, Basten AJA)

Catchwords: CHILD WELFARE – Aboriginal children at risk of significant harm – parental responsibility conferred on Minister – children placed in care of non-Aboriginal carers – carers’ temporary visas expired – Minister consented to temporary removal of children to the UK – application by mother for parental responsibility – orders conferring parental responsibility on carers

DN v Secretary, Department of Communities and Justice [2023] NSWCA 321 (19 December 2023) (Mitchelmore and Stern JJA, Basten AJA) Read More »

Filby v Teg Live Pty Ltd [2023] NSWCA 320 (19 December 2023) (White and Stern JJA, Simpson AJA)

Catchwords: EQUITY – breach of confidence – the respondent was the promoter of the boyband One Direction’s 2013 Australian concert tour – the appellant attended a meeting with representatives of the respondent on 26 February 2013 to pitch Cashtime concept – prior to pitching Cashtime concept there was a brief discussion about One Direction’s 2013

Filby v Teg Live Pty Ltd [2023] NSWCA 320 (19 December 2023) (White and Stern JJA, Simpson AJA) Read More »

Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2); Taylor v LK Group Investments Pty Ltd (No 2) [2023] NSWCA 322 (19 December 2023) (Mitchelmore JA at [1]; Simpson AJA at [34]; Basten AJA at [35])

Catchwords: COSTS — party/party — appeals — exceptions to general rule that costs follow the event — apportionment of costs — where mixed outcome on appeal — where issues sufficiently discrete to warrant apportionment — unsuccessful appeal on causation — significant reduction of damages on appeal COSTS — party/party — exceptions to general rule that

Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2); Taylor v LK Group Investments Pty Ltd (No 2) [2023] NSWCA 322 (19 December 2023) (Mitchelmore JA at [1]; Simpson AJA at [34]; Basten AJA at [35]) Read More »

Atanaskovic v Birketu Pty Ltd [2023] NSWCA 312 (15 December 2023) (Ward P, Kirk JA and Simpson AJA)

Catchwords: COSTS – General rule that self-represented litigants cannot recover costs for their own time – Chorley exception – Impact of Bell Lawyers v Pentelow on litigants recouping costs of employed solicitors – Inclusion of “remuneration” in definition of “costs” in the Civil Procedure Act 2005 (NSW) – Where the litigant party has obtained a

Atanaskovic v Birketu Pty Ltd [2023] NSWCA 312 (15 December 2023) (Ward P, Kirk JA and Simpson AJA) Read More »

Bondi Beach Foods Pty Ltd v Chadwick (No 2) [2023] NSWCA 308 (15 December 2023) (Gleeson, Leeming and Payne JJA)

Catchwords: COSTS – costs of appeal – where both parties enjoyed measure of success – costs of trial – costs order made at first instance was a ground of appeal – no substantive submissions made on that ground, despite the absence of submissions being pointed out in writing and during the hearing of the appeal

Bondi Beach Foods Pty Ltd v Chadwick (No 2) [2023] NSWCA 308 (15 December 2023) (Gleeson, Leeming and Payne JJA) Read More »

Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) [2023] NSWCA 311 (15 December 2023) (Bell CJ and Adamson JA)

Catchwords: COSTS — application for gross sum costs order pursuant to s 98(4)(c) of Civil Procedure Act 2005 (NSW) — notice of motion filed more than 14 days after entry of original costs order — whether application for gross sum costs order a variation of original order

Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) [2023] NSWCA 311 (15 December 2023) (Bell CJ and Adamson JA) Read More »

Li v Tao [2023] NSWCA 310 (15 December 2023) (Ward P, Mitchelmore and Kirk JJA)

Catchwords: EQUITY — General principles and maxims — Conveyancing — Statute of Frauds — Part performance — High threshold for part performance — Equivocal factors for part performance — Many equivocal acts do not add up to an unequivocal act EQUITY — Equitable interests in property — Property disputes — Assertion of legal ownership by

Li v Tao [2023] NSWCA 310 (15 December 2023) (Ward P, Mitchelmore and Kirk JJA) Read More »

Total Construction Pty Ltd v Kennedy Civil Contracting Pty Ltd (subject to a Deed of Company Arrangement) [2023] NSWCA 306 (14 December 2023) (Meagher, Mitchelmore and Adamson JJA)

Catchwords: BUILDING AND CONSTRUCTION — Payment claim requirements — Where alleged payment claim consisted of letter from solicitors and attached invoices — Where correspondence between attached invoices and earlier submitted payment claims — Where indebtedness asserted in letter — Whether payment claim within meaning of s 13(1) of Building and Construction Industry Security of Payment

Total Construction Pty Ltd v Kennedy Civil Contracting Pty Ltd (subject to a Deed of Company Arrangement) [2023] NSWCA 306 (14 December 2023) (Meagher, Mitchelmore and Adamson JJA) Read More »

Chief Commissioner of State Revenue v Integrated Trolley Management Pty Ltd [2023] NSWCA 302 (13 December 2023) (Ward P, Payne JA and Basten AJA)

Catchwords: TAXES AND DUTIES – payroll tax liability – employment agency contract – contract for trolley collection and cleaning services – identifying the employment agency contract – contract between agent and client – separate contracts between agent and service providers – onus of proof on tax payer STATUTORY INTERRETATION – payroll tax liability – employment

Chief Commissioner of State Revenue v Integrated Trolley Management Pty Ltd [2023] NSWCA 302 (13 December 2023) (Ward P, Payne JA and Basten AJA) Read More »

The Owners Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWCA 301 (13 December 2023) (Ward P, Adamson JA and Basten AJA)

Catchwords: APPEAL – leave to appeal – interlocutory order refusing to strike out defence – defence pleaded plaintiff’s claim apportionable – issue of general public importance – significant impact on course of trial TORT – duty of care – statutory duty for construction work – extension of duty to subsequent owners of land – duty

The Owners Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWCA 301 (13 December 2023) (Ward P, Adamson JA and Basten AJA) Read More »

Commissioner of Police v Ritson [2023] NSWCA 300 (13 December 2023) (Bell CJ, Stern JA and Basten AJA)

Catchwords: ADMINISTRATIVE LAW – access to personal information – obligation of public sector agency – access to be provided without excessive delay – breach of obligation – power to order provision of information – unresolved issues as to application of conditions and limitations on disclosure obligation CIVIL PROCEDURE – Civil and Administrative Tribunal – appeals

Commissioner of Police v Ritson [2023] NSWCA 300 (13 December 2023) (Bell CJ, Stern JA and Basten AJA) Read More »

Dahdah v Witte [2023] NSWCA 304 (13 December 2023) (White and Mitchelmore JJA, Griffiths AJA)

Catchwords: TORTS – Motor vehicle accident – Late claims – Requirement for “full and satisfactory explanation” – Where applicant sought leave to institute proceedings under Motor Accidents Compensation Act 1999 (NSW) outside of time prescribed by s 109 – Where primary judge refused leave on basis that applicant had not provided “full and satisfactory explanation”

Dahdah v Witte [2023] NSWCA 304 (13 December 2023) (White and Mitchelmore JJA, Griffiths AJA) Read More »

Ramsay v Minister for Lands and Water [2023] NSWCA 299 (12 December 2023) (Bell CJ, Payne and Adamson JJA)

Catchwords: ENVIRONMENT AND PLANNING – jurisdiction of Land and Environment Court to hear Class 1 appeals – ss 368(1)(a) and (c) of the Water Management Act 2000 (NSW) – where floodplain harvesting (regulated river) access licence not granted in relation to share component said to have been sought – whether determinations of Minister to grant

Ramsay v Minister for Lands and Water [2023] NSWCA 299 (12 December 2023) (Bell CJ, Payne and Adamson JJA) Read More »

Jay v Petrikas [2023] NSWCA 297 (12 December 2023) (Payne, Kirk and Griffiths JJA)

Catchwords: APPEALS – Leave to appeal – question of general principle – scope of tort of injurious falsehood TORTS – Economic torts – Injurious falsehood – malice – where false representations were beliefs or opinions reasonably held TORTS – Economic torts – Injurious falsehood – falsity – whether any error to approach to falsity in

Jay v Petrikas [2023] NSWCA 297 (12 December 2023) (Payne, Kirk and Griffiths JJA) Read More »

Clark v Zele [2023] NSWCA 296 (11 December 2023) (Payne, Kirk and Stern JJA)

Catchwords: CONTRACT – sale of residential property – the appellant and respondents entered into a contract for the sale of the appellant’s property – completion did not occur by the completion date – the respondents sought and were granted specific performance and declaratory relief with the question of damages reserved – Parker J found deposit

Clark v Zele [2023] NSWCA 296 (11 December 2023) (Payne, Kirk and Stern JJA) Read More »

Turnbull v Clarence Valley Council [2023] NSWCA 295 (08 December 2023) (Simpson AJA at [1], Basten AJA at [56])

Catchwords: Appeals – application for leave to appeal from summary dismissal of proceedings – pleading disclosed no reasonable cause of action – no prospect that leave to replead would result in viable claim – leave to appeal refused – no issue of principle

Turnbull v Clarence Valley Council [2023] NSWCA 295 (08 December 2023) (Simpson AJA at [1], Basten AJA at [56]) Read More »