NSWCA

State of New South Wales v Shepherd [2019] NSWCA 261 (25 October 2019) (Bell P, Meagher JA, Simpson AJA)

Catchwords: APPEAL – procedural fairness – absence of reasons to support critical finding of fact – absence of reasons to support rejection of account of critical issue by witnesses on both sides of the record – no basis in the evidence to support the finding in fact made or the critical issue – need for

State of New South Wales v Shepherd [2019] NSWCA 261 (25 October 2019) (Bell P, Meagher JA, Simpson AJA) Read More »

Boensch v Somerville Legal Pty Ltd [2019] NSWCA 249 (23 October 2019) (Macfarlan JA at [1]; Meagher JA at [2]; Emmett AJA at [3])

Catchwords: PROCEDURE – Client sought leave to file an amended summons by way of appeal from decisions of the Costs Review Panel – Matter struck out or dismissed by primary judge – Primary judge refused to exercise discretion to set aside orders made by the Costs Appeal Panel JUDICIAL REVIEW – Whether primary judge’s refusal

Boensch v Somerville Legal Pty Ltd [2019] NSWCA 249 (23 October 2019) (Macfarlan JA at [1]; Meagher JA at [2]; Emmett AJA at [3]) Read More »

Antov v Bokan (No 2) [2019] NSWCA 250 (18 October 2019) (Bathurst CJ at [1], Bell P at [2] and Payne JA at [78])

Catchwords: APPEAL – claim in promissory estoppel based on representations said to derive from two documents – whether primary judge erred in holding that one of the documents was not authentic – no error – no issue of principle CIVIL PROCEDURE – video link evidence – whether primary judge erred in refusing to permit video

Antov v Bokan (No 2) [2019] NSWCA 250 (18 October 2019) (Bathurst CJ at [1], Bell P at [2] and Payne JA at [78]) Read More »

Kabic v AAI Limited t/as GIO [2019] NSWCA 247 (11 October 2019) (Meagher JA at [1]; White JA at [2]; McCallum JA at [204])

Catchwords: TORTS — negligence — labourer fell from raised wet plywood platform — whether expert evidence necessary to support finding that surface was slippery — whether primary judge erred in assessment of evidence and consequent factual findings — contributory negligence — whether worker contributorily negligent in following employer’s direction to work on wet platform DAMAGES

Kabic v AAI Limited t/as GIO [2019] NSWCA 247 (11 October 2019) (Meagher JA at [1]; White JA at [2]; McCallum JA at [204]) Read More »

Croghan v Blacktown City Council [2019] NSWCA 248 (15 October 2019) (Meagher JA at [1], McCallum JA at [47], Simpson AJA at [48])

Catchwords: COSTS – party/party – exceptions to general rule that costs follow the event – Land and Environment Court – Class 3 compensation proceedings – where UCPR r 42.1 does not apply and offer of compromise rejected and judgment obtained for less than amount of offer – application of UCPR r 42.15(2) – principles relevant

Croghan v Blacktown City Council [2019] NSWCA 248 (15 October 2019) (Meagher JA at [1], McCallum JA at [47], Simpson AJA at [48]) Read More »

Boscolo v NSW Land and Housing Corporation [2019] NSWCA 246 (10 October 2019) (Meagher JA; Emmett AJA)

Catchwords: LEASES AND TENANCIES – application for leave to appeal – where residential premises uninhabitable – where tenant refused landlord access to carry out repairs – where tenant given notice of termination under Residential Tenancies Act 2010 (NSW), s 109 – where Civil and Administrative Tribunal made orders terminating tenancy agreement and for vacant possession

Boscolo v NSW Land and Housing Corporation [2019] NSWCA 246 (10 October 2019) (Meagher JA; Emmett AJA) Read More »

Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245 (11 October 2019) (Bell P at [1]; White JA at [47]; McCallum JA at [68])

Catchwords: APPEALS – civil procedure – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – whether trial judge erred in dismissing proceedings – whether instituting criminal proceedings to vex the accused is within the lawful scope of the criminal process – non-publication order – Court Suppression and Non-Publication Orders Act

Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245 (11 October 2019) (Bell P at [1]; White JA at [47]; McCallum JA at [68]) Read More »

Barkat v Roads and Maritime Services [2019] NSWCA 240 (11 October 2019) (Leeming JA at [1]; Emmett AJA at [2]; Simpson AJA at [94])

Catchwords: LAND LAW – Compulsory acquisition of land – Compensation – Objection to amount of compensation APPEALS – Right of appeal conferred by s 57 of the Land and Environment Court Act 1979 (NSW) limited to questions of law – Whether adjustments made by primary judge when considering comparable sale constitute errors of law –

Barkat v Roads and Maritime Services [2019] NSWCA 240 (11 October 2019) (Leeming JA at [1]; Emmett AJA at [2]; Simpson AJA at [94]) Read More »

DeBattista v Minister for Planning and Environment [2019] NSWCA 237 (01 October 2019) (White JA at [1]; McCallum JA at [15]; Emmett AJA at [16])

Catchwords: ENVIRONMENT AND PLANNING – building control – council consent and approval – whether the Council’s processes in determining whether to amend a Local Environmental Plan are of a political and policy nature only, precluding the Land and Environment Court from intervening – whether there was a reasonable apprehension of bias that should preclude the

DeBattista v Minister for Planning and Environment [2019] NSWCA 237 (01 October 2019) (White JA at [1]; McCallum JA at [15]; Emmett AJA at [16]) Read More »

Muriniti v King; Newell v Hemmings [2019] NSWCA 232 (02 October 2019) (Payne JA at [1]; McCallum JA at [44]; Simpson AJA at [45])

Catchwords: APPEALS – applications for leave to appeal from personal costs orders against lawyers – whether necessary for Lawcover to be joined to the proceedings for the purposes of having the summonses seeking leave to appeal dismissed – where Lawcover had determined that it would not appeal the personal costs orders – where the Court

Muriniti v King; Newell v Hemmings [2019] NSWCA 232 (02 October 2019) (Payne JA at [1]; McCallum JA at [44]; Simpson AJA at [45]) Read More »

Zervas v Burkitt (No 2) [2019] NSWCA 236 (26 September 2019) (Bell P at [1]; Macfarlan JA at [73]; McCallum JA at [74])

Catchwords: APPEAL – Misleading or deceptive conduct – accessorial liability – representation as to future conduct – determination of liability where applicant held liable for causes of action not pleaded against him – whether failure to accept offer of insurance was a failure to mitigate loss – apportionment of liability – variation of costs orders

Zervas v Burkitt (No 2) [2019] NSWCA 236 (26 September 2019) (Bell P at [1]; Macfarlan JA at [73]; McCallum JA at [74]) Read More »

Boateng v Dharamdas [2019] NSWCA 233 (25 September 2019) (Macfarlan JA at [1]; Gleeson JA at [43]; White JA at [44])

Catchwords: CIVIL PROCEDURE – effect of grant of “liberty to apply” – whether costs order final – time limit for applying to vary a final order – dispensing with filing of notice of motion under s 14 Civil Procedure Act COSTS – offer of compromise – whether judgment “no more favourable” than offer – when

Boateng v Dharamdas [2019] NSWCA 233 (25 September 2019) (Macfarlan JA at [1]; Gleeson JA at [43]; White JA at [44]) Read More »

G Capital Corporation Pty Ltd v Roads and Maritime Services [2019] NSWCA 234 (24 September 2019) (Meagher JA at [1]; Gleeson JA at [32]; McCallum JA at [33])

Catchwords: LAND LAW – compulsory acquisition of land – compensation – where applicants entered into contracts for sale of relevant land – where land compulsorily acquired before settlement of those contracts – where applicants objected to amount of compensation for market value – where applicants’ primary compensation claim for unpaid purchase price as loss attributable

G Capital Corporation Pty Ltd v Roads and Maritime Services [2019] NSWCA 234 (24 September 2019) (Meagher JA at [1]; Gleeson JA at [32]; McCallum JA at [33]) Read More »

Hunter v Roberts (No 2) [2019] NSWCA 235 (24 September 2019) (Meagher JA at [1]; Brereton JA at [1]; Simpson AJA at [1].)

Catchwords: COSTS – application for indemnity costs following rejection of Calderbank offer – where offer accompanied by written submissions in the appeal –where applicant’s prospects of success very good – whether respondent acted unreasonably in refusing offer

Hunter v Roberts (No 2) [2019] NSWCA 235 (24 September 2019) (Meagher JA at [1]; Brereton JA at [1]; Simpson AJA at [1].) Read More »

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (19 September 2019) (Bell P at [1]; Ward JA at [109]; McCallum JA at [115])

Catchwords: LEASES AND TENANCIES – Social Housing Tenancy Agreement – Agreement terminated by order of NCAT pursuant to s 91 of Residential Tenancies Act – whether termination would occasion undue hardship to tenant – meaning of undue hardship in context of Residential Tenancies Act – discretion to terminate notwithstanding undue hardship – whether NCAT had

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (19 September 2019) (Bell P at [1]; Ward JA at [109]; McCallum JA at [115]) Read More »

De Varda v Austin (No 3) [2019] NSWCA 226 (17 September 2019) (Bell P, McCallum JA and Emmett AJA)

Catchwords: PROCEDURAL FAIRNESS – Vexatious Proceedings Act 2008 (NSW) – where persons the subject of orders made under the Act not heard and not given an opportunity to be heard before orders made – non-compliance with s 8(3) of Vexatious Proceedings Act conceded – whether Court of Appeal should itself entertain application for orders under

De Varda v Austin (No 3) [2019] NSWCA 226 (17 September 2019) (Bell P, McCallum JA and Emmett AJA) Read More »

MetLife Insurance Limited v MX [2019] NSWCA 228 (16 September 2019) (Meagher JA at [1]; Gleeson JA at [2]; Payne JA at [165].)

Catchwords: SUPERANNUATION – accident and sickness insurance – benefits for disablement – where benefits insured under group life policy – benefit for “total and permanent disability” – where insurer declined claim twice – where the insurer’s second decision took into account its first decision – whether insurer took into account irrelevant consideration – whether insurer

MetLife Insurance Limited v MX [2019] NSWCA 228 (16 September 2019) (Meagher JA at [1]; Gleeson JA at [2]; Payne JA at [165].) Read More »

Cappello v Roads and Maritime Services [2019] NSWCA 227 (16 September 2019) (Payne JA at [1]; Brereton JA at [60]; Emmett AJA at [61])

Catchwords: ADMINISTRATIVE LAW – compulsory acquisition of property for the purpose of the construction of a tollway – validity of proposed acquisition notices issued – statutory authority of RMS to acquire land under s 177 of the Roads Act 1993 (NSW) STATUTORY INTERPRETATION – Roads Act 1993 (NSW), s 177 – meaning of “the purposes

Cappello v Roads and Maritime Services [2019] NSWCA 227 (16 September 2019) (Payne JA at [1]; Brereton JA at [60]; Emmett AJA at [61]) Read More »

Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229 (16 September 2019) (Meagher JA; McCallum JA)

Catchwords: CIVIL PROCEDURE – application for leave to appeal from decision granting leave to amend defence – insurance dispute – claim in respect of property damaged by fire – belated application by insurer to plead arson – no reference in primary judgment to part 6 of Civil Procedure Act – whether primary judge erred in

Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229 (16 September 2019) (Meagher JA; McCallum JA) Read More »

State of New South Wales v Ouhammi [2019] NSWCA 225 (11 September 2019) (Basten JA at [1]; Brereton JA at [47]; Simpson AJA at [137])

Catchwords: TORTS – negligence – negligent battery – plaintiff’s thumb injured by police officer closing door while plaintiff held in cell – negligent battery – no intention to cause injury – application of Civil Liability Act 2002 (NSW) – onus of proof – whether police officer should have taken precautions – whether damages should be

State of New South Wales v Ouhammi [2019] NSWCA 225 (11 September 2019) (Basten JA at [1]; Brereton JA at [47]; Simpson AJA at [137]) Read More »

BP v State of New South Wales [2019] NSWCA 223 (10 September 2019) (Meagher JA; Payne JA; McCallum JA)

Catchwords: APPEALS – nature – entitlement of parties to appeal orders and not reasons – changed circumstances – no operative order which may be the subject of an appeal CRIMINAL LAW – Terrorism (High Risk Offenders) Act 2017 (NSW) – interim supervision orders revoked

BP v State of New South Wales [2019] NSWCA 223 (10 September 2019) (Meagher JA; Payne JA; McCallum JA) Read More »

Lamont v Deputy Commissioner of Taxation [2019] NSWCA 221 (06 September 2019) (Meagher JA at [1]; Gleeson JA at [1]; Brereton JA at [1])

Catchwords: TAXES AND DUTIES – income tax – collection and recovery of tax – where judgment given in favour of Commissioner for recovery of income tax, penalties and interest charges – where appellant asserts that he was denied “right” to be represented by a person with no legal qualifications – where appellant contends Supreme Court

Lamont v Deputy Commissioner of Taxation [2019] NSWCA 221 (06 September 2019) (Meagher JA at [1]; Gleeson JA at [1]; Brereton JA at [1]) Read More »

Bevan v Coolahan [2019] NSWCA 217 (05 September 2019) (Basten JA at [1]; Leeming JA at [36]; McCallum JA at [130])

Catchwords: NEGLIGENCE – motor vehicle accident – occupants of vehicle participants in joint criminal enterprise to obtain illicit drugs – whether driver owed duty of care to passenger – whether Civil Liability Act 2002 (NSW), s 54 displaced principles in Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 – whether statutory purpose of

Bevan v Coolahan [2019] NSWCA 217 (05 September 2019) (Basten JA at [1]; Leeming JA at [36]; McCallum JA at [130]) Read More »

Drivas v Jakopovic [2019] NSWCA 218 (05 September 2019) (Bell ACJ at [1]; Macfarlan JA at [2]; McCallum JA at [79])

Catchwords: SUCCESSION – testamentary capacity – weight to be given to conclusory expert medical evidence on the legal issue of whether deceased had testamentary capacity – weight to be given to solicitor’s evidence of practice concerning clients’ execution of wills EVIDENCE – weight to be given to solicitor’s evidence of practice concerning clients’ execution of

Drivas v Jakopovic [2019] NSWCA 218 (05 September 2019) (Bell ACJ at [1]; Macfarlan JA at [2]; McCallum JA at [79]) Read More »

Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (No 3) [2019] NSWCA 214 (03 September 2019) (Basten JA and Meagher JA at [1]; Emmett AJA at [82])

Catchwords: CONTRACT – formation of contract – partnership or joint venture – oral agreement alleged – development of land – alleged promise to pay 20% of profits – delay in making claim and bringing proceedings – claim of equitable fraud depending on existence of agreement – relevance of later conduct EVIDENCE – adverse inference drawn

Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (No 3) [2019] NSWCA 214 (03 September 2019) (Basten JA and Meagher JA at [1]; Emmett AJA at [82]) Read More »

Barrak v City of Parramatta Council [2019] NSWCA 213 (03 September 2019) (Payne JA at [1]; White JA at [4]; McCallum JA at [149])

Catchwords: LOCAL GOVERNMENT — powers, functions and duties — power of mayor and council to expel councillor for “act of disorder” — whether describing mayor as “clown” during meeting an “act of disorder” — whether power of expulsion validly exercised — whether dispute suitable for adjudication by Land and Environment Court WORDS AND PHRASES —

Barrak v City of Parramatta Council [2019] NSWCA 213 (03 September 2019) (Payne JA at [1]; White JA at [4]; McCallum JA at [149]) Read More »

Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216 (03 September 2019) (Basten JA at [1]; Macfarlan JA at [99]; Leeming JA at [180])

Catchwords: ADMINISTRATIVE LAW – jurisdictional facts – whether conditions of project approval specified objective criteria, satisfaction of which was a precondition to the exercise of the decision-maker’s powers ADMINISTRATIVE LAW – unreasonableness – whether decision-maker’s satisfaction with a mining strategy was legally unreasonable – whether decision-maker’s view was at least arguable CIVIL PROCEDURE – Court

Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216 (03 September 2019) (Basten JA at [1]; Macfarlan JA at [99]; Leeming JA at [180]) Read More »

XL Insurance Co SE v BNY Trust Company of Australia Limited [2019] NSWCA 215 (02 September 2019) (Bell P at [1], Gleeson JA at [2], Emmett AJA at [121])

Catchwords: CIVIL PROCEDURE – appeal from determination of separate questions – where concession in agreed facts as to causation of loss suffered by claimant against the insureds – whether primary judge erred in attaching significance to appellant’s concession when deciding construction of contract of insurance CONTRACTS – construction – proper construction of a contract of

XL Insurance Co SE v BNY Trust Company of Australia Limited [2019] NSWCA 215 (02 September 2019) (Bell P at [1], Gleeson JA at [2], Emmett AJA at [121]) Read More »

Darzi Group Pty Ltd v Nolde Pty Ltd [2019] NSWCA 210 (30 August 2019) (Bathurst CJ at [1]; Basten JA at [20]; Emmett AJA at [56])

Catchwords: LEASES AND TENANCIES – whether the parties entered into a binding and enforceable agreement for lease of the Premises in the terms of the 15 June Document – significance to be attached to the Heads of Agreement as constituting a binding document – whether language used in correspondence of 27 and 31 May 2016

Darzi Group Pty Ltd v Nolde Pty Ltd [2019] NSWCA 210 (30 August 2019) (Bathurst CJ at [1]; Basten JA at [20]; Emmett AJA at [56]) Read More »

Rahme v Benjamin & Khoury Pty Ltd [2019] NSWCA 211 (30 August 2019) (Bathurst CJ at [1]; Macfarlan JA at [2]; McCallum JA at [142])

Catchwords: EQUITY – fiduciary duties – whether fiduciary duties owed by a solicitor during negotiations for and steps taken to establish a solicitor/client relationship – breach – whether client gave fully informed consent to enter into agreements with solicitor – whether advice “independent” and “meaningful” CIVIL LIABILITY – Civil Liability Act 2002 – defences of

Rahme v Benjamin & Khoury Pty Ltd [2019] NSWCA 211 (30 August 2019) (Bathurst CJ at [1]; Macfarlan JA at [2]; McCallum JA at [142]) Read More »

Qui v Obeid [2019] NSWCA 207 (22 August 2019) (Gleeson JA at [1]; Payne JA at [2]; Simpson AJA at [3])

Catchwords: MOTOR ACCIDENTS – where collision between two vehicles – where plaintiff injured and sought compensation under Motor Accidents Compensation Act 1999 (NSW) – whether plaintiff’s car parked kerbside or executing a U-turn or right turn at time of collision – where primary judge found plaintiff’s car was performing a U-turn or right turn at

Qui v Obeid [2019] NSWCA 207 (22 August 2019) (Gleeson JA at [1]; Payne JA at [2]; Simpson AJA at [3]) Read More »

BA and LA v Secretary, Department of Communities and Justice [2019] NSWCA 206 (22 August 2019) (Basten JA; Leeming JA; Payne JA)

Catchwords: CHILD WELFARE – parental responsibility allocated to Minister – final orders in Children’s Court – appeal to District Court – whether jurisdictional error or error of law on the face of the record of District Court –procedural unfairness – failure to tender evidence – relevant considerations CIVIL PROCEDURE – parties – supervisory jurisdiction –

BA and LA v Secretary, Department of Communities and Justice [2019] NSWCA 206 (22 August 2019) (Basten JA; Leeming JA; Payne JA) Read More »

Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205 (21 August 2019) (Bell P at [1]; Basten JA at [37]; Ward JA at [68])

Catchwords: CONTRACTS – Construction – Interpretation – determination of market rent by an expert valuer – construction of provision of sub-lease requiring the valuer to “have regard to” certain matters in determining the market rent for a sub-lease of premises located at King Street Wharf, Sydney – interpretation of requirement to “have regard to” “comparable

Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205 (21 August 2019) (Bell P at [1]; Basten JA at [37]; Ward JA at [68]) Read More »

Bagshaw v State of New South Wales [2019] NSWCA 204 (20 August 2019) (Leeming JA)

Catchwords: PRACTICE – application for adjournment of hearing of leave application – application to quash guilty pleas entered in Local Court and confirmed by District Court – application to single Judge of Appeal to quash decision of District Court in civil proceedings – absence of jurisdiction – application dismissed

Bagshaw v State of New South Wales [2019] NSWCA 204 (20 August 2019) (Leeming JA) Read More »

D’Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201 (16 August 2019) (Macfarlan JA at [1]; Leeming JA at [2]; Simpson AJA at [3])

Catchwords: ADMINISTRATIVE LAW – Motor Accidents Compensation Act 1999 (NSW) medical review panel – assessment of degree of permanent impairment – application for judicial review – whether jurisdictional error – whether failure to address an argument properly before review panel – whether denial of procedural fairness – whether review panel directed attention to wrong question

D’Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201 (16 August 2019) (Macfarlan JA at [1]; Leeming JA at [2]; Simpson AJA at [3]) Read More »

Ayre v Swan [2019] NSWCA 202 (16 August 2019) (Basten JA at [1]; Macfarlan JA at [56]; McCallum JA at [57])

Catchwords: TORTS – negligence – road accident – liability of defendant – defendant completing a right-hand turn across double on-coming lanes – visibility of plaintiff’s motorcycle blocked by car in front – plaintiff sought to overtake car at a high speed on inside lane – collided with defendant – whether defendant negligent in failing to

Ayre v Swan [2019] NSWCA 202 (16 August 2019) (Basten JA at [1]; Macfarlan JA at [56]; McCallum JA at [57]) Read More »

Brighten v Traino (No 2) [2019] NSWCA 203 (16 August 2019) (Basten JA; Gleeson JA; Brereton JA)

Catchwords: COSTS – reinstatement of costs order at trial – offer of compromise in relation to appeal – early ‘walk away’ offer – no evidence of costs incurred – whether genuine compromise – whether appeal doomed to fail – offerors’ position not explained – Uniform Civil Procedure Rules 2005 (NSW), r 20.26

Brighten v Traino (No 2) [2019] NSWCA 203 (16 August 2019) (Basten JA; Gleeson JA; Brereton JA) Read More »

Bakewell v Anchorage Capital Master Offshore Ltd [2019] NSWCA 199 (14 August 2019) (Bell P at [1]; Macfarlan JA at [78]; White JA at [79])

Catchwords: CIVIL PROCEDURE – amendment and joinder application – said to be unarguable because certain claims assigned and said to be invalid – where not all claims by all plaintiffs were assigned claims – where proceedings against defendant would continue in any event – importance of principle in Wickstead v Browne – where area of

Bakewell v Anchorage Capital Master Offshore Ltd [2019] NSWCA 199 (14 August 2019) (Bell P at [1]; Macfarlan JA at [78]; White JA at [79]) Read More »

Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 200 (15 August 2019) (Gleeson JA at [1], Leeming JA at [6], McCallum JA at [7])

Catchwords: JUDGMENTS AND ORDERS – Court of Appeal – third application to set aside vexatious proceedings order – where applicant seeks to re-agitate matters already decided in judicial review proceedings – no new matter raised – where Court may decline to consider the application – Vexatious Proceedings Act 2008 (NSW), s 9(4)

Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 200 (15 August 2019) (Gleeson JA at [1], Leeming JA at [6], McCallum JA at [7]) Read More »

Thomas v Registrar-General of New South Wales [2019] NSWCA 198 (14 August 2019) (Bell P at [1]; Leeming JA at [53]; Emmett AJA at [54])

Catchwords: LAND LAW – Torrens system – claim for compensation from Torrens Assurance Fund – claimant had interest as equitable mortgagee – caveat lodged – caveat withdrawn following lodgement of fraudulent withdrawal of caveat form – transfer of title to new registered proprietor – claimant alleged that loss was suffered as a result of dealings

Thomas v Registrar-General of New South Wales [2019] NSWCA 198 (14 August 2019) (Bell P at [1]; Leeming JA at [53]; Emmett AJA at [54]) Read More »

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 (14 August 2019) (Basten JA at [1]; Leeming JA at [2]; Emmett AJA at [190])

Catchwords: PROBATE – contested grant – suspicious circumstances – whether proponent of will had discharged onus – will left whole estate to propounder – solicitor who explained and witnessed will believed propounder was testatrix’s only daughter and next of kin – solicitor’s erroneous beliefs caused by lies by those benefitting under will – inability to

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 (14 August 2019) (Basten JA at [1]; Leeming JA at [2]; Emmett AJA at [190]) Read More »

State of New South Wales v Wraydeh [2019] NSWCA 192 (14 August 2019) (McCallum JA at [1], Emmett AJA at [42], Simpson AJA at [50])

Catchwords: DEFAMATION – defences – contextual truth – amendment by plaintiff to adopt contextual imputations – whether primary judge ought to have inferred that the amendment was not brought in good faith or was an abuse of process APPEAL – practice and procedure – decision by primary judge to allow amendment – particular caution to

State of New South Wales v Wraydeh [2019] NSWCA 192 (14 August 2019) (McCallum JA at [1], Emmett AJA at [42], Simpson AJA at [50]) Read More »

Warren Ronald Wichman v Pepper Finance Corporation Limited [2019] NSWCA 195 (08 August 2019) (Meagher JA)

Catchwords: PROCEDURE – writ of possession – stay of execution – where default judgment obtained by mortgagee – where application for vacation and stay of execution dismissed by registrar in common law division – where motion to set aside registrar’s decision dismissed by Supreme Court Judge – no arguable grounds of appeal – no question

Warren Ronald Wichman v Pepper Finance Corporation Limited [2019] NSWCA 195 (08 August 2019) (Meagher JA) Read More »

Khanna v Baweja & Anor [2019] NSWCA 193 (08 August 2019) (White JA at [1]; McCallum JA at [37])

Catchwords: LANDLORD AND TENANT— application for leave to appeal against summary dismissal of statement of claim — where merits of various complaints as to habitability of premises and identity of landlord addressed by New South Wales Civil and Administrative Tribunal — where statement of claim reformulates many of these claims — whether landlord’s failure to

Khanna v Baweja & Anor [2019] NSWCA 193 (08 August 2019) (White JA at [1]; McCallum JA at [37]) Read More »

Lazarus v Kane [2019] NSWCA 194 (07 August 2019) (Bell P at [1]; Basten JA at [3]; Meagher JA at [31])

Catchwords: CRIMINAL PROCEDURE – judicial review – offender convicted and sentenced to imprisonment – challenge to issue of warrants of commitment – custodial sentence stayed pending judicial review – Court of Appeal order that warrants be amended – further judicial review of “decision” to amend warrants CIVIL PROCEDURE – judicial review – orders in nature

Lazarus v Kane [2019] NSWCA 194 (07 August 2019) (Bell P at [1]; Basten JA at [3]; Meagher JA at [31]) Read More »

Bank of Queensland Limited v AIG Australia Limited [2019] NSWCA 190 (06 August 2019) (Bathurst CJ at [1]; Macfarlan JA at [30]; White JA at [113])

Catchwords: INSURANCE – civil liability insurance policy – indemnity in respect of claims made against insured – whether single or multiple retentions applicable – Federal Court representative proceeding against insured – whether single or multiple claims against insured – effect of aggregation/disaggregation of claims clause – whether multiple claims arose out of a series of

Bank of Queensland Limited v AIG Australia Limited [2019] NSWCA 190 (06 August 2019) (Bathurst CJ at [1]; Macfarlan JA at [30]; White JA at [113]) Read More »

Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188 (31 July 2019) (Bell P at [1]; Leeming JA at [35]; Emmett AJA at [36])

Catchwords: APPEALS – application for leave to appeal – notice of intention to appeal – delay in filing application for leave to appeal in context of ongoing proceedings – absence of compelling explanation for delay in exercising appeal rights in circumstances where a trial in the District Court had been set down for hearing –

Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188 (31 July 2019) (Bell P at [1]; Leeming JA at [35]; Emmett AJA at [36]) Read More »

Riva NSW Pty Limited v Official Trustee in Bankruptcy [2019] NSWCA 186 (31 July 2019) (Bell P at [1]; Emmett AJA at [2])

Catchwords: LEAVE TO APPEAL – whether the issues raised in the applicant’s statement of claim amounted to a re-litigation of issues dealt with in the earlier proceedings – whether the applicant’s allegation that the Official Trustee had acted in fraudulent disregard of its duty as trustee had no prospects of success – applicant’s failure to

Riva NSW Pty Limited v Official Trustee in Bankruptcy [2019] NSWCA 186 (31 July 2019) (Bell P at [1]; Emmett AJA at [2]) Read More »

Zepinic, Vito v Chateau Constructions (Aust) Limited; Zepinic, Nina v Chateau Constructions (Aust) Limited (No 2) [2019] NSWCA 187 (30 July 2019) (Bell P at [1]; Macfarlan JA at [2]; Simpson AJA at [3])

Catchwords: CIVIL PROCEDURE – Uniform Civil Procedure Rules r 36.16 – where orders dispositive of appeal have been made – where applicants seek orders setting aside judgment and allowing the appeals – whether asserted error in judgment readily identifiable, readily rectifiable or inadvertent

Zepinic, Vito v Chateau Constructions (Aust) Limited; Zepinic, Nina v Chateau Constructions (Aust) Limited (No 2) [2019] NSWCA 187 (30 July 2019) (Bell P at [1]; Macfarlan JA at [2]; Simpson AJA at [3]) Read More »

Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2019] NSWCA 185 (26 July 2019) (Bell P at [1]; Basten JA at [154]; Emmett AJA [178])

Catchwords: CONTRACTS – ship construction – interpretation –contract to come into effect on the earlier of the date set out in a clause and the date on which the parties reached agreement on a particular matter – whether reaching agreement a condition precedent to contract coming into effect – where clause referred to two dates

Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2019] NSWCA 185 (26 July 2019) (Bell P at [1]; Basten JA at [154]; Emmett AJA [178]) Read More »

Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2019] NSWCA 181 (24 July 2019) (Simpson AJA)

Catchwords: CIVIL PROCEDURE – subpoenas – where appellant suffered ill health and unable to instruct solicitors – where appeal filed out of time – where respondent issues subpoenas to test appellant’s evidence – whether documents subject of subpoenas sufficiently relevant to determination of issue – whether subpoenas oppressive

Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2019] NSWCA 181 (24 July 2019) (Simpson AJA) Read More »

NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd [2019] NSWCA 182 (25 July 2019) (Macfarlan JA at [1]; Leeming JA at [2]; White JA at [58])

Catchwords: PLANNING AND ENVIRONMENTAL LAW – Land and Environment Court – jurisdiction – condition of consent provided that music festival must not proceed if Commissioner of Police advised it was unsafe – whether Class 1 appeal lay from Commissioner’s decision – whether decision concerned an aspect of development required to be carried out to the

NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd [2019] NSWCA 182 (25 July 2019) (Macfarlan JA at [1]; Leeming JA at [2]; White JA at [58]) Read More »

Commissioner of Victims Rights v Dobbie [2019] NSWCA 183 (25 July 2019) (Basten JA at [1]; Leeming JA at [57]; McCallum JA at [58])

Catchwords: ADMINISTRATIVE LAW – judicial review – victim’s compensation claim – primary victim of domestic violence – claim for “severely disabling” psychological disorder – challenge to rejection by delegate – whether the delegate attributed incorrect meaning to “severely disabling” ADMINISTRATIVE LAW – judicial review – expert psychologists designated by Director – assessment of disability by

Commissioner of Victims Rights v Dobbie [2019] NSWCA 183 (25 July 2019) (Basten JA at [1]; Leeming JA at [57]; McCallum JA at [58]) Read More »

AEA Constructions Pty Ltd v Wharekawa;; AEA Constructions Pty Ltd v Building Partners Pty Ltd [2019] NSWCA 176 (19 July 2019) (Basten JA at [1]; Gleeson JA at [22]; White JA at [23])

Catchwords: TORTS — negligence — apportionment of responsibility and damages — primary judge held that appellant vicariously liable for injury and breached duty of care owed to respondent — primary judge found no negligence on part of worker’s employer — whether primary judge erred in finding worker’s employer not in breach of duty and liable

AEA Constructions Pty Ltd v Wharekawa;; AEA Constructions Pty Ltd v Building Partners Pty Ltd [2019] NSWCA 176 (19 July 2019) (Basten JA at [1]; Gleeson JA at [22]; White JA at [23]) Read More »

Wollongong City Council v Papadopoulos [2019] NSWCA 178 (19 July 2019) (Basten JA at [1]; Leeming JA at [2]; McCallum JA at [87])

Catchwords: DAMAGES – breach of contract – calculation of economic loss – respondent operated kiosk on premises licensed from appellant – appellant breached licence agreement – no evidence of damages – primary judge used ATO “benchmarks” for restaurant businesses to derive likely lost profits – whether primary judge could take judicial notice of benchmarks –

Wollongong City Council v Papadopoulos [2019] NSWCA 178 (19 July 2019) (Basten JA at [1]; Leeming JA at [2]; McCallum JA at [87]) Read More »

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 (18 July 2019) (Basten JA; Leeming JA; White JA)

Catchwords: FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim care order conferring parental responsibility on Minister – whether summons seeking to set aside interim care order should have been summarily dismissed PROCEDURE – appeal against summary dismissal of summons – plaintiff required to

GR v Secretary, Department of Family and Community Services and Justice [2019] NSWCA 177 (18 July 2019) (Basten JA; Leeming JA; White JA) Read More »

Hee v State Transit Authority of New South Wales [2019] NSWCA 175 (17 July 2019) (Meagher JA at [1]; White JA at [36]; Simpson AJA at [117])

Catchwords: WORKERS COMPENSATION – Workers Compensation Act 1987 (NSW) – construction of s 38A – where appellant a worker with highest needs –whether arbitrator made finding that appellant able to return to pre-injury employment – whether appellant entitled to compensation under s 38A

Hee v State Transit Authority of New South Wales [2019] NSWCA 175 (17 July 2019) (Meagher JA at [1]; White JA at [36]; Simpson AJA at [117]) Read More »

Lemongrove Services Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174 (17 July 2019) (Bell P at [1], Payne JA at [2], Simpson AJA at [55])

Catchwords: EVIDENCE – appeals – findings of fact – whether glaringly improbable or contrary to compelling inferences CONTRACTS – factual causation – subjective determination in the light of all the relevant circumstances

Lemongrove Services Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174 (17 July 2019) (Bell P at [1], Payne JA at [2], Simpson AJA at [55]) Read More »

Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173 (16 July 2019) (Bathurst CJ; Leeming JA; McCallum JA)

Catchwords: COSTS – appeal allowed in part – partial success of both sides – apportionment of costs – impossible to re-exercise costs discretion at first instance – costs at first instance relatively large – remitter to Equity Division

Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2) [2019] NSWCA 173 (16 July 2019) (Bathurst CJ; Leeming JA; McCallum JA) Read More »

Style Timber Floor Pty Ltd v Krivosudsky [2019] NSWCA 171 (16 July 2019) (Bell P at [1]; Leeming JA at [8]; Simpson AJA at [82])

Catchwords: BUILDING AND CONSTRUCTION – payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – payment schedule – claim related to seven invoices and five sites – email in response proposed a meeting and referred to many emails, photos, back charges and complaints – email said claimant would understand why he

Style Timber Floor Pty Ltd v Krivosudsky [2019] NSWCA 171 (16 July 2019) (Bell P at [1]; Leeming JA at [8]; Simpson AJA at [82]) Read More »

Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle [2019] NSWCA 172 (16 July 2019) (Bell P at [1]; Gleeson JA at [4]; Leeming JA at [6])

Catchwords: DEFAMATION – application to discharge jury – whether plaintiff’s closing address went beyond pleaded case – whether submissions went beyond what had been put to witness in cross-examination – whether rule in Browne v Dunn breached – whether factual error about source of instructions to defendant – whether individual or cumulative effect of matters

Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle [2019] NSWCA 172 (16 July 2019) (Bell P at [1]; Gleeson JA at [4]; Leeming JA at [6]) Read More »

Hamamdjian v Lipovac [2019] NSWCA 170 (11 July 2019) (Basten JA at [1]; Leeming JA at [52]; McCallum JA at [53])

Catchwords: APPEAL – civil – challenge to findings of fact – whether trial judge erred in accepting evidence of defendant – resolution of inconsistencies – absence of independent witnesses – plaintiff bore onus of proof – judge entitled to have regard to inherent implausibility of plaintiff’s case TORTS – negligence – liability for motor accident

Hamamdjian v Lipovac [2019] NSWCA 170 (11 July 2019) (Basten JA at [1]; Leeming JA at [52]; McCallum JA at [53]) Read More »

Brighten v Traino [2019] NSWCA 168 (08 July 2019) (Basten JA at [1]; Gleeson JA at [134]; Brereton JA at [136])

Catchwords: EVIDENCE – expert evidence – use of psychometric testing – methodology experimental – lack of explanation justifying acceptance of methodology – plaintiff’s medical evidence discounted on basis of tests indicating plaintiff was disingenuous in answering test questions TORTS – battery – plaintiff punched in the face – whether intentional act intended to cause injury

Brighten v Traino [2019] NSWCA 168 (08 July 2019) (Basten JA at [1]; Gleeson JA at [134]; Brereton JA at [136]) Read More »

Whall v Stamp [2019] NSWCA 163 (08 July 2019) (Basten JA at [1]; Leeming JA at [18]; Payne JA at [26])

Catchwords: CIVIL PROCEDURE – motion to remove a caveat – urgent fixture of motion – caveat based on claim to life interest – separate question ordered as to existence of life interest – answer to question finally determined substantive issue – whether order for separate question appropriate given urgency of motion CIVIL PROCEDURE – appeal

Whall v Stamp [2019] NSWCA 163 (08 July 2019) (Basten JA at [1]; Leeming JA at [18]; Payne JA at [26]) Read More »

Turner v State of New South Wales [2019] NSWCA 164 (05 July 2019) (Bathurst CJ at [1]; Basten JA at [2]; Payne JA at [50])

Catchwords: HIGH RISK OFFENDER – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – interim detention order – whether offender must be in lawful custody when interim detention order made – whether offender must be in lawful custody when an interim detention order is renewed STATUTORY INTERPRETATION – implied limitation on powers

Turner v State of New South Wales [2019] NSWCA 164 (05 July 2019) (Bathurst CJ at [1]; Basten JA at [2]; Payne JA at [50]) Read More »

Mid North Coast Local Health District v Hickson [2019] NSWCA 165 (05 July 2019) (Basten JA at [1]; Payne JA at [48]; Simpson AJA at [49])

Catchwords: APPEAL – practice and procedure – appeal from judgement on a review reversing interlocutory decision of Registrar – application of principle of restraint in review of discretionary decision as to practice and procedure PROCEDURE – interrogatories – personal injury claim – defendant’s application to administer interrogatories to plaintiff – rule requiring “special reasons” to

Mid North Coast Local Health District v Hickson [2019] NSWCA 165 (05 July 2019) (Basten JA at [1]; Payne JA at [48]; Simpson AJA at [49]) Read More »

TCN Channel Nine Pty Ltd v Pahuja [2019] NSWCA 166 (05 July 2019) (Basten JA at [1]; Payne JA at [82]; Simpson AJA at [91])

Catchwords: DEFAMATION — defences — substantial truth —Defamation Act 2005 (NSW), s 25 — whether trial judge erred in withdrawing defence of substantial truth — whether sufficient evidence to support a finding of substantial truth — relevance of implausible denials of plaintiff DEFAMATION — defences — substantial truth — contextual truth — justification of some

TCN Channel Nine Pty Ltd v Pahuja [2019] NSWCA 166 (05 July 2019) (Basten JA at [1]; Payne JA at [82]; Simpson AJA at [91]) Read More »

JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 (03 July 2019) (Bell P at [1], Gleeson JA at [2], Leeming JA at [71])

Catchwords: ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – whether error of law on the face of the record or jurisdictional error established – where common ground that applicant not accorded procedural fairness ADMINISTRATIVE LAW – procedural fairness – common ground applicant denied procedural fairness – whether discretionary grounds

JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 (03 July 2019) (Bell P at [1], Gleeson JA at [2], Leeming JA at [71]) Read More »

Landpower Australia Pty Ltd v Penske Power Systems Pty Ltd [2019] NSWCA 161 (02 July 2019) (Bell P at [1]; Macfarlan JA at [56]; Payne JA at [57])

Catchwords: CIVIL PROCEDURE – summary disposal – where claim said to be apportionable – dismissal of third-party cross-claim against named concurrent wrongdoer – whether primary judge erred in dismissing cross-claim based on independent causes of action against cross-defendant – consideration of Dymocks Book Arcade Pty Ltd v Capral Ltd [2010] NSWSC 195

Landpower Australia Pty Ltd v Penske Power Systems Pty Ltd [2019] NSWCA 161 (02 July 2019) (Bell P at [1]; Macfarlan JA at [56]; Payne JA at [57]) Read More »

Coplin v Al Maha Pty Ltd [2019] NSWCA 159 (02 July 2019) (Macfarlan JA at [1], Leeming JA at [2], Payne JA at [3])

Catchwords: LAND LAW – conveyancing – options – call options – construction – notice of exercise of option able to be given to grantor’s conveyancer – whether option validly exercised – whether notice to grantee required that conveyancer no longer retained by grantor – whether requirement that conveyancer be retained at the time of the

Coplin v Al Maha Pty Ltd [2019] NSWCA 159 (02 July 2019) (Macfarlan JA at [1], Leeming JA at [2], Payne JA at [3]) Read More »

Photios v Photios [2019] NSWCA 158 (27 June 2019) (Bell P at [1], Gleeson JA at [99], Leeming JA at [100])

Catchwords: CIVIL PROCEDURE – refusal to allow amendment to challenge testamentary capacity on basis that amendment, if allowed, was doomed to fail – whether primary judge erred in concluding that claim was doomed to fail notwithstanding a finding that there was an arguable case of lack of testamentary capacity established – whether finding that proposed

Photios v Photios [2019] NSWCA 158 (27 June 2019) (Bell P at [1], Gleeson JA at [99], Leeming JA at [100]) Read More »

Council of the City of Sydney v Bishop [2019] NSWCA 157 (28 June 2019) (Basten JA at [1]; Macfarlan JA at [12]; Brereton JA at [41])

Catchwords: TORTS – negligence – personal injury – respondent tripped on kerb in pedestrian precinct – duty of care to warn pedestrians of height differential – whether risk obvious – whether failure to use yellow highlighting constituted breach of a duty to warn – whether absence of warning causative of harm to person aware of

Council of the City of Sydney v Bishop [2019] NSWCA 157 (28 June 2019) (Basten JA at [1]; Macfarlan JA at [12]; Brereton JA at [41]) Read More »

Lloyd v Thornbury [2019] NSWCA 154 (25 June 2019) (Meagher JA at [1]; Gleeson JA at [2]; White JA at [183].)

Catchwords: TORTS – negligence – content of duty of care of landlord to tenant – where tenant fell in hole in rear yard and suffered injury TORTS – negligence – Civil Liability Act 2002 (NSW), s 5B – whether primary judge erred in identification of risk of harm – reasonable precautions to prevent risk of

Lloyd v Thornbury [2019] NSWCA 154 (25 June 2019) (Meagher JA at [1]; Gleeson JA at [2]; White JA at [183].) Read More »

Taouk v Ho [2019] NSWCA 156 (27 June 2019) (Gleeson JA at [1], Emmett AJA at [59])

Catchwords: APPEAL – leave to appeal – building and construction dispute – appeal from Local Court to Supreme Court on a question of law – primary judge found that respondent not bound by releases and bars to action in the settlement deed – where deed delivered to applicant’s solicitors – where applicant disclaimed deed without

Taouk v Ho [2019] NSWCA 156 (27 June 2019) (Gleeson JA at [1], Emmett AJA at [59]) Read More »

Pollak v Yapp [2019] NSWCA 150 (20 June 2019) (Bell P at [1]; Payne JA at [2]; White JA at [3])

Catchwords: CONTRACTS — Construction — Interpretation — Contract for sale of land — Special condition in contract required vendor to ensure all development conditions complied with prior to completion — Whether warranty had effect of requiring all works subject of development approval to be completed —Special condition contained disclosure that some works were carried out

Pollak v Yapp [2019] NSWCA 150 (20 June 2019) (Bell P at [1]; Payne JA at [2]; White JA at [3]) Read More »

Pascali v Carr [2019] NSWCA 151 (20 June 2019) (Bathurst CJ at [1]; Bell P at [2]; Macfarlan JA at [3])

Catchwords: TORT – sale of residential property – special condition for provision of evidence concerning home warranty insurance and compliance with council requirements in relation to building works – implied fraudulent representations in relation to evidence referable to fulfilment of special condition – whether representations made and relied upon

Pascali v Carr [2019] NSWCA 151 (20 June 2019) (Bathurst CJ at [1]; Bell P at [2]; Macfarlan JA at [3]) Read More »

Newling v Metlife Insurance Limited [2019] NSWCA 149 (21 June 2019) (Bell P at [1]; Leeming JA at [3]; Emmett AJA at [4])

Catchwords: INSURANCE – Total and permanent disablement – Whether the insurer acted fairly and reasonably in assessing and determining the Member’s claim – Whether the insurer gave reasons for the determination – Whether there was an obligation for the insurer to give reasons for declining the Member’s claim – Whether the insurer was in breach

Newling v Metlife Insurance Limited [2019] NSWCA 149 (21 June 2019) (Bell P at [1]; Leeming JA at [3]; Emmett AJA at [4]) Read More »

Richardson v Lindsay [2019] NSWCA 148 (20 June 2019) (Macfarlan JA at [1]; Gleeson JA at [45]; White JA at [46])

Catchwords: EQUITY – estoppel – rights arising out of deed of family arrangement – appellant provided capital to fund purchase of property in which she would live with respondents – appellant consented to subsequent move away from that property – respondents relied to their detriment on consent – appellant estopped from complaining of move

Richardson v Lindsay [2019] NSWCA 148 (20 June 2019) (Macfarlan JA at [1]; Gleeson JA at [45]; White JA at [46]) Read More »

Ballina Shire Council v Knapp [2019] NSWCA 146 (20 June 2019) (Basten JA at [1]; Macfarlan JA at [6]; Payne JA at [7])

Catchwords: WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission –validity of Deputy President of WCC’s re-determination of the Arbitrator’s decision – s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 considered WORKERS COMPENSATION – appeal

Ballina Shire Council v Knapp [2019] NSWCA 146 (20 June 2019) (Basten JA at [1]; Macfarlan JA at [6]; Payne JA at [7]) Read More »

Stamford Property Services Pty Ltd v Mulpha Australia Ltd [2019] NSWCA 141 (19 June 2019) (Leeming JA at [1]; McCallum JA at [97]; Emmett AJA at [124])

Catchwords: JUDICIAL REVIEW – Heritage Council – heritage listing of building occupying part of appellant’s land – prohibition upon carrying out any development in relation to the land on which the listing building was situated without Heritage Council approval – Heritage Act 1977 (NSW), s 57(1)(e) – appellant applied to redevelop the balance of its

Stamford Property Services Pty Ltd v Mulpha Australia Ltd [2019] NSWCA 141 (19 June 2019) (Leeming JA at [1]; McCallum JA at [97]; Emmett AJA at [124]) Read More »

Nadinic v Cheryl Drinkwater as trustee for the Cheryl Drinkwater Trust [2019] NSWCA 142 (18 June 2019) (Gleeson JA)

Catchwords: PROCEDURE – judgments and orders – application for stay of orders pending appeal – whether significant risk if money paid to respondent it will be unable to be recovered without delay or difficulty if appeal succeeds – where undertakings offered by respondent

Nadinic v Cheryl Drinkwater as trustee for the Cheryl Drinkwater Trust [2019] NSWCA 142 (18 June 2019) (Gleeson JA) Read More »

Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144 (19 June 2019) (Bell P at [1]; Macfarlan JA at [10]; White JA at [11])

Catchwords: LEGAL PRACTITIONERS — Disciplinary proceedings — Appeal against decision of NSW Civil and Administrative Tribunal (“NCAT”) — Appellant failed to disclose to Law Society her suspension by the Migration Agents Registration Authority (“MARA”) from practising as a migration agent — Whether NCAT erred in finding nondisclosure of suspension amounted to professional misconduct within the

Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144 (19 June 2019) (Bell P at [1]; Macfarlan JA at [10]; White JA at [11]) Read More »

Strang v Steiner [2019] NSWCA 143 (19 June 2019) (Macfarlan JA at [1]; White JA at [118]; McCallum JA at [190])

Catchwords: SUCCESSION – family provision orders under Succession Act 2006 (NSW) – whether exercises of discretion miscarried and the amounts of additional provisions ordered should be reduced – whether exercise of discretion miscarried with respect to who should bear the burden of additional provisions APPEALS – nature of appeal – standard of review applicable to

Strang v Steiner [2019] NSWCA 143 (19 June 2019) (Macfarlan JA at [1]; White JA at [118]; McCallum JA at [190]) Read More »

Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 (19 June 2019) (Basten JA at [1]; Macfarlan JA at [2]; White JA at [3])

Catchwords: ADMINISTRATIVE LAW – Judicial review of decision to dismiss application for inquiry into conviction or sentence under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – Whether jurisdictional error or error of law established – Whether applicant raised any matter that had not previously been fully considered – Summons dismissed

Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 (19 June 2019) (Basten JA at [1]; Macfarlan JA at [2]; White JA at [3]) Read More »

Bluescope Steel (AIS) Pty Ltd v Sekulovski [2019] NSWCA 136 (13 June 2019) (Gleeson JA at [1]; White JA at [2]; Emmett AJA at [3])

Catchwords: WORKERS’ COMPENSATION – whether the Worker was entitled to be paid the cost of hearing aids pursuant to s 60 of the Workers Compensation Act 1987 (NSW) – whether the Deputy President failed to apply s 60(1)(a) of the 1987 Act correctly WORKERS’ COMPENSATION – assessment and amount of compensation – whether the Deputy

Bluescope Steel (AIS) Pty Ltd v Sekulovski [2019] NSWCA 136 (13 June 2019) (Gleeson JA at [1]; White JA at [2]; Emmett AJA at [3]) Read More »

Williamson v Elders Rural Services Australia Ltd [2019] NSWCA 137 (13 June 2019) (Leeming JA; White JA)

Catchwords: LEAVE TO APPEAL – interlocutory decision to refuse amendment – amendment sought leave to advance claim for misleading and deceptive conduct – proceedings dismissed after trial based on fraudulent misrepresentation only – no challenge to final judgment – issue estoppels flowing from final judgment – leave refused

Williamson v Elders Rural Services Australia Ltd [2019] NSWCA 137 (13 June 2019) (Leeming JA; White JA) Read More »

Insurance Australia Limited v Dent [2019] NSWCA 134 (07 June 2019) (Basten JA at [1]; Gleeson JA at [6]; McCallum JA at [53])

Catchwords: APPEAL – leave to appeal – whether insurer should be joined as party to District Court proceedings against insured driver – Motor Accidents Compensation Act 1999 (NSW), s 79 – where real possibility of conflict between interests of insurer and insured driver

Insurance Australia Limited v Dent [2019] NSWCA 134 (07 June 2019) (Basten JA at [1]; Gleeson JA at [6]; McCallum JA at [53]) Read More »

Wollongong Coal Ltd v Gujarat NRE India Pty Ltd [2019] NSWCA 135 (11 June 2019) (Bathurst CJ at [1]; Leeming JA at [15]; McCallum JA at [122])

Catchwords: CONTRACT – deed – guarantor’s right of indemnity against primary obligor – whether enforceable – provision in multipartite deed by which guarantor “irrevocably waives and must not exercise any right of indemnity” – whether that provision enforceable by primary debtor – whether fact that guarantor and primary debtor were parties to deed sufficient to

Wollongong Coal Ltd v Gujarat NRE India Pty Ltd [2019] NSWCA 135 (11 June 2019) (Bathurst CJ at [1]; Leeming JA at [15]; McCallum JA at [122]) Read More »