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Catchwords: COSTS – Party/Party – Appeals – Appeal against refusal of leave to commence proceedings out of time – Delay attributable to appellant’s solicitors – Unsatisfactory explanation for delay – Respondent opposed application and led court below into error – Costs not sought by respondent against appellant – No order as to costs between parties COSTS – Appeals – Orders against non-parties – Personal costs orders against lawyers – As between respondent and appellant’s solicitors – Solicitors acted negligently – Respondent increased costs considerably by opposing application – Orders not made COSTS – Appeals – Orders against non-parties – Personal costs orders against lawyers – As between appellant and appellant’s solicitors – Costs incurred without reasonable cause – Relevance of undertaking by solicitors to not seek costs against appellant – Orders made ...

Catchwords: CONSUMER LAW – Misleading or deceptive conduct – Representations – Explicit false representations made in proposal document given to prospective investors in fraudulent betting syndicate scheme masterminded by notorious conman – Appellant a member of partnership promoting scheme – Whether appellant had knowledge of false representations – Whether appellant jointly and severally liable for misrepresentations made in ordinary course of business of partnership – Liability established APPEALS – From findings of fact and credibility – Function of appellate court – Circumstantial case – Briginshaw standard – Inferences from primary facts – Whether open to be comfortably satisfied various factual findings, including inference that appellant knew of false proposal representations PARTNERSHIPS AND JOINT VENTURES – Relationship of partners to persons dealing with them – Liabilities of partner – Partnership intended to be limited – Unlimited because limited partnership agreement never registered – Joint and several liability for misrepresentations made by other partner in ordinary course of business of partnership CONSUMER LAW – Misleading or deceptive conduct – Silence or non-disclosure – Whether appellant represented that conman not involved in scheme – Whether appellant had knowledge of various prerequisite facts such as notoriety, involvement, and alias of conman, and of need to conceal such information – Appellant unable to demonstrate any of these findings as glaringly improbable – Appellant ought to have known of reasonable expectation that conman’s involvement would be disclosed – Appellant did not disclose and deliberately concealed conman’s involvement CIVIL PROCEDURE – Pleadings – Amendment – Late application for amendment on second day of trial – Amendments added alleged liability of appellant for representation by silence and clarified alleged liability of appellant for explicit proposal representations – Whether appellant deprived of opportunity to make “no case” submission – Whether primary judge failed to consider dictates of justice – Not necessary to recite considerations seriatim – Appellant not deprived of fair and reasonable opportunity to meet case – Pleadings sufficiently clear and specific, and not unfairly open-ended CIVIL PROCEDURE – Pleadings – Construction of pleadings – Subparagraphs of pleadings not in precise correspondence with each other – Whether prejudicial construction by primary judge in finding that pleadings nevertheless sufficiently clear CONSUMER LAW – Misleading or deceptive conduct – Causation or reliance – Whether respondent’s decision to invest caused by proposal representations – Whether prospective investor would have been deterred by knowledge of involvement of notorious conman – Gullible investors not disentitled to protection CONSUMER LAW – Misleading or deceptive conduct – Remedies – Quantification of damages – Whether primary judge failed to account for group members’ prior recoveries and respondent’s trading profits received from scheme – Award of damages below only for respondent’s unpaid loan to scheme – Prior recoveries and trading profits irrelevant CIVIL PROCEDURE – Representative proceedings – Remedies – Award of damages to individual group member CIVIL PROCEDURE – Court of Appeal – Notice of contention – Reliance on claim in deceit in addition to misleading and deceptive conduct – Deceit considered briefly in judgment below – Contention material and advances respondent’s case in circumstances where appellant claims apportionment for misleading and deceptive conduct but cannot do the same for claim in deceit – Notice of contention upheld and decisive of appeal – Unnecessary to consider further aspect of notice, namely conspiracy TORTS – Miscellaneous Torts – Deceit – Relationship with misleading or deceptive conduct – Apportionment defence available for misleading and deceptive conduct but not for deceit TORTS – Joint and several liability – Apportionment – Primary judge disallowed late attempt to raise apportionment defence – Disallowance denied a real prospect of significant reduction in liability – Strongly arguable error in disallowance – Unnecessary to consider further as respondent nevertheless able to rely on non-apportionable claim in deceit ...

Catchwords: DEFAMATION – defences – common law qualified privilege – privileged occasion – privileged communication – whether communication relevant to privileged occasion – no test of necessity – news publications based on police media releases – additional information in publications not foreign to occasion of privilege DEFAMATION – remedies – compensatory damages – whether assessment of damages manifestly inadequate – primary judge justified in using appellant’s failure to correct the record as indicative that the appellant was not hurt and distressed as claimed DEFAMATION – remedies – compensatory damages – whether assessment of damages manifestly inadequate – adverse credibility findings ...

Catchwords: APPEALS – right of appeal – scope of right – excess or lack of jurisdiction below – jurisdiction of the District Court – where there is a common law cause of action for money had and received APPEALS – right of appeal – scope of right – excess or lack of jurisdiction below – jurisdiction of the District Court – whether proceeding is for “relief against fraud of mistake” – District Court Act 1973 (NSW), s 134 CONTRACTS – breach of contract – consequences of breach – right to damages – where total failure of consideration CONTRACTS – termination – consequences of termination – restitutionary claims – where total failure of consideration JUDGMENTS AND ORDERS – interest – pre-judgment interest – rate applicable – where respondent succeeded on restitutionary claim – whether it was open to the primary judge to select the same rate of interest agreed to by the parties – Civil Procedure Act 2005 (NSW), s 100 ...

Catchwords: INSURANCE – third party liability claims by construction company for serious building defects occurring after practical completion but within 12 month defects liability period – two policies with separate insurers – cover denied by insurer of annual policy as outside period of insurance – whether proper construction of the policy, through the “run off” condition, can provide for “contracts commencing” cover, contract by contract, that includes defects liability period INSURANCE – cover denied by underwriter of later policy as outside scope of cover – proper construction of insuring clause: damage in connection with “Insured’s Products Liability and/or Completed Operations” – whether completed building and/or its component parts, including hobs, slabs, columns and walls, were a “product or thing” within the meaning of “Product” and whole policy – whether “Completed Operations” only covers damage occurring in policy period for completed projects for which defects liability period has expired – relevance of distinction between “Products Liability” and “Completed Operations” and “and/or” and exclusions – where “erected” included in definition of “Product” but not “built” or “constructed” EQUITY – rectification – whether parties held a common intention to effect contracts commencing cover – where parties represented by experienced insurance brokers – relevance of their intentions – actual and ostensible authority – weight to be given to trial judge’s advantage of assessing witness credibility ...

Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – discrimination – harassment – sexual harassment – where applicant was contracted to design, publish, display and distribute a poster depicting a captioned photograph of the respondent at her workplace – whether conduct was “other unwelcome conduct of a sexual nature” – whether parties were “workplace participants” – Anti-Discrimination Act 1977 (NSW), ss 22A, 22B CIVIL PROCEDURE – appeal on question of law ...

Catchwords: COSTS - “Chorley” exception - client sued former solicitor for negligence in failing to enforce a favourable costs order in Family Court proceedings - former solicitor represented by incorporated legal practice which was its sole shareholder - whether District Court erred in dismissing client’s action for negligence - former solicitor sought gross sum costs order - whether District Court erred in failing to grant second adjournment - whether District Court erred in making gross sum costs order - whether former solicitor to be equated with incorporated legal practice which represented it ...

Catchwords: ADMINISTRATIVE LAW - workers compensation - examination by approved medical specialist - request for re-examination by appeal panel refused - primary judge held that request not considered by appeal panel - appeal panel in fact considered request - adequacy of reasons of appeal panel - whether denial of procedural fairness by primary judge - whether any denial could be material in light of the right of appeal by way of rehearing - whether other judicially reviewable errors in appeal panel’s decision - consideration of differences in assessment regimes under workers compensation and motor accident legislation - appeal allowed and decision of appeal panel reinstated COSTS - whether reason to depart from rule that costs should follow event - inclusion by appellant of voluminous irrelevant pages in appeal materials - where error by primary judge could have been corrected without need for appeal ...

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