NSWCA

Catchwords: CONTRACT - real estate agent buyers agreement - entitlement to commission - agreement between property developer and real estate agent - agent to acquire options over seven contiguous parcels of land - options acquired over some of land - options never exercised by developer - agent rendered invoices for commission as options acquired - some invoices paid - whether agent entitled to commission for obtaining options which were never exercised MISLEADING AND DECEPTIVE CONDUCT - agent made demands for commission - whether demands misleading or deceptive contrary to s 18 Australian Consumer Law - whether demands were expressions of opinion of agent's legal entitlement ...

Catchwords: APPEALS - time for commencing appeal - orders made dismissing applicants’ claims - costs orders made months later - whether time for appeal only ran from costs orders - whether applicants should have an extension of time - whether applicants had sufficiently explained delay - extension of time for appeal refused JUDICIAL REVIEW – applicants’ land claimed to be affected by Minister’s plan made under Water Management Act 2000 (NSW) - applicants brought judicial review proceedings challenging numerous decisions including making of the Minister’s plan - proceedings dismissed as not brought within 3 months as required by s 47 - application to reopen after judgment reserved refused - all bases of judicial review rejected - whether primary judge erred in finding proceedings statute-barred - whether Minister entitled to make decisions to make a plan at “high level” - whether Minister had duty to classify water sources of the State - whether first applicant should have been issued with a licence expressed in terms of unregulated water - whether error in refusing application to adduce further evidence - extension of time for appeal refused ...

Catchwords: APPEAL – whether permanent stay of proceedings should be granted – civil claims arising from alleged sexual assaults up to 40 years ago – where alleged perpetrator dead but had been charged with regard to some of the underlying complaints prior to his death – where perpetrator had admitted some of the acts but asserted that they were consensual – where each of the plaintiffs was a minor at the time of the alleged assaults CIVIL PROCEDURE – historic sexual assault – claim against Estate – where alleged perpetrator dead TORTS – sexual assault – alleged consent – where plaintiffs were minors at the time of alleged consent – whether consent by a minor is a defence to a civil claim for damages for sexual assault ...

Catchwords: COURTS - jurisdiction - proceedings between former de facto partners in Supreme Court concerning ownership of property – primary claim in equity – alternative claim under Family Law Act 1975 (Cth) – primary judge upholds claims in equity and makes contingent findings under Family Law Act – defendant files appeal confined to challenging orders based in equity – plaintiff/respondent files notice of contention based on Family Law Act contingent findings – whether appeal lay to Court of Appeal – whether even if appeal required to be instituted in Court of Appeal, notice of contention required its transfer to Family Court – prohibition on instituting and determining certain appeals in Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 7 construed and applied – appeal transferred to Family Court ...

Catchwords: APPEAL – application for leave to appeal from summary dismissal of proceedings – proceedings dismissed because rights to sue vested in applicants’ trustees in bankruptcy, and because of earlier litigation – no basis for grant of leave – in any event, any appeal would lie to Federal Court by reason of s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ...

Catchwords: APPEAL – leave to appeal – judgment in supervisory jurisdiction – review of refusal to award costs of unsuccessful prosecution – applicant’s focus on decision under review, not judgment under appeal – need to show error in judgment under appeal – issues raised not subject of judgment under appeal – scope of judicial review where tribunal not satisfied of preconditions to power to award costs CRIMINAL PROCEDURE – costs – defendant’s costs of unsuccessful prosecution for summary offence – whether magistrate erred in refusing to award costs – honest belief of prosecutor – whether prosecution initiated without reasonable cause – scope of Criminal Procedure Act 1986, s 214(1)(b), (d) ...

Catchwords: MENTAL HEALTH – forensic patients – expiry of limiting term – extension of status as forensic patient – whether extension order can be made with respect to a person who has ceased to be a forensic patient APPEALS – appeal from refusal to make an interim extension order under the Mental Health (Forensic Provisions) Act 1990 (NSW) – source of right to appeal – whether subject to leave – limited grant of leave STATUTORY INTERPRETATION – principle of legality – fundamental rights and freedoms – intention to confer power to infringe liberty – application to extension orders under the Mental Health (Forensic Provisions) Act 1990 STATUTORY INTERPRETATION – use of defined term – whether used as label – whether context and subject matter show intention that definition not apply – application of Interpretation Act 1987 (NSW), s 6 WORDS & PHRASES – “may” – power conferred on Supreme Court to make interim extension order with respect to forensic patient – whether coupled with duty to make order where pre-conditions satisfied – Mental Health (Forensic Provisions) Act 1990, Sch 1, cl 10 ...

Catchwords: SUCCESSION — Family provision — Appeals — appeal from orders made in chambers approving s 95 Succession Act releases — whether primary judge failed to consider each of the matters listed in s 95(4) Succession Act — appeal dismissed — application for leave to amend grounds of appeal denied — cross-appeal — change of position/ estoppel defence to restitution of moneys paid pursuant to impugned orders ...

Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – Misconduct and unsatisfactory performance – Powers of Commissioner – Power to order transfer of non-executive police officer to another position in case of “misconduct” – Whether particular transfer a “non-disciplinary transfer” – Meaning of “non-disciplinary transfer”. ...

Catchwords: CONSUMER LAW – misleading or deceptive conduct – where parties engaged in joint venture – where subsequently parties entered deed of settlement to resolve disputes – where one party misunderstood financial position of an entity being acquired under deed – where that party did not make inquiries to verify position – where other party participated in causing the misunderstanding, was aware of it and failed to correct it – whether conduct misleading or deceptive TAXES AND DUTIES – GST – input tax credits – entitlement to refunds ...

Catchwords: CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – whether valid application under s 459G of Corporations Act 2001 (Cth) – whether affidavit supported the application on ground of an offsetting demand – challenge to primary judge’s factual finding that affidavit did not answer that description – no injustice demonstrated CORPORATIONS – winding up – whether valid application under s 459G of Corporations Act 2001 (Cth) – where period for compliance with statutory demand has expired – where no extension of period for compliance sought or obtained – no utility in attempting to have statutory demand set aside ...

Catchwords: TORTS — negligence — liability — prison authority — where respondent victim of prison assault causing serious injury — where prison authority informed of threat — whether failure to segregate and arrange for transfer breach of duty of care — consideration of powers to order segregated custody under the Crimes (Administration of Sentences) Act 1999 (NSW) ...

Catchwords: LIMITATION OF ACTIONS – Discoverability – Personal injury – Knowledge of fault of defendant – Whether “fault” for the purposes of Limitation Act 1969 (NSW), s 50D(1)(b) can be known without the assistance of legal advice in relation to what may constitute a breach of duty and what may amount to a causal link between the breach of duty and the injury – Knowledge of fact as opposed to “belief” of fact – Time to assess knowledge of fact. ...

Catchwords: WORKERS’ COMPENSATION – Entitlement to lump sum compensation – Causal relation between injury and incapacity - The extent to which the first respondent’s present permanent impairment is the result of the first injury as distinct from the second injury. ADMINISTRATIVE LAW – Jurisdictional error or error of law on the face of the record – Whether the Appeal Panel of the Workers Compensation Commission of NSW in certifying that the percentage whole person impairment of the first respondent as a result of the first injury was 6% committed jurisdictional error or an error of law on the face of the record. ...

Catchwords: COSTS – party/party – appeals – court’s discretion – where appellant filed a submitting appearance and did not cause or contribute to the first respondent’s costs in the proceedings below – where appellant did not cause the errors the subject of the proceedings below – where the proceedings below could not be resolved by consent – whether failure by primary judge to take into account considerations relevant to the costs discretion – order as to costs set aside COSTS – appeals – Suitors’ Fund – whether decision of claims assessor under the Motor Accidents Compensation Act 1999 (NSW) is a decision of a “court or tribunal” for the purposes of the Suitors’ Fund Act 1951 (NSW) – whether judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) constitutes “an appeal” for the purposes of s 6 of the Suitors’ Fund Act ...

Catchwords: NEGLIGENCE – personal injury – plaintiff slipped and fell on building site – plaintiff sued occupier of site and employer – plaintiff claimed he fell while descending partially built staircase from which not all formwork had been removed – trial judge not persuaded that plaintiff's case made out – whether appellable error by primary judge in assessment of evidence – multitude of grounds advanced, all rejected – appeal dismissed ...

Catchwords: ADMINISTRATIVE LAW – judicial review – supervisory jurisdiction – judgment of District Court on appeal from Local Court – criminal jurisdiction – where conviction and sentence set aside and permanent stay of criminal proceedings ordered – whether District Court misapprehended nature and scope of power to prevent abuse of process – whether District Court misconstrued double jeopardy provision in Crimes (Administration of Sentences) Act 1999 (NSW), s 63 – whether jurisdictional error established ...

Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – termination – common law – summary dismissal – whether justified because of lack of candour of employed solicitor in dealing with legal precedents of the firm – no question of principle CONTRACTS – remedies – damages – wrongful termination of contract of employment – assessment of damages – whether and when partners would otherwise have resolved to terminate and whether would have resolved to make payment in lieu of notice – whether opportunity to seek employment whilst serving out notice period lost and compensable as a valuable opportunity ...

Catchwords: LEASES AND TENANCIES – eviction by landlord – suspension of obligation to pay rent – characteristics of eviction – whether common law rule displaced by lease contract – whether covenants other than for rent suspended during eviction LEASES AND TENANCIES – construction of lease contract – where contract imposed obligations to obtain, maintain, comply with and provide the landlord copies of consents or approvals necessary or appropriate for mining business – time for compliance with obligations – no question of principle LEASES AND TENANCIES – termination of lease by landlord – termination notices – s 129 Conveyancing Act – whether notices required to specify reasonable time in which to remedy breach ...

Catchwords: NEGLIGENCE – damages – residual earning capacity – plaintiff injured in course of employment – plaintiff completely incapacitated for work from date of injury until conclusion of hearing – whether plaintiff has residual earning capacity of eight hours per week – vicissitudes - whether case warranted greater than usual discount for vicissitudes of 15 per cent EVIDENCE – opinion evidence – expert opinion of clinical psychologist concerning residual earning capacity of plaintiff – whether clinical psychologist was sufficiently qualified to give expert evidence ...

Catchwords: CIVIL PROCEDURE – appeal – judgment of District Court – amount in issue – leave to appeal required – expiry of period within which to seek leave to appeal – extension of time – non-appearance by appellant – notice under Uniform Civil Procedure Rules 2005 (NSW), r 13.6 – appeal incompetent – summary dismissal ...

Catchwords: SUCCESSION — contested probate — testamentary capacity — application of test in Banks v Goodfellow — where will apparent rational on its face — where evidence of hallucinations or delusions — whether delusions or hallucinations affected the provisions of the will — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect ...

Catchwords: CORPORATIONS – Insolvency – second meeting of creditors resolves to place company into liquidation – substantial creditors’ motion for appointment of liquidator fails – former administrator as person presiding at meeting exercises casting vote against resolution – proper characterisation of resolution – whether or not resolution to appoint liquidator was a resolution to remove an external administrator within the meaning of s 75-115 of Insolvency Practice Rules – whether Court should have ordered that proposed resolution to appoint liquidators should have been taken to have been passed at meeting within meaning of s 75-43(4)(a) of the Insolvency Practice Schedule – relevant considerations. CORPORATIONS – Insolvency – company in administration – s 90-15 of the Insolvency Practice Schedule – whether a source of power to order that resolution to appoint liquidators be ordered to have been taken to have been passed at creditors’ meeting – whether general power to make orders or only engaged where failure or default on part of administrator ...

Catchwords: LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of aggravated robbery – whether fit and proper person – order removing name from roll – whether necessary to make declaration of unfitness – declaration not made COSTS – whether there should be an order as to costs – discretion of the court as to costs – whether facilitating rehabilitation a sound basis for declining to make costs order ...

Catchwords: SUCCESSION — executors and administrators — rights, powers and duties — executrix exercised deceased’s right to rescind contract for sale of land before obtaining probate — consideration of ss 44 and 61 of the Probate and Administration Act 1898 (NSW) — whether rescission valid when given — whether rescission retrospectively validated on obtaining probate LAND LAW — conveyancing — contract for sale — rescission — construction of clause providing right to rescind — whether right available only to surviving party to contract — whether solicitor named in contract able to exercise right notwithstanding vendor’s death LAND LAW — conveyancing — contract for sale — breach — five-year completion period — where neither party took steps to complete — whether contract breached — where purchaser subsequently attempted to bring about completion — whether estate took advantage of its own wrong in serving second rescission notice ...

Catchwords: CIVIL PROCEDURE - Court of Appeal - Stay of proceedings - Application for permanent stay of proceedings concerning sexual assaults allegedly perpetrated by teacher against student between 1974 and 1976 - Alleged abuse did not occur on school grounds - Whether primary judge erred in the exercise of discretion to refuse a permanent stay of proceedings - Whether discretion should be re-exercised - Whether inquiries made by applicant to ascertain if material available were adequate - Whether applicant was responsible for its difficulty in dealing with proceedings by not investigating the claim earlier. LIMITATION OF ACTIONS - Personal injury - Child abuse - Legislative removals of previous limitation periods - s 6A Limitation Act 1969 (NSW) - Sexual assaults alleged to have occurred between 1974 and 1976 - Whether proceedings should be permanently stayed. ...

Catchwords: HIGH RISK OFFENDER – appeal from making of continuing detention order – whether conviction for manslaughter on the basis of excessive self-defence was a “serious violence offence” – whether error in not specifying commencement date for continuing detention order – alleged errors in criminal record – alleged errors in submissions to primary judge and summaries provided to experts – whether error in assessing risk – appeal dismissed ...

Catchwords: CIVIL PROCEDURE – summary disposal – defence based on limitation period – issues of fact or law to be determined – suitability for summary determination LIMITATION OF ACTIONS – limitation period for personal injury actions – when cause of action is “discoverable” – when the plaintiff “knows” that the injury was “caused by the fault of the defendant” –sufficiency of knowledge based on incomplete information – Limitation Act 1969 (NSW), ss 50C and 50D WORDS AND PHRASES – “discoverable” – “knows” – “fact” ...

Catchwords: CIVIL PROCEDURE – Court of Appeal – Application for leave to appeal – whether the appeal points to any error of principle on the part of the primary judge in the exercise of judicial discretion – whether the applicant had sufficient opportunity to file the relevant evidence. ...

Catchwords: JUDICIAL REVIEW – appeal pending in District Court – criminal jurisdiction – appeals from convictions and imposition of apprehended domestic violence order IN Local Court – review of interlocutory decisions – review of rejection of recusal application PROCEDURAL FAIRNESS – bias – recusal application based on apprehended bias – appeal from refusal – when interlocutory appeal available PROCEDURE – solicitor on record – professional responsibilities – instructions terminated after failed adjournment application – limiting scope of solicitor’s instructions – application of Uniform Civil Procedure Rules 2005 (NSW), Pt 7, div 7 ...

Catchwords: APPEAL – corroborative evidence – whether evidence relied upon by primary judge corroborated evidence of the plaintiff which primary judge was not prepared to accept absent corroboration – meaning of corroborative evidence – corroboration by circumstantial evidence UNJUST ENRICHMENT – monies admitted to be owing arising from participation in a “seetu” – admission that at least $100,000 owing – organiser of seetu refusing to pay – claim for monies had and received – restitution properly ordered ...

Catchwords: TORTS – damages – motor vehicle accident – plaintiff sustained lower back injury – whether plaintiff also sustained injury to neck – few initial complaints of neck injury – whether trial judge addressed the significant medical evidence – adequacy of findings of reliability of plaintiff – reasoning insufficient to justify conclusion TORTS – damages – quantification of loss of earnings – calculation of lost earnings based on workers compensation payments – lack of evidence of actual earnings – whether residual earning capacity properly assessed – basis of trial judge’s calculations not specified – matter remitted to District Court ...

Catchwords: CIVIL PROCEDURE – default judgment – leave to appeal from interlocutory decision refusing to set aside – where dispute concerned unpaid commissions in real estate agency agreement – where defendant failed to file defence – where inadequate explanation for delay – consideration of length of delay and any special prejudice to plaintiff – where primary judge found bona fide defence on the merits – dictates of just, quick and cheap resolution of proceedings – where plaintiff conceded portion of judgment debt not properly supported on grounds argued below – whether unjust to permit plaintiff to retain entirety of default judgment – appropriate costs orders where defendant sought an indulgence and plaintiff had reasonably opposed – default judgment varied ...

Catchwords: TORTS – false imprisonment – wrongful arrest – assault and battery – arrest pursuant to a warrant – whether primary judge erred in preferring the evidence of police officers to the evidence of the plaintiff – whether primary judge erred in finding that the plaintiff was lawfully arrested whether primary judge required to consider all submissions made during hearing – whether police required to consider alternatives to arrest – whether police required to give reasons for arrest – whether primary judge erred in failing to award exemplary damages – false imprisonment found to be unintentional ...

Catchwords: CIVIL PROCEDURE – separate determination of questions – formulation of questions – primary judge’s discretion miscarried because of error in relation to expected length of hearing of separate question – need for re-exercise of discretion – claim in professional negligence and for statutory breaches in relation to valuation of property for mortgage valuation purposes – limitation defence raised – whether separate question should be ordered in respect of limitation defence – where question essentially one of law and capable of resolving dispute if answered favourably to defendant – consideration of length and cost of any hearing of separate question relative to length of hearing and cost of full trial ...

Catchwords: APPEALS – actual or apprehended bias – unfavourable comments at pre-trial hearing – whether primary judge dissuadable from alleged fixed opinion – criticism of legal representatives – whether justified – whether indicative of bias SUCCESSION – family provision – claim by adult son – where deceased remarried – where deceased left entire estate to family from second marriage – deceased’s moral obligation to widow – discussion of role of freedom of testamentary disposition in family provision claims ...

Catchwords: APPEALS – time for appeal – notice of intention to appeal filed and served – successful defendant sought orders limiting time within which appeal could be commenced – whether Court of Appeal had jurisdiction and power to make such an order – whether such an order should be made – application refused ...

Catchwords: REAL PROPERTY – Conveyancing Act 1919 s 88K – Easements – “Reasonably necessary” – where terms imposed on and limiting re use said to be uncertain in their practical operation – where terms in effect required use of alternative means of access in circumstances that were not readily capable of being assessed – where terms in substance required an alternative access route to be used in particular circumstances but where that alternative route would involve traversing property in breach of Crown Land Management Act 2016 ...

Catchwords: APPEAL – interlocutory relief – relief sought pending delivery of reserved judgment of Court of Appeal – applicant claimed equitable interest in land – claim dismissed at first instance, with orders that caveats be removed – no application for a stay – appeal heard expeditiously – in meantime, respondent sought to sell the land – contract for sale of land entered into – purchaser aware of applicant’s claimed equitable interest in the land – application for leave to lodge further caveat, and for injunction against purchaser, refused ...

Catchwords: APPEAL AND REVIEW – application for leave to appeal – amount in issue below threshold – whether alleged error more than merely arguable – whether issue of principle or public importance – likely disproportion between the costs of an appeal and amount in issue GUARANTEE AND INDEMNITY — novation of uncompleted contract for sale of part of land when whole land sold to third party – third party required to indemnify vendor for claims arising “as a result” of the first contract – legal costs incurred by vendor because of his failure to execute deed of novation – whether indemnity covered vendor’s legal costs ...

Catchwords: INSURANCE – double insurance – contribution between insurers – “other insurance” clauses – one policy contained an “excess” clause and the other an “escape” clause – whether there was double insurance on proper construction of policies – whether rule in Weddell v Road Transport and General Insurance [1932] 2 KB 563 applied ...

Catchwords: CRIME – dealing with money suspected of being proceeds of crime – restraining order on property – Proceeds of Crime Act 2002 (Cth), s 44 – where applicants purchased real property using money alleged to be proceeds of crime – restraining order under s 19 made in respect of the property – applicants apply under s 44 for exclusion of the property from the restraining order upon their undertaking to use their best endeavours to obtain money from a particular bank account and pay it to the liquidator of the company from which they had received the alleged proceeds of crime – that bank account given “post credits only” status by bank – the application for the loan facility under which the money in the account was obtained from the bank was shown to contain material misstatements – no evidence from the applicants establishing that the bank would allow drawing on the account – whether primary judge erred in finding the undertaking not satisfactory and in refusing to make s 44 excluding order ...

Catchwords: COSTS – Order for payment of professional costs under Criminal Procedure Act 1986 (NSW), s 213 to be “just and reasonable” – Order for costs under Crimes (Appeal and Review) Act 2001 (NSW), s 28 to be “just” PROCEDURAL FAIRNESS – Primary judge failed to inform applicant that summary nature of the proceedings and fact that a party is not entitled to recover all of its costs would be taken into account – Whether this constitutes denial of procedural fairness JUDICIAL REVIEW – Whether exercise of discretion by primary judge to reduce costs by 30% constituted jurisdictional error – Whether any difference between “fair and reasonable” and “just and reasonable” – Whether primary judge addressed wrong question such that jurisdiction conferred by the provision was not properly exercised ...

Catchwords: CONTRACTS – performance – discharge by performance – valid termination of cleaning services contract – express term prohibiting use of unauthorised subcontracted labour – where unauthorised subcontractors undertook 90 per cent of cleaning services – whether cleaning obligation could be performed vicariously – consideration of personal contracts – no claim for quantum meruit ...

Catchwords: SUCCESSION – Whether the Court should make an order under the Succession Act 2006 (NSW) for a statutory will to be made on behalf of the fourth respondent – Whether a will in accordance with the Summary Reasons is, or is reasonably likely to be, a will that would have been made by the fourth respondent if she had testamentary capacity – Whether it is appropriate for an order authorising such a will to be made – Whether the standard of review is met for the Court to re-exercise the jurisdiction conferred by s 18 of the Succession Act 2006 (NSW) ...

Catchwords: TORTS – Whether the Club breached the duty of care it owed to the Worker as an employee of the Club – Whether reasonable care on the part of the Club required that it install concrete pads upon which to place rubbish bins. APPEALS – whether leave should be granted to raise an argument by notice of contention that was not advanced on the pleadings and was not put to witnesses at trial who could have met the argument with evidence. ...

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 to exercise discretion to grant leave to file the amended appeal summons constitutes jurisdictional error ...

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 — assessment of damages for economic loss — whether evidence supported finding of residual earning capacity — application of principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 ...

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 to exercise of discretion to “order otherwise” – whether primary judge erred in applying those principles ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure – costs –Class 3 compensation proceedings – where presumption that costs follow the event does not apply – whether primary judge erred in applying UCPR r 42.15 ...

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 – where tenant appealed to Appeal Panel – where Appeal Panel refused tenant’s adjournment application and dismissed appeal – where tenant applied for leave to appeal to the Supreme Court – where primary judge summarily dismissed proceeding due to “negligible prospects of success” – no question of principle ...

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 1998 (NSW) – whether order an interim order TORTS – tort of collateral abuse of process – distinguished from abuse of process justifying a stay of proceedings – elements of the tort ...

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 – Whether primary judge erred in concluding acquisition of appellants’ land was for a purpose intrinsically connected with the draft Parramatta Road Urban Transformation Strategy (PRUTS) – Whether primary judge erred in disregarding prospect of rezoning the appellants’ land apart from the draft PRUTS APPEALS – General principles – Admission of fresh evidence ...

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 Council from proceeding with the Planning Proposal for the amendment of the Local Environmental Plan APPEALS – whether the primary judge demonstrated any error in failing to make an order requiring the Council to withdraw the Planning Proposal for the amendment of the Local Environmental Plan – whether the proceedings in the Land and Environment Court have been the subject of final disposition ...

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 had held that Lawcover was contractually entitled so to conclude – where applicants were permanently restrained from taking any steps to conduct or prosecute an appeal – where applicants have frustrated Lawcover’s reasonable and proper attempts to bring the applications to an end – Lawcover joined – summonses seeking leave to appeal dismissed ...

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 – joint and several liability ...

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 order “otherwise” appropriate ...

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 to disturbance under Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 59(1)(f) – where questions directed to whether applicants entitled to any compensation for that loss determined separately – whether there was “actual use of land” by applicants ...

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 regard to hardship in exercise of its discretion – adequacy of reasons for exercising discretion ADMINISTRATIVE LAW – requirement for NCAT to give reasons – adequacy of reasons for making of a discretionary decision to terminate a social housing tenancy agreement – whether NCAT had regard to hardship to the tenant of termination – whether reasons for decision adequately disclosed how hardship was taken into account TRIBUNALS – New South Wales Civil and Administrative Tribunal – required to give reasons – adequacy of reasons – reference to “all of the circumstances of the case” ...

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 Vexatious Proceedings Act – not appropriate to do so in the circumstances ...

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 in breach of its contractual duty – whether insurer acted reasonably and fairly in its consideration of the claim ...

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 of this Act” – whether “the purposes of this Act” are confined to the objects described in s 3 of the Act ...

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 failing to have regard to presumptive prejudice – whether primary judge erred in his approach to the defendant’s explanation for the delay in bringing the application ...

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 reduced due to plaintiff’s intoxication – quantum of damages ...

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 has no authority to determine question of tax debt without his consent – where appellant contends taxation laws do not apply to him without his consent – where appellant asserts debt discharged by delivery of self-described “promissory note” – appeal dismissed – no question of principle ...

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 criminal laws incongruous with driver owing passenger a duty of care – whether passenger complicit in driver’s offences – whether primary judge’s assessment of contributory negligence erroneous ...

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 wills – Connor v Blacktown District Hospital [1971] 1 NSWLR 713 and other authorities referred to ...