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Catchwords: INSURANCE – claim by ex-police officer for total and permanent disability (“TPD”) payment – need to provide proof to satisfaction of insurer of TPD under policies – contractual obligations of insurer to assess claim in good faith and act fairly and reasonably – whether insurer breached contractual obligations – whether it was fair of insurer to rely on certain medical opinions as adverse to claimant – whether insurer took into account written submissions of claimant – cumulative effect demonstrated a lack of overall fairness COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise and Calderbank offers – assertion that appellant unreasonably failed to accept respondent’s Calderbank offer – whether primary judge erred in refusing to make a special costs order – primary judge did not err in the exercise of his costs discretion ...

Catchwords: APPEALS – procedure – Court of Appeal – motion seeking review of a decision of the Court dismissing application to review decision of a single judge – where suggestion that not all of the evidence or submissions had been considered by the reviewing court – where evidence and submissions voluminous, unstructured and discursive – extent of obligation to consider and address. CIVIL PROCEDURE – Court of Appeal – application to review a decision of the Court – where application brought by way of a notice of motion – where suggestion that not all of the evidence or submissions had been considered by the reviewing court – where evidence and submissions voluminous, unstructured and discursive – extent of obligation to consider and address ...

Catchwords: SUCCESSION – appropriate substitute for specific devise – property subject of specific devise sold by administrator to pay debt – need to put specific devisees in materially the same position that they would have been in if the sale had not occurred – how rights of beneficiaries should be adjusted –whether substitution of specific property from residuary real estate appropriate – need for equivalence in value VALUATION – courts and tribunals – appeals – whether judge erred in discounting value of property for contingencies – acceptance of expert evidence required evaluative conclusions to be made – standard of appellate review analogous to that described in House v The King SUCCESSION – trusts and trustees – judicial advice, Trustee Act 1925 (NSW), s 63 – whether judicial advice given – parties concurred in primary judge himself determining the issue of what adjustment of the rights of the beneficiaries should be made – broad powers of the Court under UCPR r 54.3 ...

Catchwords: ESTOPPEL — estoppel by representation — detrimental reliance — whether terms of representation proved — whether claimant actually relied upon alleged representation SUCCESSION — family provision — claim by member of household for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — whether factors warranting —provision of household care to deceased — conscious misuse of special disadvantage of deceased — significance of reliance upon alleged agreement to leave real estate in will EQUITY — fiduciary duties — unauthorised profit — bank cards and personal identification number entrusted for certain purposes — retention of excess cash for fiduciary’s personal use EQUITY — unconscionable conduct — special disability or disadvantage — whether unconscientious advantage taken ...

Catchwords: PRACTICE AND PROCEDURE – joinder – appeal against refusal of application to modify development consent – parties agree on terms of a decision to dispose of appeal – intervenor raising jurisdictional issue that court has no power to so dispose of the appeal – source of power to join intervenor – whether s 8.15(2) Environmental Planning and Assessment Act available power for joinder – section 8.15(2) not an available power of joinder for this appeal - whether r 6.24 Uniform Civil Procedure Rules alternative source of power for joinder – whether joinder as a party necessary to determine all matters in dispute - whether power to amend modification application – whether error in exercise of discretion to join intervenor – whether joinder legally unreasonable ...

Catchwords: NEGLIGENCE – breach of duty – motor vehicle accident – failure to keep a proper lookout and slow vehicle NEGLIGENCE – causation – factual causation – motor vehicle accident – whether expert opinion was necessary to establish causation – whether evidence of time and distance was too imprecise to support a finding of causation EVIDENCE – witness evidence – cross-examination – procedural fairness – Browne v Dunn – substance of the case allegedly not put to respondent in cross-examination – whether prior notice had nevertheless been given to respondent of cross-examining party’s case ...

Catchwords: UNCONSCIONABLE CONDUCT — Where appellant excluded from negotiations after admission to hospital — Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA, 12CB — Whether respondents took unconscientious advantage of the appellant’s disabling condition — Australian Securities and Investments Commission Act 2001 (Cth), s 12GM(7) — Whether appellant suffered any compensable loss ...

Catchwords: CIVIL PROCEDURE – Court of Appeal – Stay of orders for payment out of funds in Court – Where funds represent purchase money of real property – Whether judgment creditor entitled to payment out orders – Where outstanding claim to funds by second applicant – Where such claim not without merits – Stay granted – Stay conditional upon formal undertakings as to damages by applicants CIVIL PROCEDURE – Court of Appeal – Stay of costs orders – Where application out of time – Where no sufficient prospects of success demonstrated – Stay refused ...

Catchwords: SUCCESSION – family provision – claim by alleged long-term partner of deceased – whether alleged partner an “eligible person” – whether de facto relationship, close personal relationship or dependent household member relationship – Succession Act ss 57(1)(b), (e), and (f) – requirement of “living” together and need for some common residence APPEALS – from findings of fact – findings likely affected by impressions about credibility and reliability of witnesses – whether findings “glaringly improbable” – Fox v Percy test ...

Catchwords: ADMINISTRATIVE LAW – judicial review – certificate under s 11 of Farm Debt Mediation Act 1994 (NSW) – whether judicial review available CONTRACT – construction and interpretation of trust deed – express and implied terms – whether trust deed had an express power of unilateral retirement – whether trust deed had a lacuna to be filled by implying a power of unilateral retirement MORTGAGES AND SECURITIES – debt owed under financial facilities – when liability for debt incurred – whether liability for debt only arises once debt becomes payable MORTGAGES AND SECURITIES – proceedings for recovery of a debt secured by a mortgage – Farm Debt Mediation Act 1994 (NSW) – whether mortgagor was the only relevant “farmer” – whether a “satisfactory mediation” was undertaken for the purpose of s 11 MORTGAGES AND SECURITIES – proceedings for recovery of a debt secured by a mortgage – Farm Debt Mediation Act 1994 (NSW) – what constitutes “enforcement action” under s 10 – whether bank enforcing debt owed under financial facilities constituted “enforcement action” ...

Catchwords: CIVIL PROCEDURE — proceedings in Equity Division dismissed by first judge — application to second judge to set aside dismissal — application refused as in substance simply an attempt to reargue first decision — leave to appeal against second decision refused ...

Catchwords: NEGLIGENCE — medical negligence — breach of duty — whether failure to advise the appellant that it was essential and urgent to organise orthopaedic review of injured shoulder constituted breach NEGLIGENCE — medical negligence — peer professional opinion – Civil Liability Act 2002 (NSW) s 5O – whether the respondents acted in a manner that was widely accepted by peer professional opinion as competent professional practice NEGLIGENCE — medical negligence — causation — factual causation — whether it was more probable than not that the appellant would have had a better outcome but for the negligence – whether the appellant would have consulted an orthopaedic surgeon – whether the appellant would have undergone surgery prior to her shoulder injury becoming inoperable ...

Catchwords: CONTRACT - damages - claim for consequential loss - construction works caused damage to neighbour’s land - claim for lost rent - trial judge found apartments unlettable in light of damage to stairway - finding based on evidence of landlord and letting agent - no reference in reasons to unchallenged engineering evidence that stairway safe - whether reasons of trial judge inadequate - inutility of inadequate reasons as a ground where appeal is by way of rehearing - whether trial judge misused evidence admitted on limited basis - no error made out APPEALS - requirement of leave - whether appellants required leave for separate challenge to costs order based on rejection of Calderbank offer in circumstances where there was an appeal as of right - construction of “an appeal from a judgment or order as to costs only” in District Court Act 1973 (NSW), s 127(2)(b) - history of s 127(2)(b) and s 101(2)(c) of Supreme Court Act 1970 (NSW) - history of United Kingdom antecedents - appellants entitled to challenge special costs order as of right COSTS - Calderbank letter - whether error in finding that appellants had unreasonably rejected offer - significance of factual error in letter - significance of offer being rejected before service of all evidence - no error made out ...

Catchwords: LAND LAW – Adverse possession – Actual possession – Old system title – Conversion to Torrens title – Limited title – Indefeasibility of title – Exceptions to indefeasibility – Where successful claim at trial in respect of adverse possession of small portion of a ‘dunny lane’ commencing before creation of limited folio – Whether statutory possessory application over Torrens title land able to be made – Alternatively, whether adverse possession claims preserved at common law by reason of possession for any length of time commencing prior to creation of folio – Whether wrong description of parcel or boundaries in circumstances where adverse possessory claim inchoate but not crystallised at time of conversion – Appeal dismissed LIMITATION OF ACTIONS – Actions to recover land – Adverse possession – Interaction of Limitation Act 1969 (NSW), ss 27 and 65, with Real Property Act 1900 (NSW), s 45C STATUTORY INTERPRETATION – Interpretation of Real Property Act 1900 (NSW) – Extrinsic materials – Explanatory memoranda and notes – Legislative history – Registrar-General’s guidelines – Second reading speeches MORTGAGES AND SECURITIES – Mortgages – Duties, rights and remedies of mortgagee – Right to notice of proceedings in which orders might be made affecting mortgagee’s interest – Where no notice given and no application by mortgagee to set aside orders below – Where application may not succeed – Where if successful, ultimate result unlikely to be different – Where impact on value of mortgagee’s security likely de minimis – Absence of notice not decisive of appeal APPEALS – Leave to appeal – Whether leave required – Monetary threshold – Whether threshold denotes value of whole parcel of land or disputed portion only – Where questions of principle and public importance as to Torrens system also raised – Leave granted ...

Catchwords: APPEALS – leave to appeal – applicant alleged assaults and batteries perpetrated on her by respondents – primary judge rejected applicant’s evidence and dismissed claims – need for applicant to show primary judge’s findings glaringly improbable or contrary to compelling inferences – no arguable basis for concluding applicant had a prospect of success on appeal if leave were granted COURTS AND JUDGES – bias – application for recusal – ground of apprehended bias – judge made adverse ruling against applicant in previous litigation – applicant unable to identify why that might cause a reasonable bystander to apprehend that the judge might not bring an impartial mind to the resolution of the issues – judge declined to recuse himself ...

Catchwords: APPEALS – leave to appeal – applicant’s notice of motion dismissed by Registrar – whether primary judge in error in refusing to set aside that dismissal – whether applicant’s amended summons was taken to be dismissed by operation of the Vexatious Proceedings Act – relevant vexatious proceedings order later set aside on appeal – arguable basis for challenging those orders demonstrated – leave to appeal granted on a limited basis COURTS AND JUDGES – bias – application for recusal – ground of apprehended bias – applicant unable to identify any reason why a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues arising on the application – judge declined to recuse herself ...

Catchwords: CHILD WELFARE – care proceedings – applicant alleged Children’s Court acted without jurisdiction and Supreme Court consequently erred in dismissing judicial review application – leave to appeal refused CHILD WELFARE – care proceedings – guardian ad litem appointed by Supreme Court – whether court required to appoint guardian ad litem if child or young person who is a party is incapable of giving proper instructions or whether court has discretion to do so – interaction between ss 98(2A) and 100 Care Act – reasonable argument and of some general importance – leave to appeal granted on limited basis ...

Catchwords: APPEALS – application for leave – applicant brought proceedings against respondent in District Court claiming damages for alleged misconduct in other proceedings – where respondent acted for parties in hostile civil litigation involving the applicant – proceedings summarily dismissed as disclosing no reasonable cause of action – where no issue of principle or question of general importance raised by appeal – where applicant not demonstrated an injustice which is more than merely arguable – leave refused ...

Catchwords: CIVIL PROCEDURE – Court of Appeal – Show cause hearing – Failure to file written submissions – Stay of hearing – Where no procedural unfairness in setting down hearing – Where no medical grounds for stay established – Where pendency of other motions by applicant, including applications to issue subpoenas and to reopen previous appeal, no reason for not preparing submissions – Stay refused – Where consistent failure to comply with directions – Where no sufficient reason for failure to file submissions – Self-executing order for dismissal of appeal if submissions not filed within one month CIVIL PROCEDURE – Court of Appeal – Notice of motion – Application to issue subpoenas – Where already before full bench on application to reopen – Abuse of process – Application dismissed CIVIL PROCEDURE – Court of Appeal – Notice of motion – Application to refer persons to prosecuting authorities – Where such relief inappropriate and unavailable – Abuse of process – Application dismissed ...

Catchwords: CONTEMPT – criminal contempt – where appellant engaged in conduct found to amount to a contumacious disregard of Court orders – where sentencing judge imposed a sentence of six weeks’ imprisonment – whether sentencing judge failed to consider possibility of suspending sentence for contempt – whether sentencing judge erred in failing to suspend the sentence – whether sentence was manifestly excessive. SENTENCING – criminal contempt – where sentencing judge imposed a sentence of six weeks’ imprisonment – whether sentencing judge erred in failing to suspend the sentence – power to suspend a sentence for criminal contempt in the Supreme Court’s civil jurisdiction – whether sentence was manifestly excessive. ...

Catchwords: ADMINISTRATIVE LAW - judicial review - jurisdictional error - appeal to District Court from conviction and sentence imposed by Local Court - plaintiff granted bail pending determination of appeal - District Court dismissed appeal against conviction and revoked bail without hearing from plaintiff - District Court granted adjournment for sentence appeal - at subsequent hearing of sentence appeal, District Court refused disqualification application, gave Parker warning and sentence appeal was withdrawn - conceded breach of procedural fairness in revocation of bail - whether District Court decisions affected by apprehended bias - whether jurisdictional error in dismissing conviction appeal - summons dismissed ...

Catchwords: BUILDING AND CONSTRUCTION – contract – damages – defects – whether the contractor was responsible for defects in materials supplied by a third party – where the relevant contractual warranty was confined to “works required to be performed by the contractor” BUILDING AND CONSTRUCTION – contract – termination – quantum meruit – whether the contract operated to generate release and waiver of subsequent claims for payment by the contractor – where the contractor had suffered irreversible detriment by incurring liability to pay for materials prior to the principal’s insistence upon strict adherence to the contract BUILDING AND CONSTRUCTION – contract – variation – implied promise to pay – whether the works constituted “variations” as defined in the contract – where the principal requested that the contractor supply materials that it had originally insisted upon supplying itself – where written approval was sought by the contractor in respect of all other variation works CONTRACTS – breach of contract – consequences of breach – right to damages – estoppel – promissory estoppel – whether it was unconscionable for the principal to resist payment for the performance of certain works – where the principal was positively encouraging the contractor to complete outstanding works – where such encouragement followed the principal’s purported departure from the assumption that it had approved these works EQUITY – estoppel – promissory estoppel – general principles and maxims – equity will not permit detriment to be visited upon or remain with the party who has not been sufficiently clearly disabused of the counter-party’s intended departure from the relevant assumption inducing reliance ESTOPPEL – promissory estoppel – detrimental reliance – whether the principal discharged its duty to inform the contractor labouring under an assumption that the basis for that assumption had “materially changed” – where such material change must be communicated in sufficiently clear terms – where the relevant communication did not expressly refer to or address the topic of the assumption – where the principal was positively encouraging the contractor to complete outstanding works in respect of materials that the principal knew it had originally undertaken to supply itself ...

Catchwords: CIVIL LAW – judicial review – jurisdictional error – whether District Court erred in failing to state a case to the Court of Criminal Appeal – power of Judge to decline to state a question of law – tension in authorities – unnecessary to resolve conflict in authorities – where nine of ten questions raised were not relevant questions of law – whether questions frivolous or baseless – where remaining question raised a material question of law concerning admissibility of probative evidence – jurisdictional error established CRIMINAL LAW – evidence – exculpatory statement by accused to community corrections officer immediately after alleged assault – where statement recorded in Departmental record – whether hearsay – whether business record – where Magistrate excluded evidence as “self-serving” – where District Court refused leave to introduce evidence on appeal – whether admissibility of record raised a question of law alone ...

Catchwords: COURTS AND TRIBUNALS – Mental Health Review Tribunal – whether Tribunal’s power to transfer forensic patients into a mental health facility includes power to specify when transfer is to occur and to what particular mental health facility a patient is to be transferred to. MENTAL HEALTH – Mental Health Review Tribunal – jurisdiction – whether Mental Health Review Tribunal had power to order the transfer of a forensic patient to a mental health facility “when a bed becomes available” – whether the Tribunal took into account an irrelevant consideration when it had regard to the availability of beds at a specific mental health facility in the course of exercising its power to make a transfer order under s 48 of the Mental Health (Forensic Provisions) Act 1990 (NSW) – where the relevant statutory context supported considerations of “practicability” as being relevant to the exercise of the transfer power under s 48 of the Act. STATUTORY INTERPRETATION – jurisdiction – Mental Health Review Tribunal – whether Mental Health Review Tribunal had power to order the transfer of a forensic patient to a mental health facility “when a bed becomes available” – where the relevant statutory context supported considerations of “practicability” as being relevant to the exercise of the transfer power under s 48 of the Act. STATUTORY INTERPRETATION – jurisdiction – Mental Health Review Tribunal – whether power to transfer a patient to or from a mental health facility includes power to specify when such a transfer should occur – implied incidental power – source of power – extent of implied incidental power. ...

Catchwords: CONTRACTS — implied terms — terms implied in fact — necessity — numerous alternative possible constructions — agreement constituted by combination of oral, written and implied terms CONTRACTS — termination — repudiation of contract — acceptance of repudiation — allegations of fraud — whether terms of conversation amounted to repudiation — significance of pleadings inconsistent with terms of contract as later alleged MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagor — equity of redemption — mortgage over company share — contractual right to redemption extinguished on default — whether equitable right to redemption survived in spite of delay ...

Catchwords: NEGLIGENCE – duty of care – breach – standard of care – professional negligence – whether reasonable to leave medical hardware in situ after the injury had healed – differing opinions of orthopaedic surgeons – reliance on infectious diseases experts NEGLIGENCE – causation – medical negligence – later infection where medical hardware left in situ after earlier operation – whether later operation would have been required but for the foreign material – conclusion not dependent on whether infection caused by organisms present when first operation undertaken NEGLIGENCE – damages – economic loss – loss of earning capacity – business losses incurred by appellant’s employer – no evidence that plaintiff suffered loss of income for closed period ...

Catchwords: COSTS – whether usual order for costs should be displaced – where respondent successful party overall – where primary judge apportioned costs – respondent awarded costs up to date shortly before hearing and thereafter no order for costs as between respondent and applicant – whether exercise of discretion miscarried – Uniform Civil Procedure Rules 2005 (NSW), r 42.1 APPEALS – new point on appeal – where applicant for leave sought to raise new and different costs application on appeal – inimical to the interests of justice to allow new argument APPEALS – leave to appeal – practice and procedure – challenge to costs order – no question of principle or general public importance – whether an injustice which is more than merely arguable – whether failure to consider material consideration – where reasonableness of applicant’s conduct of the proceedings not relied upon below – leave to appeal refused ...

Catchwords: CONTRACT – written retainer of accountants – scope – whether primary judge erred in concluding retainer extended to all work for a client of an accounting and financial nature – opinion evidence – whether evidence of accounting partner that certain work “required” to complete task was opinion evidence – whether evidence was admissible as expert opinion – Held – primary judge correct – appeal dismissed ...

Catchwords: SUCCESSION – family provision – claim by adult step-child of the deceased for provision under Ch 3 of the Succession Act 2006 (NSW) – whether primary judge did not make an order for provision in the applicant’s favour by reason of disentitling conduct – no question of principle ...

Catchwords: APPEALS – application for leave – amount in issue less than threshold of $100,000 – where dismissal of defamation proceedings involving two matters complained of – where no issue of principle or question of general importance – whether applicant demonstrated an injustice which is more than merely arguable – where likely costs of any appeal disproportionate to the small amount in issue ...

Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner – adequacy of reasons EVIDENCE – standard of proof – civil cases – application of principles in Briginshaw v Briginshaw APPEALS – leave to appeal – on factual findings – whether appropriate to depart from a demeanour-based credit finding ...

Catchwords: APPEALS – procedure – informal urgent application for injunction pending appeal – applicant applied to stop trail running event in the Blue Mountains from proceeding the next day – primary judge dealt thoroughly with circumstances of proposed event and carefully weighed matters going to the balance of convenience – applicant did not show any reason for a different view to be taken than that taken by the primary judge ...

Catchwords: CONTRACTS – construction – interpretation – joint venture agreement – third party – successor clause – “successor to a party” – whether the expression is wide enough to include nominee – where there was no contemplation work would be carried out by another – where there are no clear words to construe nomination as conferring rights and obligations – where third party acquired its rights as nominee under separate contract CONTRACTS – construction – interpretation – reflective loss principle – exception – where company has no cause of action – where there is no prospect of double recovery CONTRACTS – construction – interpretation – indemnities – “in respect of” – “loss” – whether indemnities extend to loss of diminution in value of shares in nominee as a result of nominee incurring costs for rectification ...

Catchwords: APPEALS – application for leave – applicant convicted in Local Court of offences contrary to Inclosed Lands Protection Act 1901 (NSW) – District Court dismissed conviction and sentence appeal and confirmed orders in Local Court – where applicant refused leave to appeal to Supreme Court from interlocutory orders made in Local Court – no issue of principle or question of general importance – whether Court should extend time for filing of summons – no utility in an appeal where orders of District Court stand unreversed ...

Catchwords: BUILDING AND CONSTRUCTION – payment claim by builder – false statutory declaration in support of payment claim – statement by builder that all subcontractors paid – claim paid by principal – principal liable to unpaid subcontractors – Contracts Debts Act 1997 (NSW), s 5 – proceedings against builder for moneys paid by principal directly to subcontractors EVIDENCE – admissibility – hearsay – exceptions – business records – where business records of subcontractor tendered to prove unpaid debt – whether authenticity of document may be determined on the basis of inferences drawn from its form, contents or source – whether production on subpoena necessary – provenance and accuracy of the documents not challenged EVIDENCE – admissibility – business records –records of a party – whether records of third party warrant discretionary exclusion – whether weight sufficient to establish deceit TORTS – deceit – misleading and deceptive conduct – false statutory declaration in support of payment claim – statement by builder that all subcontractors paid – statement known to be false – claim paid by principal – principal liable to unpaid subcontractors – loss suffered – payments to subcontractors recovered ...

Catchwords: CONTRACT – contract providing for ongoing negotiation between parties following an initial period of due diligence – contract providing for further due diligence to be undertaken – construction of clauses providing for reimbursement of a capped amount of due diligence costs – whether potential service provider entitled to be reimbursed for its due diligence costs – no issue of principle. ...

Catchwords: ORDERS – judgment published in chambers under special arrangements during the COVID-19 pandemic – whether orders made “in the absence of a party” for the purposes of r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) COSTS – application for special costs order – where applicant failed to accept offer of compromise – offer requiring applicant to capitulate with no compromise as to costs – whether rules concerning offers of compromise engaged ...

Catchwords: CIVIL PROCEDURE – third party proceedings – motor vehicle collision – where plaintiff’s son driving vehicle at time of collision – where defendant driving a rental car – where defendant cross-claimed against rental car company seeking indemnity – where admission by defendant on the pleadings that plaintiff owned the vehicle – where third party contested plaintiff’s ownership on the cross-claim – whether ownership issue foreclosed by defendant’s admission on the pleadings – whether the parties were bound by issue estoppels arising from the judgment in the proceedings – Civil Procedure Act 2005 (NSW), s 22 APPEALS – finding of fact – where Magistrate found that plaintiff’s son owned the vehicle – where ownership finding informed by Magistrate’s assessment of the credibility and reliability of the plaintiff and his son – whether Magistrate’s decision was glaringly improbable or contrary to compelling inferences – where small amount in issue – whether leave to appeal should be granted COSTS – third party proceedings – “pass on” costs orders – where Local Court hearing took 8 days – where third party alleged motor vehicle collision fraudulently staged – where fraud allegation not established – where Magistrate implicitly found 50% of trial related to fraud allegations – where Magistrate ordered plaintiff to pay 50% of third party’s costs – whether exercise of costs discretion miscarried – whether leave to appeal should be granted – appropriate costs order in Local Court upon re-exercise of costs discretion COSTS – appeal to Supreme Court from Local Court – where mixed outcome in proceedings – where judge did not decide all grounds of appeal – where Court of Appeal decided remaining grounds of appeal – whether separate costs orders should be made COSTS – appeal to Court of Appeal from Supreme Court – where respondent belatedly conceded error at the hearing – where appellant successful on principal ground of appeal – whether respondent should pay appellant costs of the appeal ...

Catchwords: LEGAL PRACTITIONERS – practising certificate subject to conditions relating to financial management and tax affairs – barrister contravened conditions – whether psychiatric disorder provided “reasonable excuse” to justify not treating contraventions as professional misconduct LEGAL PRACTITIONERS – barrister made representations to Bar Council – Tribunal found that those representations knowingly false – whether open to Tribunal to make those findings – whether Court of Appeal in position to make findings determining issue LEGAL PRACTITIONERS – barrister made representation as to future conduct namely that would sell property to discharge tax liabilities – where barrister acted contrary to representation – whether that conduct constituted professional misconduct LEGAL PRACTITIONERS – finding of professional misconduct – whether barrister a fit and proper person to remain on Supreme Court roll of lawyers ...

Catchwords: ADMINISTRATIVE LAW – constructive failure to exercise jurisdiction – where appellant alleges primary judge failed to address “substantial, clearly articulated” arguments – whether arguments based on “established facts” – whether primary judge’s approach raised those arguments for separate determination EMPLOYMENT AND INDUSTRIAL LAW – public sector – police – Police Regulation (Superannuation) Act 1906 (NSW), s 10B(2) – where primary judge found appellant incapacitated by transient condition for short period at time of resignation from police force – whether it follows that appellant incapable from infirmity of body or mind of exercising the functions of a police officer at that time – meaning of “infirmity” in Police Regulation (Superannuation) Act ...

Catchwords: APPEALS – procedure – stay pending special leave to appeal to the High Court – where orders for payment of money to trustee in bankruptcy – where trustee in bankruptcy gave undertaking not to distribute or deal with any funds paid to him – whether stay necessary to preserve subject matter of appeal – whether costs of motion seeking stay should be “costs in the cause in the High Court” ...

Catchwords: CONTRACT – building and construction contracts – interpretation – expert determination clause – whether expert determination is final and binding – where parties’ precluded from commencing litigation following expert determination unless value of the determination exceeded a threshold amount – where value of the determination to be calculated without having regard to amounts paid under the Building and Construction Industry Security of Payment Act 1999 (NSW) ...

Catchwords: ADMINISTRATIVE LAW – jurisdictional error – challenge to determinations of Industrial Relations Commission – whether plaintiffs were denied procedural fairness – whether Commission failed to have regard to relevant consideration – whether Commission erred in placing onus on moving parties – whether decision was legally unreasonable ...

Catchwords: COURTS AND JUDGES – procedural fairness – judicial intervention – where expert witness conclave conducted via audio visual and audio link – whether excessive judicial questioning of experts – whether real danger that trial was unfair – whether the trial miscarried DAMAGES – assessment of damages in tort – personal injury – where respondent suffered injury to left knee when ferry collided with wharf – whether respondent suffered compensatory injury to right knee by favouring left – whether primary judge erred in awarding damages for injury to respondent’s right knee EVIDENCE – expert evidence – where competing medical evidence – whether primary judge substituted own medical opinion for that of the expert DAMAGES – assessment of damages in tort – personal injury – where respondent could no longer perform certain house maintenance tasks – where those tasks carried out by respondent’s brothers – whether primary judge erred in awarding respondent damages for commercial domestic assistance ...

Catchwords: NEGLIGENCE — Causation — Motor vehicle accident — Where plaintiff diagnosed with adjustment disorder secondary to back injury caused by accident — Where back injury consisted in the aggravation of existing degenerative changes — Whether psychiatric injury remained causally related to the accident even after physical restrictions attributable to the accident subsided ...

Catchwords: OCCUPATIONS – Legal practitioners – Disciplinary proceedings – Removal of practitioner’s name from the roll – Having misappropriated trust money – Tribunal found respondent was probably not a fit and proper person to be an officer of the court and recommended removal from the roll – Appellant seeking an order that respondent’s name be removed from the roll ...

Catchwords: COURTS AND JUDGES – bias – apprehended bias – judge declined to recuse himself from presiding at criminal trial of applicant – judge’s partner of 29 years a Crown prosecutor who gave advice to police as to laying of charges against applicant – that Crown prosecutor not involved in subsequent pre-trial steps – whether judge disqualified by interest or association – application of Ebner test – fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind to his conduct of forthcoming trial of applicant ...

Catchwords: APPEALS – from finding of fact – inferences from primary facts – two competing hypotheses on the evidence – where primary judge applied a process of inferential reasoning based on circumstantial evidence – whether primary judge erred in applying this process to make findings of fact – duty of an appellate court to decide for itself which of the two hypotheses was the more probable – appellate court to discharge this duty by weighing the conflicting evidence and drawing its own inferences and conclusions CORPORATIONS – directors and officers – fiduciary duties – duty to act in good faith in the best interests of company and for proper purpose – where board resolved to purchase a property for “visiting executives” of the group – appellants were sole occupants of the property – whether the appellants were “visiting executives” for the purposes of the resolution of the board EQUITY – fiduciary duties – fiduciary relationships – directors – conflict of interest and duty – no profit rule – whether the appellants improperly used their position as directors of the respondent to gain a benefit for themselves – whether the appellants intended to reside at the property on an exclusive, indefinite and continuous basis at the time of the resolution EVIDENCE – circumstantial evidence – inferential reasoning – between two competing hypotheses – no direct evidence as to the appellants’ intention at the relevant time – where primary judge constrained to rely on events post-dating the material resolution – reasoning by way of “links in the chain” – whether such “links” made it reasonable to conclude on the balance of probabilities that the appellants had breached their fiduciary duties EVIDENCE – inferences – Jones v Dunkel – where neither of the appellants gave evidence at trial – court entitled to infer that their evidence would not have assisted their case – court not entitled to infer that the evidence would have been adverse to the appellants EVIDENCE – standard of proof – the Briginshaw principle – where the nature of the breaches alleged amounted to serious wrongdoing on the appellants’ behalf ...

Catchwords: WORKERS COMPENSATION – coal miners – whether employment was a contributing factor to aggravation, acceleration, exacerbation or deterioration of a disease – where worker suffered from a degenerative condition of osteoarthritis to his right knee – whether primary judge erred in point of law in finding work injury – Workers Compensation Act 1987 (NSW), s 4(b)(ii) ...

Catchwords: CONTRACT – contractual construction – whether promise in Binding Heads of Agreement (HOA) to enter into Business Sale Agreements was subject to a condition precedent, namely the approval of the Purchaser’s Board – whether consideration for HOA illusory – whether condition precedent permitted Purchaser’s Board to withhold approval capriciously – whether primary judge’s construction accorded with commercial common sense – whether primary judge erred in ordering specific performance of HOA. ...

Catchwords: CONTRACT – contractual construction – proper scope of jurisdiction agreement in employment contract – where jurisdiction clause elliptical as to its scope – where multiple agreements – where jurisdiction clause only contained in one agreement – whether jurisdiction clause in one agreement applied to claim in respect of alleged breach of post-employment restraints contained in a related agreement. EMPLOYMENT – restraints of trade – where senior executive employed pursuant to an Employment Agreement containing post-employment restraints of trade and an exclusive jurisdiction clause for courts of Singapore and a Singapore choice of law clause – where executive posted to Japan pursuant to a further contract but with his original contract continuing in effect – where executive also subject to a deed poll containing further post-employment restraints and governed by Japanese law – where employer sued to enforce only restraints contained in deed poll – whether proceedings caught by exclusive jurisdiction clause contained in original Employment Agreement – whether proceedings in New South Wales should be stayed. EQUITY – Injunctions – anti-anti-suit injunction – anti-suit injunction. PRIVATE INTERNATIONAL LAW – anti-anti-suit injunction – exclusive jurisdiction agreement – proper construction of scope of jurisdiction agreement – principles applicable to construction of jurisdiction agreements – relationship between jurisdiction agreement and choice of law clauses PRIVATE INTERNATIONAL LAW – concurrent proceedings in Singapore and New South Wales – whether New South Wales proceedings in relation to post employment restraints in a Deed Poll should be stayed by reason of an exclusive jurisdiction clause in a separate Employment Agreement. ...

Catchwords: LEGAL PRACTITIONERS – Court’s inherent jurisdiction to supervise and discipline legal practitioners – application for removal of barrister’s name from the roll of Australian lawyers maintained by the Supreme Court of New South Wales – where barrister practised principally in New South Wales for six years holding a practising certificate from Queensland – whether representations to the Queensland Bar Association as to the barrister’s principal place of practice were made dishonestly – whether barrister a fit and proper person to remain on the Supreme Court roll CONSTITUTIONAL LAW – challenge by barrister to validity of certain provisions governing the legal profession in Tasmania and Queensland – where disciplinary proceedings against the barrister did not involve any allegation of breach of any of the impugned provisions – whether there is any “matter” arising under the Constitution in respect of the impugned provisions CONSTITUTIONAL LAW – challenge to validity of certain provisions governing the legal profession in New South Wales or their application to the barrister – whether impugned provisions have any extra‑territorial effect – whether s 117 of the Constitution operates to render the impugned provisions inapplicable to the barrister – whether impugned provisions invalid as contrary to s 92 of the Constitution – whether impugned provisions inconsistent with various provisions of the Judiciary Act 1903 (Cth) – whether impugned provisions inconsistent with Chapter III of the Constitution as compromising the institutional integrity of Federal and State Courts ...

Catchwords: LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – re-categorisation by Council of farmland to mining land – relevance of impact of ongoing drought on cattle grazing – hiatus in activity on land different to abandonment – activity in rating years required to be considered in its context including what occurred previously on the land and what intended to occur after LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – easement burdening rateable land for benefit of adjacent mine – very small land area subject to easement and cattle grazing rights interrupted only to “trifling extent” – limited significance of easement to determination of dominant use of land LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – relevance of source of requirement to use land for a particular purpose – reason for existence relevant but not determinative – use of land as Aboriginal Cultural Heritage Offset and Habitat Enhancement Offset areas the antithesis of mining – offset areas not used “for a coal mine” under s 517 Local Government Act – consideration of Peabody Pastoral Holdings 211 LGERA 337 ...

Catchwords: APPEAL – application for leave refused – costs ordered – application to vary order – offer of compromise – indemnity costs sought COSTS – indemnity costs – offer of compromise – whether offer open for reasonable period – whether offer involved compromise – default entitlement – power to order otherwise – onus on applicant to establish reasons for different costs order – Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.15A ...

Catchwords: APPEALS – appellate review of factual findings – appellate review of credit findings – interaction between contemporaneous documents and witness testimony – whether an adverse credit finding on one aspect of a witness’ evidence requires that his or her evidence should be rejected on all issues CORPORATIONS – directors’ duties – whether two directors breached their duties in relation to the sale of shares in a subsidiary of the company of which they were directors – whether transfer of shares in subsidiary company in 2012 transferred the beneficial ownership of those shares in all the circumstances of the case – whether shares transferred for nil consideration – whether sale of shares in subsidiary company in 2013 was at a gross undervalue CORPORATIONS – minutes of board meetings – disputed version of minutes – competing versions of minutes does not mean that one version is necessarily false – when party alleging false minutes did not challenge director who signed minutes with that allegation EQUITY – sham transfer of shares – whether beneficial interest in shares passed on registration of share transfer in circumstances where consideration for transfer of shares not paid – whether transfer of shares for nil consideration was a gift – where no intention on the part of directors to give away company property – where plausible explanation supported by context negated any suggestion that shares were intended to be given away TRUSTS – resulting trusts – whether presumption of a resulting trust over property transferred for nil consideration does not apply to personalty or shares ...

Catchwords: ADMINISTRATIVE LAW - Health Care Complaints Commission - decision not to take further steps to progress complaint against psychiatrist - decision reviewed and confirmed by Commission - primary judge dismissed summons seeking judicial review - whether judicial review available - whether any judicially reviewable error disclosed by decisions - leave refused ...

Catchwords: COURTS AND JUDGES – bias – application for recusal – application declined – judge commented on role of plaintiff’s expert at conclave – comments made during preliminary discussion as to amended pleading – whether a fair-minded lay observer might think judge might have pre-judged credibility of witness APPEALS – jurisdiction – appeal from “judgment or order” – refusal of a recusal application – application for disqualification made orally without notice of motion – whether refusal was a “judgment or order WORDS AND PHRASES — “judgment or order” – “fair-minded lay observer” ...

Catchwords: ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 (NSW), s 62 - application for further assessment - proper officer not to order further assessment unless additional relevant information capable of having a material effect on outcome of previous assessment - further medical opinions covering similar ground to opinions previously considered - further medical opinions accepted to be additional relevant information - whether judicially reviewable error in proper officer’s decision that further medical opinions not capable of having material effect - need for identification of jurisdictional error or error of law on face of record - primary judge erred in finding reviewable error - appeal allowed and decision of proper officer restored ...

Catchwords: APPEAL – breach of development consent –construction certificate part of development consent – drainage line not constructed in location shown on construction certificate plan – construction of construction certificate plan – whether misconstruction – judicial notice – whether common knowledge – refusal of leave to reopen – whether denial of procedural fairness – whether incorrect factual or legal assumption – leave to appeal refused ...

Catchwords: CIVIL PROCEDURE – parties – removal of parties – where no cause of action pleaded or articulated in argument on behalf of second to fourth plaintiffs – whether to remove as parties under Uniform Civil Procedure Rules, r 6.29 CIVIL PROCEDURE – pleadings – striking out – where most pleaded particulars of negligence covered by advocate’s immunity – where some pleaded claims possibly maintainable – whether to address advocate’s immunity on pleadings – whether to strike out entire statement of claim with leave to replead ...

Catchwords: APPEAL – application for leave – challenge to interlocutory ruling on access to documents – misconceived allegation of bias – unsubstantiated allegations of perjury by solicitor – delay in giving judgment – no demonstration of prejudice – no arguable ground of error identified CIVIL PROCEDURE – production of documents – documents in custody of the court – application pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 33.13 – files sought to support application under Vexatious Proceedings Act 2008 (NSW) – access to documents produced – parties to proceedings the subject of the filed notified – objection to access – grounds of objection ...

Catchwords: LAND LAW – Torrens title – indefeasibility of title – fraudster procured execution and registration of mortgages purportedly on behalf of mortgagor – whether mortgages properly construed secure anything against the lands LAND LAW – Torrens title – indefeasibility of title – effect of acknowledgment of receipt of payment in registered mortgage – acknowledgment prima facie evidence of receipt but must yield to the facts as proved – no advance actually made to mortgagor due to intervention of fraudster LAND LAW – Torrens title – indefeasibility of title – whether an unregistered document can be incorporated by reference into a registered mortgage – existence of Special Condition in registered mortgage excluding unregistered document where void – unregistered document void due to fraud ...

Catchwords: APPEAL – application for leave to appeal – orders – where grant of application for leave to appeal conditioned on applicant agreeing not to press for an order setting aside the quashing of the conviction of the respondent – where resulting orders of Court of Appeal set aside an order allowing an appeal against conviction but also set aside an order dismissing charges under s 530(1) of the Crimes Act 1900 (NSW) and remit the matter to the Local Court for determination in accordance with law in circumstances where no express finding had been made in relation to the mental element of the charges preferred. COSTS – where mixed outcome of proceedings in Court of Appeal – costs in the discretion of the Court – no order as to costs. ...

Catchwords: CIVIL PROCEDURE — hearings — adjournment – application to vacate hearing of an appeal listed for three days – where appellants’ Senior Counsel travelled to United Kingdom in November 2020 and unlikely to return to Australia given the Covid-19 pandemic – assessment of the interests of justice where competing claims of prejudice – application refused ...

Catchwords: NATIVE TITLE – extinguishment – compensation – whether extinguishment occurred (i) under legislation vesting land in South Australia or (ii) pursuant to resumption under the Public Works Act 1912 (NSW) STATUTORY INTERPRETATION – legislative purpose – whether land vested in South Australia for an estate in fee simple under the River Murray Waters Act 1915 (NSW) – right to compensation under the Public Works Act 1912 (NSW) – whether possessory title and any other interests extinguished STATUTORY INTERPRETATION – approaches – whether literal reading appropriate – whether a particular construction would be contrary to the purpose of an Act ...

Catchwords: EQUITY – trusts and trustees – professional trustee company trustee – where beneficiary “covenantholders” invested money in forestry scheme – where covenantholders entitled to share in proceeds of sale of timber – where scheme land subject to encumbrances securing covenantholders’ interests – where encumbrances trust property – where scheme land and standing timber sold to third party – where trustee acted in breach of trust by releasing encumbrances CONTRACTS – solicitors – where law firm retained to advise trustee concerning release of encumbrances over scheme land – where advice found to be negligent – whether advice causative of loss to covenantholders occasioned by trustee’s breach of trust EQUITY – equitable remedies – equitable compensation – causation – whether award of equitable compensation should be limited to the value of the scheme land – where challenge to factual findings relating to Payout counterfactual – whether award of equitable compensation should be reduced by certain adjustments and deductions EQUITY – equitable remedies – equitable compensation – whether defaulting trustee entitled to apportion loss to law firm – whether South Australian or New South Wales proportionate liability legislation applied – where South Australian law lex loci delicti – whether apportionment provisions procedural in nature or substantive ...

Catchwords: APPEALS – application for leave to appeal – no issue of principle, question of public importance or a reasonably clear injustice MENTAL HEALTH – appeals – appeal from dismissal of application to lift Community Treatment Order while plaintiff prepares for hearing challenging order – application dismissed PROCEDURE – litigants in person – unrepresented litigants – importance of adhering to length, content and form requirements for written submissions – no special rules or treatment for litigants in person ...

Catchwords: STATUTORY INTERPRETATION — Amendment — where appellant’s entitlement to weekly workers compensation payments arose before but was not determined until after 2012 amendments to Workers Compensation Act 1987 (NSW) came into force — whether s 82A of Act as currently in force entitles the appellant to have pre-injury average weekly earnings indexed historically from the time she first became eligible to receive weekly payments in respect of the relevant injury or only from the time the amendments came into force in 2012 ...

Catchwords: ENVIRONMENT AND PLANNING – development approval – variation of plans – formalities for approval of changes – whether requirement for written application – recording approval of certifying authority – notification of consent authority – effect of breach of regulations ENVIRONMENT AND PLANNING – enforcement proceedings – construction certificate – variation of development – whether construction certificate modified – whether work undertaken before approval by certifying authority – failure to notify consent authority – whether development unlawful ...

Catchwords: PRACTICE AND PROCEDURE – appeal – stay – medical practitioner – finding of professional misconduct – order suspending registration – period of suspension likely to expire before appeal determined – appeal reasonably arguable – misconduct involved single incident three years before order made – order the suspension not commence for 30 days – no evidence of immediate risk to patients or parents ...

Catchwords: APPEALS – leave to appeal – utility – where substantive dispute concerns Greens list of nominees for election already held – whether any utility in considering whether list of nominees determined consistently with party constitution – whether dispute likely to recur – whether any errors sufficiently arguable to justify leave COSTS – party/party – exceptions to general rule that costs follow the event – public interest – where proceedings had a “public interest” element – whether arguable error in primary judge declining to make no order as to costs COSTS – party/party – multiple parties – whether arguable error in allowing multiple sets of costs to defendants with similar interests ...

Catchwords: ANIMALS — prevention of cruelty to animals — private prosecution under Prevention of Cruelty to Animals Act — guilty verdict — charges subsequently dismissed under Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 TORTS — malicious prosecution — malicious criminal proceedings — elements of tort — application for summary dismissal — whether s 32 dismissal constitutes a termination of proceedings in favour of a plaintiff ...

Catchwords: BUILDING AND CONSTRUCTION – Contract – Home Building Act 1989 (NSW) – Statutory warranties – whether contract confined to negotiated scope of works or expanded to include other works by virtue of the implied statutory warranties – whether building in breach of statutory warranties CONTRACTS – Remedies – Damages – where loss claimed would have been suffered if contract had been properly performed ...

Catchwords: ANIMALS - Cruelty to animals – consideration of the element of “intention of inflicting severe pain” in s 530(1) of Crimes Act 1900 (NSW) - defences to offence of serious cruelty to animals under s 530(2) of the Crimes Act 1900 (NSW) – meaning of “pest animals” – meaning of “in the course of or for the purposes of extermination of pest animals” – whether animal killed was a “pest animal” within the meaning of s 530(2) of the Crimes Act – whether killing of animal was “in the course of or for the purposes of extermination of pest animals” – statutory context – context includes other legislation addressing cruelty to animals CRIMINAL LAW – cruelty to animals – offence of serious cruelty to animals – elements of offence - consideration of the element of “intention of inflicting severe pain” in s 530(1) of Crimes Act - statutory defence – whether animal killed was a “pest animal” within the meaning of s 530(2) of the Crimes Act – whether killing of animal was “in the course of or for the purposes of extermination of pest animals” STATUTORY INTERPRETATION – where provision in question one of a number of provisions in various statutes concerned with prevention of cruelty to animals – other statutes forming part of the statutory context – consideration of the use of dictionaries in statutory interpretation WORDS AND PHRASES – “pest animal” – “extermination” – “in the course of or for the purposes of extermination of pest animals” ...

Catchwords: CONTRACT – oral contracts concerning debt, joint venture to exploit inventions and rural properties – primary judge rejected claims in contract – no claim advanced in equity for partnership or breach of fiduciary duty – such claim renounced by senior counsel appearing at trial – no error in primary judge declining to address such claim – no error in rejection of oral contracts – appeal dismissed RESULTING TRUST – presumed resulting trusts – cross-appellant purchased rural lands and placed in joint names of him and first cross-respondent, or in sole name of second cross-respondent – primary judge found presumption of resulting trust rebutted – whether appellable error in so finding – testimonial evidence by cross-respondents – cross-appellant gave no evidence – one cross-respondent not cross-examined on her evidence of beneficial ownership – documents supported rebuttal of presumption – cross-appeal dismissed ...

Catchwords: CIVIL PROCEDURE – stay of proceedings – applicant a medical practitioner facing disciplinary proceedings in Tribunal and pending criminal proceedings – both proceedings to deal with the same alleged misconduct – application of Zhao (2015) 255 CLR 46 – applicant would suffer prejudice if disciplinary proceedings not stayed until criminal proceedings resolved – applicant’s registration as a medical practitioner suspended – delay in resolving disciplinary proceedings a relevant but not critical factor ...

Catchwords: JUDICIAL REVIEW – application to review numerous matters related to criminal prosecutions – need to identify decisions – need to identify grounds – repetition of grounds previously dismissed – abuse of process JUDICIAL REVIEW – application to review sentence imposed by district Court – operation of statutory stay – stay following grant of bail – Supreme Court Act 1970 (NSW), ss 69, 69A, 69C PRACTICE AND PROCEDURE – bail – pending application for special leave to appeal to the High Court – no evidence that application filed – special circumstances PRACTICE AND PROCEDURE – repeat application for judicial review – reopening dismissed application – whether frivolous and vexatious – Uniform Civil Procedure Rules 2005 (NSW), r 13.4 ...

Catchwords: COSTS – partial success of appellants on appeal – determination of costs of appeal and re-exercise of discretion as to costs at trial – second appellant not originally joined to proceedings at trial – first appellant played no role in proceedings after hearing of principal appeal – successful point not raised until first day of trial – whether global order as to costs, or orders relating to particular aspects of the litigation, should be made ...

Catchwords: CONTRACTS – construction – whether mistake in written agreement can be rectified by construction – inconsistency concerning right to terminate on face of document – primacy given to handwritten amendments COSTS – appeal books – unnecessary reproduction of thousands of pages already reproduced in appeal books – whether special order as to costs warranted DEEDS – delivery – whether deed restating terms of joint venture delivered to other side in escrow – whether terms of document precluded finding of delivery in escrow – whether deed even if not delivered effective as simple contract ELECTION AND WAIVER – where one party continued to perform work and incur expenses pursuant to joint venture after a contractual right of termination had accrued – absence of any reservation of rights – significance of “no waiver” clause EQUITY – ancillary liability – liability for procuring or inducing breach of trust or breach of fiduciary duty – whether requirement that third party be “dishonest” – whether separate bases of liability for procuring as opposed to inducing breach – whether director of company acting as such capable of procuring or inducing breach of trust by director's company EQUITY – rectification – whether contract should be rectified in equity if mistake incapable of being corrected by construction EQUITY – unconscionability – statutory unconscionability – joint venture to develop land for resale – offer made to one party to sell part of joint venture land at profit – offer communicated to other party with invitation to share profit – other party sought to persevere with joint venture – first party purported to terminate and sell land – finding that first party believed entitled to terminate – in fact first party not entitled to terminate – first party’s conduct not unconscionable contrary to s 21 of Australian Consumer Law ...

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