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Catchwords: HIGH RISK OFFENDERS – extended supervision orders – definition of eligible offender – advocating support for “terrorist act” or “violent extremism” – carrying out violent acts not sufficient – delivery of letters threatening member of State Parliament – threat visible to staff who received letters – transient delusional disorder not sufficient to negate intention – nature of double intention required – Terrorism (High Risk Offenders) Act 2017 (NSW), s 10(1)(c)(i) HIGH RISK OFFENDERS – extended supervision orders – assessing “unacceptable risk” of committing a “serious terrorism offence” – questioning of expert witness as to effect of delusions denied by offender – basis for rejection of opinion of court-appointed experts – reliance on failure of offender to give evidence – Terrorism (High Risk Offenders) Act 2017 (NSW), s 20(d) ...

Catchwords: PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was an accessory to breaches of fiduciary obligations owed to the respondents – where the appellant caused the third respondent to fail to account to the second respondent for one half of the profits derived from the acquisition and subsequent sale of three contiguous parcels of land – where primary judge did not refer to two essential matters to establish accessorial liability under the second limb of Barnes v Addy – where the appellant knew of facts and circumstances which would indicate the fact of the breach on the part of a fiduciary to an honest and reasonable person PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was liable to the first respondent or the second respondent PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – interpretation of agreement – oral agreement – where there was an agreement to enter into a partnership to acquire and resell three contiguous parcels of land and share expenses and profits equally – whether the agreement was subject to a sunset condition – where the first respondent’s evidence of oral agreement accepted – where the third respondent was a vehicle entrusted to hold assets on behalf of the partnership ...

Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – New South Wales Civil and Administrative Tribunal – Occupational Division – subject matter of power or decision – disciplinary decisions – legal practitioners – barristers – misconduct and discipline – professional misconduct – where respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – where the Tribunal found that the respondent had not engaged in professional misconduct – whether the Tribunal erred in failing to find that the respondent’s conduct would justify a determination that the respondent was not a fit and proper person to engage in legal practice – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – disciplinary proceedings – professional misconduct – where respondent is a practising barrister – respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – New South Wales Civil and Administrative Tribunal found that the respondent had engaged in “unsatisfactory professional conduct” – respondent alleged to have said the words “suck my dick” to the female clerk – where immediate verbal complaint made by female clerk to a colleague – where the events of the dinner were recorded by closed circuit television cameras – where the Court was in as good a position as the Tribunal to determine questions of fact – whether the respondent said to H the words “suck my dick” OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where professional misconduct is defined in s 297 of the Legal Profession Uniform Law (NSW) – where that definition is expressed to be “inclusive” of the traditional definition of “professional misconduct”’ at common law – where the Court has inherent jurisdiction to supervise members of the legal profession in New South Wales – where the admission, suspension or removal of legal practitioners in exercise of that jurisdiction considers whether a person is a “fit and proper to engage in legal practice” – where the applicant contended that Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 created a distinct category of “professional misconduct” at common law – whether there is a distinct category of professional misconduct at common law beyond that which is incorporated into s 297 of the Legal Profession Uniform Law (NSW) OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where s 297 of the Legal Profession Uniform Law (NSW) defines “professional misconduct” as including conduct “that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice” – where conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding – where unfitness is not measured by the objective circumstances of the conduct alone but also by consideration of character – whether the respondent’s conduct would justify a finding that he was not a fit and proper person to engage in legal practice OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – grounds for disciplinary orders – where respondent said the words “suck my dick” to a female clerk – where the respondent’s conduct and words warranted severe condemnation – where the Court has and will have no tolerance for conduct of legal practitioners that does not recognise and meet appropriate standards in respect of the treatment of women – where the objective of disciplinary orders is protective and not punitive – where the Tribunal found that the respondent’s conduct was an isolated instance of departure from accepted norms – where the respondent has suffered significant personal, emotional and financial cost as a result of his conduct – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand STATUTORY INTERPRETATION – definitions – “means” and “includes” – definition of “professional misconduct” in Legal Profession Uniform Law (NSW), s 297 – where that section was intended to incorporate “the traditional common law definition” of professional misconduct ...

Catchwords: CRIME – appeal and review – appeal against sentence from Local Court to District Court – District Court dismissed appeal – where District Court judge decided not to order that full-time custodial sentence be served by way of intensive correction order – judicial review – limited to review for jurisdictional error by privative clause in s 176 of District Court Act 1973 (NSW) – where assessment contemplated by s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) not undertaken – whether failure to conduct assessment amounted to jurisdictional error JUDICIAL REVIEW – jurisdictional error – applicant pleaded guilty to various offences under Firearms Act 1996 (NSW) – applicant sentenced on basis of agreed facts – Local Court imposed full-time custodial sentence of three years – appeal to District Court pursuant to s 11(1) of Crimes (Appeal and Review) Act 2001 (NSW) – applicant raised submission that sentence of imprisonment should be served by way of intensive correction order – District Court dismissed appeal – whether District Court fell into jurisdictional error when rejecting submission seeking intensive correction order – where s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) required District Court judge to assess whether making an intensive correction order or ordering full-time detention was more likely to address applicant’s risk of reoffending – whether District Court judge conducted assessment as required by s 66(2) – where s 66(1) expresses that community safety is paramount consideration in deciding whether to make an intensive correction order – whether failure to conduct assessment contemplated by s 66(2) amounted to jurisdictional error SENTENCING – penalties – intensive correction orders – proper approach to exercise of discretion – mandatory considerations – Crimes (Sentencing Procedure) Act 1999 (NSW), s 66(2) – whether failure to conduct assessment contemplated by s 66(2) amounted to jurisdictional error – where community safety is paramount consideration in exercising the discretion to make intensive correction order ...

Catchwords: CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – where cl 50.1 required the business to be conducted in its “usual and ordinary course” – the meaning of “usual and ordinary course” – whether the phrase refers to the usual and ordinary course of hotel businesses generally or to the particular business – whether the business was required to be carried on in an identical manner to the way it was carried on pre-contract – objective intention of the parties – purpose of the transaction CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – COVID-19 pandemic – restrictions on trading – where risk passed on completion not on contract – whether such risk would include the significant restriction on trading resulting from the Public Health Orders – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – COVID 19 pandemic – restrictions on trading – severability – where cl 63.7 dealt with severance – whether cl 63.7 operated to sever cl 50.1 in the contract of a temporary supervening illegality – whether the Public Health Order rendered cl 50.1 unenforceable – whether cl 50.1 formed part of an indivisible whole by which the hotel and business was to be transferred as going concern – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) CONTRACTS – implied terms – terms implied in law – contract for the sale of a hotel and associated business – whether there was an implied term to the effect that the obligation in cl 50.1 of the contract was limited to the extent permitted by law – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) CONTRACTS – termination – repudiation of contract – wrongful termination – contract for the sale of a hotel and associated business – COVID-19 pandemic – restrictions on trading – whether the respondent was entitled to issue a notice to complete and a notice of termination – whether the conduct of the respondent amounted to repudiation of the contract – whether the conduct of the respondent was such as to convey to a reasonable person in the position of the appellants renunciation either of the contract as a whole or a fundamental obligation under it CONTRACTS – termination – frustration – supervening illegality – contract for the sale of a hotel and associated business – COVID-19 – restrictions on trading – whether compliance with cl 50.1 was illegal because of the operation of the Public Health Order – where the effect of the temporary supervening illegality of cl 50.1 rendered the sale of the business not as a going concern – whether the respondent was entitled to demand completion in circumstances where it was not able to deliver possession of the hotel as a going concern – whether cl 50.1 of the contract made it a condition that the business be sold as a going concern – whether cl 50.1 was an essential term in that a purchaser would not have entered into the contract without the business being sold as a going concern – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) ...

Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Where offer of compromise not served until after office hours on Friday before hearing and open for acceptance only until an hour before commencement of hearing COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Costs of proceedings below — Where appellant successful on appeal — Where issue on appeal “separable” and “dominant” — Where respondent substantially successful on factual issues below — Where costs of issues on which respondent succeeded below would vastly have exceeded costs on issues on which it failed ...

Catchwords: PRIVATE INTERNATIONAL LAW – Jurisdiction – Personal jurisdiction – Service outside of the jurisdiction – Partnership and contribution claims by corporate appellant as assignee of the rights of the trustees in bankruptcy of two former business associates of respondent – Respondent and two associates previously members of appellant firm operating in Kazakhstan but departed to establish competitor – Prior arbitration in London between appellant and respondent – Prior proceedings in Australia by appellant against two associates – Appeal from permanent stay of claims pursuant to rules for service outside of Australia PRIVATE INTERNATIONAL LAW – Jurisdiction – Personal jurisdiction – Service outside of the jurisdiction – Connecting factors – Person outside of Australia a defendant to a claim for contribution or indemnity in respect of a liability enforceable by a proceeding in the court – Whether insufficient prospects of success to warrant service – Whether amount in issue only approximately USD$2,000 – Whether any right of contribution – Appeal on contribution claim dismissed PRIVATE INTERNATIONAL LAW – Orders with extraterritorial effect – Anti-suit injunctions – Anti-suit injunction restraining claims previously determined and adverse findings previously made by arbitration in London – Interpretation of arbitral award – Majority of aspects of contribution claim covered – No error in finding that claim could only amount to USD$2,000 EQUITY – Contribution – Exclusion of right – Knowing assistants – Persons with liabilities not of same nature and extent not entitled to contribution – Persons without clean hands not entitled to contribution – Previous High Court proceedings identified two associates as knowing assistants in dishonest breach of trust, with liability of potentially differing nature and extent – Appellant as assignee not entitled to claim contribution, let alone indemnity EQUITY – Contribution – Exclusion of right – Persons who have not paid just proportion of liability or not willing and able to do so not entitled to contribution – Two associates both bankrupt and one deceased – No prospect of payment – Appellant as assignee not entitled to claim contribution PRIVATE INTERNATIONAL LAW – Jurisdiction – Personal jurisdiction – Service outside of the jurisdiction – Connecting factors – Whether partnership formed or carried on business in Australia – Whether partnership agreement governed by Australian law or enforceable or cognizable in an Australian court – Nothing to indicate satisfaction of such requirements – Leave to serve required PRIVATE INTERNATIONAL LAW – Applicable law – Choice of law rules – Partnerships – Place where partnership formed or carries on business – Partnership formed and operated in Kazakhstan – Partnership not governed by Australian law PRIVATE INTERNATIONAL LAW – Jurisdiction – Personal jurisdiction – Service outside of the jurisdiction – Leave to serve – Real and substantial connection – Previous proceedings in Australia resulting in partnership liability, bankruptcy events, unsigned consultancy agreements, citizenship, and litigation funding all insufficient – Existence of partnership assets in Australia – Partnerships can, and possibly only can, be wound up and accounts taken in Australia – Real and substantial connection established – Australia an appropriate forum – Leave to serve granted PARTNERSHIPS AND JOINT VENTURES – Partnership property – Identification – Evidence that partnership has asset-owning and operating entities in Australia – Evidence in the form of engagement contracts, receipts, and Australian bank account APPEALS – Point not taken below – Conduct of trial – Existence of partnership assets not referred to in submissions below nor primary judgment but was in evidence and articulated in affidavit of solicitor – Raised in submissions on appeal and not contested by respondent – Radical effect upon outcome – Permissible to consider on appeal PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Effect of recognition and enforcement – Whether English courts mandated consideration of partnership claim by Australian courts – English courts merely ordered case management stay in context of lis pendens – Judgments say nothing about jurisdiction or appropriateness of Australian courts PRIVATE INTERNATIONAL LAW – Non-exercise of jurisdiction – Inappropriate forum – Existence of real and substantial connection makes Australia an appropriate forum and negates inappropriate forum conclusion APPEALS – Leave to appeal – Whether leave required – Interlocutory decisions – Appeal from permanent stay – No final determination of rights and obligations of parties – Distinction from final resolution by way of estoppel arising from earlier proceedings – Leave required – Decision nevertheless finally determined ability of appellant to litigate – Appeal heard concurrently and in full – Appeal meritorious – Leave to appeal granted CIVIL PROCEDURE – Time – Extension of time – Motion by appellant seeking extension of time to comply with orders for provision of transcripts, orders, and reasons of English courts – Material of relevance – Material said to already have been in possession of solicitor – Material not responsive and ought to have been obtained prior to hearing – Extension granted but appellant to pay costs of motion APPEALS – Further evidence – Evidence not available at hearing – Evidence of transcripts, orders, and reasons of English courts – Motion not required for Court to have regard to such evidence – No reason to permit other further evidence identified in motion – Motion dismissed with costs COSTS – Party/Party – Appeals – Equal measure of success and failure for each party on appeal – Appellant improved position but incurred and inflicted unnecessary costs – No order as to costs of appeal and primary proceedings ...

Catchwords: CONTRACTS – Unconscionable conduct – Special disadvantage – Contract for sale of 50% of real property – Advertisement by respondent for $300,000 – One page agreement for $250,000 presented by appellant – Other terms of agreement improvident – Respondent suffering from very poor eyesight – Appellant aware or ought to have been aware of such facts – Appellant unable to surmount high bar for overturning demeanour-based findings that respondent could not read agreement and was unaware of different price – Special disadvantage established – Agreement void – Appeal dismissed CONTRACTS – Remedies – Specific performance – Appellant unable to demonstrate that ready, willing, and able to complete – No entitlement to specific performance in alternative that agreement not void EQUITY – Equitable remedies – Equitable compensation – Order setting aside agreement for unconscionability conditional upon party obtaining relief doing equity – Insufficient evidence of appellant’s expenditure on property or of enhancement to property’s value – Any entitlement offset by appellant’s rent-free enjoyment of property despite void agreement – No compensation payable APPEALS – Procedural fairness – Bias or apprehension of bias – Interventions by primary judge during appellant’s questioning of witnesses – Rejection of evidence and strong adverse findings – Allegations that primary judge lied – Late grant of leave to respondent to amend pleadings – No bias demonstrated CIVIL PROCEDURE – Hearings – Adjournment – Appellant received material from respondent shortly before taking of evidence – Evidence had been served long before – Submissions did not commence for another three weeks – Ample time to respond – No injustice identified CIVIL PROCEDURE – Hearings – Procedural Fairness – Use of audio-visual link – Technology imperfect but no resulting injustice identified CIVIL PROCEDURE – Pleadings – Amendment – Late application for amendment – Primary judge suggested that respondent amend originating process to explicitly plead unconscionability – Case always conducted on basis of unconscionability – No injustice identified ...

Catchwords: EVIDENCE – admissibility – hearsay – business records exception, s 69 Evidence Act 1995 (NSW) – where appellant/tenant introduced soil onto property alleged to be contaminated – where Council issued clean-up notice to respondent/landlord – where respondent commissioned expert report – where samples collected and tested by persons other than author of report – whether report business record of respondent – whether primary judge erred in giving weight to report EVIDENCE – expert reports – where no orders made for service of expert reports – where both parties served expert reports late – where both parties had opportunity to cross-examine experts – whether “exceptional circumstances” for admitting expert report in reply served by respondent – Uniform Civil Procedure Rules 2005 (NSW), r 31.28(4) – whether primary judge erred in House v The King sense DAMAGES – damages awarded for costs of remediating land – where only evidence of quantum was two quotes obtained in preparation of proceedings – where quotes contained hearsay material – where no objection by appellant to admissibility of quotes at trial – where appellant self-represented at trial – whether primary judge erred in giving weight to quotes DAMAGES – damages awarded for unpaid rent – where primary judge made declaration that lease validly terminated by respondent – where appellant remained in possession of property – where no termination order yet made by NCAT – whether residential tenancy agreement remained on foot – whether landlord’s remedy limited to loss of bargain damages ...

Catchwords: SUCCESSION – Family provision – claim by adult son for provision from the deceased’s estate pursuant to s 59 of the Succession Act 2006 (NSW) – where primary judge erred in her conclusion that adequate provision had not been made for the adult son’s proper maintenance and advancement in life – where adult son had remained on farming land but had received earlier significant benefits from his parents recognised as an “early inheritance” – extent to which anticipated adverse costs liability from non family provision claim should affect analysis of adequate provision COSTS – Offers of compromise – where offers of compromise were capable of acceptance and did represent a genuine element of compromise – where although the offeror could be said to have obtained a judgment no less favourable than the terms of the offer within the meaning of the Uniform Civil Procedure Rules 2005 (NSW) r 42.14(2), the Court “ordered otherwise” as to costs ...

Catchwords: APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons – failure to engage with the case presented by each party – duty to give reasons for rejecting evidence of expert or preferring evidence of one expert over another – whether the primary judge failed to adequately explain why the Appellant’s expert evidence was rejected or why the Respondent’s expert evidence was preferred. BUILDING AND CONSTRUCTION — Contract — Termination — Repudiation – the Respondent, the builder, was shut out from site after repudiatory conduct by the Appellant, the owner – whether the owner repudiated the contract. BUILDING AND CONSTRUCTION — Contract — Damages — Defects – relevance of repudiation to claims for damages for defects – whether repudiation by the owner not relevant – Appellant had accrued rights in respect of work carried out prior to determination of the contract. BUILDING AND CONSTRUCTION — Contract — Damages — Defects – engagement of second builder to complete work of the Respondent including repair of defects of Respondent not exculpatory of Respondent and not relevant to the loss claimed in respect of defects solely the result of work performed by the Respondent – whether owner had accepted the defective work. BUILDING AND CONSTRUCTION — Contract — Damages – proof of loss – adequacy of evidence supporting loss – where failure to mitigate damages not pleaded – whether evidence from the Appellant’s expert that would enable the Appellant’s loss to be calculated albeit on the basis of demolition of the building. ...

Catchwords: CIVIL PROCEDURE – Court of Appeal – application for stay of orders pending application for special leave to appeal to High Court – where orders made in underlying proceedings for payment out of funds held in court – where leave to appeal against those payment orders and earlier orders refused by majority of this Court – whether substantial prospect that special leave will be granted – application dismissed ...

Catchwords: NEGLIGENCE – damages – challenge to award of damages made by primary judge to injured respondent – whether post-accident surveillance footage of respondent and medical evidence properly taken into account by primary judge – whether primary judge erred in making awards under certain heads of damage – credit-based factual findings by judge – no appellable error by primary judge established WORKERS COMPENSATION – uninsured liabilities – payments of workers compensation by Nominal Insurer to injured worker – partial reimbursement to Nominal Insurer by employers – third party tortfeasor liable for worker’s injury – whether employers able to claim against third party tortfeasor under s 151Z(1)(d) Workers Compensation Act for all of workers compensation payments made – proper construction of s 151Z(1)(d) – meaning of “the person by whom the compensation was paid” – employers properly to be regarded as person by whom compensation paid ...

Catchwords: ASSOCIATIONS AND CLUBS – rights, duties and liabilities of members – committees – association constitutions – whether an unincorporated association was capable of being a State Council under the AFIC Constitution – where the unincorporated association was a group of individuals ASSOCIATIONS AND CLUBS – meetings – validity – association constitutions – whether UMNSW was removed as the State Council – whether the meeting at which the resolution removing UMNSW as State Council was properly convened ASSOCIATIONS AND CLUBS – meetings – validity – association constitutions – whether UMNSW was replaced as the State Council by an elected committee of individuals ASSOCIATIONS AND CLUBS – rights, duties and liabilities of members – election of members – association constitutions – whether an elected person was duly appointed as delegate of the State Council under the AFIC Constitution ...

Catchwords: COSTS – party/party – appeals – unsuccessful applications for joinder and reopening of appeal after appeal decision handed down – limited success of applicants in having orders varied to cure misapprehension of Court – respondents achieved significant measure of success on substantial issues – applicants to pay 50% of the respondents’ costs ...

Catchwords: DAMAGES – developer purchases land by tender – developer obliged to construct development as specified in masterplan – developer makes profit – solicitors acting for developer give misleading advice concerning whether land flood affected – developer incurs costs in persuading council to remove flood notation – developer sues solicitors, advances “no transaction” case and claims difference between purchase price and “true value” – consideration of “Potts v Miller” damages – significance of absence of market for land – significance of obligation to construct development – appeal dismissed ...

Catchwords: APPEALS – Local Court entered judgment in favour of respondent and dismissed cross-claim – appeal to Supreme Court constituted by Associate Judge dismissed – leave refused to bring appeal on mixed question of fact and law – nature of further appeal to Court of Appeal – whether appeal as of right or with leave – no error attending refusal of leave – appeal dismissed ...

Catchwords: RESTITUTION — where contribution assessment determination made as part of claims resolution process under Pt 4 of the Dust Diseases Tribunal Regulation 2013 — where co-defendants to a claim in the Dust Diseases Tribunal consent to orders giving effect to determination without admission of liability — where claim in restitution by one co-defendant against the other — onus of proof ...

Catchwords: CIVIL PROCEDURE – summary dismissal of proceedings – abuse of process – separate proceedings brought by different plaintiffs against same defendant – overlapping factual and legal issues – judgment delivered in first proceedings – application for leave to appeal against primary judge’s refusal to summarily dismiss second proceedings – actions of plaintiff in second proceedings not unreasonable – absence of any decisive overriding consideration of public interest – no abuse of process in second proceedings ...

Catchwords: APPEALS – procedure – stay pending appeal – District Court decision on appeal in child care and protection proceedings – District Court found realistic possibility of restoration of child to mother and ordered preparation of amended care plan – Secretary seeking judicial review of District Court decision in Court of Appeal – motion by Secretary to stay District Court orders pending determination of judicial review application – stay granted ...

Catchwords: GUARANTEE AND INDEMNITY – Guarantor – Right to indemnity – Refinance agreement entered into by corporate agent of partnership comprised of three companies – Respective directors as guarantors – One partner seeking to leave the partnership – Corporate agent defaults – Settlement negotiated by one guarantor – No express right of indemnity of guarantors – Whether implied contractual right of indemnity inferable – Whether principal debtor requested guarantors to give guarantee – Whether request inferable from circumstances of case – Majority of directors of corporate agent and majority of partners in partnership aware guarantee would be provided and acquiesced to such a course – Commercial circumstances evinced request for guarantee so business could continue to operate – Guarantee given in same document that established debt obligation – Express request for guarantee by creditor irrelevant – Right to indemnity established – Appeal allowed GUARANTEE AND INDEMNITY – Indemnities – Construction – Whether right to indemnity excluded by inconsistent express or implied agreement or otherwise estopped – Assurances by one partner to departing partner regarding freedom from liability not made with knowledge or authority of third partner – Departing partner did not consider concluded agreement to have been reached – No inconsistent agreement – No estoppel PARTNERSHIPS AND JOINT VENTURES – Rights and duties between partners – Implied authority to bind other partners by representations – Representations of freedom from liability made to departing partner – Representations not made to third party – Representations not made in ordinary course of business of partnership – No authority GUARANTEE AND INDEMNITY – Guarantor – Rights against co-guarantors – Contribution before payment made – Partners liable to contribute in proportion to their interests in partnership – Declaratory relief granted ...

Catchwords: APPEALS – leave to appeal – where application for permanent stay of proceedings dismissed – Anshun estoppel pleaded as defence in second proceeding by respondent claiming damages for breach of contract – first proceeding sought declaratory relief as to existence of contract and whether validly terminated by applicant – delay by applicant caused prejudice to respondent – no interim stay sought pending leave application – whether reasonably clear injustice going beyond something that is merely arguable ...

Catchwords: JUDICIAL REVIEW – decision of Local Court of NSW (Small Claims Division) – decision of District Court of NSW on appeal from Local Court – whether time to challenge Local Court decision should be extended – challenge not fairly arguable – grounds of challenge to District Court decision – no jurisdictional error or error of law on the face of record established ...

Catchwords: NEGLIGENCE – breach – risk of harm – identification of risk – risk of forklift operator being dislodged while forklift in motion – risk of harm foreseeable NEGLIGENCE – breach – reasonable precautions against risk of harm – whether reasonable person in appellant’s position would have taken precautions – failure to fit forklift with seatbelt or other restraint – failure to establish adequate system for communicating defects to enable diagnosis and repair NEGLIGENCE – factual causation – whether failure to communicate defect caused harm suffered by plaintiff – causation established ...

Catchwords: ADMINISTRATIVE LAW – judicial review – jurisdictional error – extent of functions and powers of tribunal - Workers Compensation Commission medical appeal panel – procedural unfairness –scope of procedural fairness determined by reference to statutory scheme – no opportunity given to address panel on definition of medical condition – medical experts’ function is to form opinion as to medical condition WORKERS COMPENSATION – medical dispute –appeal from certificate of assessor – scope of functions and powers of appeal panel – panel restricted to determining whether error in applicant’s grounds of appeal – decision to issue new certificate – no expansion of panel’s functions ...

Orders: 1. On the notice of motion filed by the first and second respondents on 10 November 2021: a. Pursuant to s 14 of the Civil Procedure Act 2005 (NSW) dispense with the requirement of UCPR 7.17(1) that the applicant (GR) take no further step in the substantive proceeding until a tutor has been appointed for the fourth respondent (AB). b. Direct that an Independent Legal Representative be appointed for the fourth respondent to the substantive proceeding (AB). c. Request the Crown Solicitor (i) to...

Catchwords: CRIME – appeal and review – application for leave to appeal from Supreme Court orders dismissing appeal from Local Court – where applicant convicted of unlawfully entering inclosed lands and interfering with business – where conduct done to remove chickens from cruel conditions – whether defence of necessity available – consideration of R v Rogers (1996) 86 A Crim R 542 ...

Catchwords: COURTS AND JUDGES – supervisory jurisdiction – post-appeal application to Supreme Court for inquiry into conviction under Pt 7, Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW) – power to consider application conferred on judge authorised by Chief Justice – power not conferred on Supreme Court – judge acting as persona designata COURTS AND JUDGES – supervisory jurisdiction – post-appeal application to Supreme Court for inquiry into conviction – conviction for breach of a law of the Commonwealth – whether State Act applies of its own force – whether State Act picked up and applied as Commonwealth law – operation of s 68 of Judiciary Act 1903 (Cth) where part only of State law ancillary to exercise of judicial power CRIME – federal offenders – offender convicted by State court for offence against federal law – applicability of State laws permitting post-appeal application to Supreme Court for inquiry into conviction JUDICIAL REVIEW – exercise of administrative power by Supreme Court judge – whether acting under a Commonwealth enactment – availability of judicial review – whether decision reviewable by Federal Court ...

Catchwords: ADMINISTRATIVE LAW – statutory construction – Public Health Act 2010 (NSW), s 7 – where the validity of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) does not turn upon whether those orders are of an administrative or legislative character – whether those orders were authorised by and validly made under s 7 of the Public Health Act 2010 (NSW) APPEALS – leave to appeal – principles governing – consequences for the parties – where the validity of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) was sought to be challenged – where two of those orders had been repealed and ceased to operate as at the hearing of the appeal and the third was to expire imminently – where the reasons of the primary judge disclosed no error of principle – where the proper construction of s 7 of the Public Health Act 2010 (NSW) raises a matter of public importance in the midst of an ongoing pandemic – whether there is any utility in granting leave to appeal to review orders already repealed or imminently to expire CIVIL PROCEDURE – Court of Appeal – leave to appeal – concurrent hearing of leave application and appeal – where constitutional arguments sought to be raised – where no arguable case was advanced – where the reasons of the primary judge disclosed no error of principle – where the raising of constitutional arguments does not give a case elevated status when considering a grant of leave to appeal – whether leave to be granted in circumstances of limited utility HUMAN RIGHTS – discrimination – context – employment – whether the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and/or the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) coerced workers in particular industries and workplaces to be vaccinated – where none of the applicants had been vaccinated in the exercise of their own free will HUMAN RIGHTS – legislation – Public Health Act 2010 (NSW), s 7 – principle of legality – where s 7 of the Public Health Act 2010 (NSW) expressly contemplates and authorises the impairment of freedom of movement for protection against public health risks – whether certain public health orders made during the COVID-19 pandemic interfered with rights – whether those rights recognised by the common law – right to bodily integrity – right to earn a living – right not to be discriminated against – right to privacy – privilege against self-incrimination – right to silence STATUTORY INTERPRETATION – legislative purpose – Public Health Act 2010 (NSW) – statement of objects – where purpose of Act is to promote, protect and improve public health including by the prevention of the spread of infectious diseases – where s 7 of the Act expressly contemplates the limitation of freedom of movement to address a public health risk STATUTORY INTERPRETATION – Anthony Hordern principle – where multiple sources of power in a statute – where some sources of power expressly qualified – Public Health Act 2010 (NSW), ss 7 and 8– whether the same source of power as s 7(2) – where s 7(3) expressly authorised limitation of freedom of movement – where power in s 7(3) expressed “without limiting s 7(2)” – whether the specific power in s 7(3) expressly qualified the general power in s 7(2) STATUTORY INTERPRETATION – principle of legality – common law rights and freedoms – where s 7 of the Public Health Act 2010 (NSW) expressly contemplates and authorises the impairment of freedom of movement for protection against public health risks – right to bodily integrity – right to earn a living – right not to be discriminated against – right to privacy – privilege against self-incrimination – right to silence – whether any of those rights are recognised at common law – if so, whether they are “fundamental rights” – whether the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) and/or the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) interfered with any of those rights – whether the principle of legality operated to constrain any interference with those rights STATUTORY INTERPRETATION– where s 7(6) of the Public Health Act 2010 (NSW) proscribes the making of orders in relation to any part of New South Wales for which a state of emergency exists under the State Emergency and Rescue Management Act 1989 (NSW) – COVID-19 pandemic – whether the emergence of the Delta strain was an “emergency” under s 4 of the State Emergency and Rescue Management Act 1989 (NSW) – where the Premier did not declare a “state of emergency” under that Act ...

Catchwords: COURTS AND JUDGES – Supreme Court – supervisory jurisdiction – District Court – jurisdictional error – appeal to District Court from conviction in Local Court – complainant not called as witness on appeal – District Court judge had regard to magistrate’s credibility findings – whether jurisdictional error by District Court COURTS AND JUDGES – Supreme Court – Supervisory jurisdiction – District Court – jurisdictional error – applicant convicted in Local Court – conviction appeal to District Court – onus of proof on prosecutor to establish guilt beyond reasonable doubt – whether appellant required to establish factual, legal or discretionary error by magistrate – whether requirement that appellant demonstrate error reverses onus of proof – Crimes (Appeal and Review) Act 2001 (NSW) s 18 ...

Catchwords: TORTS – negligence – liability of employer – scope of employer's obligation to ensure safe system of work – where employee worked as shearers’ cook – where employee dispatched to other place or premises of work – where employee injured when step to accommodation collapsed – where employer conducted visual inspection of premises – whether scope of employer’s duty required employer to conduct physical inspection of the step – whether employer breached duty – whether causation established DAMAGES – past and future economic loss – where employee suffered from PTSD and diabetes – where employee’s income in prior financial years modest – where unchallenged findings that job suited employee’s PTSD and intended to work full-time – where primary judge allowed deduction of 30 per cent for vicissitudes – whether error in award of past economic loss – whether error in award of future economic loss – whether error by primary judge not to refer to appellant’s medical reports material DAMAGES – past domestic assistance and future commercial care – where employee’s son and friend provided gratuitous domestic assistance – whether threshold under s 15(3) Civil Liability Act met – where evidence that employee wanted to relieve son of duties of providing care – where future commercial care assessed at 8.5 hours a week – where primary judge allowed deduction of 15 per cent for vicissitudes – whether primary judge erred in award for past domestic assistance – whether primary judge should have allowed for greater reduction for vicissitudes ...

Catchwords: JUDICIAL REVIEW – jurisdictional error – applicant pleaded guilty to three offences including using carriage service to menace, harass or cause offence – applicant sentenced on basis of agreed facts – Local Court imposed full-time custodial sentence – District Court allowed appeal imposing a lesser full-time custodial sentence – whether District Court fell into jurisdictional error when rejecting submission that sentence be served by intensive correction order – significance of community safety being paramount consideration – significance of requirement to consider whether intensive correction order more likely to address risk of reoffending – part of reasoning in Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318 disapproved – error in agreed facts concerning number of text messages giving rise to carriage service offence – agreed facts stated applicant had sent 24,459 text messages – in fact applicant had sent 11,204 messages – whether factual error gave rise to jurisdictional error – no jurisdictional error established and summons dismissed ...

Catchwords: EQUITY – equitable interests in real property – priorities – where property purchased by trustee on trust for sole unitholder – competing claims of beneficiary under trust and equitable mortgagee – where beneficiary did not pay any monies towards purchase price of property or “fully paid” units in unit trust – where beneficiary’s solicitor advised trustee was untrustworthy – where trust deed conferred wide powers on trustee, including power to mortgage trust assets for any contractual obligation – where trust deed precluded unitholder from lodging caveat against any trust property and no caveat was lodged – where equitable mortgage granted over property to respondent in breach of trust – whether merits of competing equities unequal – whether beneficiary’s prior interest postponed to subsequent interest of equitable mortgagee EQUITY – equitable interests in real property – priorities – where unitholder issued “fully paid” units but no monies paid for units in trust or towards purchase of property – whether evidence that trustee borrowed funds for purchase of property – whether beneficiary has liability to trustee for units issued to it – whether beneficiary was a volunteer ...

Catchwords: CONTACT – share sale agreement – business affected by fire before agreement – business made claims on insurance policies – whether amount received after agreement from insurer for uninsured losses caught by contractual clause – use of evidence of parties’ subjective intentions – primary judge erred in relying on evidence of intentions but construction nevertheless correct – appeal dismissed ...

Catchwords: CORPORATIONS – directors and officers – fiduciary duties – duty to act in good faith in the best interests of company – duty not to use position as director or officer improperly – duty to ensure proper financial records kept – acting as director for two related entities – conflict of duty and interest EQUITY – fiduciary duties – conflict of interest and duty – acting as director for two related companies – involvement in transactions between companies –director holding 25% shares of one company – where one company holds a financial interest in the other and consequently shares in any benefits received by the director – when director inherits and continues an existing and accepted practice as between the companies ...

Catchwords: CONTRACTS — termination — repudiation of contract — implied refusal to perform — where purchasers raised requisitions on title — whether requisitions properly made — whether vendors adequately answered requisitions — whether vendors evinced intention no longer to be bound by contract CONTRACTS — termination — repudiation of contract — erroneous construction of contract — where vendors insisted on payment of default interest — whether repudiation by insisting on erroneous construction of contract ENVIRONMENT AND PLANNING — heritage conservation — protection of Aboriginal heritage — National Parks and Wildlife Act 1974 (NSW) — meaning of “Aboriginal object” LAND LAW — conveyancing — contract for sale — defect in title — whether presence of Aboriginal objects on land constitutes defect in title — whether Aboriginal objects on land — whether presence of Aboriginal objects constituted defect in title where land already subject to development constraints LAND LAW — conveyancing — contract for sale — termination in accordance with rule in Flight v Booth — whether presence of Aboriginal objects materially or substantially affected contract — no Aboriginal objects on land — no material or substantial effect LAND LAW — conveyancing — contract for sale — requisitions — where requisitions based on plausible contention of presence of Aboriginal objects — whether purchasers’ objections and requisitions on title properly made — whether vendors’ responses sufficient ...

Catchwords: APPEALS – Leave to appeal – From orders for payment out from funds held in Court – Only other party with arguable claim to funds not permitted by Court to be re-joined as an applicant – Grant of leave would undermine Court’s unanimous decision to refuse re-joinder – Significant obstacles and uncertainty attending to claim – Court concerned by potential undisclosed interest of first applicant – First and second respondents entitled to final resolution – Orders appealed from are discretionary – Leave refused APPEALS – Leave to appeal – From various other decisions dating back to 2017 – Application well out of time – No explanation for delay – Issues known to applicant and thus ought to have been raised much earlier – Rights of third parties have intervened – No errors demonstrated – Leave refused ...

Catchwords: CIVIL PROCEDURE – Court of Appeal – Objections to competency of appeal – Whether appeal from exercise of cross-vested jurisdiction and so lies only to Federal Court – Whether leave to appeal required CIVIL PROCEDURE – Cross-vesting – Where appellant became bankrupt after commencing proceedings in Supreme Court – Whether a “matter arising under” the Bankruptcy Act – Distinction from exercise of jurisdiction in bankruptcy – Cross-vesting legislation not intended to require appeals from judgment in a matter arising under a Commonwealth Act to be instituted in federal Court where first instance court not exercising cross-vested jurisdiction – Primary judge was not exercising cross-vested jurisdiction – Cross-vesting legislation not engaged CONSTITUTIONAL LAW – The Judiciary – ‘Matter’ – Proceedings not owing existence to federal law but stayed by operation of federal law nevertheless constitute a ‘matter’ arising under federal law APPEALS – Leave to appeal – Whether leave required from declaratory orders – Whether declarations can be interlocutory – Declarations were interlocutory for purposes of leave to appeal – Leave to appeal required – Appellant directed to file application for leave to appeal lest the appeal be dismissed ...

Catchwords: PROFESSIONS AND TRADES – medical practitioners – challenge to finding of professional misconduct – where medical practitioner sent inappropriate text messages and voice messages to patient – where breach of health practice conditions limiting intake of alcohol and prescription medication – where conduct found to be unsatisfactory professional conduct – whether such conduct of “sufficiently serious nature” to warrant suspension or cancellation of registration – whether challenge to finding raises question of law PROFESSIONS AND TRADES – medical practitioners – challenge to finding that not competent to practise – where medical practitioner admitted alcohol use disorder – where evidence that remission requires period of three years of abstinence – where medical practitioner not yet commenced period of abstinence – where alcohol dependence could grossly impair judgement and clinical ability – whether challenge to finding raises question of law PROFESSIONS AND TRADES – medical practitioners – challenge to protective orders made by Tribunal cancelling medical practitioner’s registration – whether challenge involved question of law – where assertion that error of law in House v The King sense – whether Tribunal failed to consider effect of medical practitioner’s alcohol dependence – whether protective orders excessive – whether Tribunal failed to provide sufficient reasons ...

Catchwords: CONTRACTS — construction — where agreement to pay royalty following “actual sale” of mineral — where royalty a percentage of “net sales realisation” amount — whether “actual sale” occurs when title passes to buyer — whether “net sales realisation” is after deduction of sales realisation expenses CONTRACTS — termination — where breach of time stipulation for making of payment — where demand made after giving further time for payment — whether breach of essential term justifying termination — whether repudiatory conduct evincing an unwillingness to render substantial performance ...

Catchwords: WORKERS COMPENSATION – medical assessment – appeal from approved medical specialist to Appeal Panel – whether second appeal to Appeal Panel available on ground of deterioration – whether application for further appeal should have been treated as application for reconsideration, or whether notice to applicant should have been given, before application dismissed APPEALS – consideration of nature of appeals from approved medical specialist to Appeal Panel – consideration of nature of appeals from Associate Judge to Court of Appeal ...

Orders: (1) Dispense with Uniform Civil Procedure Rules 2005 (NSW), r 7.14 with respect to the commencement and carrying on by the applicant of his application for leave to appeal. (2) Grant leave to appeal from the consent orders made on 28 October 2020. (3) Dispense with the need for the applicant to file any notice of appeal and allow the appeal. (4) Set aside the orders made on 28 October 2020 except for order 7. (5) Remit the summons to the Common Law Division to be reheard, and direct that at the...

Catchwords: OCCUPATIONS – Legal practitioners – Solicitors – Professional negligence – Advising client – Whether solicitor settled motor accident insurance claim prematurely and at an undervalue – Whether solicitor entitled to rely on Civil Liability Act 2002 (NSW), s 5O – Whether causation of loss established – Appeal dismissed NEGLIGENCE – Breach – Standard of care – Professional negligence – Whether solicitor acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice – Expert opinion adduced not determinative merely because not challenged on ground of irrationality – Where solicitor gave clear and repeated advice discouraging premature settlement at undervalue despite client’s perilous financial position and desire for quick settlement – Where early settlement prudent given risk of future disclosure of information adverse to claim – Where accepted offer far from so unreasonable as to warrant warning against acceptance – No breach of duty of care NEGLIGENCE – Causation – Factual causation – Whether client would have accepted offer even if given proper advice – Competing expert opinions – Where accepted offer was slightly above mid-range of potential outcomes – Where client in precarious financial position – Where clear willingness to settle – Where risk of future disclosure of information adverse to claim – Causation not established ...

Catchwords: DEEDS – execution – whether defendant signed deed – creditor and witness testified that defendant signed deed – defendant testified that she did not sign deed – uncontradicted expert evidence that defendant’s signature was not authentic – primary judge dismissed proceedings on basis of not being persuaded that debtor had signed deed – whether conclusion disclosed appellable error – appeal dismissed ...

Catchwords: CORPORATIONS – take-over offers – off-market bid – freeing off-market bids from defeating conditions – bifurcated conditions – where notice declaring the offer free of conditions was given within the seven day period of the close of the offer – whether the notice was effective to free the offer of a condition – Corporations Act 2001 (Cth), s 650F CORPORATIONS – take-over offers – off-market bid – freeing off-market bids from defeating conditions – bifurcated conditions – whether the condition related to the happening of an event or circumstance in s 652C(1) of the Corporations Act 2001 (Cth) ...

Catchwords: CIVIL PROCEDURE – subpoenas – to produce documents – application to set aside – whether legitimate forensic purpose – whether subpoena irrelevant, too broad or issued for improper purpose – apparent relevance to application for security for costs – documents relating to appellants’ source of funds – application to set aside subpoena dismissed ...

Catchwords: APPEALS – leave to appeal – representative proceedings – interlocutory orders – orders final with respect to the representative party – no finality as to group members claims – challenge to answers to common questions TORTS – negligence – standard of care – acts or omissions of public authority – exercise of statutory function – statutory protection – application of Wednesbury standard of care – Civil Liability Act 2003 (Qld) s 36 NEGLIGENCE – standard of care – conduct of flood operations – compliance with Flood Operations Manual – construction of Manual written by flood engineers for application by flood engineers – purposive construction – dual purposes of water supply and flood mitigation – concept of flood mitigation – releases not to exceed peak inflows – use of best available rainfall forecasts – degrees of tolerance – scope for professional judgment – role of the senior flood operations engineer in determining strategies NEGLIGENCE – causation – factual causation – cumulative effect of sequential breaches – series of acts jointly sufficient to cause harm – division of single course of conduct into discrete breaches artificial TORTS – damage to property – whether liability apportionable – concurrent wrongdoers – whether acting independently of each other – Civil Liability Act 2003 (Qld) s 30 TORTS – damages – prejudgment interest on damages – property damage – awards with respect to cleaning undertaken by volunteers – interest on such awards – interest on subventions in form of charitable relief COSTS – apportionment of costs – wrongful conduct governed by Queensland law – proceedings brought in New South Wales – Civil Procedure Act 2005 (NSW), s 98 applied ...

Catchwords: CIVIL PROCEDURE – jurisdiction – declaration that court has no jurisdiction to decide claim – claim for death or injury – carriage by air – occurring entirely within New South Wales – where party brought claim under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) in the Federal Court – where Federal Court lacked jurisdiction to decide claim – claimant brought claim in the Supreme Court under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – Supreme Court claim brought more than two years after relevant carriage by air – whether order of the Federal Court dismissing claim for want of jurisdiction was a “relevant order” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – whether claim in the Supreme Court was extinguished by s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – Supreme Court proceedings pursuant to s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – where those proceedings are linked to incompetent Federal Court proceedings but operate independently of them – where s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) operates to extinguish any claim for damages under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) if not brought within two years after an accident – whether order made under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) undermined the purpose of s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – order under s 11(2) not a discretionary extension of time to bring a proceeding otherwise out of time LIMITATION OF ACTIONS – operation of bar – action for compensation for death under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) – where s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) provides that the right to damages is extinguished if a party does not bring an action within two years of an aviation accident – characterisation of statutory bar – whether s 34 is a “limitation law” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – where the law recognises a distinction between the barring of a right of action and its extinguishment STATUTORY INTERPRETATION – contextual approach – context to be considered in the first order – context understood in a broad sense – including the existing state of the law, legislative purpose, legislative history and extrinsic materials STATUTORY INTERPRETATION – departure from literal meaning – where literal reading of “relevant order” in s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) does not conform to the legislative purpose – where purpose determined by reference to immediate context and extrinsic materials STATUTORY INTERPRETATION – legislative purpose – remedial legislation – where statute passed to remedy the effect of the decision of the High Court of Australia in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 – whether “want of jurisdiction” in s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) refers to the conferral of jurisdiction held to be invalid by the High Court TRAFFIC LAW AND TRANSPORT – aviation – carriage by air – death or personal injury – intra-state carriage by air occurring entirely within New South Wales – where party brought claim under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) in the Federal Court – where Federal Court lacked jurisdiction to decide claim – claimant brought claim in the Supreme Court under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – whether order of the Federal Court dismissing claim for want of jurisdiction was a “relevant order” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) TRAFFIC LAW AND TRANSPORT – aviation – statutory liability – limitation of actions – characterisation of statutory bar – whether s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) is a “limitation law” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) WORDS AND PHRASES – “relevant order” – Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(1) WORDS AND PHRASES – “limitation law” – Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(1) ...

Catchwords: AGENCY – ostensible authority – man used company email address and corporate signature – man closely involved with company’s sole director in finalising orders of building materials – whether man had ostensible authority to bind company CONTRACT – company purchased building materials from South Australian company – sole director guaranteed company’s obligations to supplier – guarantee expressed to be with Queensland company and “each related body corporate that supplies goods or services to the Customer” – South Australian supplier was related to Queensland company and had similar name – whether South Australian company could enforce guarantee ...

Catchwords: CORPORATIONS – shares – exercise of power to allot shares – where director of family company allotted shares to himself – where effect of allotment was to confer control of company on the director – where hearsay evidence that director provided paperwork concerning allotment to shareholders – where no evidence of paperwork or content of paperwork – whether shareholders gave fully informed consent to allotment – whether share allotment should be set aside EQUITY – defences – laches – knowledge of the wrong – where impugned share allotment occurred in 2004 – where director of company has since passed away – where appellants reside in Indonesia and speak minimal English – whether appellants had means of knowledge of the wrong – whether respondents pleaded that appellants could have searched public records and ran that defence below EVIDENCE – expert evidence – whether letter from overseas lawyers in the nature of an investigative report was expert evidence – whether the primary judge erred in rejecting the tender of the evidence – whether the primary judge should have waived the rules of evidence – Evidence Act 1995 (NSW), s 190 ...

Catchwords: TORTS — Trespass to the person — Battery — Sexual assault — where resolution of the issues depended on the assessment of the truthfulness of each party — no issue of principle TORTS — Evidence — proof of a fact relied on by defendant TORTS — Malicious prosecution — where defendant provided statement to police in connection with criminal investigation — whether defendant a prosecutor for purposes of the tort — whether defendant knowingly provided false information to a prosecuting authority ...

Catchwords: APPEALS — from exercise of discretion — procedural decisions — refusal to extend time for filing summons — reasons for delay — significance of first instance decision decided on basis of authority later overturned on appeal — interest rei publicae ut sit finis litium COSTS — costs assessment — determination — review/appeal — jurisdiction to appeal from certificates in proceedings commenced prior to 1 July 2015 ...

Catchwords: APPEALS – application to receive further evidence – s 75A Supreme Court Act 1970 (NSW) – whether “special grounds” established – special grounds not established because the further evidence could have been obtained with reasonable diligence for use at the trial and there is no significant prospect that the outcome at first instance would have been different if that evidence had been led at first instance ...

Catchwords: INSURANCE – Claims – Property insurance – Fire – Proof – Circumstantial case – Where insurers alleged that fires in hotel premises deliberately lit – Whether plausible hypotheses consistent with innocence – Relevance of financial motive – Whether means and opportunity – Passive infrared sensors – Timing – Layout of premises – Plausibility of intruders – Appeal dismissed APPEALS – From findings of fact – Function of appellate court – Where primary judgment not dependent on credibility findings – Court obligated to conduct a real review of the evidence and reasons ...

Catchwords: NEGLIGENCE – dangerous recreational activities – appellant suffered injury in mid-air collision between light aircraft and Ferris wheel – appellant engaged in dangerous recreational activity of landing at an unregulated aircraft landing area – whether appellant suffered harm as the result of the materialisation of an obvious risk of a dangerous recreational activity – appropriate level of generality when characterising risk – obviousness of risk – appellant’s harm resulted from manifestation of the obvious risk of colliding with obstructions in the splay of the landing area – appeal dismissed ...

Catchwords: EQUITY – Trusts and trustees – Express trusts – Declaration of trust – Where only evidence of trust was a conversation purported to have occurred 23 years before hearing – Where evidence inconsistent with later documentary evidence – No issue of principle LAND LAW – Co-ownership – Rights between co-owners – Account – Where accounts showed beneficial co-owners paid “rent” to third beneficial co-owner – Where accounting secured a tax advantage for the third co-owner – Where no evidence that the accounting was intended to reflect payment of an occupation fee – Whether beneficial co-owners entitled to adjustment ...

Catchwords: PROCEDURE – interlocutory appeal from decision striking out paragraphs of defence – decision based on whether defendant was a “public or other authority” for purpose of Part 5 of Civil Liability Act 2002 (NSW) – appropriateness of determining question on strike out application or by way of separate question – directions made for formulation and determination of separate question ...

Catchwords: CIVIL PROCEDURE – abuse of process – where the Court may exercise its inherent powers to prevent an abuse of its process – where the Court deemed it appropriate that an order in the nature of that made in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 be made CIVIL PROCEDURE – notice of motion – where applicant filed notice of motion challenging earlier orders by judges of the Court and in part repeating relief that had previously been sought and refused – where the notice of motion was dismissed as an abuse of process or as being either vexatious or oppressive, or as disclosing no arguable basis for the relief sought ...

Catchwords: INSURANCE – where appellant’s house destroyed in a fire – where house used to operate a business – where house and business insured by respondent – where respondent granted conditional indemnity under deed of release – where respondent then denied liability on basis fire deliberately lit by insured – whether primary judge erred in finding appellant deliberately started fire INSURANCE – measure of indemnity – where lack of reasonable despatch in rectifying property – whether indemnity for property damage payable on reinstatement basis INSURANCE – damages – whether damages available for consequential loss arising from insurer’s breach of promise to indemnify – whether damages available for inconvenience and distress caused by breach ...

Catchwords: APPEALS – nature of appeal – appeal by way of rehearing – appeal against conviction under s 11(1) of the Crimes (Appeal and Review) Act – where applicant appealed from the Local Court to the District Court alleging specific errors on the part of the Local Court – whether the District Court was required to undertake a complete review of the whole of the evidence and form its own view as to the applicant’s guilt regardless of the issues raised in the appeal – absence of any clearly articulated argument the resolution of which required a review of the whole of the evidence ...

Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – application to reopen appeal under UCPR r 36.16 – whether Court determined the appeal on a ground not pleaded at trial – whether Court found ordinarily implied general obligation in contract to cooperate – Court found particular contractual terms pleaded, the essence of which was cooperation to achieve stated purpose CONTRACT – remedies – specific performance – whether Court found breach of contract – order for specific performance does not require proof of breach – sufficiently reasonable apprehension of breach may support order for specific performance JUDGMENTS AND ORDERS – reasons – duty to give reasons – whether Court gave adequate reasons in rejecting contentions of abandonment and unilateral release – matters relied on by parties referred to and rejected – reasons sufficiently explained conclusion reached – standard for reasons depends on nature of case, submissions and issues engaged ...

Catchwords: CIVIL PROCEDURE – pleadings – amendment – where applicant sought to plead an apportionable claim under s 34 of the Civil Liability Act 2002 (NSW) – where Part VIA of the Competition and Consumer Act 2010 (Cth) was the relevant statutory scheme – application for leave to appeal dismissed CIVIL PROCEDURE – pleadings – amendment – where applicant did not identify any particular “concurrent wrongdoer” ...

Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – motion under UCPR r 36.16 to set aside previous judgment of Court – judgment granted leave to appeal limited to specific issues – whether grant of leave should be extended to allow applicant to appeal against entire decision including costs order made by Registrar and reviewed by primary judge – no good reason to permit appellate challenge to costs order – costs order appears to have been appropriate in the circumstances COURTS AND JUDGES – bias – application for recusal – allegations of apprehended bias and actual bias against judges – applications rejected ...

Catchwords: APPEALS – appeal from primary judgment making personal costs orders against the applicant pursuant to Sch 2 of the Legal Profession Uniform Law Application Act 2014 (NSW) and s 99 of the Civil Procedure Act 2005 (NSW) – where applicant was the legal practitioner for the defendant in the proceedings below and made allegations of fraudulent misrepresentation and conspiracy without any proper basis – where solicitor breached his professional ethical duties in pursuing the claims APPEALS – application for leave to appeal – whether leave to appeal is required by a legal practitioner who is subject to a third party costs order, assuming that the monetary threshold under s 101(2)(r) of the Supreme Court Act 1970 (NSW) is satisfied – leave to appeal not required pursuant to s 101(2)(c) of the Supreme Court Act on the basis that the decision was not one “as to costs only” APPEALS – challenge to earlier decision of this Court on the basis that it was “plainly wrong” – where no real attempt was made to satisfy the requirements for a challenge to a decision of this Court as outlined in Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 APPEALS – procedural fairness – whether applicant was denied procedural fairness on the basis that the primary judge did not consider all of the grounds and arguments advanced by the applicant – whether applicant was denied procedural fairness in that the Court treated various findings made in the substantive judgment as beyond challenge for the purposes of the costs application – where applicant’s arguments in the costs application were essentially a replication of the arguments that had been advanced and rejected by the primary judge in the substantive judgment – where no denial of procedural fairness COSTS – where primary judge imposed personal costs orders against the legal practitioner of the unsuccessful party in proceedings below – where applicant was the legal practitioner for the defendant in the proceedings below and improperly made allegations of fraudulent misrepresentation and conspiracy without any evidence to support it – where solicitors breached their professional ethical duties in pursuing the claims COSTS – whether in an application for costs orders against a legal practitioner under s 99 of the Civil Procedure Act 2005 (NSW), the Court is entitled to take account of its findings in the substantive judgment – whether a legal practitioner against whom such costs orders are sought is bound by findings in the substantive judgment, even though the legal practitioner was not formally a party to the proceedings – where in the present case, the applicant was given a full and fair opportunity to explain the basis upon which he made the relevant allegations and to rebut the statutory presumption arising under cl 6 of Sch 2 to the Legal Profession Uniform Law Application Act 2014 (NSW) LEGAL PRACTITIONERS – obligations of solicitors arising pursuant to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 21 ...

Catchwords: OCCUPATIONS – Medical practitioners – Qualifications and registration – Appeal – From dismissal of reinstatement application by NCAT – Whether appellant no longer suffering from mental impairment rendering her unfit to practise – Relevance of evidence of professional competence – Relevance of patient outcomes – Relevance of psychiatric evidence – Relevance of NCAT’s own observations – Appeal dismissed OCCUPATIONS – Medical practitioners – Qualifications and registration – Reinstatement application – Principles governing – Review body not permitted to review original deregistration decision ...

Catchwords: ENVIRONMENT AND PLANNING – consent – application to modify consent – condition of consent requiring payment of monetary contribution – power to reduce contribution – no change to development – contribution paid in full – calculation of contribution – construction of “gross floor area”– loading areas excluded – only loading areas in approved plans excluded – no utility in modification ...

Catchwords: MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – power of sale – mortgagee’s duty to exercise power of sale in good faith – effect of contract of sale upon mortgagor’s rights – whether attempt to refinance and discharge mortgage prior to transfer of title can prevent sale – where mortgagor’s attempts to refinance accelerated the sale process MORTGAGES AND SECURITIES – mortgagee exercising right of sale – price higher if vacant possession given – requirement of vacant possession not communicated to occupant –damages awarded for failure to communicate occupation condition LAND LAW – Torrens title – exceptions to indefeasibility – fraud by mortgagee exercising power of sale – bid-rigging where alleged collaborator later acquired share in successful purchaser – whether collusion established LAND LAW – mortgages – mortgagee sale – where owner of the mortgagee financed the purchase and acquired option to control purchaser – honesty and independence of sale process – good faith exercise of power of sale – pre-existing relationship between parties acting on other projects – whether lack of independence in sale process indicative of fraud – burden of disproving fraud ...

Catchwords: APPEAL – leave to appeal – where applicant’s claims summarily dismissed on ground that statute-barred – whether primary judge erred in being satisfied that there was no arguable case that applicant was under a “disability” within meaning of Limitation Act 1969 (NSW) s 52(1) ...

Catchwords: CONTRACT – 2018 edition Law Society of New South Wales standard form contract for sale of land – construction – where additional clause 38 provided for payment of deposit in two instalments – where clause 2.3 made time for payment of second instalment “essential” – where deadline for payment not a business day – whether time for payment extended to next business day by clause 21.5 – whether exception to application of clause 21.5 “in the case of clauses 2 and 3.2” engaged ...

Catchwords: SUCCESSION – contested probate – knowledge and approval – suspicious circumstances - significance of reading out will to capable testator – whether reading out will to capable testator who executes it will discharge onus on propounder – whether sufficient to establish knowledge of contents of will or whether it may be necessary to establish knowledge of its effect – consideration of Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 – consideration of “mistake doctrine” – significance of statutory power to rectify wills SUCCESSION – contested probate – severance of testamentary instruments – power to admit only those clauses to probate of which testator has been shown to have known and approved – distinction between omitted clauses which confer bequests and omitted clauses which confer power – Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89 considered and explained SUBPOENAS – production of documents – redaction of parts of documents on ground of relevance – distinction between redaction for privilege and redaction for relevance ...

Catchwords: ADMINISTRATIVE LAW – judicial review – orders of District Court dismissing appeal on questions of law from costs assessment review panel – where District Court decided reasons given by review panel were adequate – whether jurisdictional error in applying incorrect test for adequacy of reasons – whether error of law on the face of the record in relation to decision that reasons adequate COSTS – costs assessment – determination by review panel of amount of costs of assessment process and by whom payable – whether review panel required to determine “fair and reasonable amount” ...

Catchwords: APPEALS — procedure — application for joinder after appeal decision handed down — applicants interested in appeal who took no part in appeal — court’s power to preclude party from litigation without res judicata or issue estoppel — factors warranting APPEALS — procedure — application to reopen for adducing further evidence — special grounds — curing factual misapprehension — exercise of court’s discretion — variation of orders to cure misapprehension VOLUNTARY ASSOCIATIONS — unincorporated and incorporated associations — effect of incorporation — relationship between unincorporated and incorporated associations — complex structure of incorporated and unincorporated associations on local, state and national levels — incorporation of a unit that was subordinate to an unincorporated association — construction of rules and constitution ...

Catchwords: COURTS – Land and Environment Court (NSW) – jurisdiction and powers – class 3 jurisdiction – assessment of value of land compulsorily acquired – enforcement of statutory obligation to pay 90% of Valuer General’s assessment pending resolution of claim – power to make freezing order LAND LAW – compulsory acquisition of land – payment required by Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 68(2)(a) – whether payment into trust account of acquiring authority’s solicitor satisfied obligation ...

Catchwords: CIVIL PROCEDURE – application for leave to appeal from an interlocutory decision of the Civil and Administrative Tribunal of NSW – where Tribunal refused to grant the applicant an extension of time in which to appeal from a decision of the Medical Council of NSW, which had imposed a condition on the applicant’s registration as a health practitioner that she not practise medicine – where applicant sought to appeal the Medical Council’s decision over one year after it provided its reasons for imposing the relevant condition – where applicant contended that her appeal was as of right and that no extension of time was required to be granted by the Tribunal – whether Tribunal was correct to hold that an extension of time within which to appeal from the Council’s decision was required – whether Tribunal’s discretion miscarried in refusing the applicant an extension of time HEALTH – medical professionals – whether Medical Council of NSW had the power to impose a temporary condition that a practitioner not practise medicine – where such a power is found under s 150(1)(b) of the Health Practitioner Regulation National Law (NSW) PRACTICE AND PROCEDURE – Procedural fairness – whether there had been a breach of procedural fairness by the Medical Council of NSW in conducting a hearing pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) in the applicant’s absence – whether there was a breach of procedural fairness in the Council denying the applicant’s request for an adjournment of that hearing – where applicant had been given sufficient notice of the hearing and where her application for an adjournment was raised only a day before the hearing was scheduled – where Tribunal was correct to conclude that there was no breach of procedural fairness by the Council ...

Catchwords: CONTRACTS – termination – breach of term – what constitutes gross negligence and gross misconduct CONTRACTS – termination – breach of term – implied term – term implied in fact – implied term not to use position to obtain unauthorised benefit – where breach compounded by deliberate deception – gross misconduct CONTRACTS – termination – breach by terminating party – whether repudiation of contract – whether acceptance of repudiation possible – whether party willing to perform obligations under the contract CONTRACTS – construction – interpretation – natural and ordinary meaning – no ambiguity – unusual term – Court must give effect to the language used STATUTORY INTERPRETATION – text, context and purpose of provisions and the mischief they are intended to remedy – Strata Schemes Management Act 1996 (NSW) – Strata Schemes Management Amendment Act 2002 (NSW) – Strata Schemes Management Act 2015 (NSW) – extrinsic material – where purpose of relevant provisions emerges from the Second Reading Speech – savings provisions – Interpretation Act 1987 (NSW) s 30 ...

Catchwords: ADMINISTRATIVE LAW – application for orders in the nature of certiorari quashing decision of District Court dismissing an appeal from the Small Claims Division of the Local Court and the decision of the Local Court for jurisdictional error and error of law on the face of the record – where appeal to District Court lies only on basis of lack of jurisdiction or denial of procedural fairness – where applicants contended District Court judge misapprehended the meaning of “lack of jurisdiction”, failed to make a bona fide assessment of the grounds of appeal and failed to give adequate reasons – where applicants’ challenge to the Local Court decision out of time – where applicants contended that Local Court assessor failed to take into account “jurisdictional facts”, gave judgment notwithstanding notice of an alleged counter claim or set-off and otherwise invalidly exercised jurisdiction ...

Catchwords: NEGLIGENCE – professional negligence – solicitors – where appellant law firm was retained to advise the respondent as to his rights in a family law partnership – whether appellant failed to give competent advice to the respondent about the manner and circumstances of the exercise of a put option granted by a put and call option agreement forming part of the partnership documents – breach of retainer and concurrent duty of care NEGLIGENCE – professional negligence – causation – factual causation – where respondent would have exercised put option had he been properly advised of his rights – where failure to give competent advice caused loss CONSUMER LAW – misleading or deceptive conduct – professional advice – where a dangerously incomplete statement of the respondent’s rights was misleading and deceptive in that it was apt to mislead the respondent into believing that his legal rights were ineffective CONTRACTS – implied terms – terms implied in law – necessity CONTRACTS – implied terms – terms implied in fact – necessary to give business efficacy CONTRACTS – construction – interpretation – calculation of purchase price under formula prescribed in a put and call option agreement APPEALS – damages – where primary judge awarded damages and required an undertaking as to repayment pending the outcome of related proceedings – whether primary judge erred in not assessing damages on a lump sum basis once and for all – whether this Court should itself determine the damages payable on a lump sum basis – approach for correct assessment of damages ...

Catchwords: APPEAL – where applicant incorrectly filed an application for leave to appeal – where, although leave to appeal was not required, an extension of time in which to bring the appeal was required – no satisfactory explanation provided for delay in commencing appeal proceedings – where no injustice would be suffered by the applicant if an extension of time to appeal was refused – application for extension of time to appeal refused ...

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