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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: 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: 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 – 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: 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: 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: 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 ...

Catchwords: CHILD WELFARE – care proceedings – statutory construction – interpretation – where guardian ad litem appointed for a child and young person in separate proceedings – where court found child and young person was incapable of giving proper instructions to a legal representative – whether appointment of guardian ad litem mandatory or discretionary – Children and Young Persons (Care and Protection) Act 1998 (NSW) – interaction between ss 98(2A) and 100 of the Act CHILD WELFARE – care proceedings – where guardian ad litem appointed for a young person by Supreme Court – whether young person incapable of giving proper instructions to a legal representative ...

Catchwords: EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Where appellant purchased properties in the name of the respondent pursuant to a power of attorney — Whether appellant contributed to the purchase price — Whether appellant manifested an intention inconsistent with beneficial ownership of properties — Where appellant provided to the respondent a will to sign which clearly acknowledged her ownership of the properties — Where appellant submitted tax returns on behalf of the respondent which were not trustee returns ...

Catchwords: CIVIL PROCEDURE – Pleadings – Striking out –Appeal against striking out of Statement of Claim in full – Where quantum of damages claimed identical to value of real property subject to family law proceedings – Whether proceedings brought for an improper or collateral purpose and thus an abuse of process – No sufficient basis for finding of abuse – Whether District Court erred in striking out applicant’s statement of claim as defective in form – Whether reasonable causes of action – Statement of claim not so defective as to justify striking out TORTS – Malicious prosecution – Damage – Where limitations on recoverability of costs in subject proceedings – Whether legal costs of defence and lost earnings are actionable damage TORTS – Malicious prosecution – Elements – Whether malice and absence of reasonable or probable cause adequately particularised – Whether necessary to show that prosecutor prejudiced by false information – Whether Apprehend Domestic Violence Order proceedings capable of founding malicious prosecution claim TORTS – Trespass to land – Damage – Whether distress to children of claimant actionable damage ...

Catchwords: CONTRACT – construction – design and construct contract – contractor claimed additional payment for works required pursuant to development consent – whether works were “Excluded Works” – significance of definition commencing “Notwithstanding any other clause” – significance of grammatical meaning of clause – clause required to be read as a whole, harmoniously with other provisions in contract ...

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

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

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

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

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

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

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

Catchwords: ENVIRONMENT AND PLANNING – development consent – challenge to validity – whether environmental impact statement complied with Environmental Planning and Assessment Regulation cl 7(1)(c) – requirement to consider feasible alternative sites – requirement to consider feasible alternative designs ENVIRONMENT AND PLANNING – meaning of “feasible alternatives” – requirement for competitive design process – scope of alternative designs – Parramatta Local Environmental Plan, cl 7.10 ...

Catchwords: CIVIL PROCEDURE – subpoenas – to produce documents or things – application to set aside – legitimate forensic purpose – test for determining the validity of a subpoena issued in civil proceedings – whether sufficient that the documents sought by a subpoena have “apparent relevance” to an issue in the proceedings – whether necessary to satisfy the court that the documents are likely materially to assist the case of the party issuing the subpoena – consideration of bases for setting aside subpoenas CIVIL PROCEDURE – Subpoenas – Legitimate forensic purpose – origins of concept – converse of abuse of process – whether a party issuing a subpoena will lack a legitimate forensic purpose if unable to demonstrate that documents sought by subpoena likely to assist its case – legitimate forensic purpose may be presumed where documents sought have apparent relevance to matters in issue or are capable of assisting in cross examination COURTS AND JUDGES – precedential value of decisions of Court of Appeal refusing leave to appeal. ...

Catchwords: TORTS — Negligence — Appellant injured as a result of falling on the first step on a stepped path in a park — Whether the primary judge erred in finding that the appellant had breached the duty of care which it owed to the respondent — Primary judge found the respondent to be a witness of credit who maintained that he was taking care and was not distracted —Experts agreed that single steps presented a hazard — Primary judge was not in error in finding that the appellant failed to take reasonable precautions against the risk of harm and was negligent — Appeal dismissed NEGLIGENCE — Cross Appeal — Damages — Challenged findings of contributory negligence and discount of damages for past economic loss — Primary judge concluded that contributory negligence was established — Finding of contributory negligence not contradicted by the finding of liability — No want of reasonable care on the part of the respondent that might have contributed to his failure to perceive the steps — Primary judge reduced the appellant’s damages for past economic loss by 10% to allow for circumstances in the respondent’s circumstances that would have caused him to retire earlier — Where primary judge made no express finding on the degree of probability that the respondent would have retired before 66 — Evidence accepted by the primary judge contradicted the prospect of early retirement — The discount of 10% was inconsistent with the positive findings of the primary judge — Cross-appeal allowed ...

Catchwords: ADMINISTRATIVE LAW – Particular administrative bodies – Health Care Complaints Commission – Health Care Complaints Act 1993 (NSW) – Registered health practitioner – Whether the Commission failed to consult the appropriate professional council under s 39(2) before making a prohibition order under s 41A – Where the complaint against the health practitioner concerned conduct outside the field of his registration – Whether failure to consult the appropriate professional council rendered the prohibition order invalid. ...

Catchwords: STATUTORY CONSTRUCTION – interpretation – Health Care Complaints Act 1993 (NSW) (HCC Act), s 4 – definition of “disciplinary body” – whether disciplinary body “established under” the Health Practitioner Regulation National Law 2009 (NSW) (National Law) – definition required to be read into HCC Act, s 90B – where Commission referred complaint to the Tribunal (NCAT) under the National Law, s 145C – where NCAT “established under” the National Law – whether NCAT authorised by the National Law to exercise the specified power of a disciplinary body in relation to a registered health practitioner STATUTORY CONSTRUCTION – interpretation – HCC Act, s 90B – National Law, s 145C – interaction between HCC Act and National Law – where Director of Proceedings determined that the Commission should prosecute complaint before the Tribunal – whether Director of Proceedings acting ultra vires – whether distinction between Commission “prosecuting” the complaint before a disciplinary body and referring the complaint to the Tribunal PROFESSIONS AND TRADES – health practitioners – dental practitioners – whether Commission referred a complaint against registered dentist to the Tribunal pursuant to s 145C of the National Law ...

Catchwords: NEGLIGENCE – duty of care – formulation of risk – whether formulation too narrow – formulation focussed purely and precisely on the circumstances in which injury suffered – more generalised formulation would not have affected outcome NEGLIGENCE – breach – whether risk of harm “not insignificant” – common knowledge that lifting heavy weights from floor level can cause back injury – obvious that leaving weights littering floor of gymnasium would force others to put them away – whether reasonable person would have taken precaution of implementing system of inspecting weights area – constant supervision not required – no reason why staff could not be present during limited problematic period to enforce rules about putting weights away after use NEGLIGENCE – causation – whether factual causation established – gymnasium member injured when lifting heavy weight from floor level – not within member’s exercise regime – member clearing floor to allow her to exercise – injury due to failure of gymnasium to enforce its own rules ...

Catchwords: ENVIRONMENT AND PLANNING – Court of Appeal – jurisdiction and powers – where appellants imported fill, engaged in earthworks, constructed hardstand areas and used land for storage without development consent – where appellants admitted breaches – where primary judge ordered cessation of use, removal of fill and restoration of premises – where primary judge suspended injunctive relief – whether House v The King error in granting injunctive relief established ...

Catchwords: APPEALS – Nature of appeal – Appeal by way of rehearing – Appeal against sentence brought by the Director of Public Prosecutions under s 23(1) of the Crimes (Appeal and Review) Act – Whether Director required to establish error – whether the District Court has a “residual discretion” to dismiss the appeal notwithstanding a finding that the sentencing decision entailed error ...

Catchwords: INSURANCE – professional indemnity insurance – claims made and notified policy – where insurers notified within policy period of “chance of a claim” by insured’s clients for any loss “that may be incurred” – whether notification of “facts that might give rise to a claim” engaging Insurance Contracts Act 1984 (Cth), s 40(3) – whether loss more than a potential possibility on notified facts INSURANCE – non-disclosure and misrepresentation – where dispute about extent of disclosure – whether non-disclosure entitling insurers to reduce liability to nil under Insurance Contracts Act 1984 (Cth), s 28(3) – whether evidence that insurers would not have issued policy but for non-disclosure directed to undisclosed matters distributively or taken together INSURANCE – non-disclosure and misrepresentation – where insurers seek to avoid policy for fraudulent misrepresentation under Insurance Contracts Act 1984 (Cth), s 28(2) –whether fraudulent misrepresentations specifically pleaded – whether misrepresentations concerning matters of fact or statements of opinion COSTS – where separate proceedings against same defendants heard together – where most issues of fact and law common or closely related – where plaintiffs and defendants represented by the same lawyers in each proceeding – whether plaintiffs should be jointly and severally liable for defendants’ costs ...

Catchwords: CONTRACTS – construction – agreement resulting from mediation of dispute – heads of agreement – Masters v Cameron class 2 contract – proposed deed of release – parties to enter into deed to terminate earlier agreement – whether deed to include all terms of settlement CONTRACTS – construction – agreement to grant easement – whether ambiguity – whether specified width included kerb, gutter and footpath CONTRACTS – construction – implied terms – term to be necessary to give business efficacy – whether temporary easement for construction to be implied – whether expansion of easement to permit construction of roundabout to be implied ...

Catchwords: APPEAL – post-judgment application to vary order – proposed order not sought at hearing – whether slip rule engaged – power to vary entered order COSTS – appeal – post-judgment application to vary order – order as to costs of trial favourable to cross-appellant – order set aside – application to reinstate PROCEDURE – variation of entered order – slip rule – whether “accidental slip or omission” – mistake by party – Uniform Civil Procedure Rules 2005 (NSW), r 36.17 – application to vary despite entry – Uniform Civil Procedure Rules 2005 (NSW), r 36.16 – whether prejudice to opposing party – order consented to at trial ...

Catchwords: ENVIRONMENT AND PLANNING — consent — power to grant – subdivision – provision fixing development standard – minimum size of lots created by subdivision – proposed subdivision non-compliant – whether development standard applied to proposed subdivision – provision that consent not be granted for subdivision of “resulting lot” – proposed subdivision of a resulting lot – whether provision applied to proposed subdivision ...

Catchwords: DEFAMATION – Publication – Slander – Where appellant relied on contemporaneous email to prove publication of the words allegedly said – Whether slander proved in the terms pleaded – Whether appellant identified by the matters complained of – Whether imputations complained of by appellant conveyed to the ordinary reasonable listener DEFAMATION – Defences – Defence of qualified privilege at common law and under Defamation Act 2005 – Whether reasonableness required to be proved to establish defence at common law having regard to defence as pleaded – Whether reasonableness established – Defence of justification – Where ASIC sought to establish truth of imputation of market manipulation without attempting to establish the individual trading of any particular trader or pod of traders – Contention that the relevant company had engaged in the impugned conduct on “any one or more” of 23 “occasions” – Expert opinion evidence concerning proof of impugned conduct by the establishment of certain metrics observed in the company’s trading – Whether sufficient to establish truth defence ...

Catchwords: APPEAL – injunction – application for injunction to preserve property the subject of the appeal – expedition granted – interim injunction granted – whether conditions should be imposed limiting the effect of the injunction – public interest underlying the litigation – merit of appeal – prejudice to respondent – appeal to be heard in seven days ...

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. ...

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