NSWCA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Catchwords: PROCEDURE – Client sought leave to file an amended summons by way of appeal from decisions of the Costs Review Panel – Matter struck out or dismissed by primary judge – Primary judge refused to exercise discretion to set aside orders made by the Costs Appeal Panel JUDICIAL REVIEW – Whether primary judge’s refusal to exercise discretion to grant leave to file the amended appeal summons constitutes jurisdictional error ...

Catchwords: TORTS — negligence — labourer fell from raised wet plywood platform — whether expert evidence necessary to support finding that surface was slippery — whether primary judge erred in assessment of evidence and consequent factual findings — contributory negligence — whether worker contributorily negligent in following employer’s direction to work on wet platform DAMAGES — assessment of damages for economic loss — whether evidence supported finding of residual earning capacity — application of principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 ...

Catchwords: COSTS – party/party – exceptions to general rule that costs follow the event – Land and Environment Court – Class 3 compensation proceedings – where UCPR r 42.1 does not apply and offer of compromise rejected and judgment obtained for less than amount of offer – application of UCPR r 42.15(2) – principles relevant to exercise of discretion to “order otherwise” – whether primary judge erred in applying those principles ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure – costs –Class 3 compensation proceedings – where presumption that costs follow the event does not apply – whether primary judge erred in applying UCPR r 42.15 ...

Catchwords: LEASES AND TENANCIES – application for leave to appeal – where residential premises uninhabitable – where tenant refused landlord access to carry out repairs – where tenant given notice of termination under Residential Tenancies Act 2010 (NSW), s 109 – where Civil and Administrative Tribunal made orders terminating tenancy agreement and for vacant possession – where tenant appealed to Appeal Panel – where Appeal Panel refused tenant’s adjournment application and dismissed appeal – where tenant applied for leave to appeal to the Supreme Court – where primary judge summarily dismissed proceeding due to “negligible prospects of success” – no question of principle ...

Catchwords: APPEALS – civil procedure – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – whether trial judge erred in dismissing proceedings – whether instituting criminal proceedings to vex the accused is within the lawful scope of the criminal process – non-publication order – Court Suppression and Non-Publication Orders Act 1998 (NSW) – whether order an interim order TORTS – tort of collateral abuse of process – distinguished from abuse of process justifying a stay of proceedings – elements of the tort ...

Catchwords: LAND LAW – Compulsory acquisition of land – Compensation – Objection to amount of compensation APPEALS – Right of appeal conferred by s 57 of the Land and Environment Court Act 1979 (NSW) limited to questions of law – Whether adjustments made by primary judge when considering comparable sale constitute errors of law – Whether primary judge erred in concluding acquisition of appellants’ land was for a purpose intrinsically connected with the draft Parramatta Road Urban Transformation Strategy (PRUTS) – Whether primary judge erred in disregarding prospect of rezoning the appellants’ land apart from the draft PRUTS APPEALS – General principles – Admission of fresh evidence ...

Catchwords: ENVIRONMENT AND PLANNING – building control – council consent and approval – whether the Council’s processes in determining whether to amend a Local Environmental Plan are of a political and policy nature only, precluding the Land and Environment Court from intervening – whether there was a reasonable apprehension of bias that should preclude the Council from proceeding with the Planning Proposal for the amendment of the Local Environmental Plan APPEALS – whether the primary judge demonstrated any error in failing to make an order requiring the Council to withdraw the Planning Proposal for the amendment of the Local Environmental Plan – whether the proceedings in the Land and Environment Court have been the subject of final disposition ...

Catchwords: APPEALS – applications for leave to appeal from personal costs orders against lawyers – whether necessary for Lawcover to be joined to the proceedings for the purposes of having the summonses seeking leave to appeal dismissed – where Lawcover had determined that it would not appeal the personal costs orders – where the Court had held that Lawcover was contractually entitled so to conclude – where applicants were permanently restrained from taking any steps to conduct or prosecute an appeal – where applicants have frustrated Lawcover’s reasonable and proper attempts to bring the applications to an end – Lawcover joined – summonses seeking leave to appeal dismissed ...

Catchwords: APPEAL – Misleading or deceptive conduct – accessorial liability – representation as to future conduct – determination of liability where applicant held liable for causes of action not pleaded against him – whether failure to accept offer of insurance was a failure to mitigate loss – apportionment of liability – variation of costs orders – joint and several liability ...

Catchwords: CIVIL PROCEDURE – effect of grant of “liberty to apply” – whether costs order final – time limit for applying to vary a final order – dispensing with filing of notice of motion under s 14 Civil Procedure Act COSTS – offer of compromise – whether judgment “no more favourable” than offer – when order “otherwise” appropriate ...

Catchwords: LAND LAW – compulsory acquisition of land – compensation – where applicants entered into contracts for sale of relevant land – where land compulsorily acquired before settlement of those contracts – where applicants objected to amount of compensation for market value – where applicants’ primary compensation claim for unpaid purchase price as loss attributable to disturbance under Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 59(1)(f) – where questions directed to whether applicants entitled to any compensation for that loss determined separately – whether there was “actual use of land” by applicants ...

Catchwords: LEASES AND TENANCIES – Social Housing Tenancy Agreement – Agreement terminated by order of NCAT pursuant to s 91 of Residential Tenancies Act – whether termination would occasion undue hardship to tenant – meaning of undue hardship in context of Residential Tenancies Act – discretion to terminate notwithstanding undue hardship – whether NCAT had regard to hardship in exercise of its discretion – adequacy of reasons for exercising discretion ADMINISTRATIVE LAW – requirement for NCAT to give reasons – adequacy of reasons for making of a discretionary decision to terminate a social housing tenancy agreement – whether NCAT had regard to hardship to the tenant of termination – whether reasons for decision adequately disclosed how hardship was taken into account TRIBUNALS – New South Wales Civil and Administrative Tribunal – required to give reasons – adequacy of reasons – reference to “all of the circumstances of the case” ...

Catchwords: PROCEDURAL FAIRNESS – Vexatious Proceedings Act 2008 (NSW) – where persons the subject of orders made under the Act not heard and not given an opportunity to be heard before orders made – non-compliance with s 8(3) of Vexatious Proceedings Act conceded – whether Court of Appeal should itself entertain application for orders under Vexatious Proceedings Act – not appropriate to do so in the circumstances ...

Catchwords: SUPERANNUATION – accident and sickness insurance – benefits for disablement – where benefits insured under group life policy – benefit for “total and permanent disability” – where insurer declined claim twice – where the insurer’s second decision took into account its first decision – whether insurer took into account irrelevant consideration – whether insurer in breach of its contractual duty – whether insurer acted reasonably and fairly in its consideration of the claim ...

Catchwords: ADMINISTRATIVE LAW – compulsory acquisition of property for the purpose of the construction of a tollway – validity of proposed acquisition notices issued – statutory authority of RMS to acquire land under s 177 of the Roads Act 1993 (NSW) STATUTORY INTERPRETATION – Roads Act 1993 (NSW), s 177 – meaning of “the purposes of this Act” – whether “the purposes of this Act” are confined to the objects described in s 3 of the Act ...

Catchwords: CIVIL PROCEDURE – application for leave to appeal from decision granting leave to amend defence – insurance dispute – claim in respect of property damaged by fire – belated application by insurer to plead arson – no reference in primary judgment to part 6 of Civil Procedure Act – whether primary judge erred in failing to have regard to presumptive prejudice – whether primary judge erred in his approach to the defendant’s explanation for the delay in bringing the application ...

Catchwords: TORTS – negligence – negligent battery – plaintiff’s thumb injured by police officer closing door while plaintiff held in cell – negligent battery – no intention to cause injury – application of Civil Liability Act 2002 (NSW) – onus of proof – whether police officer should have taken precautions – whether damages should be reduced due to plaintiff’s intoxication – quantum of damages ...

Catchwords: TAXES AND DUTIES – income tax – collection and recovery of tax – where judgment given in favour of Commissioner for recovery of income tax, penalties and interest charges – where appellant asserts that he was denied “right” to be represented by a person with no legal qualifications – where appellant contends Supreme Court has no authority to determine question of tax debt without his consent – where appellant contends taxation laws do not apply to him without his consent – where appellant asserts debt discharged by delivery of self-described “promissory note” – appeal dismissed – no question of principle ...

Catchwords: SUCCESSION – testamentary capacity – weight to be given to conclusory expert medical evidence on the legal issue of whether deceased had testamentary capacity – weight to be given to solicitor’s evidence of practice concerning clients’ execution of wills EVIDENCE – weight to be given to solicitor’s evidence of practice concerning clients’ execution of wills – Connor v Blacktown District Hospital [1971] 1 NSWLR 713 and other authorities referred to ...

Catchwords: NEGLIGENCE – motor vehicle accident – occupants of vehicle participants in joint criminal enterprise to obtain illicit drugs – whether driver owed duty of care to passenger – whether Civil Liability Act 2002 (NSW), s 54 displaced principles in Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 – whether statutory purpose of criminal laws incongruous with driver owing passenger a duty of care – whether passenger complicit in driver’s offences – whether primary judge’s assessment of contributory negligence erroneous ...

Catchwords: ADMINISTRATIVE LAW – jurisdictional facts – whether conditions of project approval specified objective criteria, satisfaction of which was a precondition to the exercise of the decision-maker’s powers ADMINISTRATIVE LAW – unreasonableness – whether decision-maker’s satisfaction with a mining strategy was legally unreasonable – whether decision-maker’s view was at least arguable CIVIL PROCEDURE – Court of Appeal – whether leave to appeal required against costs order where there is an appeal as of right against the substantive orders made at first instance - s 58(3)(c) Land and Environment Court Act 1979 (NSW) COSTS – administrative law – whether decision-maker entitled to costs when appears to advance arguments in proceedings between two well-represented litigants – Hardiman (1981) 144 CLR 13; [1980] HCA 13 considered ...

Catchwords: CONTRACT – formation of contract – partnership or joint venture – oral agreement alleged – development of land – alleged promise to pay 20% of profits – delay in making claim and bringing proceedings – claim of equitable fraud depending on existence of agreement – relevance of later conduct EVIDENCE – adverse inference drawn from failure to call witness – absence of witness not explained – whether corroborative evidence admissible – whether evidence available for other purposes ...

Catchwords: LOCAL GOVERNMENT — powers, functions and duties — power of mayor and council to expel councillor for “act of disorder” — whether describing mayor as “clown” during meeting an “act of disorder” — whether power of expulsion validly exercised — whether dispute suitable for adjudication by Land and Environment Court WORDS AND PHRASES — “act of disorder” — Local Government (General) Regulation 2005, r 256 ...

Catchwords: CIVIL PROCEDURE – appeal from determination of separate questions – where concession in agreed facts as to causation of loss suffered by claimant against the insureds – whether primary judge erred in attaching significance to appellant’s concession when deciding construction of contract of insurance CONTRACTS – construction – proper construction of a contract of insurance – professional indemnity policy for property valuer – contract comprised in standard policy wording, schedule and endorsements – where exclusion clause in endorsement for valuations undertaken for specified category of lenders – where literal or grammatical meaning must be evaluated against the text, context and purpose of the contract – whether ambiguity arising from requisite causal nexus between subject matter of the exclusion clause and the loss – business commonsense approach to construction – exclusion clause to be interpreted according to its natural and ordinary meaning – where absence of ambiguity precludes recourse to the contra proferentem rule – whether insurer entitled to deny indemnity and refuse to pay defence costs JUDGMENTS AND ORDERS – court’s powers – hypothetical questions – utility of declaration as to insurer’s liability to indemnify in absence of determination of insured’s liability to claimant – form of declaration – whether too wide – whether negative declaration appropriate ...

Catchwords: LEASES AND TENANCIES – whether the parties entered into a binding and enforceable agreement for lease of the Premises in the terms of the 15 June Document – significance to be attached to the Heads of Agreement as constituting a binding document – whether language used in correspondence of 27 and 31 May 2016 signifies that a reasonable person in the position of the parties would understand the communication as giving rise to a binding and enforceable contract – significance of marking correspondence as “without prejudice”. APPEAL – whether it was unnecessary to determine whether the Heads of Agreement were binding – whether the parties did not intended to replace the Heads of Agreement and be bound by the 15 June Document until execution and exchange of a formal lease document – whether the law of part performance applied to the question of whether the parties intended to be bound by the 15 June Document – whether the parties conducted themselves in a manner consistent with the 15 June Document, a monthly tenancy or a statutory lease under the Retail Leases Act 1994 (NSW). ...

Catchwords: EQUITY – fiduciary duties – whether fiduciary duties owed by a solicitor during negotiations for and steps taken to establish a solicitor/client relationship – breach – whether client gave fully informed consent to enter into agreements with solicitor – whether advice “independent” and “meaningful” CIVIL LIABILITY – Civil Liability Act 2002 – defences of contributory negligence and proportionate liability not available in answer to claim for breach of fiduciary duties – claim arising “from a failure to take reasonable care” requires absence of reasonable care to be an element of the cause of action ...

Catchwords: MOTOR ACCIDENTS – where collision between two vehicles – where plaintiff injured and sought compensation under Motor Accidents Compensation Act 1999 (NSW) – whether plaintiff’s car parked kerbside or executing a U-turn or right turn at time of collision – where primary judge found plaintiff’s car was performing a U-turn or right turn at time of collision – no error in fact finding by primary judge ...

Catchwords: CHILD WELFARE – parental responsibility allocated to Minister – final orders in Children’s Court – appeal to District Court – whether jurisdictional error or error of law on the face of the record of District Court –procedural unfairness – failure to tender evidence – relevant considerations CIVIL PROCEDURE – parties – supervisory jurisdiction – children as necessary parties – representation – role of representative ...

Catchwords: CONTRACTS – Construction – Interpretation – determination of market rent by an expert valuer – construction of provision of sub-lease requiring the valuer to “have regard to” certain matters in determining the market rent for a sub-lease of premises located at King Street Wharf, Sydney – interpretation of requirement to “have regard to” “comparable premises in the vicinity of the Premises” – whether matters listed exhaustive – meaning of “have regard to” VALUATION – expert determination – whether the trial judge erred in finding that the valuer did not have regard to market rents in the manner prescribed by the sub-lease – whether the trial judge erred in finding that the determination of market rent by the valuer was not binding on the appellant and the respondent as parties to the sub-lease – whether the valuer erroneously had regard to the physical configuration of the premises or tenant’s property – appeal dismissed with costs VALUATION – nature of valuation – meaning of “acting as an expert and not as an arbitrator” ...

Catchwords: PRACTICE – application for adjournment of hearing of leave application – application to quash guilty pleas entered in Local Court and confirmed by District Court – application to single Judge of Appeal to quash decision of District Court in civil proceedings – absence of jurisdiction – application dismissed ...

Catchwords: ADMINISTRATIVE LAW – Motor Accidents Compensation Act 1999 (NSW) medical review panel – assessment of degree of permanent impairment – application for judicial review – whether jurisdictional error – whether failure to address an argument properly before review panel – whether denial of procedural fairness – whether review panel directed attention to wrong question – whether error of law on the face of the record – whether review panel’s assessment based on findings of fact for which there was no evidence – scope of error of law on the face of the record ...

Catchwords: TORTS – negligence – road accident – liability of defendant – defendant completing a right-hand turn across double on-coming lanes – visibility of plaintiff’s motorcycle blocked by car in front – plaintiff sought to overtake car at a high speed on inside lane – collided with defendant – whether defendant negligent in failing to slow down or stop – reasonableness of precautions against unseen vehicles travelling at high speeds – expectation that road users will take reasonable care for their own safety EXPERT EVIDENCE – negligence – calculation of speed – CCTV footage of accident – failure to assess weight of expert evidence – confirmatory report not taken into account ...

Catchwords: CIVIL PROCEDURE – amendment and joinder application – said to be unarguable because certain claims assigned and said to be invalid – where not all claims by all plaintiffs were assigned claims – where proceedings against defendant would continue in any event – importance of principle in Wickstead v Browne – where area of law and public policy underpinnings of principle sought to be invoked fluid – not appropriate to be determined on a summary basis PERSONAL PROPERTY – assignment of choses in action – prohibition on assignment of bare chose in action – nature of principle stated in Trendtex Trading Corporation v Credit Suisse [1982] AC 679 and adopted in Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 – whether test of what rights are to be regarded as incidental to property rights has been modified PERSONAL PROPERTY – public policy against assignment of bare chose in action – underlying basis of public policy – maintenance and champerty – whether public policy fluid – where underlying public policy justification for principle capable of being challenged – inappropriate to be dealt with on a summary basis ...

Catchwords: JUDGMENTS AND ORDERS – Court of Appeal – third application to set aside vexatious proceedings order – where applicant seeks to re-agitate matters already decided in judicial review proceedings – no new matter raised – where Court may decline to consider the application – Vexatious Proceedings Act 2008 (NSW), s 9(4) ...

Catchwords: LAND LAW – Torrens system – claim for compensation from Torrens Assurance Fund – claimant had interest as equitable mortgagee – caveat lodged – caveat withdrawn following lodgement of fraudulent withdrawal of caveat form – transfer of title to new registered proprietor – claimant alleged that loss was suffered as a result of dealings because claimant forced to sell another property – claimant failed to establish that dealings were a cause of need to sell property – no entitlement to compensation under s 129 of Real Property Act 1900 (NSW) ...

Catchwords: PROBATE – contested grant – suspicious circumstances – whether proponent of will had discharged onus – will left whole estate to propounder – solicitor who explained and witnessed will believed propounder was testatrix's only daughter and next of kin – solicitor's erroneous beliefs caused by lies by those benefitting under will – inability to rely on solicitor's evidence to discharge onus – requirement to consider entirety of suspicious circumstances – appeal allowed and earlier will admitted to probate – consideration of merits of approach in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 SUCCESSION – application for provision – dependency – factors warranting – whether primary judge erred in failing to find nephew dependent on deceased – dependency conceded at trial – whether primary judge erred in failing to find primary facts on financial position and need ...