NSW Court of Appeal - Decisions of Interest 2012

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The ‘Decisions of Interest – 2012’ webpage contains decisions of interest decided by the NSW Court of Appeal in 2012. The cases are organised alphabetically by subject and for this reason, cases may appear on the page on multiple occasions. This page also includes decisions that are currently featured on the
Recent Decisions of Interest page.

To locate decisions of interest decided since the commencement of the project in August 2009, please refer to the following links:



Decisions of Interest - 2011

Decisions of Interest - 2010

Decisions of Interest - 2009


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Administrative Law

Judicial review; discretion to refuse relief; application filed 8 years after decision complained of; whether lapse of time explained or justified; whether risk of prejudice if complaints were remitted; whether complaints would be remitted
Reimers v Health Care Complaints Commission [2012] NSWCA 317

Whether challenge to validity of departmental guidelines only available in respect of a particular decision or exercise of statutory power
Patsalis v State of New South Wales [2012] NSWCA 307

Judicial review; apprehended violence order; Local Court dismissed application for apprehended violence order and made costs order against applicant; appeal by applicant to District Court dismissed, seeks review by Court of Appeal; scope of review limited to jurisdictional error; function of District Court on appeal by way of rehearing; failure to address statutory pre-condition to existence of power to make costs order; jurisdictional error established in relation to the costs order.
Mahmoud v Sutherland [2012] NSWCA 306

Jurisdictional error; review of dismissal of appeal against conviction for making false statement to obtain financial advantage; applicant sought to simultaneously submit question of law to Court of Criminal Appeal; whether concept of jurisdictional error wider than error of law; whether alternative relief available; whether relief should be refused on discretionary grounds; Crimes Act 1900 (NSW), s 178BB; Criminal Appeal Act 1912 (NSW), s 5B; Supreme Court Act 1970 (NSW), s 69; District Court Act 1973 (NSW), s 176
Elias v The Director of Public Prosecutions (NSW) [2012] NSWCA 302

Judicial review; jurisdictional error; whether incorrectly deciding Transport Appeal Board empowered to extend time limit for appeal involved jurisdictional error; preconditions for the exercise of jurisdiction; whether compliance with time limit a jurisdictional fact
Rail Corporation New South Wales v Brown [2012] NSWCA 296

Claim for prerogative relief; motor accidents compensation scheme; assessment by claims assessor of the amount that a court would be likely to award as damages; statutory obligations of assessors; where assessor embarked on process of calculation as distinct from awarding "buffer"; error of law on part of assessor established.
Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281

Tribunal denied compensation on basis victim engaged in behaviour that contributed to injury sustained; appeal to District Court limited to questions of law; District Court set aside orders of tribunal; none of matters relied on involved error of law; Victims Support and Rehabilitation Act 1996, s 30; relief in the nature of certiorari; whether Supreme Court has power when exercising supervisory jurisdiction under s 69 of the Supreme Court Act 1970 to make costs order in place of any costs order that has been quashed; decision in Kirk v Industrial Court of New South Wales [2010] HCA 1 applied.
Victims Compensation Fund Corporation v Lynch [2012] NSWCA 273

Judicial review; failure to refer to particular evidence cannot constitute failure to take into account relevant consideration; applicant entitled to rely on the reasons of the decision maker; need to identify source of legal obligation to consider mandatory factors; evidence that is relevant to a party’s case is not to be equated with a relevant consideration for the purposes of judicial review.
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244

Judicial power; executing invalid order of superior court; whether order of superior court incompatible with exercise of judicial power is valid until set aside; whether non-judicial order derives whatever authority it has solely from the relevant legislation; effects of orders in Kable [1996] HCA 24.
Kable v State of New South Wales [2012] NSWCA 243

Jurisdictional error; adequacy of charge in court attendance notice; sufficiently identified act or omission which constituted offence.
The GEO Group Australia Pty Limited t/as Junee Correctional Centre v WorkCover Authority of New South Wales [2012] NSWCA 150

Judicial review; in the absence of a privative clause, it is appropriate that an application of this kind take the form of a rehearing of the appeal on a question of law in the court below; where a decision of Consumer, Trader and Tenancy Tribunal failed to make findings of fact essential to an award, a notice of contention cannot support a finding to set aside earlier decision on appeal with respect to a matter of law.
Darin v Olzomer [2012] NSWCA 60

Privacy; disclosure of personal and health information; ADT review of internal review of conduct; appeal to Appeal Panel on questions of law; no error in not extending appeal to review of merits; Privacy and Personal Information Protection Act 1998, ss 52, 53 and 55; Health Records Information Privacy Act 2002, s 21; delay in provision of information; meaning of "excessive delay"
Altaranesi v Administrative Decisions Tribunal [2012] NSWCA 19

Judicial review; jurisdictional error; whether decision-maker may seek support for an inference from the absence of material supportive of a contrary view; whether available when evaluative judgment is to be formed on the basis of conflicting indicators; whether the Workers Compensation Act 1987 (NSW) imposes a legal onus on the applicant or the WorkCover Authority; whether WorkCover Authority has obligation to disclose information on which decision-maker intends to rely which might support an inference adverse to the interests of the applicant; implication of obligation to give reasons and minimum content of such obligation
L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15

Referral of question of law to Supreme Court; Administrative Decisions Tribunal Act 1997 (NSW), s 118; whether appropriate for the Supreme Court to answer
Sunol v Collier [2012] NSWCA 14

Error of law on the face of the record; inadequacy of reasons; application of Motor Accidents Compensation Act 1999 (NSW) s 126 to obligation to provide reasons
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Agency

Failure by real estate agent to account for funds entrusted to it; claims against Property Services Compensation Fund established under Property, Stock and Business Agents Act 2002; whether claims out of time; meaning of "failure to account"; overcharging for commission constituted a failure to account; pecuniary loss suffered as a result of failure to account where prior misappropriation of funds; compensation to joint owners of funds limited by s 175 to one shared amount of $500,000; whether costs of court proceedings included in amount to which claims limited.
State of New South Wales v Loh Min Choo [2012] NSWCA 275

Solicitor and client; moneys borrowed by husband and wife; both sued by lenders; wife gives instructions to solicitor on her own behalf and on behalf of her husband; primary Judge correctly found that the solicitor was authorised to execute terms of settlement on behalf of the husband.
Romeo v Papalia & Ors [2012] NSWCA 221

Appeal

Appeal against costs orders only; where Calderbank offers and other proposals and requests made; question of principle raised; serious question whether certain of the orders were plainly unreasonable and discretion miscarried; substantial costs sums at stake
"N" v "A" [2012] NSWCA 318

Significant issues of principle; availability of mandatory injunction for threatened negligent conduct; conditions of incarceration; whether leave to appeal should be granted

Patsalis v State of New South Wales [2012] NSWCA 307

Application for stay of judgment pending appeal; risk that respondent will be unable to repay judgment sum without difficulty or delay if appeal succeeds; need for money pending appeal not identified by respondent; difficulty of enforcement of judgment for restitution of judgment sum
Transpacific Cleanaway Pty Ltd v Cairns [2012] NSWCA 294

Appellate review; applicable legal principles; appeal by way of rehearing; Court of Appeal required to give effect to independent review bearing in mind advantages enjoyed by trial judge.
Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293

Security for costs; UCPR r 51.50; whether special circumstances; impecunious appellant; relevance of benefit to appellant's creditors if appeal succeeds
Zakka v George Elias t/as Cadmus Lawyers [2012] NSWCA 277

Appeal from discretionary decision; whether Court of Appeal should intervene where Court would have exercised the discretion differently; whether powers of Court of Appeal under Supreme Court Act 1970 (NSW), s 75A constrained by House v The King [1936] HCA 40; disparate approaches to similar statutory regimes justifies leave to appeal
New South Wales Crime Commission v Jason Lee [2012] NSWCA 276

Allegations of bias must be dealt with first on appeal as the discovery of bias taints the whole of the judgment below; it is not prejudgment for a trial judge to rely on a party, without objection, seeking to confine the issues it agitates to particular arguments it has put forward at trial.
Spencer v Bamber [2012] NSWCA 274

Time for initiation of appeal; application for extension of time; extent of delay considered; potential strength of appeal considered; prejudice to respondent considered; no sufficient case for extension shown
Gillett v Robinson [2012] NSWCA 270

Subject-matter limited to determination in point of law; District Court Act 1973 (NSW), s 142N; passage in reasons indicating legal error; no error material where assessment of loss accorded with principle
SAS Trustee Corporation v Schmidtke [2012] NSWCA 269

De-registration under Medical Practice Act 1992; registration cancelled under Health Practitioners Regulation National Law Act 2009; appeal from decision of Medical Tribunal; appeal with respect to point of law only; no point of law arising on appeal; review of decision of Judge of Appeal dismissing motions; motions rightly dismissed; dismissal of other motions; appeal dismissed.
Gorman v NSW Health Care Complaints Commission [2012] NSWCA 251

Appeal from discretionary decision; whether appeal limited by principles in House v The King [1936] HCA 40; Supreme Court Act 1970 (NSW), s 75A confers larger powers on appeal from discretionary decision; whether distinction exists between sentencing and other discretionary decisions; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 discussed
State of New South Wales v Plaintiff A [2012] NSWCA 248

Summons seeking leave to appeal; District Court judge refused to dismiss proceeding against third party insurer; whether judge erred by failing to determine a separate question; hearing before judge only concerned with notice of motion seeking order of dismissal; separate question not formulated; no appropriate factual basis for separate question determination; UCPR rr 13.4, 28.2.
Insurance Australia Ltd t/as NRMA Insurance v Adam Zizovski bnf Selim Zizovski [2012] NSWCA 246

Application for leave to appeal; where primary judge refused to order stay of consent orders; consent orders made upon settlement of proceedings; various potential grounds of challenge to consent orders and underlying agreement; but no proceedings instituted to seeking to have orders set aside or agreement rescinded; interlocutory application for stay irregular; various grounds of challenge to agreement and consent orders without apparent prospects of success
Webuildem Pty Ltd v Arab Bank Australia Ltd [2012] NSWCA 242

Leave to appeal from interlocutory decision; primary judge dismissed application for medical examination of plaintiff; whether primary judge erred in identifying relevant factual considerations; Court of Appeal should not interfere with orders regulating procedure in a trial division; discussion of In The Will of Gilbert (1946) 46 SR(NSW) 318
Kirschner v Perochinsky [2012] NSWCA 235

Appeal;written submissions; party's written submission exceed the length prescribed by the UCPR; there is a public interest in compliance with time and page limits; r 51.36(1); statement of challenges to findings of fact; UCPR require that statements be clearly identified and separate to written submissions; r 51.36(2)
Prince v Malouf [2012] NSWCA 234

Appeal against adoption of teenage daughter by foster family brought by her natural father; no appeal as of right against an adoption order; leave must be sought; where no error of primary judge identified in documents or submissions; leave refused
GKD v Director-General, Attorney General's Department; GKD v Director-General, Department of Family and Community Services [2012] NSWCA 219

Leave to appeal; whether leave to appeal required from permanent stay order; where application to set aside consent judgment dismissed by primary judge; where applicant had commenced further proceedings raising substantially the same claims raised in proceedings the subject of consent judgment; whether permanent stay order final or interlocutory
Leybourne v Habkouk [2012] NSWCA 212

Summons seeking leave to appeal; appeal against primary judge's findings rather than orders not permissible
Preston v Nikolaidis [2012] NSWCA 198

Insurance broker's advice to insured concerning insurance policy; appellant had not suffered any relevant loss as a consequence of the respondent's wrongdoing; appellant did not have a substantial prospect of acquiring a policy with the requisite protection; no evidence that a more advantageous policy would be available and accepted.
Prosperity Advisers Pty Limited v Secure Enterprises Pty Limited t/a Strathearn Insurance Brokers [2012] NSWCA 192

Application for stay pending appeal; appeal arguable; application to review a decision of a single Judge of Appeal; submissions made for the first time on review application would have led to different result before single judge; Supreme Court Act 1970 (NSW), s 46(4); Civil Procedure Act 2005 (NSW), s 56
Hammond v J P Morgan Trust Australia Ltd [2012] NSWCA 188

Extension of time to file notice of appeal; relevant considerations; in the interests of justice to extend time; UCPR, r 51.16
Despot v Registrar General [2012] NSWCA 160

Credibility of witness; adverse credit findings against plaintiff at trial; where liability reliant on plaintiff's evidence; judge palpably misused advantage as trial judge; trial judge did not deal adequately with inconsistencies in evidence and medical opinions
Nominal Defendant v McLennan [2012] NSWCA 148

Grounds of appeal not available to be argued as were directly inconsistent with the concessions made at trial; appeal dismissed
Barakat and others v Bazdarova [2012] NSWCA 140

Trial conducted on a basis going beyond the pleadings; no operative procedural unfairness.
CMA Corporation Limited v SNL Group Pty Ltd [2012] NSWCA 138

Whether a point not taken at hearing may be raised on appeal; Court is to determine whether it is in the interests of justice and expedient to determine the new point
Association of Quality Child Care Centres of NSW v Manefield [2012] NSWCA 123

Appeal and new trial; directed verdicts; whether court should direct verdict if jury verdict set aside; s 108(3) Supreme Court Act
David v Abdishou [2012] NSWCA 109

Civil; appeal from District Court judgment for $59,562 in dispute over early termination of licence; no reasonable prospects of success in overturning finding of primary judge; arguable alternative case on appeal; would require retrial; expense of retrial and continuing litigation not commensurate with amount in dispute; application for leave to appeal dismissed
Bushby v Dixon Holmes du Pont Pty Ltd & Anor [2012] NSWCA 90

Civil; where matter in issue amounting to $100,000 or less; arguable case for appeal against primary judge's conclusions of law; leave to appeal not ordinarily granted merely for arguable case; no question of principle.
Shannessy v Beattie & Ors [2012] NSWCA 88

Appeal and new trial; denial of natural justice; defendants in court below did not extend their submissions on Corporations Act 2001 s 1322 issue to appointment of additional director; appellant lost opportunity not merely to make submissions, but to lead evidence on the topic and make submissions on that evidence; s 1322 finding essential to underlying relief claimed by appellant; held matter to be remitted to consider whether s 1322 order should be made.
Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76

Proceedings dismissed in Court below; res judicata; no arguable case; leave refused.
Boulos v Dr Martin [2012] NSWCA 74

Civil; application of extension of time to apply for leave refused as no arguable case of legally eroneous decisions.
Altaranesi v Sydney Local Health District [2012] NSWCA 69

Default judgment for possession of property set aside on condition that mortgagors pay part of claimed debt into court; application for leave to appeal granted; whether condition should have been imposed as well as the effect of bankruptcy of one mortgagor to be considered.
Romeo v The Trust Company (PTAL) Ltd [2012] NSWCA 62

Dismissal of notice of motion to dismiss appeal as incompetent; dispute between parties over extensions of time under a contract; referee's report on technical questions substantially adopted by first trial judge, with subsequent legal questions determined by a second trial judge; whether first trial judge's decision was final or interlocutory; the test as to whether a judgment is final or interlocutory is whether the decision finally determines the rights of the parties; held that the decision of the first trial judge did not finally determine the rights of the parties therefore decision was interlocutory.
Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2012] NSWCA 61

Stay of proceedings; where stay of Local Court criminal proceedings sought in Supreme Court; stay refused; appeal to Court of Appeal; appeal and prerogative relief proceedings not to fragment criminal proceedings except in exceptional circumstances; stay of order that has been carried out impossible; not a case of urgency; stay not available to prevent outcome one merely fears may result
Collier v Cook & Ors [2012] NSWCA 50

Appeal from Land and Environment Court; where decision required formation of opinion appeal available if decision maker asked the wrong question; Land and Environment Court Act 1979 (NSW), s 57
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48

Civil; power of judge of appeal; whether the Court of Appeal constituted by two judges of appeal pursuant to s 46B(1)(b) may exercise the powers of a single judge.
Martin v State of New South Wales (No 15) [2012] NSWCA 47

Damages; claim for tortious damages raised for the first time on appeal; discussion of Edwards v Santos Ltd [2011] HCA 8
Martin v State of New South Wales (No 14) [2012] NSWCA 46

General principles; interference with Judge's findings of fact; whether trial judge failed to use or misused forensic advantage; trial judge found plaintiff to be a witness of truth and persuaded by consistency of contemporaneous evidence; insufficient evidence at appeal to establish misuse of forensic advantage; trial judge's findings undisturbed
Nominal Defendant v Rooskov [2012] NSWCA 43

Civil; evidence; evidence supports inference asserted by plaintiff; finding critical to the judgment; judgment set aside, retrial ordered.
Gaskin v Ollerenshaw [2012] NSWCA 33

Civil; evidence; construction of contract; whether evidence supports primary judge's findings as to contract terms; limited circumstances in which it is open to appellate court to reject findings based on credibility of witnesses; open to appellate court to reassess construction of contract based on findings of fact made by trial judge
Vieira v O'Shea [2012] NSWCA 21

Civil; application for leave to appeal from refusal to allow amendment refused; issues raised following interim report of referee; referee's final report should be adopted
Mainteck Services Pty Limited v Stein Heurtey Australia Pty Limited [2012] NSWCA 12

New trial not ordered where respondent was entitled as a matter of law to succeed on the evidence led at first trial; duty to give reasons; whether adequate reasons for findings; where failure to deal with issue, whether evidence such as to warrant remitting the matter for re-trial; where appeal successful on basis of argument first raised in oral submission but arguments in written submissions rejected

Guijar v Australia and New Zealand Banking Group Limited; Australia and New Zealand Banking Group Limited v Guijar [2012] NSWCA 10

Application for leave to appeal; basis of stay pending appeal;applicant to show reasonably arguable case for leave
Barakat v Goritsas [2012] NSWCA 8

Precedent; power to depart from previous decision of Court; test in Gett v Tabet; altering practice as distinct from altering a decision on a question of law; whether Court of Appeal practice should be altered when inconsistent with practice of the High Court and other intermediate Australian courts.
Rinehart v Welker [2012] NSWCA 1

Banking

Bank guarantee; deed; guarantee "delivered" to beneficiary; whether physical delivery necessary; construction of guarantee; whether promise to pay contingent on return of original guarantee
Segboer & Anor v A J Richardson Properties Pty Limited & Anor [2012] NSWCA 253

Whether oral contracts formed between bank and customer; bank placing money in term deposit rather than paying off principal of loan; whether bank employee had actual or ostensible authority; appropriate measure of damages
Guijar v Australia and New Zealand Banking Group Limited; Australia and New Zealand Banking Group Limited v Guijar [2012] NSWCA 10

Bankruptcy

Election by trustee in bankruptcy to prosecute or discontinue legal proceedings; new trustee appointed after service of notice of proceedings on initial trustee; evidence that new trustee did not personally have notice of proceedings; what constitutes notice of proceedings; whether period within which election must be made commences with service on new trustee; whether service on trustee's solicitor constitutes service on trustee; service must bring the documents to the notice of the trustee; Bankruptcy Act 1966 (Cth), s 60
Liristis v Gadelrabb [2012] NSWCA 327

Summons seeking leave to appeal; Bankrupt applicant; Effect of bankruptcy on proceedings; Proceedings commenced by bankrupt before sequestration; "Action" stayed until trustee makes election; summons seeking leave to appeal is not "property" within meaning of s 58; summons seeking leave to appeal is an "action" within the meaning of s 60; Bankruptcy Act 1966 (Cth), ss 58 and 60
Sarkis v Moussa [2012] NSWCA 136

Mortgagee's rights; how far permitted to deal with his or her security; rights extend to claim for possession.
Hanshaw v National Australia Bank Ltd [2012] NSWCA 100


Carriage by Air

Right of indemnity and contribution pursuant to Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("Act"), s 37; whether two year time bar provision in Art 29 of Warsaw Convention and amending instruments ("Convention") made applicable in Pt IIIC of Act applicable.
United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24

Companies

Management and administration; appointment removal and retirement of directors; family company incorporated in 1971; no validly appointed directors; re-election provision not effective where the director had not retired at the annual general meeting; held that initial appointment of de facto director was not defective, as it had simply run its natural course thereby no defect for the articles of association to cure; de facto director not able to validly appoint additional director.
Consideration of Company Law Review Act 1988 s 1427 repealing par value share provisions; Company Law Review Act to be interpreted as a whole; "repeal" of provision may only require that certain parts of the provision are inoperative; - held validly appointed director would have power to issue voting shares.
Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76

Winding up; appeal from judgment dismissing application to set aside winding up order; applicant has no standing to apply to set aside winding up order; company failed to comply with statutory demand to seek leave to oppose the winding up; no evidence that company is solvent - Corporations Act 2001 (Cth), s 459S.
Nasr v Etihad Airways PJSC [2012] NSWCA 70

Constitutional Law

Jurisdiction of Supreme Court; State Act purported to require felons in custody to obtain leave to commence civil proceedings; limitation on the jurisdiction of the Supreme Court involved in the principle of attainder arose under the general law in 1901; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531; Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 discussed; Felons (Civil Proceedings) Act 1981 (NSW), s 4
Patsalis v State of New South Wales [2012] NSWCA 307

Judicial power; Supreme Court order under statutory power incompatible with judicial power invalid; order made in proceedings involving exercise of federal judicial power; exercise of federal judicial power simultaneous with function incompatible with judicial power; whether invalid State law applied by federal law; Judiciary Act 1903 (Cth), ss 39(2), 79 and 80
Kable v State of New South Wales [2012] NSWCA 243

Constitutional validity of legislation; whether s 49ZT of the Anti-Discrimination Act 1977 (NSW) burdens implied freedom of political communication; whether regard must be had to the content of prohibition said to burden the implied freedom; whether reasonably appropriate and adapted to serve legitimate end compatible with maintenance of system of government prescribed by the Constitution (Cth).
Sunol v Collier (No 2) [2012] NSWCA 44

Federal judicial power; whether Administrative Decisions Tribunal has jurisdiction to determine constitutional questions; whether constitutional questions can arise before the Administrative Decisions Tribunal
Sunol v Collier [2012] NSWCA 14

Contracts

Formation; sale of land; whether intention to create legal relations; exchange of written contracts; agreement as to payment of deposit not reflected in written contracts; whether evidence established exchange not intended to have ordinary legal consequences; collateral agreement as to deposit; unenforceable because inconsistent with contract for sale; ineffective as parol variation of contract required to be in writing
Adicho v Dankeith Homes Pty Ltd [2012] NSWCA 316

Breach; mortgage origination deed; originator obliged to take reasonable care to identify proposed borrower and confirm his or her authority to submit loan application; originator submitted loan application with forged signature and without the authority of the apparent applicant; likelihood of third party successfully impersonating applicant despite comparison with passport photograph; originator in breach of obligations under deed
Perpetual Trustee Company Ltd v CTC Group Pty Ltd [2012] NSWCA 252

Heads of Agreement relating to super yacht marina business; parties intended to be legally bound; not void for uncertainty or incompleteness; negotiations between solicitors concerning formal agreement intended to give effect to Heads of Agreement; whether parties bound by agreements on some terms prior to agreement on all and execution of document
Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227

Building and construction; clause requiring execution of strata plan; obligation arose only on completion of works; taking possession of incomplete building works did not constitute waiver of right to completion; allegation of breach of implied obligation of good faith not made out; renunciation of contract, availability of recovery on quantum meruit; action for damages by innocent party does not enliven claim by defaulting party for recovery on quantum meruit
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184

Principal and agent; authority of agent; sufficient evidence to find agent had authority to incur liability under contract
Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155

Construction and interpretation; whether original guarantee supplanted by later guarantee; subjective understanding of one party not relevant; post-contractual conduct not relevant; meaning to be construed objectively
Benchmark (Aust) Pty Limited & Anor v National Australia Bank Limited [2012] NSWCA 130

Sale of property; agreement to use "best reasonable endeavours" to register plan of subdivision; whether "best reasonable endeavours" obligation differs from "best endeavours" obligation; vendors alleged that compliance with a condition of development consent was impossible and pointless; Court held obligation existed to seek amendment of development consent
Foster v Hall [2012] NSWCA 122

Performance; "postal rule" not a legal principle of general application; passing of risk or making of payment by posting payment depends on terms of contract and surrounding circumstances; postal acceptance rule not wide enough to encompass "postal rule" in this sense.
Performance; where indemnity agreement provided that indemnity effective and enforceable if borrower "punctually" paid amounts under related loan agreement; whether creditor or debtor bears onus of proving punctuality of payment; Vines v Djordjevitch (1955) 91 CLR 512 considered; debtor obliged to prove enforceability of indemnity if in the form of an exculpation or exclusion; no error by primary judge in assuming debtor bore onus;
Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Limited v Brakatselos [2012] NSWCA 107

Claim by employee for damages for breach by employer of implied term of mutual trust and confidence; employee dismissed; arguable claim
Shaw v State of New South Wales [2012] NSWCA 102

Construction; primary judge erred in considering post-contractual conduct and subjective intention of parties; whether terms incorporated in error or contradict express terms in principal agreement; date of repudiation on which claim arose
Current Images Pty Limited v Dupack Pty Limited [2012] NSWCA 99

Extent of contractual right to have discretions exercised where contract provided for payment of bonus at the discretion of the Remuneration Committee; constituted a discretion to allocate bonus and a discretion to pay the bonus; bonus allocated on certain conditions, including provision for claw back; discretionary nature of contractual right extended to allocating bonuses conditionally; held that no disclaimer of individual rights under a contract not by deed, in circumstances not amounting to variation of contract, estoppel, election or waiver.
O'Sullivan Partners (Advisory) Pty Ltd v Foggo [2012] NSWCA 40

Building and Construction Industry Security of Payment Act 1999; adjudication determination; adequate notification of adjudication application; Act applied to contract; meaning of "related goods and services"; application of s 7(2)(c); calculation of consideration by reference to value of services provided; whether valid payment claim made; primary judge erred in exercise of discretion in refusing permission to raise issue.
Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31

Construction; identifying contract terms; contract for advice prior to purchase; use of language of the contracting parties
Vieira v O'Shea [2012] NSWCA 21

Costs

Security for costs; claim by former mistress of deceased against estate; whether impecuniosity of appellant established; whether matters raised on appeal arguable; special circumstances not established; application dismissed
Pratt v Ashton [2012] NSWCA 313

Recovery of costs by barrister; bill of costs rendered to a firm of solicitors by a barrister pursuant to a costs agreement; dispute over charges after time expired to seek assessment under the Legal Profession Act 2004; jurisdiction of the District Court to determine the reasonableness of disputed items in a bill of costs rendered by a law practice or practitioner in the course of the legal practice or practitioner suing for unpaid fees is not ousted by the statutory costs assessment regime; costs agreement provided by a barrister in accordance with the LPA may be sued upon as part of a contract to provide legal services; court accordingly has jurisdiction to hear the matter as it would a contract claim involving disputed items of charge
Branson v Tucker [2012] NSWCA 310

Whether appropriate to depart from usual order as to costs; whether constitutional argument raised by applicant extended hearing of matter; whether resolution of factual issue on appeal affected outcome of case; costs of trial; prisoner sought to challenge conditions of incarceration; whether appropriate to order costs against unsuccessful prisoner raising issue with wider consequences; order of primary judge within available discretion
Patsalis v State of New South Wales [2012] NSWCA 307

Security for costs where litigation concerning charitable trust; litigation stemming from community religious dispute; public and community interest involved in proceedings; overriding interest in just, fair and expeditious resolution of dispute; inappropriate to order security
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2012] NSWCA 304

Costs order against law practice; whether professional negligence claim had reasonable prospects of success; whether solicitor entitled to rely on expert opinion and counsel advice; solicitor must turn an independent mind to the matter; Legal Profession Act 2004, ss 345 and 348; costs order against legal practitioner; costs incurred without reasonable cause in circumstances where legal practitioner responsible for costs unnecessarily incurred; CPA 2005, s 99
Keddie & Ors v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254

Costs of interlocutory applications; general rule that costs follow the event; whether costs payable forthwith
Rinehart v Welker (No 3) [2012] NSWCA 228

General rule costs follow event; plaintiff awarded costs against defendant; mixed outcome where plaintiff lost on a number of issues; House v R error; miscarriage of primary judge's discretion; reassessment of proportion of costs; UCPR r 42.1; Supreme Court was appropriate forum in light of complexity of factual issues, UCPR r 42.34.
State of New South Wales v Quirk [2012] NSWCA 216

Assessment process; what objections may be raised
Preston v Nikolaidis [2012] NSWCA 198

Departing from the general rule; care proceedings in respect of child; application for prerogative relief in respect of a decision of the District Court upon appeal from the Children's Court; whether any special factor warrants departure from the general rule
Re Kerry (No 2) - Costs [2012] NSWCA 194

Indemnity costs; whether offer of compromise was genuine; whether offer was "exclusive of costs"; compliance with UCPR

Barakat and others v Bazdarova [2012] NSWCA 140

Delays from non-compliance with directions and processing legal aid application; appellants initially unrepresented; effect of delays on costs orders
Bobolas v Waverley Council [2012] NSWCA 126

Calderbank letter; no presumption as to indemnity costs; genuineness of offer; reasonableness of rejection.
Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124

Exceptions to the general rule that costs follow the event; offer of compromise; plaintiff's offer required the defendant to pay plaintiff's costs; purpose of requiring offers under the Rules to be exclusive of costs; UCPR r 20.26; Calderbank offer made to several defendants jointly; defendants in different interests; whether unreasonable for one defendant to fail to accept offer; appeal costs; whether appellant bettered his offer in respect of appeal; whether evidence as to the costs or likely costs of the trial required; level of uncertainty necessary to give rise to non-compliance with the UCPR
Vieira v O'Shea (No 2) [2012] NSWCA 121

Sanderson orders; principles and application
Willett v Thomas [2012] NSWCA 97

Damages claim; validity of covenant in restraint of trade; appellant succeeds on that issue but fails generally; insufficient grounds to prevent usual order that appellant pay total costs; indemnity costs ordered below; appellant unsuccessful in appeal; order not disturbed.
Sidameneo (No 456) Pty Ltd v Alexander (No 2) [2012] NSWCA 87

Application for leave to appeal in relation to pleadings in separate proceedings which might have been raised by way of defence in principal proceedings; application for leave to appeal cross-vested from Full Court of the Federal Court; separate proceedings stayed; costs of application for leave to appeal should be determined by the trial judge in the principal proceedings .
Rossmick No 1 Pty Ltd v Bank of Queensland [2012] NSWCA 85

Late reliance upon s 42(1)(a1) of the Real Property Act 1900 provides no reason to deprive successful party of its costs.
Sahab Holdings Pty Ltd v Registrar-General (No 3) [2012] NSWCA 72

Discretionary order; Administrative Decisions Tribunal Act 1997 (NSW), s 88 and Health Records and Information Privacy Act 2002 (NSW), s 55; held possible for the Administrative Decisions Tribunal to award costs without reviewing the merits of the case; error of ascription in order for costs immaterial.
Altaranesi v Sydney Local Health District [2012] NSWCA 69

Indemnity costs; offer of compromise; Dust Diseases Tribunal Regulation 2007 (NSW), Pt 6, only operates to the extent that it is not inconsistent with the UCPR; offeror had provided all documents necessary to enable the offeree to consider offer under the UCPR; offer was open for a reasonable time.
Allianz Australia Ltd v Sim; WorkCover Authority (NSW) v Sim; Wallaby Grip (BAE) Pty Ltd (In liq) v Sim [2012] NSWCA 68

UCPR r 36.4, 36.16, 36.17; when a costs order takes effect; interest; notice of motion claims interest levied on costs order in an original judgment where subsequent proceedings have involved no challenge to quantum; whether the slip rule is enlivened when motion filed outside of time- whether the amended notice of motion seeks relief consequential on the judgment; whether the notice of motion seeks orders to disturb the judgment.
Harmer v Hare (No 2) [2012] NSWCA 58

Concurrent tortfeasors; damages apportioned; joint and several orders for costs appropriate.
Tsu v Nemeth & Anor [2012] NSWCA 29

Appeal costs; party who filed submitting appearance not entitled to costs of appearing at hearing to seek costs order when had not previously sought consent to such an order
StateCover Mutual Ltd v Smith [2012] NSWCA 27

No error in exercising discretion to award costs; Administrative Decisions Tribunal Act, s 88(1A)
Altaranesi v Administrative Decisions Tribunal [2012] NSWCA 19

Courts and Judges

Disqualification of judges for apprehended bias; efforts of judge to clarify plaintiff's case and to ensure that experts addressed all relevant issues in the proceedings did not give rise to an apprehension of bias
Clyne v State of New South Wales [2012] NSWCA 265

Construction of orders; appropriate to consider the statute conferring the power pursuant to which the order was made or judgment constituting the reasons for the order to resolve ambiguity or lack of clarity in order; order restrictive of the civil rights of an individual should be given full effect according to its terms but should not be read expansively
Bar-Mordecai v Attorney General (NSW);Bar-Mordecai v State of New South Wales [2012] NSWCA 207

Apprehended bias; solicitor for accused alleged judge made out of court statements indicating preconceived views and called for disqualification; judge disputed statements in terms alleged; court held not necessary to make findings as to disputed facts before applying reasonable apprehension of bias test; no reasonable apprehension of bias.
CUR24 v DPP [2012] NSWCA 65

Criminal Law

Appeal; procedure; case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B; question formulated was not a “question of law”; abuse of process to pursue relief pursuant to s 5B and judicial review simultaneously; whether duty of primary judge to submit a question arose; whether delay in formulating question warranted; making false statement to obtain financial advantage; obtaining a loan on ordinary commercial terms is a financial advantage; whether disadvantage must be suffered by owner of property or lender; dishonest intent not required; Crimes Act 1900 (NSW), s 178BB

Elias v The Director of Public Prosecutions (NSW) [2012] NSWCA 302

Recovery of proceeds of crime; examination orders; whether examination would interfere with the administration of justice in criminal proceedings; examination order may be made where criminal charges pending against examinee; whether procedural protections available to prevent abuse of power; Criminal Assets Recovery Act 1990 (NSW), ss 13A, 31D, 63, statutory interpretation; Criminal Assets Recovery Act 1990 (NSW), ss 13A, 31D, 63; whether power to order examination limited by general law principles relating to a fair trial

New South Wales Crime Commission v Jason Lee [2012] NSWCA 276

Order under Criminal Assets Recovery Act 1990 restraining property; construction of undertaking; applicable principles; application to vary order to meet reasonable legal expenses of sentencing proceedings; whether precluded by undertaking to make no further application for legal expenses "with respect of the trial of drug charges"; whether sentencing proceedings "with respect of the trial of drug charges".
Lee v New South Wales Crime Commission [2012] NSWCA 262

Damages

Workers' compensation; significant impairment of cardiac function; trial judge erred in failing to award any amount for non-economic loss; past economic loss; trial judge erred in differential treatment of plaintiff based on previous incarceration; relevant question is whether injury caused impairment of economic capacity whereby plaintiff suffered a loss; future economic loss; discounts for vicissitudes; prison record relevant vicissitude; trial judge entitled to award damages by way of buffer; CLA s 13; reassessment of damages by appellate court; no adverse credit findings by trial judge; Court able to assess damages on evidence; SCA s 75A.

Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293

Motor vehicle accident; future economic loss; decision to award damages by way of buffer is an evaluative judgment; buffer not manifestly unreasonable given likely future loss.
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244

Torts; personal injury; award of non-economic loss is an evaluative judgment; future economic loss; case expanded at trial beyond that particularised; trial judge was entitled on the evidence to assess plaintiff as person who would have advanced to Operations Manager position; assessment of damages for future economic loss by way of buffer; no necessity for medical evidence to expressly state earning capacity impaired; medical evidence consistent with plaintiff's evidence of extent of work incapacity; appeal dismissed
Clifton & Ors v Lewis [2012] NSWCA 229

Torts; exemplary damages awarded; medical practitioner provided treatment that was objectively unnecessary and without therapeutic effect; relevance of planning and duration of course of conduct
Dean v Phung [2012] NSWCA 223

False imprisonment; primary judge erred in description of purpose of exemplary damages; Court to exercise its own discretion in the assessment of damages.
State of New South Wales v Quirk [2012] NSWCA 216

Personal injury; economic loss; theoretical earning capacity of no value where no reasonable prospect of obtaining work to utilise it; estimation of lost earnings by reference to those of comparable employee
Mead v Kerney [2012] NSWCA 215

Personal injury; psychological injury; whether when assessing diminution in earning capacity, primary judge correctly treated certain behaviour as not being a consequence of tortious act; awards of future economic loss inadequate
Mason v Demasi [2012] NSWCA 210

Whether the appellant was entitled to recover damages to compensate it for that lost opportunity; principles applicable to assessment of damages for a lost chance.
Prosperity Advisers Pty Limited v Secure Enterprises Pty Limited t/a Strathearn Insurance Brokers [2012] NSWCA 192

Torts; negligence; claim and cross-claim each alleging negligence and each answered by a defence of contributory negligence; single apportionment of responsibility appropriate
Hansen v Slattery Transport (NSW) Pty Ltd [2012] NSWCA 145

Damages claimed by dismissed employee for loss of future earnings and earning capacity; not precluded by Addis v Gramophone Co Ltd [1909] AC 488
Shaw v State of New South Wales [2012] NSWCA 102

Negligent breach of contract; failure to exercise due care and skill; Civil Liability Act 2002 (NSW), Pt 1A applied to claims for damages brought in tort and contract; Civil Liability Act 2002 (NSW), s 5D(1)(b) and (2) were intended to cover factors variously described as "value judgments", "normative considerations" or "legal policy"; differing outcomes in tort and contract would require an exceptional justification; misleading and deceptive conduct; negligence not necessary element of Trade Practices Act 1974 (Cth) s 42 contravention; losses resulting from representations that involved same consequences as simultaneous claims in tort and contract not recoverable.
Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94

Compensation to Relatives Act; single mother of two killed in motor vehicle accident, two sons subsequently resided with their respective fathers; whether the sons had suffered compensable loss; compensable loss is material loss as at the moment of death; entire family situation before and after death compared; additional care provided by a surviving parent after the death may be taken into account to offset the loss but not gratuitous services provided by other family and friends.
Grosso v Deaton [2012] NSWCA 101

Breach of contract; difference between loss of bargain and loss of profit; whether loss caused; whether loss mitigated; onus of showing loss avoided
Current Images Pty Limited v Dupack Pty Limited [2012] NSWCA 99

Attendent care services; Motor Accidents Compensation Act 1999 s 128; appellant did not satisfy statutory requirement that services must be provided for at least 6 hours per week.
Ridolfi v Hammond (No 2) [2012] NSWCA 67

Malicious prosecution; whether award of exemplary damages justified; need to take into account award of compensatory and aggravated damages.
State of New South Wales v Zreika [2012] NSWCA 37

Contract; time for assessment; whether assessed at the time of breach or at some other date; circumstances in which it is appropriate to measure damages at some other date; circumstances in which plaintiff is considered to be locked in to holding the asset

Vieira v O'Shea [2012] NSWCA 21

Torts; negligence; motor vehicle accident; future economic loss; whether finding that future domestic assistance will be obtained on a commercial basis is required; whether use of buffer is precluded by Motor Accidents Compensation Act 1999 (NSW) s 126
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Motor vehicle accident; pre-existing degenerative spinal condition; primary Judge erred in finding that the consequences of the pre-existing condition would have "subsumed" the consequences of the accident within eight years; causal relationship between accident and further degeneration of spinal condition.
Ridolfi v Hammond [2012] NSWCA 3

Declaration

Whether appropriate to make a declaration as to the validity of covenant; declaration is within court's discretion but generally should not be granted if it serves no useful purpose; not ordinarily appropriate to make declarations as to "intermediate conclusions" of a court leading to a final order; declaration not granted.
Sidameneo (No 456) Pty Ltd v Alexander (No 2) [2012] NSWCA 87

Defamation

Defences of truth, common law qualified privilege, comment and honest opinion; letter to community interest group and media publishers; whether defence of truth to all imputations; whether statements of fact or comment; whether each publication made on occasion of common law qualified privilege; whether evidence of malice; award of damages set aside; new trial on limited issues
Lloyd-Jones v Allen [2012] NSWCA 230

Common law qualified privilege; jury trial; where respondent not identified in matter; whether trial judge correct that publication was to world at large; whether publication to recipients who would not identify respondent merely incidental; statutory qualified privilege; whether appellants' conduct reasonable in the circumstances.
Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195

Destruction of evidence prior to commencement of proceedings; claim for aggravated damages; no defence filed; notice to strike out claim; truth of imputations in issue on claim
Palavi v Queensland Newspapers Pty Ltd & Anor [2012] NSWCA 182

Principles relating to qualified privilege; employers' association where letter sent to members of association; whether matter complained of published pursuant to a duty to protect the financial and business interests of the association and its members; principles governing malice; admissibility of draft letter as evidence of malice; Court helf award of compensatory and aggravated damages not excessive.
Association of Quality Child Care Centres of NSW v Manefield [2012] NSWCA 123

Appeal against jury verdict; s 7A Defamation Act 1974; publication; petition handed around at general meeting; whether defamatory matter published if made available for third party to read or comprehend whether or not third party does so; jury not misled on test of ordinary reasonable reader or listener; jury findings none of pleaded imputations conveyed was not unreasonable; jury finding imputations not conveyed where jury incorrectly directed to answer additional questions; whether additional answers influenced by publication findings.
David v Abdishou [2012] NSWCA 109

Absolute privilege; letter of complaint to the New South Wales Medical Board; letter not published on an occasion of common law or statutory absolute privilege; publication made by the making of a complaint is not a publication for the purpose of assessment or referral of a complaint.
Lucire v Parmegiani & Anor [2012] NSWCA 86

Dust Diseases

Claims resolution process; apportionment between joint tortfeasors; multiple claims and cross-claims between joint tortfeasors; Dust Diseases Tribunal ordered first tortfeasor to pay second tortfeasor although second tortfeasor had not commenced proceedings against first tortfeasor; order properly made.
CSR Ltd v Wallaby Grip Ltd [2012] NSWCA 154


Employment Law

The contract of service; whether term of mutual trust and confidence arguably implied by law; where employment heavily regulated by statute; whether implication of term inconsistent with statutory scheme
Shaw v State of New South Wales [2012] NSWCA 102

Environment and Planning

Building control; dual occupancy; council required to consider development control plan when determining development application; development control plan permitted dual occupancy as attached buildings; grant of development consent for detached building at rear of property valid; consent achieved objectives of development control plan; meaning of “street frontage” and “frontage”
McGinn v Ashfield Council [2012] NSWCA 238

Acquisition of land; remediation direction effectively prohibiting use of land within power of Court of Minister; did not constitute acquisition of land; local environment plan does not provide exception to consent requirement under Native Vegetation Act 2003 s 12.
Joly Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCA 133

Equity

Equitable remedies; Heads of Agreement; specific performance of term that formal agreement be executed; whether permissible for court to add to the agreed terms provisions that are simply consistent with the Heads of Agreement and reasonable; court may only add provisions of a mechanical nature designed to implement the existing agreement
Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227

Fiduciary obligations owed; loss suffered not proven.
Willett v Thomas [2012] NSWCA 97

Principles of effecting disclaimer generally where one party is equitably assigned undesirable property; enforceability of equitable personal obligation attached to a transfer of property.
O'Sullivan Partners (Advisory) Pty Ltd v Foggo [2012] NSWCA 40

Trusts and trustees; money judgment against trustee; trustee's right of indemnity and preferred beneficial interest in trust assets; subrogated position of trust creditors; protection of preferred beneficial interest from destruction by levy of execution
Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26

Estoppel

Promissory estoppel; whether mortgagee prevented from relying on non-compliance with a default notice and prosecuting proceedings for possession
Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295

Equitable estoppel; estoppel by convention; prospective lessee withdraws from negotiations for agreement for lease; no estoppel of either type arises
BBB Constructions Pty Ltd v Aldi Foods Pty Ltd [2012] NSWCA 224

Equitable estoppel; creation or encouragement of assumption; evidence of oblique assurance of intention to leave specific portion of property to respondent; action in estoppel brought against estate after death of father to enforce reliance on representations made during lifetime; establishing detriment; relevant detriment is that which is brought about by the failure to fulfil a representation where the person has made a choice that would not have been made had it not been for the representation
Waddell v Waddell [2012] NSWCA 214

Anshun estoppel; where previous litigation not necessarily sufficiently related to present proceeding to give rise to Anshun estoppel; not unreasonable to not rely on argument against validity of appointment where argument would have required substantial additional resources to make and validity of appointment not obvious.
Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76

No estoppel from appeal based on prior conduct; whether proceeding on the basis of the correctness of the first trial judge's decision operates as an estoppel or unconscientious conduct short of an estoppel; conduct of appellant did not mislead respondent or second trial judge to conclude that there would be no appeal.
Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2012] NSWCA 61

Equitable proprietary estoppel; monies advanced by the respondent and her husband to the appellant for development of residential property; oral assurances that following completion of development, appellant would repay money and transfer part of property at cost; expectation of the respondent was sufficient to give rise to an equitable estoppel
Equitable proprietary estoppel; respondent entitled to relief by way of equitable charge; interest; primary judge erred in awarding compound interest on monies secured by charge
Tadrous v Tadrous [2012] NSWCA 16

Evidence

Plaintiff employed by contractor on cotton farm; plaintiff driving vehicle on farm which collided with culvert and overturned; primary judge made a factual finding that the owner and operator of farm had breached its duty of care by failing to mark the culvert as a hazard; factual dispute as to presence of warning flags; primary judge's reasoning based on demeanour in cross examination, objective indicia and expert evidence; appeal dismissed; photographs; limitations on use of photographs in fact finding; photographs used to evaluate explanations given by various witnesses; permissible use
Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326

Unchallenged evidence; no cross-examination of expert engineering witnesses; trial judge erred in acceptance of one expert's evidence in preference to another; absence of necessary factual underpinnings; unchallenged status of evidence not sufficiently cogent reason for acceptance; expert evidence could not be considered in isolation from medical and lay evidence; suspicion does not have evidentiary value; trial judge must assess evidence as a whole.
Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293

Visual identification evidence; correct interpretation and application of s 114 Evidence Act 1995 (NSW); what was the act of identification to which the question objected to was addressed; does the section refer to out of court visual identification as well as in court visual identification; whether reasonable to have held an identification parade.
Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290

Presumptions and sufficiency of evidence; wills and estates; issues in probate suit as to operation of "suspicious circumstances" rule and in family provision claim as to financial situation of beneficiaries; finding that interested beneficiaries gave false and incomplete evidence; whether inference that non-production of evidence that would naturally have been produced by an honest party would not have assisted on those issues could be relied upon to resolve uncertainties on available evidence.
Tobin v Ezekiel [2012] NSWCA 285

Proof of documents; where print-out of email produced before the court purporting to show email and its attachments were sent to a particular addressee; reasonable to assume that in the ordinary course of business emails reach their intended recipient; conclusion supported by s 161 Evidence Act 1995

Whether Jones v Dunkel inference should be drawn; whether former employee in the employer's camp or was for any other reason someone that the employer would have been expected to call as a witness

Perpetual Trustee Company Ltd v CTC Group Pty Ltd [2012] NSWCA 252

Admission; whether witness qualified to give evidence; whether evidence rendered inadmissible by s 318(1)(d) WIM Act.
Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Claim of legal professional privilege over subpoenaed documents; documents were privileged; copies of documents submitted to legal advisers for legal advice are privileged; no waiver of privilege.
Levy v Bablis [2012] NSWCA 157

Admissibility; hearsay; business records; email purportedly sent by company officer; proof of officer's authority to order goods on behalf of company.
Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155

Medical evidence; failure by trial judge to properly analyse medical evidence; trial judge erroneously substituted own opinion of medical issues for evidence
Nominal Defendant v McLennan [2012] NSWCA 148

Admissibility of expert evidence; appropriate to consider all of the evidence to determine whether expert evidence should have been admitted; pathologist able to give evidence as to the causal connection between exposure to asbestos dust and lung cancer, given current state of medical knowledge.
Allianz Australia Ltd v Sim; WorkCover Authority (NSW) v Sim; Wallaby Grip (BAE) Pty Ltd (In liq) v Sim [2012] NSWCA 68

Rejection of evidence; affidavit evidence excluded by judge because "uncertain and of low probative weight"; Court of Appeal must consider all available grounds when deciding whether decision to exclude evidence was wrong; Court reluctant to interfere with such decisions; leave to appeal not granted.
Kopas v Celermajer Holdings Pty Ltd [2012] NSWCA 53

Presumption of regularity; applicable to issue of whether original development consent given; original consent can be inferred from subsequent development consents
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48

Discussion of Vakauta v Kelly (1988) 13 NSWLR 502; whether court should receive evidence pursuant to Supreme Court Act 1970 (NSW), s 75A(7); whether court should exercise discretion to reject admissible evidence tendered for the first time on appeal
Barakat v Goritsas (No 2) [2012] NSWCA 36



Indemnity

Discharge of surety; where security given for guaranteed obligations; whether later covenant affects security so as to discharge guarantors.
Pritchard v DJZ Constructions Pty Ltd & Ors; Gilles & Anor v DJZ Constructions Pty Ltd & Ors [2012] NSWCA 196

Industrial Law

Occupational health and safety; statements of charge; deficiencies in particulars did not render charges nullities; where guilty plea; insufficient particulars can be amended or rectified; discussion of Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1 and John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338
Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208

Declaratory jurisdiction of Industrial Relations Court; declaration of contractual right to voluntary redundancy payment; whether misinterpretation of contract; whether jurisdictional error; contractual principles; anticipatory breach; remedies.
State of New South Wales v NSW Nurses' Association [2012] NSWCA 179

Industrial safety; statutory duty of manager of correctional centre to protect inmate from exposure to risks; breach of duty; Occupational Health and Safety Act 2000, s 8(2)
The GEO Group Australia Pty Limited t/as Junee Correctional Centre v WorkCover Authority of New South Wales [2012] NSWCA 150

Whether the Industrial Relations Commission has jurisdiction to review unfair dismissal claim of probationary police constable; whether inconsistency or incongruity between the provisions of Police Act and Industrial Relations Act.
Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30

Inferior Court

Power to remit under s 41(1)(c) Local Courts Act; not exercised where error of law shown, but retrial would be futile
Guijar v Australia and New Zealand Banking Group Limited; Australia and New Zealand Banking Group Limited v Guijar [2012] NSWCA 10

Joint Venture

Joint venture to obtain development consent for residential units prior to sale; whether evidence supported apportionment of profit under joint venture; expenses to be deducted from account of net profit do not extend beyond time at which development consent was obtained to include expenses relating to subsequent sale or disposition; whether primary judge erred in calculation of 'sale price' for the purpose of accounting for net profit; orders made were justified.
Folari Pty Ltd & Anor v St Jude Property Investments Pty Ltd & Anor [2012] NSWCA 120

Judgments and Orders

Judgments and orders; stay pending appeal or judicial review; applicant not party to proceedings below; whether danger that proceedings could be disposed of without involvement of applicant; whether stay appropriate; Land and Environment Court Act 1979 (NSW), s 34; whether power of Judge of Land and Environment Court to review decision of Registrar of that Court.
Sertari Pty Limited v Quakers Hill SPV Pty Limited [2012] NSWCA 292

Variation of orders, where Court directed judgments of the Court to agencies of the executive government.
Toksoz v Westpac Banking Corporation (No 2) [2012] NSWCA 288

Self executing orders; where Court made orders dismissing appeal unless procedural steps taken within particular time; where required steps not taken within specified time; appeal therefore determined by self executing orders and no longer pending; no power available to Court of Appeal to make orders in litigation that has been brought to a regular end.
Kelly v Mosman Municipal Council [2012] NSWCA 291

Res judicata; a party is prevented by a res judicata from agitating of actions merged in a consent judgment, but only where the consent judgment is actually a judgment or order of the court; longstanding practice of the court to enter into record documents described as judgments or orders that contain material that is not part of the judgment or orders; consent orders in this case took the form of the Court noting the effect of an agreement reached inter partes; Court did not make further orders dismissing the action; proceedings terminated otherwise than through a mandatory or prohibitive judicial decision, no res judicata.
Consent orders; construction; whether surrounding circumstances can be used as an aid to the construction of consent orders; where consent judgment contained no order that proceedings "be otherwise dismissed"; whether the dismissal of all claims relating to dividends is implicit in the judgment by consent, notwithstanding lack of express order; proper question of construction must be determined at first instance

Beck v Weinstock;Beck v L W Furniture (Consolidated) Pty Ltd [2012] NSWCA 289

Amendment by judge to judgment after delivery of reasons extempore; permissible amendments are limited to matters which were clearly in the judge's mind at the time or are merely editorial or stylistic; changes of substance are not permitted; the inclusion of an order not requested by either party supported by reasons not addressed by either party is a change of substance; order set aside; proper course on appeal is to read judgment as if amendments had not been made
Spencer v Bamber [2012] NSWCA 274

Judicial Review

Application for order in the nature of certiorari in respect of District Court decision; no jurisdictional error; no error on the face of the record; whether relevance of principles in United Nations Convention on the Rights of the Child wrongly rejected; no failure to comply with s 9(2)(c) of Children and Young Persons (Care and Protection)Act 1998; whether s 79(3) implemented; no failure to comply with s 13 and 78A provisions with respect to Aboriginality
Re Kerry (No 2) [2012] NSWCA 127

Decision of Industrial Relations Commission of NSW; 2.5 per cent salary increase in public health sector employee award; application of Industrial Relations (Public Sector Conditions of Employment) Regulation 2011; Commission determined a two-stage process involving interim increases was permissible, however the orders of the Commission were not cast in the form of an interim order; no jurisdictional error
Director-General, Department of Premier & Cabinet v HSUeast [2012] NSWCA 111

Landlord And Tenant

Retail and commercial tenancies legislation; Retail Leases Act 1994; lease forbids assignment without the lessor's consent; proposed assignment by two joint tenant lessees to one of them; whether consent deemed given under Retail Leases Act s 41(d) and corresponding lease provision; where lessor required information about the proposed assignee's financial standing; whether requirement within scope allowed by Retail Leases Act s 41(a) and corresponding lease provision; statutory condition in s 41(b) that lessee "furnish" to proposed assignee a particular document in the possession of the lessee; impossible for two persons having joint possession to "furnish" to one of them; condition inoperative
Lockrey v Historic Houses Trust of New South Wales [2012] NSWCA 249

Legal Practitioners

Application to have legal practitioner struck off the Roll; legal practitioner convicted of defrauding the Commonwealth and obtaining financial advantage by deception; guilty of professional misconduct; not a fit and proper person; not of good fame and character
Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325

Provision of legal services; meaning of "without reasonable prospects of success"; requirement to have reasonable belief in reasonable prospects of success; reliance on counsel's advices; reliance on expert's reports; expert's reports wrong;
Keddie & Ors v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254

Advocates' immunity; basis for immunity in finality of judicial determination; whether open to plaintiff to show that impugned conduct had adverse effect on outcome of proceedings; discussion of D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12.
Application of Malcolm Huntley Potier [2012] NSWCA 222

Professional negligence; breach of retainer; scope of duty; proof of loss or damage; causation; assessment of damages; advocate's immunity.
Pritchard v DJZ Constructions Pty Ltd & Ors; Gilles & Anor v DJZ Constructions Pty Ltd & Ors [2012] NSWCA 196

Existence of retainer; solicitor performed work and appeared prior to provision of written agreement and costs disclosure; whether relationship of solicitor and client existed
Steele v Marshan [2012] NSWCA 141

Advocates' immunity; basis for immunity in finality of judicial determination; discussion of D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1; whether loss of opportunity to respond to the possibility of an offer of settlement falls outside the scope of the immunity
Bott v Carter [2012] NSWCA 89

Limitation Of Actions

Limitation Act 1969 ss 58, 60G; applicant seeks extensions of time to bring proceedings against general practitioners and radiologist; whether "just and reasonable" to grant extensions; whether primary judge entitled to take into account that damages likely to be minimal against one practitioner; whether general practitioners would be prejudiced in defending proceedings by absence of clinical notes and inability to recall consultations.
Cox v Keys [2012] NSWCA 268

Medical negligence; proceedings against general practitioner; extensions of time sought to join two specialists (the respondents); failure to show viable causes of action and adequately explain delay; applicant failed to satisfied gateway provisions under Limitations Act 1969 (NSW) ss 60E(1) and 60I.
Gilmore v Waugh [2012] NSWCA 263

Negligence; date on which cause of action "discoverable by plaintiff"; whether plaintiff aware that injury "caused by fault of the defendant"; meaning of "fault"; Court held Baker-Morrison v State of New South Wales correctly interpreted the meaning of "fault" for the purposes of the Limitation Act 1969, s 50D(1)(b); cause of action not discoverable until plaintiff received advice that defendant legally liable for injury
State of New South Wales v Gillett [2012] NSWCA 83

Local Government

Validity of orders for removal and disposition of waste on residential premises; Local Government Act 1993 s 124 (cl 22A); where orders required entry onto premises whether or not owner consented; orders not clear and expressed in terms of futurity
Bobolas v Waverley Council [2012] NSWCA 126

Building control; development application; principles; whether application in respect of "designated development"; identification of "existing or approved development";
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48

Medical Practitioners

Professional misconduct; practitioner's addiction to narcotics affected practise; Medical Tribunal found that practitioner had engaged in professional misconduct and was impaired; whether findings inconsistent; whether manifest error of law
Reimers v Health Care Complaints Commission [2012] NSWCA 317

Mental Health

Effect of disability on civil rights and duties; death of protected person; rights concerning litigation begun by manager concerning manner of administration of protected person's property do not survive death.
RL v NSW Trustee and Guardian (No 2) [2012] NSWCA 78

Management and administration of property; testatrix subject to a management order; power to order separate investment of proceeds from devised asset; NSW Trustee and Guardianship Act 2009 s 83; generally appropriate to also segregate income and interest from the separate fund from the general pool of funds; disposal by manager with authority of NSW Trustee and Guardian adeemed the specific bequest - not necessary that the disposal be known to the protected person for ademption to occur.
RL v NSW Trustee and Guardian [2012] NSWCA 39

Mining

Mining Act 1992 (NSW), s 382; whether provision of an exploration licence application complying with the Act is a precondition of the exercise of the power to grant an exploration licence; non-compliance of exploration licence application with the Act does not invalidate an application and any licence granted in response to it; decision-maker's satisfaction as to compliance is sufficient to satisfy precondition.
Martin v State of New South Wales (No 14) [2012] NSWCA 46

Mortgages

Contract for sale of land where purchase price payable by instalments; mortgagee issued valid default notice to mortgagor under Real Property Act 1900, s 57(2)(b); clause in mortgage effective to dispense with notice requirements under the Act; Real Property Act, s 58A(1); appeal dismissed.
Khalid v Perpetual Limited [2012] NSWCA 153

Motor Accidents

Negligence; personal injury; primary judge did not err in finding that the respondent was not aware at the time of the collision that the collision had occurred; primary judge did not err in failing to consider the evidence of eyewitnesses contrary to the respondent's version of events; primary judge did not err in finding that the respondent was not guilty of failing to keep a proper lookout or that he was in breach of his duty of care by failing to facilitate the appellant's need to move lanes
Draca v Silva [2012] NSWCA 312

Construction of Part 1.2 of the Motor Accidents Compensation Act 1999 (NSW); entitlement to damages; whether accident was a "blameless motor accident" within the meaning of the definition of that expression in s 7A of the Act; meaning of the word "fault" in the definition of "blameless motor accident"; construction of the definition of "fault" and whether it includes the non tortious negligence of the injured party; whether a restrictive construction of "fault" would be inconsistent with the use of the word "fault" in other provisions of the Act.
Axiak v Ingram [2012] NSWCA 311

Motor vehicle accident; injury to minor; appeal as to quantum of damages; settlement of proceedings; court approval required for minor
Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298

Motor vehicle accident; consecutive collisions; whether appellant was in her vehicle at time of second collision; credit findings by trial judge; rejection of appellant's evidence and acceptance of evidence of witnesses of respondent; whether evidence of respondent's witnesses had been contaminated by post-accident discussions and the conduct of an investigator; whether "incontrovertible facts" inconsistent with his Honour's findings existed; whether his Honour's findings were "glaringly improbable" or "contrary to compelling inferences"; whether content of an expert report should have been specifically referred to by his Honour; no basis for interfering with the decision of trial judge established.
Lewis v Shimokawa [2012] NSWCA 300

Unregistered motorbike; claim against Nominal Defendant; whether “motor vehicle”; whether, for vehicle to be "capable of registration" within s 33(5)(b)(i) of Motor Accidents Compensation Act 1999 (by issue of an unregistered vehicle permit) it is necessary that was at time of manufacture or subsequently an actual use proposed which would have justified issue of permit.
Nominal Defendant v Uele [2012] NSWCA 271

Collision at intersection; plaintiff's vision obscured by the sun; defendant found to be liable but plaintiff contributorily negligent; findings not erroneous; contributory negligence; whether damages in respect of loss of earning capacity and attendant care services correctly assessed.
O'Neill v Liddle [2012] NSWCA 267

Motor Accidents Compensation:

Negligence; risk of harm; inexperienced forklift driver failed to spread the tines of the forklift; defendant knew or ought reasonably to have known of the risk and should have warned plaintiff as to the known risk; Court held ‘injury’ within terms of Motor Accidents Compensation Act 1999 (NSW); Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11 distinguished.
TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149

Negligence; duty of care; employee injured whilst assisting in unloading contractor's vehicle; employer knew or should reasonably have known of risk of injury; failure to provide a safe system of work; apportionment between tortfeasors; s151H and 151Z Workers Compensation Act 1987; reduction of damages by reason of contribution recoverable from employer.
Compulsory third party motor vehicle insurance; metal frames on trailer unsecured during unloading operations; defect in vehicle for purposes of Motor Accidents Compensation Act 1999; accident occurred in use or operation of vehicle.

Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132

Road accident with unidentified vehicle; action brought against Nominal Defendant; Motor Accidents Compensation Act 1999 s 34(1); held there was not "due inquiry and search"; the injured pedestrian could reasonably be expected to obtain details of the vehicle at accident scene.
Nominal Defendant v Meakes [2012] NSWCA 66

Employee claimed damages under the Motor Accidents Compensation Act 1999 in respect of injury suffered in the course of his employment whilst a passenger in the bucket of an excavator; whether the excavator was a "motor vehicle" as defined in the Act; whether the excavator was a vehicle "on wheels" within the meaning of the Road Transport (General) Act 2005.
Andy's Earth Works Pty Ltd v Verey [2012] NSWCA 32

Negligence

Motor vehicle accident; injury to minor; appeal as to quantum of damages; settlement of proceedings; court approval required for minor
Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298

Personal injury from traffic accident involving bicycle rider; appellant's response to the risk created was not unreasonable or indicative of a lack of reasonable care in the circumstances; principle of agony of the moment; judgment and orders of the primary judge set aside.
Stuart v Walsh [2012] NSWCA 186

The primary finding that pedestrian struck by vehicle was not contributorily negligent should be set aside; the finding that the plaintiff had suffered a loss of earning capacity was not supported by evidence.
Nominal Defendant v Meakes [2012] NSWCA 66

Orders

Variation of orders, where Court directed judgments of the Court to agencies of the executive government.
Toksoz v Westpac Banking Corporation (No 2) [2012] NSWCA 288

Nature of orders and declarations where party entitled to rely on various provisions of Real Property Act 1900; Amendment to Register by Registrar-General; Delivery up of certificate of title for amendment to accord with Register.
Sahab Holdings Pty Ltd v Registrar-General (No 3) [2012] NSWCA 72

Practice and Procedure

Want of prosecution; five successful applications by appellant to vacate hearing dates; respondent has not sought review of those determinations; proceedings should not be summarily dismissed
Liristis v Gadelrabb [2012] NSWCA 327

Judicial review; summary dismissal; want of due despatch; application filed 8 years after impugned decision; whether want of due despatch in prosecution of the proceedings includes delay in commencement; whether appropriate to invoke uniform rule in judicial review proceedings where relief is discretionary; UCPR 12.7
Reimers v Health Care Complaints Commission [2012] NSWCA 317

Application for leave to challenge Court's own previous decision; circumstances in which leave will be granted; requirement that sitting judges have strong conviction that previous decision was incorrect
Branson v Tucker [2012] NSWCA 310

Judicial review; person serving sentence for serious indictable offence does not require leave to commence proceedings in respect of judicial review proceedings; Felons (Civil Proceedings) Act 1981 (NSW), s 4
Patsalis v State of New South Wales [2012] NSWCA 307

Leave to appeal; workers compensation; interaction of ss 79 and 289A of Workplace Injury Management and Workers Compensation Act 1998 (NSW); operation of transitional provisions of Workers Compensation Act 1987 (NSW).
Ausgrid (formerly Energy Australia Pty Ltd) v Butler [2012] NSWCA 303

Documents or pleadings; notice of appeal; timing; whether notice of appeal received outside statutory time limit "lodged" within time
Rail Corporation New South Wales v Brown [2012] NSWCA 296

Pleadings; application for leave to further amend notice of appeal; prejudice; party should be bound by the case run at trial; proposed amendments address matters not in issue at trial; whether new point can be raised on appeal; discretion of the court; forensic considerations; cost implications; UCPR rr 19.1, 51.1; leave required to withdraw express admissions in pleadings; UCPR r 12.6.
New South Wales Land and Housing Corporation and Anor v Frances Joy Reilly and Anor [2012] NSWCA 286

Application to strike out notice of motion; insufficient material to determine whether reasonable case made out; no tendency to cause prejudice, embarrassment or delay in appeal proceedings; insufficient material to determine whether abuse of process; UCPR 14.28.
Mahmoud v Sutherland [2012] NSWCA 280

Oversight where primary judge refused but did not dismiss application; parties treated application as dismissed; Court of Appeal should make the order which should have been made and order should take effect on date of primary judge's orders; UCPR 36.4(3)
Suppression order available to prevent prejudice to a future criminal trial; Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
New South Wales Crime Commission v Jason Lee [2012] NSWCA 276

Pleadings; application to strike out; allegation that solicitor had misused confidential information; whether confidential information should be pleaded with particularity; amended pleading filed between hearings; whether judge appreciated significant change in particulars of amended pleading.

Maxwell-Smith v Hall [2012] NSWCA 284

Care proceedings in respect of child; orders made by President of Children's Court and in Equity Division of the Supreme Court; purported appeals against such orders; leave to appeal needed re Supreme Court orders; appeal against order made by President of Children's Court lies to Equity Division, not Court of Appeal; all appeals struck out as incompetent
Director-General, Family and Community Services re Felicity [2012] NSWCA 272

Stay of orders of lower court pending appeal; whether stay of writ of possession of appellant's home ought to be granted; factors affecting grant of stay; prospects of success on appeal; likelihood of relevant hardship; whether appeal rendered nugatory without stay; stay of execution of writ of possession granted.
Thomas v Driat Pty Limited [2012] NSWCA 266

Joinder of parties; wife registered proprietor of land; land encumbered by registered mortgage; husband claims land held on resulting trust by wife; husband not party to possession proceedings on appeal; whether non-party to appeal proceedings is necessary party and ought to be joined; equitable interest does not have priority over first ranking registered mortgage; husband not necessary party; application dismissed with costs.
Hammond v JP Morgan Trust Australia Limited [2012] NSWCA 261

Application for leave to reopen proceedings; applicant re-agitating same issue dealt with in previous applications before Court; no fresh argument; no new circumstances justifying reopening initial decision refusing leave to appeal; vexatious and abuse of process; application dismissed; application for stay of costs orders, dependent upon outcome of application pursuant to UCPR 36.16
Teoh v Hunters Hill Council (No 6) [2012] NSWCA 260

Powers of single Judge of Appeal; civil penalty proceedings under Corporations Act 2001 (Cth); questions of penalty and costs remitted by High Court to Court of Appeal; parties reach agreement thereon and seek consent orders; single Judge of Appeal should not make such orders.
Shafron v Australian Securities and Investments Commission [2012] NSWCA 255

Application on morning of trial for order pursuant to s 318(1)(c) of the WIM Act 1998 that respondent not entitled to dispute liability; refusal by Trial Judge to entertain motion; motion dismissed pursuant to sections 56 - 58 CPA 2005; no error in Trial Judge's treatment of motion; had motion been considered on its merits, would still have been dismissed; relevant discretionary considerations; agreement by parties for late filing of defence; parties should be held to such agreements made in the course of litigation; whether principles of waiver and estoppel applied; respondent not entitled to rely upon rule 17.7(6) of the Workers Compensation Commission Rules 2006 which was beyond power.
Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Summary dismissal; want of due despatch; period of incapacity of plaintiff; whether lapse of time rendered fair trial impossible; whether cause of delay is relevant; whether appropriate steps taken to obtain evidence; sufficient evidence available to resolve issues; whether defendant and court required to accommodate delay; CPA ss 56-60; UCPR r 12.7
Interlocutory issues; suppression orders; no universal practice of suppressing names of minors involved in sexual assaults; suppression order not available in civil proceedings involving sexual assault; order suppressing names of legal representatives and witnesses; plaintiff made threats of harm; whether plaintiff's existing knowledge of witnesses' identity renders order unnecessary; evidence does not justify order.

State of New South Wales v Plaintiff A [2012] NSWCA 248

Whether appeal from interlocutory judgment or order from District Court lay as of right to Supreme Court; leave to appeal required from an interlocutory order or judgment of District Court; District Court Act 1973, s 127(2).
Insurance Australia Ltd t/as NRMA Insurance v Adam Zizovski bnf Selim Zizovski [2012] NSWCA 246

Application for security for costs; plaintiff company as trustee has virtually nil net asset value; trial judge erred in assessment of plaintiff company's financial position; delay in bringing application; onus on plaintiff to satisfy Court that defendant's conduct caused or materially contributed to its inability to meet order for costs; Court adopts cautious approach when claim is based on impecuniosity rather than loss of profit; UCPR r 42.21; Corporations Act 2001 (Cth), s 1335(1).
Wollongong City Council v Legal Business Centre Pty Limited [2012] NSWCA 245

Jurisdiction; leave sought to extend time to file cross-claim against co-defendant in Dust Diseases Tribunal after judgment for plaintiff; leave granted by trial judge; trial judge had jurisdiction to make orders extending the time in which to file a cross-claim; Dust Diseases Tribunal Act 1989, s 11
Allianz Australia Insurance Ltd v Bluescope Steel Limited [2012] NSWCA 240

Application to strike out summons seeking leave to appeal; sealed copy of notice of motion moving for strike out not served on applicant; Court has power to dispense with service requirements; CPA s 14; summons seeking leave to appeal constituted an abuse of process; non-attendance by applicant on three occasions when matter listed before the court; grounds of appeal disclose no reasonable case on the appeal.
Petronaitis v Rowles [2012] NSWCA 236

Defendants applied for medical examination of plaintiff by medical expert; plaintiff previously medically examined at defendants' request; whether prior examination a consideration relevant to subsequent application
Kirschner v Perochinsky [2012] NSWCA 235

Appeal;written submissions; party's written submission exceed the length prescribed by the UCPR; there is a public interest in compliance with time and page limits; r 51.36(1); statement of challenges to findings of fact; UCPR require that statements be clearly identified and separate to written submissions; r 51.36(2)
Prince v Malouf [2012] NSWCA 234

Stay; plaintiff's claim dismissed summarily by District Court; not open to Court of Appeal to stay order for summary dismissal
Hetherington-Gregory v All Vehicle Services [2012] NSWCA 232

Prisoners; leave to commence civil proceedings; court required to form broad impression as to prospects of success; meaning of "prima facie ground"; Felons (Civil Proceedings) Act 1981 (NSW), ss 4 and 5
Application of Malcolm Huntley Potier [2012] NSWCA 222

Motion to adduce further evidence on appeal; whether primary judgment given after a "trial or hearing on the merits" within s 75A(8) of the Supreme Court Act 1970; whether an interlocutory judgment is necessarily given without a trial or hearing on the merits; discretion to receive further evidence under s 75A(7) of the Supreme Court Act 1970 should not be exercised in favour of the appellant.
Romeo v Papalia & Ors [2012] NSWCA 221

Whether Court has jurisdiction to entertain an application for leave to appeal from a wasted costs order made on an application under the Jurisdiction of Courts (Cross-Vesting) Act 1987; availability of judicial review of costs order under s 69 of the Supreme Court Act 1970.
Dye v Commonwealth Bank of Australia & Anor [2012] NSWCA 220

Joinder of insurer; Law Reform (Miscellaneous Provisions) Act 1946 s 6; where respondent was the liability insurer of company A, alleged to be manufacturer of defective equipment; requirement to establish arguable case against the insured party; test for arguable case requires evaluation of evidence supporting pleaded case, not merely acceptance that facts have been pleaded which if true would, on an arguable view of the law, provide a remedy; insufficient evidence led to establish an arguable case that insured manufactured the defective equipment
Energize Fitness Pty Ltd v Vero Insurance Limited [2012] NSWCA 213

Summary judgment; cross-claim alleging misleading or deceptive and unconscionable conduct; defence by way of equitable set-off; whether arguable defence
Product Development Solutions Australia Pty Ltd v Parametric Technology Corporation [2012] NSWCA 211

Apprehended violence orders; protected person sought to appeal against ancillary property recovery order; whether ancillary property recovery order falls within expanded meaning of apprehended violence order; whether application for apprehended violence order is a criminal proceeding; no right of appeal from Local Court to District Court available to oppose ancillary property order; Local Court Act 2007 (NSW) s 70
Franks v Franks [2012] NSWCA 209

Vexatious litigant prohibited from service on any person of any evidential material relevant to application prior to the Court ordering that the application and affidavit under s 14(3) be served, pursuant to s 16(1)(a); no requirement to obtain leave to rely upon additional evidence to the affidavit; discussion of whether application for order for discovery is an "interlocutory proceeding"
Bar-Mordecai v Attorney General (NSW);Bar-Mordecai v State of New South Wales [2012] NSWCA 207

Notice of motion seeking to set aside order dismissing proceedings on basis of no appearance; whether Court ought to set aside order; UCPR rr 36.15, 36.16
Valder v Wolak & Anor [2012] NSWCA 189

Orders made under s 73 of the Civil Procedure Act 2005 giving effect to Heads of Agreement; whether respondent had complied with conditions precedent in Heads of Agreement; construction of Heads of Agreement; whether Council had "certified" that work on the site had physically commenced and that development consent was still current; orders under s 73 set aside.
Yule v Smith [2012] NSWCA 191

Interlocutory application; application for leave to adduce fresh and further evidence on appeal dismissed.
Levy v Bablis [2012] NSWCA 157

Leave to appear as lay advocate for wife on substantive hearing; stay of execution of writ of possession; order sought prohibiting any lawyer retained by respondent from taking any further part in the proceedings.
Hammond v J P Morgan Trust Australia Limited [2012] NSWCA 156

Default Judgment; third party claims sufficient interest to set aside; no basis to set aside default judgment.
Khalid v Perpetual Limited [2012] NSWCA 153

Interlocutory application; UCPR r 7.36; self-represented applicants of limited means; complex proceedings; application for referral to the Pro Bono Panel; order granted in the interests of the administration of justice.
Carnemolla v Adelaide Bank Ltd [2012] NSWCA 152

Direction by court that audio cassette tape be jointly examined by experts; audio cassette tape destroyed by plaintiff; abuse of process; power to strike out or limit plaintiff's claim; whether proportionate response; error of primary judge in dismissing balance of Further Amended Statement of Claim where causes of action stand alone; UCPR 56-58.
Clark v State Of New South Wales [2012] NSWCA 139

Costs; Sanderson orders; principles to be applied
Raulfs v Fishy Bite Pty Ltd; Fishy Bite Pty Ltd v Raulfs [2012] NSWCA 13

Whether third appellant required tutor to commence appeal; UCPR r 7.14; where third appellant subject of financial management order; no submitting appearance entered by manager; whether Court can appoint tutor; parens patriae jurisdiction; UCPR r 7.18

Bobolas v Waverley Council [2012] NSWCA 126

Civil; application for referral to legal practitioner on Pro Bono Panel; appeal raises issues concerning the propriety of the manner of conduct of the trial; in the interests of administration of justice that applicant be referred for legal assistance; Court held applicant's previous legal representative did not cease to act because applicant would not accept his advice; whether applicant would accept advice of legal practitioner to whom he is referred; applicant does not have capacity to obtain other legal assistance; interest in open justice; UCPR r 7.36
Rouvinetis v Knoll [2012] NSWCA 125

Application for leave to appeal against summary judgment; applicant's defence found to be groundless by primary Judge; no error demonstrated; application dismissed
Benchmark (Aust) Pty Limited & Anor v National Australia Bank Limited [2012] NSWCA 130

Security for costs previously ordered; subsequent self-executing order of dismissal if security not provided by specified date; appellant seeks discharge of latter order and variation of security order to reduce sum; no change in circumstances warranting review
Levy v Bablis [2012] NSWCA 128

Application for leave to appeal against interlocutory decision; strike out of applicant's cross claim by primary Judge; cross-claim not properly pleaded; no barrier to filing fresh cross claim; application dismissed.
May v Cutler Hughes & Harris; May v Brahmbhatt [2012] NSWCA 119

Security for costs; Corporations Act 2001 (Cth), s 1335; whether ordering security will stifle appeal; necessity to demonstrate inability of those standing behind company to provide security
Odyssey Financial Management Pty Ltd v QBE Insurance (Australia) Limited [2012] NSWCA 113

Application for leave to appeal against a discretionary interlocutory decision; primary Judge dismisses motion to strike out the statement of claim as pleading statute barred causes of action; whether factual issues better left to trial; no error warranting appellate intervention against the decision; application dismissed
Tyco Australia Pty Ltd t/a Wormwald v The Owners Corporation Strata Plan 49302 [2012] NSWCA 112

Repetitious applications; Alleged abuse of process; notice of motion dismissed with costs.
Macatangay v State of New South Wales [2012] NSWCA 108

Test cases; whether applicants' undertaking to be bound by findings of test case on common questions precluded the bringing of certain claims; anticipation of significant overlap between issues raised by test case and proceedings below; "common questions" does not preclude defendants from raising a defence on an issue not decided in the test case; appellants bound to the extent that findings of fact in test case could not be disputed; no abuse of process to use evidence advanced in failed prospectus liability claim in claim under Contracts Review Act 1988; provided appellants observed findings of fact of test case litigation, particulars were being put to a substantially different purpose.
Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Limited v Brakatselos [2012] NSWCA 107

Refusal of adjournment applications; no adequate explanation for late applications to vacate hearing dates; whether necessary in such circumstances to consider likelihood of prejudice to applicant or precise impact on the Court's efficient operation; appellate reluctance to interfere with judicial discretion in matters of practice and procedure.
Newton v Ellis [2012] NSWCA 106

Stay of proceedings; Referral to arbitration; Arbitration clause; Construction of arbitration clauses; Whether claim pursuant to Trustee Act 1962 (WA) and court's inherent and equitable jurisdiction a "dispute under this deed"; Relevance of defences invoking deed
Hancock Prospecting Pty Ltd v Welker [2012] NSWCA 104

Summary disposal; claims struck out because no reasonable cause of action shown; nature of test to be applied; relevance of "just, quick and cheap" provisions of Civil Procedure Act 2005; claims should be allowed to proceed to trial
Shaw v State of New South Wales [2012] NSWCA 102

Stay of proceedings; referral to arbitration; construction of arbitration clauses; agreement to refer "any dispute under this deed" to arbitration; claim pursuant to Trustee Act 1962 (WA) and court's inherent and equitable jurisdiction not a "dispute under this deed"; relevance of defences invoking deed; claims by beneficiaries to remove a trustee and vary trust are arbitrable; Civil Procedure Act 2005 s 67; exercise of discretion; referral to arbitration; part of dispute within scope of arbitration clause; no error of discretion to refuse stay; mediation clause; no error not to refer to mediation.
Rinehart v Welker [2012] NSWCA 95

Interaction of requirement that court facilitate the just, quick and cheap resolution of the real issues with the approach in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, 112 CLR 125; requirement limits the circumstances in which the court might be inclined to refuse relief on discretionary grounds - Civil Procedure Act 2005 (NSW), s 56; Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Bott v Carter [2012] NSWCA 89

Abuse of process; proceedings cross-vested from the Full Court of the Federal Court of Australia to the Supreme Court; constitutional issue to be pleaded in defence in principal proceedings; consitutional proceedings should be stayed; application for leave to appeal should be stayed; Civil Procedure Act 2005 (NSW), s 56(1); orders of single judge of Federal Court to be treated as orders of Supreme Court.
Rossmick No 1 Pty Ltd v Bank of Queensland [2012] NSWCA 85

Pleadings; whether State permitted to raise limitation defence; Limitation Act 1969, ss 50C and 50D
State of New South Wales v Gillett [2012] NSWCA 83

Six successive extensions of time for service pursuant to Uniform Civil Procedure Rules, r 1.12; service of statement of claim over three years after filing; primary judge discharges fifth and sixth extension pursuant to r 12.11(1)(e); whether primary Judge's exercise of discretion miscarried; whether challenges to findings on prejudice should be set aside; significance of the decision by the liquidator of the plaintiff to postpone service until litigation funding arrangements were in place; whether any conflict between extensions of time for service on ex parte applications and discharge orders
Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liquidation) v Publishing and Broadcasting Ltd [2012] NSWCA 79

Manager of protected person brings litigation concerning administration of protected person's estate; death of protected person before orders made in litigation; procedural steps to enable litigation to be concluded.
RL v NSW Trustee and Guardian (No 2) [2012] NSWCA 78

Appellants applied to have orders, including judgment sum of $12,000,000, stayed pending the hearing of an appeal due to their alleged impecuniosity; appellants displayed a lack of candour; evidence of complex series of family trusts; onus on applicant for stay to provide the material upon the basis on which the Court can fix the terms of the stay; although evidence suggested appellants did not actually possess the judgment sum they did not show that it was unavailable through the trusts, therefore basis for stay application not made out.
Streetscape Projects (Australia) Pty Ltd v The City of Sydney [2012] NSWCA 63

Judgments and orders; whether orders should be reopened in order to be varied.
Lahoud & Anor v Lahoud & Ors (No 2) [2012] NSWCA 55

Re-opening should be allowed where obvious that the decision has miscarried and that the miscarriage may be rectified by the attention of the primary judge rather than an appeal court; principle applies to errors of fact and errors of law.
Kopas v Celermajer Holdings Pty Ltd [2012] NSWCA 53

Stay of proceedings; where stay of Local Court criminal proceedings sought in Supreme Court; stay refused; appeal to Court of Appeal; appeal and prerogative relief proceedings not to fragment criminal proceedings except in exceptional circumstances; stay of order that has been carried out impossible; not a case of urgency; stay not available to prevent outcome one merely fears may result
Collier v Cook & Ors [2012] NSWCA 50

Judgments and orders; application to set aside judgments under Uniform Civil Procedure Rules 2005 (NSW), r 36.15; whether time limit applies; whether inherent power of the Court to reconsider interlocutory orders is preserved.
Martin v State of New South Wales (No 15) [2012] NSWCA 47

Judgments and orders; contempt; private litigant bringing contempt proceedings; requirement that charges be formulated with precision; evidence required in support of charge of contempt
Martin v State of New South Wales (No 14) [2012] NSWCA 46

Applicant filed motion seeking leave to withdraw a submitting appearance; applicant filed motion to withdraw submitting appearance when appellant's solicitors ceased to act; granting leave to withdraw a submitting appearance is a discretionary decision of the court; generally, leave should be granted where an appearance was entered by mistake or accident but not when a deliberate choice was made; other considerations include whether the applicant has an arguable case, whether there is real prejudice and whether there has been any material change of case; although no exact precedent, in accordance with principle, it is appropriate to grant leave; leave granted.
Tory v Megna [2012] NSWCA 41

Refusal to disqualify for apprehended bias; whether appellate court or court exercising supervisory jurisdiction should consider judgment of the court below on recusal application.
Barakat v Goritsas (No 2) [2012] NSWCA 36

Preliminary discovery; UCPR 5.1, 5.2; whether preliminary discovery only available if applicant establishes a threshold requirement that it has a "desire" to commence proceedings or whether that is only a discretionary consideration; desire may be characterised as something less fixed and certain than an "intention" or "purpose"; desire may be conditional; a document which assists in ascertaining the identity of the prospective defendant is a document which "relates to" the person's identity.
Roads and Traffic Authority of New South Wales v Care Park Pty Limited [2012] NSWCA 35

Whether statutory defence pleaded under Civil Liability Act 2002; Uniform Civil Procedure Rules 2005, r 14.7, 14.14; material facts; necessity to plead; ambush; fairness to opposing party; Civil Procedure Act 2005, ss 14, 56, 59 and 60.
Bellingen Shire Council v Colavon Pty Limited [2012] NSWCA 34

Action referred for enquiry and report; report substantially adopted by Judge; final judgment not entered; application to re-open; new evidence in hearsay form; witness not available for cross examination; credibility not established; court unable to assess credibility; application dismissed.

Tsu v Nemeth & Anor [2012] NSWCA 29

Application for order setting aside order of dismissal for want of prosecution; whether order of dismissal made "irregularly" because of non-observance of rule 18.3; order made in absence of party; no factor making it unjust that the order should stand; application dismissed
Northey v Bega Valley Shire Council [2012] NSWCA 28

Judgments and orders; enforcement of judgments and orders; whether writ of execution may be enforced in respect of judgment debt of trustee
Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26

Whether default judgment was given irregularly; whether plaintiff's claim was for a debt or liquidated sum; whether affidavit in support stated the source of the deponent's knowledge; whether plaintiff entitled to retain portion of the default judgment
Arnold v Forsythe [2012] NSWCA 18

Civil judgments and orders; refusal to disqualify for apprehended bias; stay sought pending appeal; whether applicant need identify an interlocutory order, other than a refusal to recuse; discussion of Michael Williams & Partners v Nicholls [2011] HCA 48; 282 ALR 685; interlocutory issues; stay pending appeal; power of judge of appeal to make order directing that trial not proceed pending determination of appeal or order directing a stay in the Court below; Supreme Court Act 1970 (NSW s 46(2)
Barakat v Goritsas [2012] NSWCA 8

Civil; interlocutory issues; Mareva order; appellate jurisdiction; power of Court of Appeal to grant Mareva orders under UCPR 25.14; considerations in granting Mareva order to appellant unsuccessful in court below; refusal to give undertaking not in itself evidence of actual or threatened diminution of assets; orders refused
Tomasetti v Brailey [2012] NSWCA 6

Felons Act 1981; leave to commence proceedings; Summons for leave to appeal; pro bono legal assistance; application refused
Potier v Arnott & Ors [2012] NSWCA 5

Civil; judgments and orders; stay; pending special leave to appeal to the High Court; test in John Fairfax & Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510 conflicts with test in Jennings construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; whether exceptional circumstances must be shown before a stay is warranted; whether substantial prospects of obtaining special leave; whether short stay appropriate even if no substantial prospects of obtaining special leave
Rinehart v Welker [2012] NSWCA 1

Precedent

Whether a decision of the Full Court of the New South Wales Supreme Court, which has been affirmed in the High Court, for reasons different to those adopted by the Full Court, is binding as a matter of law on the New South Wales Court of Appeal; authority of reasons for decision of higher court where that decision was affirmed on other grounds
Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Limited v Brakatselos [2012] NSWCA 107

Private International Law

Choice of laws; respondent not barred from bringing proceedings; right of indemnity and contribution created by New South Wales statute;
Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491 distinguished.
United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24

Professions and Trades

Medical practitioners; failure by practitioner to maintain approved professional indemnity insurance; finding by Medical Tribunal of professional misconduct; suspension from practice; finding of professional misconduct not challenged on appeal but practitioner seeks reduced suspension or fine; practitioner draws comparison with another case said to be similar and submits that that case indicates need to mitigate order of Medical Tribunal; observations on very limited value of comparison with other cases when formulating protective orders; relevance of lack of dishonesty; relevance of passage of time since events in question
Lee v Health Care Complaints Commission [2012] NSWCA 80

Real Property

Torrens system; where easement created when both dominant and servient tenements held under Old System title and all land later converted to Torrens title and subdivided; current folio relating to servient tenement issued in 2008; folio notes as an affecting encumbrance or interest "Easement affecting the land shown so burdened in Vol 6451 Fol 53"; that immediately preceding folio contains a short description of the easement but does not identify any dominant tenement; general description of benefited land available from an earlier folio identified in the immediately preceding folio; whether easement "recorded in" the current folio; whether easement "omitted"; meaning of "recorded in"
Registrar-General of New South Wales v Cihan [2012] NSWCA 297

Mortgagee's claim for possession; whether mortgagor has benefit of promissory estoppel preventing reliance on default notice
Joinder of parties; whether a person, who claims that a registered proprietor and mortgagor holds property subject to a resulting trust, is a necessary party to proceedings brought by the mortgagee for possession of the property

Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295

Security for costs; UCPR r 51.50; whether special circumstances; impecunious appellant; relevance of benefit to appellant's creditors if appeal succeeds
Zakka v George Elias t/as Cadmus Lawyers [2012] NSWCA 277

Section 170 Conveyancing Act 1919; the legislatively enumerated methods of service serve to increase, not limit, the ways in which service can be effected; any method by which a document actually comes to the attention of the person to be served is sufficiently served for the purposes of the section; Notice of Intention to Apply for Foreclosure required to be served on mortgagor; notice in electronic format attached to an email sent to the mortgagor by his solicitor was actual service of the mortgagor

Spencer v Bamber [2012] NSWCA 274

Real Property Act 1900, ss 12A(3) and 12(3)(b); limits of the operation of the prohibition of action against the Registrar-General where Register altered; no effect on other provisions of the Act such as ss 122 and 138; meaning of "through or under"; no accrued rights if no indefeasibility.
Sahab Holdings Pty Ltd v Registrar-General (No 2) [2012] NSWCA 42

Conveyancing; voluntary alienation to defraud creditors; transfer of land by judgment debtor; no intent to defraud creditors by making execution against land impossible
Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26

Valuation of Land Act 1916; heritage listed building; assumptions; same building but new; increase in cost of construction of a copy of the heritage restricted building reduced the land values, deduction for the building’s actual condition allowed.
Valuer-General of New South Wales v In Adam Pty Limited [2012] NSWCA 20

Remedies

Mandatory injunction; applicant sought quia timet relief; whether injunction available for threatened negligent conduct; whether respondent in breach of legal duty; duty arising under the general law; whether distinction between judicial review of discretionary decision and quia timet relief; Civil Liability Act 2002 (NSW), ss 43 and 43A; Crimes (Administration of Sentences) Act 1999 (NSW), ss 10-13
Patsalis v State of New South Wales [2012] NSWCA 307

Res Judicata

Cause of action estoppel order for specific performance but not damages; later claim for damages barred.
Lahoud & Anor v Lahoud & Ors (No 2) [2012] NSWCA 55

Restitution

Unjust enrichment; respondent paid cost of construction of road roundabout giving access to properties of both parties; whether the appellant impliedly requested the respondent to construct the roundabout for their joint benefit; no reliance; respondent not entitled to recover half of the construction cost from the appellant.
Progressive Pod Properties Pty Ltd v A & M Green Investments Pty Ltd [2012] NSWCA 225

Claim to recover moneys as paid under a mistake of fact or for total failure of consideration; appellant alleged paid under an agreement for transfer by respondent of an interest in a restaurant business; agreement alleged to have been made by agent; agency and agreement denied; respondent used moneys to discharge liabilities; not unjust for respondent to retain payment
Prasad v Sangha [2012] NSWCA 92

Statutory Interpretation



Construction of Part 1.2 of the Motor Accidents Compensation Act 1999 (NSW); entitlement to damages; whether accident was a "blameless motor accident" within the meaning of the definition of that expression in s 7A of the Act; meaning of the word "fault" in the definition of "blameless motor accident"; construction of the definition of "fault" and whether it includes the non tortious negligence of the injured party; whether a restrictive construction of "fault" would be inconsistent with the use of the word "fault" in other provisions of the Act.
Axiak v Ingram [2012] NSWCA 311

Felons (Civil Proceedings) Act 1981 (NSW), ss 3 and 4; requirement that person in custody as a result of conviction for a felony obtain leave to commence civil proceedings; whether leave requirement applies to applications for relief in accordance with public law principles; whether leave requirement now applies to any person in custody as a result of a conviction for a serious indictable offence; whether appropriate to refer to repealed provision to assist in construction of unrepealed provision; Crimes Act 1900 (NSW), ss 580E-580F
Patsalis v State of New South Wales [2012] NSWCA 307

Principles; words to be given ordinary and grammatical meaning having regard to context and legislative purpose; whether Full Bench erred in imputing policy to legislature; Transport Appeal Boards Act 1920 s 13; whether compliance with time limit a pre-condition to valid appeal; meaning of "lodged"
Rail Corporation New South Wales v Brown [2012] NSWCA 296

Section 354 Workplace Injury Management and Workers Compensation Act 1998; procedures before Commission not governed by rules of evidence; Workers Compensation Commission Rules; evidence required to be logical and probative, relevant to facts in issue and issues in dispute, not based on speculation or unsubstantiated assumptions, not in form of unqualified opinions; rules not to be construed in manner inconsistent with statute.
Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282

Criminal Assets Recovery Act 1990 (NSW), ss 13A, 31D, 63; whether power to order examination limited by general law principles relating to a fair trial
New South Wales Crime Commission v Jason Lee [2012] NSWCA 276

Civil Liability Act 2002 (NSW), s 3B(1)(a); intentional act that is done by a person with intent to cause injury; purpose of leaving those who commit intentional torts to the operation of the general law; provision engaged by treatment known not to be reasonably necessary
Dean v Phung [2012] NSWCA 223

Appellant and former member of Legislative Assembly married for duration of parliamentary service, divorced and remarried just prior to former member's death; appellant not entitled to pension pursuant to s 23(1) of the Parliamentary Contributory Superannuation Act 1971; extrinsic materials not able to be relied upon to displace clear words of statute.
Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2012] NSWCA 231

Power of court to rectify corporate act which is taken in contravention of corporate constitution, Corporations Act 2001 s 1322 considered; where primary judge granted relief in relation to purported appointment of additional director by de facto director; whether purported act contravening constitution by person never validly appointed to office is a "contravention" that can be cured by s 1322(4)(ii); remedial provisions to be construed broadly; held "contravention" does not mean every invalid act done in relation to the corporate constitution, despite wide meaning; additional director's appointment not capable of being validated under s 1322
Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76

Anti-Discrimination Act 1977 s 49ZT; unlawful, by public act, to incite hatred; meaning of “incite”; whether regard must be had to effect of act on class of persons to whom it is directed; whether ordinary or reasonable member of class considered; whether defence of "good faith" requires objective assessment of defendant's intentions.
Sunol v Collier (No 2) [2012] NSWCA 44

Building and Construction Industry Security of Payment Act 1999; words and phrase "related goods and services"
Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31

Avoidance of unjust or capricious result - applicable principles in construing Australian Act derived from or based on international instruments.
United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24

Succession

Application for family provision order under Part 3 Succession Act 2006; comparison of that legislation with former Family Provision Act; whether new legislation requires departure from approaches adopted under former legislation; testatrix with five children gives small legacy only to one daughter and makes more extensive provision for other children; long estrangement between testatrix and daughter concerned; evaluative decision to be made by the court; observations on need for order to reflect community values
Andrew v Andrew [2012] NSWCA 308

Application for provision under Part 3 Succession Act 2006; testatrix with three adult children leaves whole estate to two of them equally; long estrangement between third child and testatrix; third child obtains at first instance an order giving her a legacy of roughly one-third of estate; held primary judge correctly applied jurisdictional or "first stage" test; the discretion miscarried at "second stage"; discretion re-exercised to reduce legacy.
Keep v Bourke [2012] NSWCA 64

Wills, Probate and Administration; construction and effect of testamentary dispositions; ademption of specific bequest; circumstances in which sale, in testatrix's lifetime, of specifically bequeathed property does not adeem bequest.
RL v NSW Trustee and Guardian [2012] NSWCA 39


Taxation

Payroll tax; grouping provisions; exercise of power to exclude businesses from group; whether employees of service provider performed solely or mainly in connection with the other business; whether agreement in relation to services one in respect of employment or performance of duties by service provider's employees; businesses not carried on "substantially independently" of each other; Pay-roll Tax Act 1971
Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181

Torts

Negligence; causation; 12 year old respondent injured when he fell from stairs in unit block owned and managed by the appellant; stair railing capping held by respondent dislodged when he was descending the stairs quickly and looking over the railing for his friend; primary judge found breach of duty of care by appellant in failing to provide secure capping; whether breach of duty was a cause of the respondent's injury; primary judge did not err in preferring evidence of one expert witness over another
NSW Land & Housing Corporation v Dia [2012] NSWCA 321

Robbery at Post Office; post office employee arrested; whether wrongful arrest and false imprisonment, s 352(2) Crimes Act 1900; whether arrest for the purpose of questioning wrongful; reasonable cause for suspicion that offence committed; malicious prosecution claim; reasonable and probable cause.
Clyne v State of New South Wales [2012] NSWCA 265

Duty of care; breach; inadequate lighting in car park; car park user tripped on log in darkness en route to vehicle; reasonable requirement for car park operator to take precautions; no contributory negligence; damages; past domestic assistance; sufficient evidence to justify conclusion of 1-2 hours per day of gratuitous care
Upper Lachlan Shire Council v Rodgers [2012] NSWCA 259

Negligence; solicitor's duty of care; solicitor retained to advise on nervous shock claim; whether solicitor under obligation to take additional or positive step; solicitor settled claim pursuant to client's instructions; solicitor entitled to follow instructions of client; no evidence of client's mental or emotional incapacity to give instructions
Keddie & Ors v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254

Negligence; collision between skier and snowboarder at ski resort; skier in the course of his employment by ski resort; no breach of duty by employer; whether unsafe system of work.
Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Defences; no basis for extending the protection of an officer from tortious liability when enforcing a judicial order of a court, valid on its face, to an order which is a wholly invalid exercise of non-judicial power of the kind described by the High Court in Kable; false imprisonment; plaintiff detained pursuant to order of Supreme Court on application of DPP pursuant to purported State legislation; legislation incompatible with judicial power and invalid; deprivation of liberty carried out by a person for whose conduct the State was liable; deprivation of liberty not justified by law; State vicariously liable for conduct which was tortious absent statutory protection; Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8 and 10.
Kable v State of New South Wales [2012] NSWCA 243

Negligence; patron slipping on internal stairs in hotel; liability of occupiers and architect; foreseeability of risk by occupiers and architect; breach of duty; what response was required by occupiers and architect to foreseeable risk of injury; causation; respondent entitled to rely on notice of contention; apportionment of liability between occupiers and architect.
Indigo Mist Pty Limited v Palmer [2012] NSWCA 239

Tresspass to the person; medical practitioner providing treatment that was objectively unnecessary and without therapeutic effect; defence of consent not available; burden of proof of demonstrating consent of patient; medical practitioner was reckless as to whether treatment was either appropriate or necessary; exemplary damages should be awarded
Dean v Phung [2012] NSWCA 223

Negligence; public authority refused to issue certificate of roadworthiness; plaintiff alleges breach of duty of care; proceedings constitute an attempt to review a decision of a public authority through a claim for damages; Civil Liability Act 2002 (NSW), ss 43 to 44
Hetherington-Gregory v All Vehicle Services [2012] NSWCA 232

Malicious prosecution; discussion of governing principles; onus of proof on plaintiff to demonstrate absence of reasonable and probable cause in the prosecution of the relevant charges; onus of proof not discharged; primary judge erred in finding that the elements of the cause of action had been established; appeal allowed.
State of New South Wales v Quirk [2012] NSWCA 216

Negligence; ss 5B and 5D of the Civil Liability Act 2002; appellant slipped and fell on painted strip of pedestrian crossing within school grounds; the risk of harm to a person slipping on the wet surface of the crossing was foreseeable and not insignificant; respondent breached duty of care; negligence was not a necessary condition to the occurrence of the appellant's injury.
Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151

Negligence; risk of harm; inexperienced forklift driver failed to spread the tines of the forklift; defendant knew or ought reasonably to have known of the risk and should have warned plaintiff as to the known risk; Court held ‘injury’ within terms of Motor Accidents Compensation Act 1999 (NSW); Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11 distinguished.
TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149

Negligence; motor vehicle accident; vehicle entering highway hit by second vehicle already on highway; entering highway was a dangerous manoeuvre in the circumstances; driver already on highway was travelling at an unsafe speed; identification of relevant risk
Hansen v Slattery Transport (NSW) Pty Ltd [2012] NSWCA 145

Contributory negligence; motor vehicle accident; pedestrian struck by car; apportionment of liability; whether primary judge erred in omitting to consider greater potential of vehicle to cause harm than pedestrian
Smith v Zhang [2012] NSWCA 142

Negligence; duty of care; employee injured whilst assisting in unloading contractor's vehicle; employer knew or should reasonably have known of risk of injury; failure to provide a safe system of work; apportionment between tortfeasors; s151H and 151Z Workers Compensation Act 1987; reduction of damages by reason of contribution recoverable from employer.
Compulsory third party motor vehicle insurance; metal frames on trailer unsecured during unloading operations; defect in vehicle for purposes of Motor Accidents Compensation Act 1999; accident occurred in use or operation of vehicle.

Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132

Negligence; whether duty of care arguably owed by employer to employee in relation to dismissal from employment
Shaw v State of New South Wales [2012] NSWCA 102

Negligence; medical practitioner; duty to warn patient of material risks inherent in proposed surgery; multiple material risks; whether warning was required; causation; whether failure to warn of material risk that did not eventuate causally connected to injury; Civil Liability Act 2002, s 5D
Wallace v Kam [2012] NSWCA 82

Negligence; common law duty of care; s 33 Companion Animals Act 1998 (NSW); whether local council owed a duty to residents to declare a dog "dangerous"; relationship between council and residents created by special statutory power; degree of control exercised by council; vulnerability of those who depend on proper exercise of statutory power; Court held hunting dogs were not "dangerous" for the purposes of s 33; s 43A Civil Liability Act 2002; exercise of "special statutory power"; council's failure to declare dog(s) dangerous was not so unreasonable no authority possessed of special statutory power could properly consider omission to be reasonable; s 44 Civil Liability Act 2002.
Warren Shire Council v Kuehne & Anor [2012] NSWCA 81

Causation; increase in risk is not to be equated with factual causation; satisfaction of the necessary condition test not required; open to Tribunal to accept pathologist's opinion as to link between exposure to asbestos dust and lung cancer
Allianz Australia Ltd v Sim; WorkCover Authority (NSW) v Sim; Wallaby Grip (BAE) Pty Ltd (In liq) v Sim [2012] NSWCA 68

Road accident with unidentified vehicle; action brought against Nominal Defendant; Motor Accidents Compensation Act 1999 s 34(1); held there was not "due inquiry and search"; the injured pedestrian could reasonably be expected to obtain details of the vehicle at accident scene.
Nominal Defendant v Meakes [2012] NSWCA 66

Appeal: assault and battery during apprehension pursuant to s 24 Mental Health Act 1990 (NSW); the trial judge erred in failing to properly consider admissions made by the respondent in pleadings adverse to the ultimate finding and erred in failing to properly consider medical records supporting the appellant's version of events.
Willcocks v State of New South Wales [2012] NSWCA 59

Negligence; personal injury; appellant invited to respondents' home; appellant afraid of dogs and respondents owned hunting dog called Cougar; appellant injured when slipped and fell while leaving hastily after seeing dog inside premises; whether breach of respondents' duty of care; whether risk of injury foreseeable and not insignificant; whether respondents should have taken precaution of keeping dog outside; Civil Liability Act 2002 s 5B.
Novakovic v Stekovic [2012] NSWCA 54

Contributory negligence; collision of unknown motor vehicle with bicycle; gross intoxication of plaintiff and failure to wear helmet; significant injuries to spine; failure to take care only relevant to apportionment where particular failure led to particular harm; onus on defendant to show particular failure; unable to prove nexus of intoxication to loss of control; no error shown in judge's assessment of 5% contribution for lack of helmet
Nominal Defendant v Rooskov [2012] NSWCA 43

Whether finding of unlawful arrest justified; whether arresting officer had reasonable grounds for suspicions.
State of New South Wales v Zreika [2012] NSWCA 37

Negligence; failure to install guide posts on roads; identification of relevant risk; public or other authorities; special statutory power; Civil Liability Act 2002, ss 5B, 43A; whether Council exercising special statutory power under Roads Act 1993, s 87
Bellingen Shire Council v Colavon Pty Limited [2012] NSWCA 34

Negligence; duty of care owed by owner of premises to person coming onto premises to carry out work; respondent did not owe an extended duty of care to plaintiff based on knowledge of condition of building; respondent didn’t have requisite knowledge; independent contractor coming onto premises in order to undertake a task within their professional competence will usually be expected to exercise reasonable care for their own safety, having regard to the possibility of risks which are not known to the respondent.
Gaskin v Ollerenshaw [2012] NSWCA 33


Trade And Commerce

Misleading or deceptive conduct; unconscionable conduct; prospective lessee withdraws from negotiations for agreement for lease; no misconduct of either type committed
BBB Constructions Pty Ltd v Aldi Foods Pty Ltd [2012] NSWCA 224

Misleading and deceptive conduct; ss 51A, 52 Trade Practices Act 1974; ss 41, 42 Fair Trading Act 1987; representations as to future matters; no reasonable grounds for making representations; loss suffered in reliance
Willett v Thomas [2012] NSWCA 97

Trusts and Trustees

Express trusts constituted inter vivos; partner paid money into capital of partnership where money subsequently misappropriated; misappropriated funds not subject to Quistclose trust; constructive trusts; no Muschinski v Dodds trust; tracing; where partnership monies misappropriated and applied to discharge joint liability of a director of partner and third party; partner's beneficial interest in partnership assets do not entitle partner to claim traceable proceeds or personal rights against owner of traceable proceeds.
Raulfs v Fishy Bite Pty Ltd; Fishy Bite Pty Ltd v Raulfs [2012] NSWCA 13

Wills and Estates

Application to revoke grant of probate; operation of "suspicious circumstances" rule in context of an allegation of undue influence; whether, having affirmatively established knowledge and approval, proponents of will also required to disprove any remaining suspicion of undue influence; family provision claim; four adult children; two sons gave false and incomplete evidence as to extent of earning capacity or financial resources; whether adverse inferences should have been drawn; re-exercise of discretion under s 7 of the Family Provision Act 1982; circumstances justify provision from notional estate.
Tobin v Ezekiel [2012] NSWCA 285

Workers' compensation

Worker injured whilst undertaking site rehabilitation at a coal mine where operations had been discontinued; whether worker was a "coal miner" for the purpose of Pt 18 Clause 3(1) of Schedule 6 to the Workers Compensation Act 1987; site of employment was a "mine" to which the Coal Mines Regulation Act 1982 applied; mine had not been “abandoned”; rehabilitation of site occurred "in connection with mining" for the purpose of the definition of "mine" in s 5(1)
Select Civil (Kiama) Pty Ltd v Kearney [2012] NSWCA 320

Worker injured at party held on work premises; party held to farewell work colleague and to celebrate birthdays of persons having no connection to employer; employer provided no food, drink, entertainment or security for party; worker attended party to meet clients, make a good impression and join in with work team; whether sufficient connection between injury and employment; remitted to Workers Compensation Commission.
Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324

Workers' compensation; significant impairment of cardiac function; trial judge erred in failing to award any amount for non-economic loss; past economic loss; trial judge erred in differential treatment of plaintiff based on previous incarceration; relevant question is whether injury caused impairment of economic capacity whereby plaintiff suffered a loss; future economic loss; discounts for vicissitudes; prison record relevant vicissitude; trial judge entitled to award damages by way of buffer; CLA s 13; reassessment of damages by appellate court; no adverse credit findings by trial judge; Court able to assess damages on evidence; SCA s 75A.
Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293

Police officer; lump sum compensation for psychiatric injury; transitional provisions require reduction in compensation for events occurring before amendment; whether events occurring before amendment reduce whole person impairment; whether plaintiff suffered previous injury; Workers Compensation Act 1987 (NSW), Sch 6, Pt 18C, cl 3(1); Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 323
SAS Trustee Corporation v Schmidtke [2012] NSWCA 269

Workers' Compensation Commission: review of Arbitrator’s decision by Presidential member; whether Presidential member bound to apply the principle in Fox v Percy; whether breach of procedural fairness by Presidential member; whether error of law material to decision of Presidential member.
Workers Compensation Nominal Insurer v Adnan Al Othmani [2012] NSWCA 45

Appeal; Commission did not err in point of law; evidence capable of supporting finding that nature and conditions of employment constituted a substantial contributing factor in relation to worker's injury
Insurer who was not formally a party to proceedings before Commission entitled to appeal under s 353 Workplace Injury and Workers Compensation Act 1998
StateCover Mutual Ltd v Smith [2012] NSWCA 27

Passenger on board aircraft suffered injury during flight while landing in Texas, whilst in course of employment for respondent; whether respondent could recover workers' compensation payments paid through insurer from applicant pursuant to Workers Compensation Act 1987 (NSW), s 151Z(1)(d).
United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24

Workers Compensation Act 1987 (NSW), s 170; employer insurance policy; statutory compulsory workers' compensation scheme; power to make further premium determination during and following review process.
L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15