Court of Appeal
-
- Catchwords
- TRUSTS AND TRUSTEES - express trusts constituted inter vivos - Quistclose trust - partner paid money into capital of partnership - money subsequently misappropriated - whether misappropriated fund subject to Quistclose trust - existence of Quistclose trust depend on the circumstances - moneys paid and held for purposes of partnership - no Quistclose trustTRUSTS AND TRUSTEES - constructive trusts - Muschinski v Dodds trust - capital contribution made to partnership which failed prematurely - specific terms of partnership agreement providing for division of assets on its termination - no Muschinski v Dodds trust TRUSTS AND TRUSTEES - tracing - partnership monies misappropriated and applied to discharge joint liability of a director of partner and third party - whether other partner entitled to personal remedy against third party and proprietary remedy against her property - partner's beneficial interest in partnership assets not entitle partner to claim traceable proceeds or personal rights against owner of traceable proceedsPRACTICE AND PROCEDURE - costs - Sanderson orders - principles to be applied
- Judgment of
- Campbell JA at [1]Meagher JA at [113]Barrett JA at [114]
- Category
- Principal judgment
-
- Catchwords
- PRACTICE AND PROCEDURE - Notice of motion - Order was sought to stay the enforcement of a costs judgment- Unnecessary to determine the notice of motion as the respondents do not seek to enforce the costs judgment until further proceedings in the Common Law Division of the Supreme Court have been heard and determined - Notice of motion remitted to the Common Law Division of the Supreme Court - Costs of the notice of motion
- Judgment of
- Tobias AJA
- Category
- Procedural and other rulings
-
- Catchwords
- PRACTICE AND PROCEDURE - Appeal - Application for expedition unopposed - Contract - inability to raise totality of funds to complete purchase - security for costs.
- Judgment of
- Tobias AJA
- Category
- Procedural and other rulings
-
- Catchwords
- PROCEDURE - Application for Leave to Appeal - Date for hearing of the summons for leave to appeal vacated - Applicant seeking to appeal against refusal of legal aid to the Legal Aid Review Committee - Application of ss 56 and 57 of the Legal Aid Commission Act 1979 - Exercise of Court's discretion to vacate hearing date pending determination of Legal Aid appeal.
- Judgment of
- Tobias AJA
- Category
- Procedural and other rulings
-
- Catchwords
- APPEAL AND NEW TRIAL - procedural fairness - primary judge proceeded on the basis that a binding contract existed - findings made with respect to consideration for contractual promises - such matters not expressly raised by the pleadings - whether lack of procedural fairness - trial in fact conducted on a basis going beyond the pleadings - parties expressly accepted in separate arbitration proceedings that they were bound by the relevant contract - no operative procedural fairness.
- Judgment of
- Basten JA at [1]; Barrett JA at [2]; Tobias AJA at [41]
- Category
- Principal judgment
-
- Catchwords
- APPEAL - civil - leave to appeal - second appeal in series - appeal below limited to question of law - issue of principle raised for the first time in application for leave to appeal - whether application without merit LEGAL PRACTITIONERS - existence of retainer - solicitor performed work and appeared prior to provision of written agreement and costs disclosure - whether relationship of solicitor and client existed - discussion of Pegrum v Fatharly (1996) 14 WAR 92; Hendriks v McGeoch [2008] NSWCA 53; (2008) Aust Torts Rep ¶81-942; Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
- Judgment of
- Basten JA at 1; Whealy JA at 20
- Category
- Principal judgment
-
- Catchwords
- BANKRUPTCY - Summons seeking leave to appeal - Bankrupt applicant - Effect of bankruptcy on proceedings - Proceedings commenced by bankrupt before sequestration - "Action" stayed until trustee makes election - Whether summons seeking leave to appeal is "property" within meaning of s 58 - Whether summons seeking leave to appeal is an "action" within the meaning of s 60 - Whether the trustee made an election to prosecute or discontinue the "action" - Bankruptcy Act 1966 (Cth), ss 58 and 60
- Judgment of
- Beazley JA
- Category
- Principal judgment
-
- Catchwords
- ENVIRONMENT AND PLANNING - acquisition of land - whether remediation direction effectively prohibiting use of land within power of Court of Minister - whether constitutes acquisition of landENVIRONMENT AND PLANNING - development control or assessment - planning instruments - local environmental plan - interpretation - whether local environment plan provided exception to consent requirement under Native Vegetation Act 2003 s 12
- Judgment of
- Bathurst CJ at [1]; Whealy JA at [39]; McClellan CJ at CL at [40]
- Category
- Principal judgment
-
- Catchwords
- PRACTICE AND PROCEDURE - application for leave to appeal from interlocutory decision of the Appeal Panel of the Administrative Decisions Tribunal - no question of law shown by applicant - application dismissedADMINISTRATIVE LAW - Administrative Decisions Tribunal - procedure - leave to appeal from interlocutory decision of Appeal Panel - meaning of "interlocutory function"
- Judgment of
- Barrett JA at [1]Sackville AJA at [2]
- Category
- Principal judgment
-
- Catchwords
- TORTS - negligence - duty of care - employer-employee relationship - 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 workTORTS - workplace injury - apportionment between tortfeasors - employee injured whilst assisting in unloading contractor's vehicle - risk of injury in unloading operations - contractor 60% and employer 40% responsible for employee's injuries TORTS - workplace injury - action by employee against third party - s151Z Workers Compensation Act 1987 - reduction of damages by reason of contribution recoverable from employer - calculation of reduction - s 151H Workers Compensation Act 1987 - degree of permanent impairment of injured worker - whether need for medical assessment under Workplace Injury Management and Workers Compensation Act 1998 TORTS - compulsory third party motor vehicle insurance - plaintiff injured whilst assisting in unloading trailer attached to prime mover - metal frames on trailer unsecured during unloading operations - whether defect in vehicle for purposes of Motor Accidents Compensation Act 1999 - whether accident occurred in use or operation of vehicle
- Judgment of
- Basten JA at [1] Macfarlan JA at [54] Barrett JA at [138]
- Category
- Principal judgment
-
- Catchwords
- COSTS - ASIC as intervener - intervention efficient and of significant assistance to the Court - intervention proper and in public interest - intervener bears own costs - intervener not ordered to pay costs for any extension of hearings
- Judgment of
- Bathurst CJ at [1]Allsop P at [2]Campbell JA at [22]
- Category
- Costs
-
- Catchwords
- PRACTICE AND PROCEDURE - application for leave to appeal against summary judgment - applicant's defence found to be groundless by primary Judge - no error demonstrated - application dismissedCONTRACTS - 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
- Judgment of
- Barrett JA at [1]Sackville AJA at [2]
- Category
- Principal judgment
-
- Catchwords
- FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - proceedings relating to care and protection - competing applications for allocation of parental responsibility determined by Children's Court - orders varied on appeal to District Court - JUDICIAL REVIEW application for order in the nature of certiorari in respect of District Court decision - whether jurisdictional error - whether error on the face of the record - whether relevance of principles in United Nations Convention on the Rights of the Child wrongly rejected - whether failure to comply with s 9(2)(c) of Children and Young Persons (Care and Protection)Act 1998 - whether s 79(3) implemented - whether failure to comply with s 13 and 78A provisions with respect to Aboriginality
- Judgment of
- Barrett JA (at [1]); Tobias AJA (at [86]); Schmidt J (at [87])
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - 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 - whether any change in circumstances warranting review
- Judgment of
- Whealy JA at [1]; Meagher JA at [2]; Barrett JA at [3]
- Category
- Interlocutory applications
-
- Catchwords
- COSTS - where Calderbank letter - no presumption as to indemnity costs - genuineness of offer - reasonableness of rejection.
- Judgment of
- Bathurst CJ at [1]; Allsop P at [15]; Beazley JA at [16]
- Category
- Costs
-
- Catchwords
- DEFAMATION - Whether matter complained of conveyed defamatory imputations - Application of ordinary reasonable reader test DEFAMATION - Defences - Qualified privilege - Common law - Reciprocity of interest - Employers' association - Letter sent to members of association - Communication of defamatory imputations - Whether matter complained of published pursuant to a duty to protect the financial and business interests of the association and its members - Whether matter complained of published on occasion of qualified privilegeDEFAMATION - Defences - Qualified privilege - Proof of malice - Admissibility of draft letter as evidence of malice DEFAMATION - Damages - Whether award of compensatory and aggravated damages excessiveAPPEAL - General principles - 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
- Judgment of
- Beazley JA at [1]; McColl JA at [154]; Tobias AJA at [155]
- Category
- Principal judgment
-
- Catchwords
- 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 PROCEDURE - 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 7.18COSTS - delays from non-compliance with directions and processing legal aid application - appellants initially unrepresented - effect of delays on costs orders
- Judgment of
- McColl JA at [1], Macfarlan JA at [78], Tobias AJA at [79]
- Category
- Principal judgment
-
- Catchwords
- JOINT VENTURE - appeal - joint venture to obtain development consent for residential units prior to sale - whether evidence supported apportionment of profit under joint venture - whether expenses to be deducted from account of net profit extended beyond time at which development consent was obtained to include expenses relating to subsequent sale or disposition - whether expenses relating to development consent included those that had accrued but not been paid - whether primary judge erred in calculation of 'sale price' for the purpose of accounting for net profit - whether orders made were justified.
- Judgment of
- McColl JA at [1]Whealy JA at [2]Tobias AJA at [75]
- Category
- Principal judgment
-
- Catchwords
- MOTOR VEHICLE - vehicle substantially damaged in accident - whether vehicle had sustained "non-repairable damage" - statutory write-off - Road Transport (Vehicle Registration) Act 1997, s 16B - Road Transport (Vehicle Registration) Regulation 2007, reg 83C(1)(c)INSURANCE - motor vehicle insurance - insurer to elect between repairing, paying the costs of repair or making a cash settlement - must elect within reasonable time - in absence of such an election whether insurer liable to pay the agreed value of the vehicle
- Judgment of
- Macfarlan JA at [1]Meagher JA at [2]Tobias AJA at [59]
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - civil - parties - representation - application for referral to legal practitioner on Pro Bono Panel - appeal raises issues concerning the propriety of the manner of conduct of the trial - whether in the interests of administration of justice that applicant be referred for legal assistance - whether applicant's previous legal representative ceased to act because applicant would not accept his advice - whether applicant would accept advice of legal practitioner to whom he is referred - whether applicant has capacity to obtain other legal assistance - interest in open justice - Uniform Civil Procedure Rules 2005 (NSW), r 7.36
- Judgment of
- Basten JA
- Category
- Procedural and other rulings
-
- Catchwords
- COSTS - exceptions to the general rule that costs follow the event - offer of compromise - compliance with Uniform Civil Procedure Rules 2005 (NSW) - plaintiff's offer required the defendant to pay plaintiff's costs - whether offer was exclusive of costs - purpose of requiring offers under the Rules to be exclusive of costs - Uniform Civil Procedure Rules 2005 (NSW), r 20.26 COSTS - Calderbank offer made to several defendants jointly - defendants in different interests - whether unreasonable for one defendant to fail to accept offer COSTS - appeal costs - exceptions to the general rule that costs follow the event - offer of compromise - 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
- Judgment of
- Basten JA at 1; Meagher JA at 1; Handley AJA at 1
- Category
- Procedural and other rulings
-
- Catchwords
- TORTS - Malicious prosecution - Whether onus on appellant to prove innocence - Whether the indictment was spent or extant - Whether exercise of DPP's statutory power under s7(2)(b) Director of Public Prosecutions Act 1986 (NSW) was the entry of a nolle prosequi - whether the Court of Appeal was bound by the decision of Davis v Gell (1924) 35 CLR 275
- Judgment of
- Beazley JA at 1; McColl JA at 2; Tobias AJA at 3
- Category
- Principal judgment
-
- Catchwords
- CONTRACT - 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 - whether obligation to seek amendment of development consent
- Judgment of
- Macfarlan JA at [1] Meagher JA at [50] Tobias AJA at [51]
- Category
- Principal judgment
-
- Catchwords
- COSTS - indemnity costs - offer of compromise
- Judgment of
- Allsop P at [1] Macfarlan JA at [10] Handley AJA at [11]
- Category
- Costs
-
- Catchwords
- JUDICIAL REVIEW - 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 - whether decision of Commission reserved right to seek future variation of award - whether jurisdictional error.
- Judgment of
- Bathurst CJ at [1]; Basten JA at [14]; Barrett JA at [15]
- Category
- Principal judgment
-
- Catchwords
- PRACTICE AND PROCEDURE - 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
- Judgment of
- Sackville AJA at [1]Tobias AJA at [14]
- Category
- Principal judgment
-
- Catchwords
- PRACTICE AND PROCEDURE - 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 - whether any error warranting appellate intervention against the decision - application dismissed
- Judgment of
- Macfarlan JA at [1]Sackville AJA at [1]
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - dismissal for want of provision of security for costs - no question of principle
- Judgment of
- McColl JA
- Category
- Procedural and other rulings
-
- Catchwords
- PRACTICE & PROCEDURE - expedition - UCPR r 51.60 - no question of principle
- Judgment of
- McColl JA
- Category
- Procedural and other rulings
-
- Catchwords
- DEFAMATION - appeal against jury verdict - s 7A Defamation Act 1974 - publication - whether defamatory matter published if made available for third party to read or comprehend whether or not third party does soDEFAMATION - publication - petition handed around at general meeting - whether jury finding petition not published by defendants one no reasonable jury could reachDEFAMATION - jury findings imputations not conveyed - whether jury misled on test of ordinary reasonable reader or listener - whether jury findings ones no reasonable jury could reach DEFAMATION - jury finding imputations not conveyed - where jury incorrectly directed to answer additional questions - effect of additional answers - whether answers influenced by publication findings - whether jury properly discharged function DEFAMATION - imputations - whether jury findings none of pleaded imputations conveyed ones no reasonable jury properly instructed could reachDEFAMATION - publication - whether publication established if defamatory matter read and comprehended by joint tortfeasorAPPEAL AND NEW TRIAL - directed verdicts - whether court should direct verdict if jury verdict set aside - s 108(3) Supreme Court Act
- Judgment of
- Beazley JA (at [1]), McColl JA (at [2]), Sackville AJA (at [392])
- Category
- Principal judgment
-
- Catchwords
- PRACTICE AND PROCEDURE - 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
- Judgment of
- McColl JA
- Category
- Procedural and other rulings
-
- Catchwords
- APPEAL - application for leave to appeal - no question of principle
- Judgment of
- Macfarlan JA at [1]Sackville AJA at [15]
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - 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
- Judgment of
- Beazley JA at [1] Macfarlan JA at [2] Whealy JA at [36]
- Category
- Principal judgment
-
- Catchwords
- PRACTICE AND PROCEDURE - Repetitious applications - Alleged abuse of process.
- Judgment of
- Macfarlan JA at [13], [19]; Sackville AJA at [14]; Tobias AJA at [1], [18]
- Category
- Procedural and other rulings
-
- Catchwords
- CONTRACTS - performance - general principles - payment placed in post before due date for payment - posted payment arriving after due date for payment - whether "postal rule" requires that payment is made on posting the payment - "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 - circumstances of agreement and communications regarding individual payments did not imply that posting a cheque was only form of making payment, nor that posting was payment in itselfCONTRACTS - construction of terms - loan contract for investment in tea tree plantation business - loan contract provided discounted rate of interest on repayments of principle in consideration for the borrower paying interest one year in advance as a lump sum - interest payments need only be paid if business producing net income - business not producing net income - consequently no payment of interest made by borrowers beyond second year - actual payment of interest not required, as adequate consideration in exchange of promises to discount rate and pay interest in advance (when it is payable) - discounted rate of interest to apply until terminationCONTRACTS - performance - general principles - payment placed in post before due date for payment - posted payment arriving at postal box of creditor before due date for payment - endorse bank cheque crossed "Not Negotiable" - creditor's bank unwilling to accept cheque without authorisation from payee of cheque - authorisation sent and cheque banked after due date for payment - whether payment "punctual" - creditor accepted cheque as payment on date of receipt conditional on it being met at presentation and payee completing bank authorisation form - conditions satisfied - payment was punctualCONTRACTS - performance - where indemnity agreement provided that indemnity effective and enforceable if borrower "punctually" paid amounts under related loan agreement - appellants made payments by cheque in post - where cheques posted before due date for payment, but arrived after that date - appellant argued for existence of "postal rule" whereby posting of payment would equate to actual performance of payment obligation - cases distinguished - no general "postal rule" existsCONTRACTS - performance - where contract requires payment to be made "punctually" - 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 - indemnity in this case was in the form of an exclusion - no error by primary judge in assuming debtor bore onusPRACTICE - general principles - test cases - undertakings given to Court at first instance by sundry defendants agreeing to be bound on common questions by findings in test case - test case proceedings heard at first instance, by the New South Wales Court of Appeal and ultimately by the High Court of Australia - certain arguments struck out by primary judge as being precluded by undertakings in relation to test case - 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 - yet test defendant only defendant who had filed defence or cross claim at time of giving undertakings - failure to have parties agree in advance what common questions would be - appellants argue "postal rule" defence not raised in test case - "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 - "postal rule" defence concerned not with the time of payment, but what acts count as payment - primary judge struck out defence for incorrect reason - but conclusion of Court of Appeal on "postal rule" mean it was correct to strike the defences out as the particulars disclosed no arguable casePRACTICE - general principles - undertakings to be bound by findings of test case - whether abuse of process to use evidence advanced in failed prospectus liability claim in claim under Contracts Review Act 1988 - primary judge decided litigants were changing form of the proceedings to set up the same case again - primary judge in error - provided appellants observed findings of fact of test case litigation, particulars were being put to a substantially different purposePRACTICE - general principles - undertakings to be bound by findings of test case - appellants argued that a Mr Lloyd had made certain representations on behalf of the respondents and that the respondents should be estopped from contradicting these representations - findings made in test case about authority of Mr Lloyd to act for respondents - findings should be read in context to refer to authority of Mr Lloyd in relation to particular representations, not in general - appellants not to be precluded from arguing Mr Lloyd had authority to make certain other representations - estoppel argument to be repleadedPRECEDENT - 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 AppealPRECEDENT - general principles - authority of reasons for decision of higher court where that decision was affirmed on other grounds
- Judgment of
- Campbell JA at [1]Barrett JA at [371]Sackville AJA at [372]
- Category
- Principal judgment
-
- Catchwords
- NEGLIGENCE - Appeal - duty of care - whether an occupier of a building site owes a duty to provide safe means of access to sub-contractors of independent contractors on a public road - relevance of Codes of Practice to finding common law duty of care - Leighton Contractors v Fox - Stevens v Brodribb Sawmilling Co Pty Ltd.NEGLIGENCE - Appeal - breach of duty of care - discharge of a duty of care by retaining a competent independent contractor - meaning of "access" in clause 73(2) Construction Safety Regulations 1950 - how breach of a regulation bears on breach of a duty of care.NEGLIGENCE - Appeal - damages - method of assessing lost earnings.
- Judgment of
- Bathurst CJ at [1]McColl JA at [2]Whealy JA at [3]
- Category
- Principal judgment
-
- Catchwords
- ESTOPPEL - 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 - whether expectation of the respondent was sufficient to give rise to an equitable estoppelREMEDIES - equitable proprietary estoppel - whether respondent entitled to relief by way of equitable charge - interest - whether primary judge erred in awarding compound interest on monies secured by charge
- Judgment of
- Young JA at [1]Meagher JA at [2]Handley AJA at [61]
- Category
- Principal judgment
-
- Catchwords
- Judgment of
- Beazley JA t 1Macfarlan JA at 22
- Category
- Interlocutory applications
-
- Catchwords
- PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Arbitration clause - Construction of arbitration clauses.PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Agreement to refer "any dispute under this deed" to arbitration - Construction - 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. PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Claim pursuant to Trustee Act 1962 (WA) and court's inherent and equitable jurisdiction - Claims by beneficiaries to remove a trustee and vary trust - whether arbitrable.PRACTICE AND PROCEDURE - Stay of proceedings - Civil Procedure Act 2005 s 67 - Exercise of discretion - Referral to arbitration - Part of dispute within scope of arbitration clause - Whether error of discretion to refuse stay.PRACTICE AND PROCEDURE - Stay of proceedings - Civil Procedure Act 2005 s 67 - Exercise of discretion - Mediation clause - Whether error not to refer to mediation.
- Judgment of
- Bathurst CJ at [1]; McColl JA at [196]; Young JA at [218]
- Category
- Procedural and other rulings
-
- Catchwords
- DEFAMATION - absolute privilege - letter of complaint to the New South Wales Medical Board - whether letter published on an occasion of common law or statutory absolute privilege - whether publication made by the making of a complaint is a publication for the purpose of assessment or referral of a complaint - whether letter originated absolutely privileged proceedings of the Medical Tribunal
- Judgment of
- Bathurst CJ at 1Allsop P at 2Beazley JA at 3Nicholas J at 4McCallum J at 55
- Category
- Principal judgment
-
- Catchwords
- LEAVE TO APPEAL- verdict for the defendant in District Court based on findings of fact adverse to applicant- not established that more than $100,000 at issue- leave to appeal refused- no question of principle.
- Judgment of
- Young JA at [1]; Meagher JA at [46]
- Category
- Interlocutory applications
-
- Catchwords
- BANKRUPTCY- mortgagee's rights- how far permitted to deal with his or her security- rights extend to claim for possession.
- Judgment of
- Young JA
- Category
- Interlocutory applications
-
- Catchwords
- COSTS - offers of compromise - Calderbank offers - no question of principle
- Judgment of
- Young JA Meagher JA
- Category
- Costs
-
- Catchwords
- DAMAGES- 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.
- Judgment of
- McColl JA at [1]; Basten JA at [5]; Young JA at [48]
- Category
- Principal judgment
-
- Catchwords
- PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Arbitration clause - Construction of arbitration clauses.PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Agreement to refer "any dispute under this deed" to arbitration - Construction - 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.
- Judgment of
- Bathurst CJ at [1]; McColl JA at [2]; Young JA at [3].
- Category
- Procedural and other rulings
-
- Catchwords
- CONTRACT - construction - whether primary judge erred in considering post-contractual conduct and subjective intention of partiesCONTRACT - construction - incorporated terms - whether terms incorporated in error or contradict express terms in principal agreementCONTRACT - termination - repudiation - date of repudiation on which claim aroseDAMAGES - breach of contract - difference between loss of bargain and loss of profit - whether loss caused - whether loss mitigated - onus of showing loss avoided
- Judgment of
- Bathurst CJ at [1]; Macfarlan JA at [76]; Sackville AJA at [77]
- Category
- Principal judgment
-
- Catchwords
- EQUITY - fiduciary duty - accountant - whether fiduciary obligations owed - breach - whether loss sufferedTRADE AND COMMERCE - misleading and deceptive conduct - ss 51A, 52 Trade Practices Act 1974 - ss 41, 42 Fair Trading Act 1987 - representations as to future matters - whether reasonable grounds for making representations - whether loss suffered in relianceCOSTS - Sanderson order - principles and application
- Judgment of
- Basten JA at [1] Macfarlan JA at [74] Young JA at [217]
- Category
- Principal judgment
-
- Catchwords
- PARTNERSHIP - dissolution - former partners continuing to trade but as two separate firms - one firm making use of sources of goodwill of former partnership - distinction between goodwill and sources of goodwill - breach of fiduciary duty - removing and retaining files - whether equitable compensation include amount for reduction in value of goodwillCONTRACT - whether binding agreement for payment by incoming partner for share of goodwillCOSTS - exercise of discretion - whether costs of partnership dissolution proceedings should be borne equally by partners - whether offers of compromise comply with UCPR r 20.6(2)
- Judgment of
- Beazley JA at [1]Giles JA at [42]Meagher JA at [43]
- Category
- Principal judgment
-
- Catchwords
- RESTITUTION - appellant paid moneys to respondent - claim to recover as paid under a mistake of fact or for total failure of consideration-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 - whether unjust for respondent to retain payment
- Judgment of
- Meagher JA at [1]Bergin CJ in Eq at [20]Sackville AJA at [21]
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - 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 - whether claims should be allowed to proceed to trial - 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 - CONTRACTS - claim by employee for damages for breach by employer of implied term of mutual trust and confidence - employee dismissed - whether arguable claim - DAMAGES - damages claimed by dismissed employee for loss of future earnings and earning capacity - whether such damages precluded by Addis v Gramophone Co Ltd [1909] AC 488 - TORTS - negligence - whether duty of care arguably owed by employer to employee in relation to dismissal from employment
- Judgment of
- Beazley JA at [1]; McColl JA at [2]; Macfarlan JA at [3]; Barrett JA at [4]; McClellan CJ at CL at [136]
- Category
- Principal judgment
-
- Catchwords
- PROFESSIONS AND TRADES - health care professionals - medical practitioners - disciplinary proceedings - professional misconduct - 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 - 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
- Judgment of
- Macfarlan JA (at [1]); Barrett JA (at [2]); Tobias AJA (at [80])
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - application for order setting aside orders previously made - no matter of principle
- Judgment of
- Meagher JA (at [20]); Barrett JA (at [1]); Tobias AJA (at [21])
- Category
- Interlocutory applications
-
- Catchwords
- COSTS- damages claim- central issue 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.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.
- Judgment of
- Beazley JA at [1]; Basten JA at [2]; Young JA at [3]
- Category
- Costs
-
- Catchwords
- PRACTICE AND PROCEDURE - judgments and orders - consequential orders - no issue of principle
- Judgment of
- Campbell JA at [1] Macfarlan JA at [2] Young JA at [18]
- Category
- Consequential orders
-
- Catchwords
- LAWYERS - negligence - advocates' immunity - allegations of negligent conduct of District Court proceedings - loss of compensation and opportunities - 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 PROCEDURE - civil - pleadings - application to dismiss the proceedings generally - whether no reasonable cause of action is disclosed - whether there is a real question to be tried - 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 - whether 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
- Judgment of
- McColl JA at 1; Basten JA at 2; Whealy JA at 47
- Category
- Principal judgment
-
- Catchwords
- DAMAGES - contract - negligent breach of contract - failure to exercise due care and skill - whether Civil Liability Act 2002 (NSW), Pt 1A applies - whether analysis under Civil Liability Act 2002 (NSW), s 5D incorporates policy questions - whether loss was reasonably within the contemplation of the parties as the probable result of the contract DAMAGES - tort - negligence - failure to exercise due care and skill - whether Civil Liability Act 2002 (NSW), Pt 1A applies - whether analysis under Civil Liability Act, s 5D incorporates policy questions - whether loss was reasonably foreseeable - whether differing outcomes in tort and contract justified DAMAGES - misleading and deceptive conduct - whether Civil Liability Act 2002 (NSW), Pt 1A applies to claim under Fair Trading Act 1987 (NSW), s 42 - whether elements of cause of action for misleading and deceptive conduct include negligence - whether position differs under Trade Practices Act 1974 (Cth), s 52 - whether losses resulting from representations that involved same consequences as simultaneous claims in tort and contract are recoverable
- Judgment of
- McColl JA at 1, Basten JA at 2; Young JA at 113
- Category
- Principal judgment
-
- Catchwords
- ORDERS - interest - no question of principle
- Judgment of
- Young JA, Meagher JA, Handley AJA
- Category
- Consequential orders
-
- Catchwords
- APPEAL - civil - where matter in issue amounting to $100,000 or less - amount in issue, excluding costs, approximately $17,000 - 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
- Judgment of
- Basten JA at 1; Sackville AJA at 1
- Category
- Principal judgment
-
- Catchwords
- APPEAL - civil - where matter in issue amounting to $100,000 or less - 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
- Judgment of
- Basten JA at 1;Sackville AJA at 1
- Category
- Principal judgment
-
- Catchwords
- TORTS - Appeal - 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" - Stuart v Kirkland-Veenstra - whether a special statutory power - 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.TORTS - Appeal - negligence - breach of duty - whether hunting dogs inherently "dangerous" for the purposes of s 33 Companion Animals Act 1998 - whether hunting dogs had previously attacked "without provocation" - s 43A Civil Liability Act 2002 - exercise of "special statutory power" - whether dogs had "repeatedly" threatened to attack or "repeatedly" chased people - Wednesbury unreasonableness standard - whether council's failure to declare dog(s) dangerous so unreasonable no authority possessed of special statutory power could properly consider omission to be reasonable - s 44 Civil Liability Act 2002.DAMAGES - Appeal - s 15 Civil Liability Act 2002 - meaning of "dependents" - s 15B(2)(a) Civil Liability Act 2002 - whether services needed to be provided to a class of dependents to claim gratuitous domestic services.
- Judgment of
- McColl JA at [1]Whealy JA at [2]Sackville AJA at [184]
- Category
- Principal judgment
-
- Catchwords
- APPEAL - leave to appeal - no question of principle and no issue of general public importance - small amounts involved - leave refused
- Judgment of
- Young JA Meagher JA
- Category
- Principal judgment