Supreme of NSW Court of Appeal

Decisions Reserved at 23 March 2018

Number Case Name Heard Issues Below

REAL PROPERTY - s37A of the Conveyancing Act 1919 (NSW) – whether intention to defraud creditors – rearrangement of properties between A and her husband. Husband subsequently bankrupted – bankruptcy arose out of voluntary liquation of company - whether at Edward Ted Lakis and Anor time of arrangement there was a likelihood 1 2017/145647 Lardis v Lakis 21/07/2017 v Michael Victor Lardis and that property would be subject to significant Anor [2017] NSWSC 321 recovery claims - credit of witnesses – ’s assessment of in absence of cross examination – whether defence made out – whether A entitled to take steps to protect own interests by preventing further encumbering of property by her husband ADMINISTRATIVE – Proceeds of Crimes Act 2002 (Cth) – refusal to exclude property from forfeiture – s94 precludes AD v Commissioner of making an exclusion application under s93 Lower court decision not 2 2016/147755 the Australian Federal 1/08/2017 outside a 15 month period dating from the on Caselaw “conviction day” – “conviction day” includes date of sentencing – AD subsequently resentenced by CCA – motion for summary dismissal of appeal for lack of utility – property vested absolutely in Commonwealth after forfeiture under s96 - whether appeal futile by reason of expiration of 15 month period from “conviction day” – whether Director of Public Prosecutions (Cth) v Chan [2001] NSWCA 249 ought to be followed - – whether institutional integrity of Court distorted by removal of power of Court to decide issue – whether required Court to implement decision of the – whether unconscionable restraint on AD from accessing restrained funds to defend proceedings () – the applicant, a , sued the respondent in the Local Court to recover the costs of legal work carried out on the Pentelow v Bell respondent’s instructions – stay of Pty Ltd proceedings in Local Court set aside on appeal to Supreme Court – judgment and Delivery of judgment costs ordered in applicant’s favour – has been delayed, with applicant subsequently brought appeal to Lower court decision not 3 2016/345890 10/08/2017 consent of the parties, District Court against determination of costs available on Caselaw pending the decision review panel pursuant to Legal Profession of the High Court in Act 2004 (NSW), ss 382 and 384 – whether Coshott v Spencer primary judge erred in holding applicant (S4/2018) could not recover for professional work she had undertaken in herself conducting the proceedings – whether primary judge erred in finding that the “Chorley exception” does not apply to in New South Wales (other) – appellants brought proceedings seeking for Edward Moses Obeid Snr v misfeasance in public office in relation to 4 2016/317346 Obeid v Lockley 5/09/2017 David Andrew Ipp [2016] execution of search warrant at premises in NSWSC 1376 Drummoyne as part of Operation Jasper – first and second respondents officers of the third respondent ICAC – whether primary judge erred in finding that each of the first and second respondents was not acting as a public officer in executing the search warrant – whether primary judge erred in holding that first and second respondents did not know and were not reckless as to whether their videotaping of documents during execution of the search warrant would or might cause damage to the appellants – whether primary judge erred in holding that conduct of the first and second respondents did not cause damage to the appellants DEFAMATION – procedure – strike out of grounds of defence – whether open to “plead back” as a contextual imputation a plaintiff’s imputation – whether Fairfax Media Publications Pty Ltd v Fairfax Digital Kermode(2011) 81 NSWLR 157 precludes Oscar Kazal v Fairfax Australia and New 5 2017/67198 11/09/2017 such a pleading – whether imputation found Media Publications Pty Ltd Zealand Pty Ltd v to be true may only be relied upon for [2017] NSWSC 44 Kazal mitigation and not defence of contextual truth or honest opinion - whether imputation found to be true should not be taken into account on the plaintiff’s side under s 26(b) of Defamation Act 1974 TORTS (other) – respondent and his friends visited licenced premises in Manly in December 2011 – respondent forcibly ejected from club by police – respondent brought proceedings against the State of Charles State of New South New South Wales alleging assault, battery, Henry Thomlinson v The 6 2016/386053 13/09/2017 Wales v Thomlinson unlawful arrest, false imprisonment and State of New South malicious prosecution – State of New South Wales [2016] NSWDC 369 Wales admitted vicarious liability for conduct of relevant police officers pursuant toLaw Reform (Vicarious Liability) Act 1983 (NSW), s 9B(2) – primary judge awarded the respondent damages in the sum of $147,796 for assault, battery and false imprisonment – whether primary judge erred in finding that assault and battery had been made out – whether primary judge erred in failing to find that police were lawfully acting to effect occupier’s revocation of respondent’s licence to remain on premises – whether primary judge erred in failing to find that police were lawfully exercising power underLiquor Act 2007 (NSW), s 77 – whether primary judge should have found that conduct of police involved lawful and reasonable use of force and that search and transport of respondent was lawful – whether primary judge erred in approach to fact-finding TORTS (negligence) – first respondent employed by the second respondent company which hired his labour to the appellant – first respondent involved in replacement of railway sleepers as part of railway maintenance work conducted under the supervision of the appellant – allegation that first respondent suffered severe injury to his back as a result of having engaged in jack-hammering and the moving of railway Alan Donald v Rail Rail Corporation New sleepers and rubble – appellant and second Corporation of New South 7 2017/51509 4/10/2017 South Wales v Donald respondent both disputed that the first Wales (No 11) [2016] respondent’s injuries were suffered at work NSWSC 1897 – primary judge gave judgment for the first respondent in the sum of $1,132,579 – whether primary judge erred in finding that a reasonably adequate system of task rotation or in built breaks would have operated to eliminate or substantially reduce the risk of harm – whether primary judge erred in finding that first respondent’s back injuries were caused by the appellant’s negligence – whether primary judge erred in finding that first respondent was not guilty of – whether primary judge erred in certain factual findings INSURANCE – appellant company held insurance policies with the respondent providing cover for amounts it became liable to pay by way of compensation or damages to a third party for personal injury or property damage – appellant was engaged to provide refurbishment work on a gold processing mill – mill failed when welding work completed by appellant disintegrated – client commenced arbitration proceedings against appellant for breach of and misleading or deceptive conduct – before arbitral Weir Services issued its final award, appellant entered Weir Services Australia Pty Australia Pty Ltd v into “cap and collar” agreement with client Limited v AXA Corporate 8 2017/99799 24/10/2017 AXA Corporate under which it agreed to pay a minimum of Solutions Assurance [2017] Solutions Assurance $2 million whatever the outcome of the NSWSC 259 arbitration, in return for the potential damages being capped at $10.725 million – arbitral tribunal ultimately dismissed claim against appellant – primary judge dismissed appellant’s claim on insurance policies for collar amount and defence costs – whether primary judge mischaracterised appellant’s case as to the occurrence which was said to trigger coverage under the policies – whether primary judge erred in finding that professional services exclusion in policies applied to appellant’s claim TORTS (other) – false imprisonment – State of New South detention of concession card holder to Le v State of New South 9 2017/93694 31/10/2017 Wales v Le verify entitlement to use concessional Opal Wales [2017] NSWDC 38 Card – where holder did not produce photo identification – whether 77C of Passenger Transport Regulation 2007 entitled authorised officer to detain passenger - whether authorised officer entitled to detain until radio check verified entitlement – whether authorised officer entitled to detain on suspicion that concession card was stolen TORTS (other) – Blue Vision carries on business providing project management and planning services – allegation two former employees of Blue Vision, Mr Chidiac and Mr Gunasegaram, diverted business opportunities from Blue Vision to a company they had incorporated, Aspire Corporation – Blue Vision brought Gunasegaram v Blue proceedings against Mr Chidiac and Mr Visions Management Gunasegaram, alleging breach of fiduciary Blue Visions Management 2017/168664 10 Pty Limited; Blue 17/11/2017 duty and of deceit, and against Aspire Pty Limited v Chidiac [2017] 2017/168769 Visions Management v Corporation, alleging accessory or vicarious NSWSC 255 Chidiac liability – primary judge dismissed claims against Mr Chidiac and Aspire Corporation, but found Mr Gunasegaram liable in deceit – whether primary judge erred by “reformulating” a set of representations said to have been made by Mr Gunasegaram but not pleaded by Blue Vision – whether primary judge erred in assessment of damages TAX – Deputy Commissioner brought a claim against the appellant for unpaid tax, penalties and interest – appellant brought a cross-claim, alleging misfeasance in public Frangieh v Deputy Deputy Commissioner of office, abuse of process and breach of duty 11 2017/112808 Commissioner of 2/02/2018 Taxation v Frangieh (No to act in good faith – cross-claim arises out Taxation 3) [2017] NSWSC 252 of actions of the Deputy Commissioner’s employees in bringing claim against appellant – Deputy Commissioner’s claim against appellant dismissed by consent – primary judge dismissed cross-claim – whether primary judge erred in finding that the Deputy Commissioner was the wrong defendant and was not vicariously liable for the acts of public officers – whether primary judge erred in finding that an action alleging misfeasance requires conscious maladministration in the sense of actual bad faith – whether primary judge made certain factual errors – whether primary judge erred in failing to find that Australian Taxation Office debt recovery officers have a duty to consider whether exercising debt recovery functions is oppressive in the circumstances CORPORATIONS – payments were made by appellant company to the first respondent, a senior employee, his wife and their family company, the second and third respondents – appellant brought claim, alleging that the first respondent was a de facto director and an officer of the company and that he breached statutory and fiduciary duties owed by him to the company by directing, authorising or otherwise causing the payments to be In the matter of ACN 092 made – the first appellant, as liquidator of 12 2017/103516 Hillig v Bruno 8/02/2018 745 330 [2017] NSWSC the appellant company, brought a claim 241 under s 588FF of the Corporations Act 2001 (Cth) –primary judge dismissed both claims – whether primary judge erred in failing to find that the first respondent directed, authorised or otherwise caused the payments to be made – whether primary judge erred in finding that the first respondent was not a de facto director – whether primary judge erred in finding that certain payments were part of the first respondent’s remuneration package COSTS – judicial review –dismissal of appeal from Local Court to District Court – annulment of conviction following referral to Governor – prosecution subsequently Bessemer v The withdrawn by body corporate - no order for Lower court decision not 13 2017/220710 Owners Strata Plan No 9/02/2018 costs for made except for reimbursement of available on Caselaw 6925/35054 fine and court costs paid – failure to consider s229 and 230 of Strata Management Act to exempt A from special levy to pay those costs – discretionary family trust established for the benefit of the appellants’ family – by its terms, trust due to vest on 1 January 2024 – at that point, two of the beneficiaries will be aged 13 and 15 – application under s 81 of the Trustee Act 1925 (NSW) to extend the vesting date of the trust – primary judge held that the application did not meet the requirements of s 81 and dismissed it – whether the decision of the Court of Appeal in Re Dion Investments PL (2014) 87 NSWLR 753; [2014] NSWCA 367 was incorrect – 2017/247071 Cisera v Cisera whether the decision in Re Dion Cisera v Cisera Holdings 14 13/02/2018 2017/251043 Holdings Pty Limited Investments did not otherwise prevent the Pty Ltd [2017] NSWSC 960 making of an order or did not apply in this case – whether primary judge erred in approach to the Court’s reasoning in Re Dion Investments – whether primary judge erred in approach to construing “transaction” within the meaning of s 81 – whether primary judge erred in finding that expedience in the management or administration of the trust property did not extend to deferring the vesting of the trust – whether primary judge erred in interpreting the fixed period as the maximum intended life of the trust CONTRACT – Commercial Arbitration – International Arbitration Act 1974 (Cth) – claim that R is entitled to bonus payments for production of motion picture “Mad Max: Fury Road”- whether erred in not holding an arbitration clause was incorporated - whether parties are obliged to arbitrate their claims in California, United of States of America – whether pro forma documents Warner Bros Feature containing default terms used in Kennedy Miller Mitchell Productions Pty for A list directors establish that such terms Films Pty Ltd v Warner Bros 15 2017/361726 Limited v Kennedy 14/02/2018 were ‘WB standard terms” – where WB was Feature Productions Pty Miller Mitchell Films defined to mean WBFP, whether the Ltd [2017] NSWSC 1526 Pty Limited evidence established that such terms were also standard terms of WBFP – whether WB could be construed as reference to Warner Bros Group which included WB Pictures – whether disputes arose out of the certificates of employment between WBFP, Mr George Miller and Mr Doug Mitchell which were incorporated in the Letter Agreement SUCCESSION – appellant was named sole executor and beneficiary under a 2004 will of the deceased – appellant was cleaner and helper of the deceased for many years – respondent was a niece of the deceased and was the executor and sole beneficiary under a 2001 will – respondent brought proceedings challenging the deceased’s of Beryl Lee Hordern 16 2017/196096 Carr v Homersham 14/02/2018 testamentary capacity at the time the 2004 (Deceased); Homersham v will was executed – primary judge found Carr [2017] NSWSC 753 that the deceased did not have testamentary capacity at that time and ordered that the 2001 will be considered the last will of the deceased – whether primary judge erred in law in holding that the deceased did not have testamentary capacity in circumstances where she had a disorder of the mind not falling within the fourth limb of Banks v Goodfellow (1870) LR 5 QB 549 – whether primary judge erred in finding that the presumption of testamentary capacity was displaced in circumstances in which the deceased behaved irrationally and forgetfully in the six months prior to executing the 2004 will – whether primary judge erred in finding that the deceased did not comprehend and appreciate claims upon her bounty to which she ought to give effect – whether primary judge erred in finding that the respondent was a person who had a claim on the bounty of the deceased – whether primary judge erred in finding that exclusion of the respondent from the 2004 will constituted strong grounds for suspecting the deceased lacked capacity CONTRACT – appellant contracted to acquire certain poker machine permits from the respondent – appellant brought action claiming that respondent was in breach of an express or implied term of the sale agreement requiring the respondent to transfer the permits free of all encumbrances or security interests claimed Auburn Shopping by other parties – alleged encumbrances Auburn Shopping Village Village Pty Ltd v took the form of the registration of claimed Pty Ltd v Nelmeer Hoteliers 17 2017/306688 19/02/2018 Nelmeer Hoteliers Pty security interests on the Personal Property Pty Ltd [2017] NSWSC Ltd Securities Register established under 1230 the Personal Properties Securities Act 2009 (Cth) – primary judge found in favour of the respondent – whether primary judge in failing to find that on entry into the agreement the appellant acquired an immediate interest in the permits and that issue of a notice to complete and exercise of the right of termination did not bar the intervention of equity to relieve against forfeiture of the appellant’s rights and interests under the agreement – whether primary judge erred in failing to find that on entry into the agreement the appellant acquired a right to an equitable interest capable of protection by a grant of special performance and the issue of a notice to complete and exercise of the right of termination did not bar the intervention of equity to protect that right – whether primary judge erred in failing to find that the conduct of the respondent constituted unconscientious conduct – whether primary judge erred in failing to find that the appellant’s view as to the nature and effect of the PPSR registration constituted a mistake and entitled the appellant to a grant of relief against forfeiture – whether primary judge erred in failing to grant relief against forfeiture of the appellant’s rights and interests under the sale agreement Konstantinidis v Council of the Law Lower Court decision not 18 2017/228896 19/02/2018 N/A Society of New South on Caselaw Wales CONTRACT – appellant is a mortgage broker who worked as an independent contractor for the respondent from 8 August 2012 to 30 November 2016 – in December Dargan Financial Pty Ltd 2016, the defendant commenced work as a ATF The Dargan Financial broker at another mortgage broking Isaac v Dargan Discretionary Trust (trading 19 2017/275951 21/02/2018 business – respondent brought claim Financial Pty Ltd under “Home Loan alleging that the appellant was in breach of Experts”) v Nassif contract and his equitable duty of Isaac [2017] NSWSC 1077 confidence to the appellant in relation to the retention and continued use of the respondent’s client list while at the new business – respondent also claimed that the defendant was in breach of contract for any attempt to approach or accept approaches by the respondent’s clients within 18 months after terminating employment with the respondent – primary judge found that the appellant had breached agreement with the respondent and his equitable duty of confidence – whether trial judge erred in finding that the restraint of trade imposed by the agreement between the respondent and the appellant was reasonable in its application following the termination of the agreement and for a period of 18 months from the termination – whether primary judge erred in failing to find that the restraint of trade clauses were not cartel provisions within the meaning of s 44ZZRD of the Competition and Consumer Act 2010 (Cth) – whether primary judge erred in finding that the appellant breached the agreement by approaching or accepting approaches from customers of the respondent – whether primary judge erred in finding that the respondent was entitled to an injunction restraining use of confidential information – whether primary judge erred in construing “confidential information” within the meaning of the agreement – whether primary judge erred in finding that the client list retained by the appellant was or contained copyright of the respondent REAL PROPERTY – first and second respondents were in a relationship and were tenants in common of a property at Saba v Plumb [2017] 20 2017/173625 Saba v Plumb 21/02/2018 East Ryde – first respondent held a one NSWSC 622 quarter share – on the breakdown of the relationship between the first and second respondents, the first respondent transferred his share to the second respondent and the second respondent granted the first respondent a lifetime right of residency – appellant lives in the neighbouring property and became involved in a dispute with the first respondent that resulted in a substantial costs order in the appellant’s favour – appellant brought a claim seeking an order under s 37A of the Conveyancing Act 1919 (NSW) that the transfer is voidable and a declaration that the second respondent holds the first respondent’s interest in the property on trust – orders directed to allowing the appellant to enforce the costs order against the first respondent – primary judge dismissed claim – whether primary judge erred in finding that the transfer was not a disposition of the type identified in s 37A – whether primary judge erred in certain factual findings regarding the transfer and the intentions of the respondents – whether primary judge erred in applying the Briginshaw standard of proof – whether primary judge placed undue weight on certain findings – whether primary judge erred in treatment of the evidence of certain witnesses – whether primary judge failed to consider certain elements of the appellant’s case CONTRACT – appellants and the respondent are specialist radiologists who practiced in a partnership – partnership was sold to third party business – offer of sale Willie Pei Chiao Tsung v Ian 21 2017/270966 Cappe v Tsung 22/02/2018 carried the condition that each of the Philip Cappe [2017] partners would commit to work in the NSWSC 1053 practice for the new owner for five years and provide a 12-month post-termination covenant in restraint of trade – respondent did not wish to be bound by these conditions – arrangements made for partnership to be sold and the partners, with the exception of the respondent, to be bound by the conditions – on sale, appellants each received $9.168 million – respondent only received $3 million – respondent sought a declaration that he was entitled to a one-seventh share of the surplus proceeds of realisation of the partnership assets – primary judge determined that respondent was entitled to declaration – whether primary judge erred in holding that on the proper construction of clause 32 of the partnership agreement each partner was entitled to a share equal to his or her proportionate interest of any consideration or assets received by any partner on the sale or merger of the business – whether primary judge erred in finding that the amounts payable and shares issued pursuant to clauses 4 and 8 of the sale agreement amounted to surplus of partnership property or the proceeds of the partnership business TORTS (NEGLIGENCE) – appellant company was operating a pile driver on a construction site when third party was injured – injured party was an employee of respondent company – injured party Avopiling Pty Ltd v brought claim against appellant alleging Workers that it breached its duty to take reasonable Bosevski v Avopiling Pty 22 2017/1173812017/117390 23/02/2018 Compensation care for his safety – appellant brought Ltd [2016] NSWSC 1893 Nominal Insurer cross-claim against respondent – primary judge found that appellant was negligent in failing to take precautions to ensure the safe operation of the pile driver – primary judge found that respondent did not have requisite knowledge of the risk of harm to amount to negligence – whether primary judge erred in finding that the respondent was not negligent – whether primary judge erred in characterising the risk of harm for the purposes of the Civil Liability Act 2002 (NSW), s 5B – whether primary judge erred in making certain factual findings – whether primary judge erred in not making a finding of contributory negligence by the injured party – whether primary judge erred in not apportioning liability between the appellant and respondent pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 and the Workers Compensation Act 1987 (NSW), s 151Z – whether primary judged erred in assessment of damages CONTRACT – the appellants operated a 7- Eleven store pursuant to a franchise agreement entered into with the respondent – the respondent purported to terminate the agreement on the basis that the appellants had engaged in fraudulent conduct – the respondent alleged a scheme whereby the first appellant would pay certain employees the relevant award rate but require them to return a certain amount in cash to the Chahal Group Pty Ltd Chahal Group Pty Ltd v 7- second appellant – the appellants sought a 23 2017/163851 v 7-Eleven Stores Pty 26/02/2018 Eleven Stores Pty declaration that the termination was Ltd Ltd [2017] NSWSC 532 unlawful and an award of damages or specific performance – primary judge found that the fraudulent conduct occurred as alleged and the termination was not unlawful – whether primary judge erred in his treatment of the evidence of the second appellant – whether primary judge erred in his treatment of the evidence of certain other witnesses – whether primary judge erred in certain factual findings – whether primary judge erred in finding that even if there had not been unlawful conduct, the court would not make orders to restrain the respondent from acting on the notice of termination – whether primary judge erred in determining that an order for specific performance should not be made – whether primary judge erred in failing to find that an order could have been made to restrain the respondent from acting on its notice of termination pursuant to s 237 of the Australian Consumer Law CONTRACTS – appellant alleged that, pursuant to a verbal contract with the respondents, it provided accounting and business advisory services in return for 10% of the profits of their businesses and a LNE Cunneen & Co Pty Ltd 10% share of the growth in capital value of v Allan Vincent Blackburn LNE Cunneen & Co the assets of the businesses – primary [2017] NSWSC 73; LNE 24 2017/94319 Pty Limited v 27/02/2018 judge found that there was a contract under Cunneen & Co Pty Ltd v Blackburn which the appellant provided services and Allan Vincent was entitled to be remunerated by way of Blackburn [2017] NSWSC 10% profit share but which was terminable 677 at will and terminated in 2013 – whether primary judge erred in finding that appellant was not entitled to 10% share of capital growth Industrial Relations Wattie v Industrial 25 2017/384914 28/02/2018 N/A Secretary v Wattie [2017] Relations Secretary NSWSC 1662 CORPORATIONS – first and second appellants are liquidators of Evolvebuilt Contracting Pty Ltd, the third appellant – Evolvebuilt subcontracted to In the matter Hosking v Extend n 26 2017/234980 1/03/2018 perform work for Built NSW Pty Ltd – of Evolvebuilt Pty Build Pty Ltd Evolvebuilt then subcontracted its work to Limited [2017] NSWSC 901 eight secondary subcontractors – Evolvebuilt became unable to pay the secondary subcontractors and requested that Built pay them directly – the first and second appellants brought an action seeking to recover the payments made to the eight secondary subcontractors as unfair preferences under s 588FA of the Corporations Act 2001 (Cth) – primary judge found that the payments made to the secondary subcontractors were not “received from the company” within the meaning of s 588FA – whether primary judge erred in finding that payments were not “received from the company” – whether primary judge erred in not following Commissioner of Taxation v Kassem & Secatore (2012) 205 FCR 156 and Burness, In the Matter of Denward Land Pty Limited [2009] FCA 893 INSURANCE – appellant issued a Combined Public & Products Liability Policy in favour of the respondent – the respondent and the second defendant below, Endeavour, entered a special services agreement by which the respondent agreed it would be liable for and indemnify Endeavour from any liability or loss arising from the illness, injury or QBE Underwriting Ltd death of the respondent’s employees – the v Southern Colliery Lower court decision not 27 2017/156371 2/03/2018 plaintiff below, the respondent, Endeavour Maintenance Pty available on Caselaw and the respondent’s workers’ Limited compensation insurer entered an agreement to settle a claim made by the plaintiff – under the agreement, the respondent and Endeavour were to pay a sum and the respondent was to indemnify Endeavour in respect of the plaintiff’s claim – the respondent’s insurer was also to pay a sum – whether primary judge erred in failing to find that the portion of the settlement sum paid by the respondent represented a liability under the terms of a contract – whether primary judge erred in failing to find that the respondent’s claim for indemnity in respect of that amount was excluded by cl 7.6 of the Combined Public & Products Liability Policy issued by the appellant – whether primary judge erred in certain factual findings regarding the disclosure by the respondent to the appellant of the indemnity given by the respondent to Endeavour – whether primary judge erred in finding that the apportionment of the settlement sum was reasonable – whether primary judge erred in failing to apply deduction prescribed in the policy issued by the appellant – whether primary judge failed to give adequate reasons for his decision CONSTITUTION - judicial review – appeal from Local Court to District Court – prosecution under Fisheries Management Act 1994 (NSW) – effect of arrangement with Commonwealth under Fisheries Act 1952 (Cth)- whether State Officers had beyond the low water mark Ralf Lavender v NSW without legislative or executive Department of Industry; Lavender v Director of constitutional authority – whether fisheries 28 2017/295123 6/03/2018 Jack Lavender v NSW Fisheries Compliance officers had authority to act – Department of Industry whether Fisheries Management (Abalone [2017] NSWDC 236 Share Management Plan) Regulation 2000 was an impermissible exercise of sovereignty or eminent domain over Australian waters – whether regulation was validity made – whether Act contravenes s123 of the Constitution by altering the limits of the State Bhusal v Catholic WORKERS COMPENSATION – whether Bhusal v Catholic Health 29 2017/193405 7/03/2018 Health Care Ltd application for review lodged within the time Care [2017] NSWSC 838 prescribed by s 44BB(3)(a) of Workers Compensation Act – whether prescribed time is a procedural requirement and did not extinguish the right to a review – whether an inherent discretion to accept out-of-time applications – whether date of receipt of decision by a worker is a jurisdictional fact – whether notification of who had assisted in completing the application was receipt by the worker EQUITY – appellant held an account for the purposes of playing and gambling in online poker games – respondent companies either took control or possession of, or participated in the operations of, the website with which the account was held – operation of the website was suspended by the local gaming commission, which had the effect of freezing any withdrawals from customer accounts – dispute arose regarding a sum of money in the appellant’s account at that time – appellant brought a claim seeking damages for breach of Benson v Rational Benson v Rational contract or on the basis that the Entertainment Enterprises 30 2017/242547 Entertainment 8/03/2018 respondents were unjustly enriched at the Limited (No 3) [2017] Enterprises Limited appellant’s expense – at the conclusion of NSWSC 922 the hearing below, appellant sought leave to further amend his statement of claim to bring the pleadings in line with the case argued – primary judge refused leave to amend and dismissed the claim – whether primary judge erred in determining that because the statement of claim did not identify the appellant as a trustee, any losses he suffered in that capacity must be ignored – whether primary judge erred by taking into account irrelevant considerations – whether primary judge erred in certain factual findings – whether primary judge erred in finding that an award of the sum in dispute would have placed the appellant in a superior position to that he would have been in had the alleged contract been performed – whether primary judge erred in finding that the respondents had not gained a benefit at the appellant’s expense and that it was not unjust for them to withhold the disputed sum – whether primary judge erred by failing to determine whether there was a contract entered into between the appellant and the respondents – whether primary judge erred by failing to determine whether the appellant was entitled to restitution CONTRACT – first appellant is a property developer and is married to second appellant – appellants owe the respondent significant sums of money under a loan facility and as guarantors of loans made to Remo Corporation Pty Ltd (in liq) – for many years first appellant worked for his father, who founded Remo Corporation – first appellant and his father were both directors – a dispute arose as to the first appellant’s share in the business and the Mastronardo v first appellant and his father agreed to 31 2017/279966 Commonwealth Bank 9/03/2018 separate their interests – this agreement of Australia encompassed division of liabilities to the respondent – following this division, the respondent required that the loan facilities be refinanced – the loan facility contained a provision the effect of which was that the bank would release a property as support for it, conditional upon their being no event of default – the appellants brought an action claiming that the respondent repudiated this release provision and that they suffered damage as a consequence – appellants also claim that the respondent’s conduct was unconscionable in contravention of s 12CB(1) of the Australian Securities and Investments Commission Act 2001 (Cth) – primary judge found that the respondent was not bound by the release provision because there had been events of default – primary judge also dismissed claim under s 12CB(1) – whether primary judge erred in finding that the first respondent’s conduct was not unconscionable within the meaning of s 12CB(1) – whether primary judge erred in finding that the appellants had not suffered any loss or damage as a result of the first respondent’s repudiation of the release provision and unconscionable conduct – whether primary judge erred in finding that the first respondent continued to have an entitlement to interest – whether primary judge erred in not vacating the hearing INSURANCE – respondent operates a service station – appellant issued a policy of combined liability insurance in favour of the respondent – policy insured the respondent against, among other things, “damage” caused by “pollution” – an explosion occurred in a sewer main running to the north of the service station – Marketform Managing common ground that explosion was caused 32 2017/187097 Agency Ltd v 9/03/2018 by the ignition of petrol vapour from the Amashaw Pty Limited respondent’s service station – petrol was also detected in other nearby area – respondent claimed indemnity for the cost of works undertaken to address the damage – appellant denied liability – primary judge found that appellant was liable and ordered that it pay the respondent the cost of restorative works but not preventative works – whether primary judge erred in consideration of environmental reports – whether primary judge erred in certain factual findings – whether primary judge erred in approach to “damage” caused and construction of “damage” under the policy – whether primary judge erred in approach to “pollution” and “event” and construction of these terms under the policy – whether primary judge erred in finding that the respondent had a liability to pay damages as a result of the explosion in the sewer main EQUITY – sum of $1.3 million paid out of bank account of first appellant and used for purchase of property in the name of first respondent – first respondent was wife of director of both appellant companies – first respondent was also company secretary of the first appellant – $775,000 recorded as a loan to the director – loan later repaid following ‘round robin’ of cheques organised by the director with the help of second respondent, another director of the first appellant – appellant companies Lewis Securities Ltd 33 2017/130893 12/03/2018 brought Barnes v Addy claim against first (in liq) v Carter respondent alleging that loan was a breach of fiduciary duty by the director and first respondent received the funds with knowledge of the breach – appellant companies also claimed that round robin of cheques was a fraudulent and dishonest transaction and a breach by both directors of their duties – primary judge dismissed claims – whether primary judge erred in finding that director did not breach fiduciary duties in causing sum of $250,000 to be debited from account of first appellant and treated as a loan to his wife, the first respondent – whether primary judge erred in finding that the sum of $250,000 had been repaid – whether primary judge erred in not finding first respondent liable for the sum of $250,000 – whether primary judge erred in finding that Barnes v Addy claim was time barred – whether primary judge erred in finding that even though round robin of cheques was fraudulent it did not have any substantive effect ADMINISTRATIVE LAW (other) – police officer subject of non-reviewable action under s173(2) of Police Act 1990 – allegations of sexual harassment – procedural fairness - whether Summersford v Commissioner is prohibited from disclosing 34 2017/329131 Commissioner of 13/03/2018 to officer the identity of witnesses – whether Police limitation if restricted to those who complain rather provide information – whether primary Judge ought to have found that A was confused to allegations as being imprecise and lacking in specificity REAL PROPERTY – respondent made a development application for the construction of a driveway connecting his property to the street – first appellant is the proprietor of the neighbouring property and second appellant is the proprietor of a property adjacent to the first appellant – local council consented to the development 35 2017/218387 Lowe v Kladis 14/03/2018 application – respondent brought proceedings to require the appellants to execute the consent – primary judge ordered that appellants consent to a revised development application – whether primary judge erred in finding that the appellants were compelled by law to give consent under s 49(1) of the Environmental Planning and Assessment 2000 (NSW) as owners of land to which the development application related – whether primary judge erred in failing to find that the development application involved an unreasonable interference with the appellants’ rights and enjoyment as owners of the relevant properties – whether primary judge erred in finding that the orders proposed were appropriate and reasonable – whether primary judge erred in failing to impose a condition that the respondent undertake to make vehicular access available to the first appellant’s property CONTRACT – appellant operates business selling wine and respondents operate businesses producing wine – dispute arose as to the terms on which the appellant sold the respondents’ wine and respondents commenced proceedings – primary judge found in favour of the respondents – whether primary judge erred in finding that a binding oral agreement was made in 2006 between the appellant and the respondents which included a term that the Cellarit Pty Limited appellant would charge each of the 36 2017/313665 Cawarrah Holdings Pty 15/03/2018 respondents a 15% commission on wine Limited sales – whether primary judge erred in finding that the appellant’s printed standard terms did not form part of the agreement between the parties – whether primary judge erred in finding that the oral agreement was not varied in the period October 2008 to May 2016 – whether primary judge erred in finding that the respondents paid the appellant’s invoices under protest – whether primary judge erred in finding that the appellant was not entitled to rely on a defence of estoppel by convention TORTS (NEGLIGENCE) – appellant is the corporate trustee of a superannuation fund of which the respondent was the auditor – the appellant brought an action alleging that the respondent breached his duty of care and was negligent – the appellant alleged that the respondent misrepresented the nature of certain assets and as a consequence the appellant acted in reliance on the liquidity of the fund and incurred losses – primary judge found that 2017/161367 Cam & Bear Pty Ltd v 37 16/03/2018 the respondent had breached his duty of 2017/218433 McGoldrick care and acted negligently but that no loss arose – in these circumstances, primary judge ordered judgment for the respondent – whether primary judge erred in finding that the respondent’s conduct did not cause loss – whether primary judge erred in his approach to the question of causation – whether primary judge erred by not providing reasons for the apportionment of liability for loss as between the appellant, the respondent and third parties PROFESSIONAL NEGLIGENCE (medical) – respondent was an 8 year old child who suffered a severe thumb injury and attended at public hospital for treatment – following treatment thumb became infected and developed gangrene, resulting in South Western Sydney surgical amputation of tip – respondent 38 2017/125757 Local Health District v 19/03/2018 brought claim alleging he was medically Gould mistreated when he attended at the hospital and in the following days – primary judge found that hospital staff were in breach of their duty of care in delaying treatment, failing to prescribe certain antibiotics and failing to initially diagnose infection – whether primary judge erred in treatment of expert evidence – whether primary judge erred in determining standard of care – whether primary judge erred in finding that the appellant was in breach of its duty – whether primary judge erred in certain factual findings relating to the nature and cause of the gangrene suffered by the respondent – whether primary judge erred in finding that the cause of the need to amputate was the infection and that the infection would most probably have been avoided by a different course of treatment CONTRACT - contract between rabbi and synagogue – whether contract incorporated provisions of “Halacha” as a system of religious Jewish Law and “Hazakah” as a tenet of Halcha into the agreement – whether R employment could not be 39 2017/203555 Elkerton v Milecki 20/03/2018 terminated other than by “adjudgment” by a Din Torah in accordance with Halacha- whether Hazakah capable of being applied by a NSW Court – whether it applied as a choice of law which was invalid, void or could not be given effect as a matter of Australian law DEFAMATION – first respondent published Plymouth Brethren articles written by the second respondent (Exclusive Brethren) containing allegedly defamatory Christian Church imputations regarding the appellant – Limited v The Age articles stated that “members of a wealthy Company Limited; Christian sect” known as the “Exclusive 40 2017/3256782017/325690 lymouth Brethren 20/03/2018 Brethren” are accused of child sex abuse – (Exclusive Brethren) issue of whether any matter complained of Christian Church is capable of identifying the appellant Limited v Fairfax company and whether proceedings should Media Publications Pty be dismissed accordingly – primary judge Ltd determined that the issue should be considered as a separate question – primary judge determined that the matters complained of are not reasonably capable of identifying the appellant – whether primary judge erred in dealing with the issue as a separate question – whether primary judge erred in finding that the appellant was not named in the matters complained of – whether primary judge erred in finding that the matters complained of were incapable of identifying the appellant – whether primary judge erred in holding that the publisher is not liable for a defamatory meaning imputed to the appellant as a result of some erroneous belief on the part of the person to whom the matter is published – whether primary judge erred in entering judgment for the respondents CONTRACT – appellant and respondent entered into a contract for the supply by the respondent to the appellant of certain plumbing articles – the parties were also said to have entered into seven informal contracts constituted by purchase orders and associated documents – issue of whether both formal and informal contracts had an implied term of exclusivity – primary judge found that by the express terms of Rehau Pte Ltd v AAP 41 2017/284215 21/03/2018 the written contract, the appellant Industries Pty Ltd undertook to only order articles from the respondent – in separate costs judgement, primary judge awarded damages for loss of profits and loss in respect of finished goods – whether primary judge erred in concluding that express terms of the agreement obliged the appellant to order articles only from the respondent – whether primary judge erred in finding in the alternative that the contract contained an implied term of exclusivity – whether in the costs decision, primary judge erred in law in the application and consideration of Uniform Rule 42.34 – whether primary judge erred in the exercise of his discretion with regards to the making of a proportionate costs order under s 60 of the Civil Procedure Act 2005 (NSW) – whether primary judge erred in his approach to the appellant’s Calderbank letter CONTRACT – admission made in context of settlement negotiation – where R stated that beginning point of settlement negotiations was sum stated in spreadsheet – whether that concession 42 2017/290523 Nock v Maddern 22/03/2018 was an admission that a debt was owed – limitations – whether representations in email revived earlier debts which were barred – whether acceptance of new agistment arrangements 2015/229797 COSTS – motion seeking order that legal 2015/229805 43 King v Young 23/03/2018 practitioner pay costs of dismissal of appeal 2016/76351 in Young v King [2016] NSWCA 282 2016/76373 ADMINISTRATIVE LAW (other) – Commissioner of the Australian Federal Police brought proceedings against the respondent under s 49(1) of the Proceeds Lordianto v of Crime Act 2002 (Cth) seeking an order Commissioner of the that certain property of the respondent be 2017/300289 Australian Police; forfeited to the Commonwealth – 44 23/03/2018 2017/301075 Commissioner of the respondent resisted the application and, in Australian Federal the alternative, sought an order for Police v Fernandez compensation under s 77 of the Proceeds of Crime Act – primary judge found that the conditions for an order under s 49(1) were made out but exercised her discretion under s 49(4) and declined to make the order on the basis that it was not in the public interest – whether primary judge erred in finding that funds in question were not the proceeds of an offence or offences – whether primary judge erred in concluding that she should exercise her discretion under s 49(4) – whether primary judge erred in failing to find that the respondent bore the onus of establishing that s 49(4) was applicable and satisfied – whether primary judge erred in certain factual findings

ADMINISTRATIVE LAW (other) – Proceeds of Crime Act 2002 (Cth) – amounts restrained suspected to be proceeds of “structuring offence” under Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) - whether A did not acquire property when funds credited to their bank accounts – whether s330(4)(a) could apply to an innocent party who acquired property from a transaction – whether a “third party” is a person wholly from the property constituting the proceeds of crime – whether transfers in Indonesia did not constitute sufficient consideration for the equivalent amounts deposited in Australia – whether applicants had established that they had no reason to suspect the property was proceeds of crime – costs