Supreme of NSW Court of Appeal

Decisions Reserved at 20 April 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 – Pentelow v Bell T/as Bell has been delayed, with applicant subsequently brought appeal to 3 2016/345890 10/08/2017 Lawyers [2016] NSWDC consent of the parties, District Court against determination of costs 186 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) – respondent and his friends visited licenced premises in Manly Charles State of New South in December 2011 – respondent forcibly Henry Thomlinson v The 4 2016/386053 13/09/2017 Wales v Thomlinson ejected from club by police – respondent State of New South brought proceedings against the State of Wales [2016] NSWDC 369 New South Wales alleging assault, battery, unlawful arrest, false imprisonment and malicious prosecution – State of New South 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 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 Alan Donald v Rail Rail Corporation New that first respondent suffered severe injury Corporation of New South 5 2017/51509 4/10/2017 South Wales v Donald to his back as a result of having engaged in Wales (No 11) [2016] jack-hammering and the moving of railway NSWSC 1897 sleepers and rubble – appellant and second respondent both disputed that the first respondent’s injuries were suffered at work – 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 Weir Services deceptive conduct – before arbitral Weir Services Australia Pty Australia Pty Ltd v issued its final award, appellant entered Limited v AXA Corporate 6 2017/99799 24/10/2017 AXA Corporate into “cap and collar” agreement with client Solutions Assurance [2017] Solutions Assurance under which it agreed to pay a minimum of NSWSC 259 $2 million whatever the outcome of the 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 – detention of concession card holder to verify entitlement to use concessional Opal Card – where holder did not produce photo identification – whether 77C of State of New South Passenger Transport Regulation 2007 Le v State of New South 7 2017/93694 31/10/2017 Wales v Le entitled authorised officer to detain Wales [2017] NSWDC 38 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 8 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 Frangieh v Deputy Deputy Commissioner of claim against the appellant for unpaid tax, 9 2017/112808 Commissioner of 2/02/2018 Taxation v Frangieh (No penalties and interest – appellant brought a Taxation 3) [2017] NSWSC 252 cross-claim, alleging misfeasance in public office, abuse of process and breach of duty to act in good faith – cross-claim arises out 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 – 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 2017/247071 Cisera v Cisera application did not meet the requirements Cisera v Cisera Holdings 10 13/02/2018 2017/251043 Holdings Pty Limited of s 81 and dismissed it – whether the Pty Ltd [2017] NSWSC 960 decision of the Court of Appeal in Re Dion Investments PL (2014) 87 NSWLR 753; [2014] NSWCA 367 was incorrect – whether the decision in Re Dion Investments did not otherwise prevent the 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 11 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 CONTRACT – appellant contracted to acquire certain poker machine permits from Auburn Shopping Auburn Shopping Village the respondent – appellant brought action Village Pty Ltd v Pty Ltd v Nelmeer Hoteliers 12 2017/306688 19/02/2018 claiming that respondent was in breach of Nelmeer Hoteliers Pty Pty Ltd [2017] NSWSC an express or implied term of the sale Ltd 1230 agreement requiring the respondent to transfer the permits free of all encumbrances or security interests claimed by other parties – alleged encumbrances took the form of the registration of claimed security interests on the Personal Property Securities Register established under 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 CONTRACT – appellant is a mortgage Dargan Financial Pty Ltd Isaac v Dargan broker who worked as an independent ATF The Dargan Financial 13 2017/275951 21/02/2018 Financial Pty Ltd contractor for the respondent from 8 August Discretionary Trust (trading 2012 to 30 November 2016 – in December under “Home Loan 2016, the defendant commenced work as a Experts”) v Nassif broker at another mortgage broking Isaac [2017] NSWSC 1077 business – respondent brought claim alleging that the appellant was in breach of contract and his equitable duty of 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 CONTRACT – appellants and the respondent are specialist radiologists who practiced in a partnership – partnership was sold to third party business – offer of sale carried the condition that each of the partners would commit to work in the 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 – Willie Pei Chiao Tsung v Ian respondent sought a declaration that he 14 2017/270966 Cappe v Tsung 22/02/2018 Philip Cappe [2017] was entitled to a one-seventh share of the NSWSC 1053 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 Avopiling Pty Ltd v TORTS (NEGLIGENCE) – appellant Bosevski v Avopiling Pty 15 2017/1173812017/117390 Workers 23/02/2018 company was operating a pile driver on a Ltd [2016] NSWSC 1893 Compensation construction site when third party was Nominal Insurer injured – injured party was an employee of respondent company – injured party brought claim against appellant alleging that it breached its duty to take reasonable care for his safety – appellant brought 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 CONTRACTS – appellant alleged that, pursuant to a verbal contract with the respondents, it provided accounting and LNE Cunneen & Co Pty Ltd business advisory services in return for v Allan Vincent Blackburn LNE Cunneen & Co 10% of the profits of their businesses and a [2017] NSWSC 73; LNE 16 2017/94319 Pty Limited v 27/02/2018 10% share of the growth in capital value of Cunneen & Co Pty Ltd v Blackburn the assets of the businesses – primary Allan Vincent judge found that there was a contract under Blackburn [2017] NSWSC which the appellant provided services and 677 was entitled to be remunerated by way of 10% profit share but which was terminable 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 17 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 perform work for Built NSW Pty Ltd – Evolvebuilt then subcontracted its work to 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 In the matter Hosking v Extend n 18 2017/234980 1/03/2018 unfair preferences under s 588FA of of Evolvebuilt Pty Build Pty Ltd the Corporations Act 2001 (Cth) – primary Limited [2017] NSWSC 901 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 CONSTITUTION - judicial review – appeal Ralf Lavender v NSW from Local Court to District Court – Department of Industry; Lavender v Director of 19 2017/295123 6/03/2018 prosecution under Fisheries Management Jack Lavender v NSW Fisheries Compliance Act 1994 (NSW) – effect of arrangement Department of Industry with Commonwealth under Fisheries [2017] NSWDC 236 Act 1952 (Cth)- whether State Officers had beyond the low water mark without legislative or executive constitutional authority – whether fisheries officers had authority to act – whether Fisheries Management (Abalone 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 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 Benson v Rational Benson v Rational claim seeking damages for breach of Entertainment Enterprises 20 2017/242547 Entertainment 8/03/2018 contract or on the basis that the Limited (No 3) [2017] Enterprises Limited respondents were unjustly enriched at the NSWSC 922 appellant’s expense – at the conclusion of 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 – Carmelo Adriano first appellant and his father were both Mastronardo v Mastronardo v directors – a dispute arose as to the first Commonwealth Bank of 21 2017/279966 Commonwealth Bank 9/03/2018 appellant’s share in the business and the Australia trading as of Australia first appellant and his father agreed to BankWest [2017] NSWSC separate their interests – this agreement 1052 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 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 Lewis Securities Ltd (in liq) Lewis Securities Ltd 22 2017/130893 12/03/2018 loan to the director – loan later repaid v Carter [2017] NSWSC (in liq) v Carter following ‘round robin’ of cheques 412 organised by the director with the help of second respondent, another director of the first appellant – appellant companies brought Barnes v Addy claim against first 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 Summersford v Commissioner is prohibited from disclosing 23 2017/329131 Commissioner of 13/03/2018 Commissioner of to officer the identity of witnesses – whether Police Police [2017] NSWSC 1341 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 Kladis v Lowe (No 3) [2017] 24 2017/218387 Lowe v Kladis 14/03/2018 property to the street – first appellant is the NSWSC 815 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 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 Cellarit Pty Limited found in favour of the respondents – Lower court decision not 25 2017/313665 Cawarrah Holdings Pty 15/03/2018 whether primary judge erred in finding that on Caselaw Limited a binding oral agreement was made in 2006 between the appellant and the respondents which included a term that the appellant would charge each of the respondents a 15% commission on wine 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 Cam & Bear Pty Ltd 2017/161367 Cam & Bear Pty Ltd v 26 16/03/2018 the respondent had breached his duty of v McGoldrick [2016] 2017/218433 McGoldrick care and acted negligently but that no loss NSWSC 1894 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 CONTRACT - contract between rabbi and In the matter of South Head synagogue – whether contract incorporated & District Synagogue 27 2017/203555 Elkerton v Milecki 20/03/2018 provisions of “Halacha” as a system of (Sydney) (Administrators religious Jewish Law and “Hazakah” as a appointed) [2017] NSWSC tenet of Halcha into the agreement – 823 whether R employment could not be 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 articles written by the second respondent containing allegedly defamatory imputations regarding the appellant – articles stated that “members of a wealthy Christian sect” known as the “Exclusive Brethren” are accused of child sex abuse – issue of whether any matter complained of is capable of identifying the appellant company and whether proceedings should Plymouth Brethren be dismissed accordingly – primary judge (Exclusive Brethren) determined that the issue should be Christian Church considered as a separate question – Limited v The Age primary judge determined that the matters Plymouth Brethren Company Limited; complained of are not reasonably capable (Exclusive Brethren) 2017/325678 28 lymouth Brethren 20/03/2018 of identifying the appellant – whether Christian Church v Fairfax 2017/325690 (Exclusive Brethren) primary judge erred in dealing with the Media Publications Pty Christian Church issue as a separate question – whether Ltd [2017] NSWSC 214 Limited v Fairfax primary judge erred in finding that the Media Publications Pty appellant was not named in the matters Ltd 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 the written contract, the appellant undertook to only order articles from the respondent – in separate costs judgement, primary judge awarded damages for loss of AAP Industries Pty Ltd profits and loss in respect of finished goods v Rehau Pte Ltd [2017] Rehau Pte Ltd v AAP – whether primary judge erred in NSWSC 390; AAP 29 2017/284215 21/03/2018 Industries Pty Ltd concluding that express terms of the Industries Pty Ltd agreement obliged the appellant to order v Rehau Pte Ltd (No articles only from the respondent – whether 2) [2017] NSWSC 1136 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 Lawrence Nock v 30 2017/290523 Nock v Maddern 22/03/2018 negotiations was sum stated in Robert Maddern [2017] spreadsheet – whether that concession NSWDC 216 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 Young v King [2016] 31 King v Young 23/03/2018 practitioner pay costs of dismissal of appeal 2016/76351 NSWCA 282 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 of Crime Act 2002 (Cth) seeking an order that certain property of the respondent be forfeited to the Commonwealth – respondent resisted the application and, in the alternative, sought an order for 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 Lordianto v under s 49(4) and declined to make the Commissioner of the Commissioner of the order on the basis that it was not in the Australian Federal Police v 2017/300289 Australian Police; public interest – whether primary judge Fernandez [2017] NSWSC 32 23/03/2018 2017/301075 Commissioner of the erred in finding that funds in question were 1197; Commissioner of AFP Australian Federal not the proceeds of an offence or offences v Lordianto [2017] NSWSC Police v Fernandez – whether primary judge erred in 1196 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 CONTRACT – separate question – purchase of property that included Aboriginal objects on the subject land - where Aboriginal objects are deemed to be Mehmet v Carter [2017] 33 2017/316471 Mehmet v Carter 27/03/2018 property of the Crown – whether existence NSWSC 1067 constitutes a defect of title – whether vendor’s miscalculation of interest amounted to a repudiation of the contract COSTS – matter settled on basis that ex parte orders made permanent without admissions – A restrained from using confidential information – costs dealt with on the papers – whether erred in finding of “prima facie” dishonesty – whether finding possible when no contractual term of Nichols v NFS Lower court decision not 34 2017/340636 27/03/2018 employment to not compete following Agribusiness Pty Ltd available on Caselaw resignation – whether erred in awarding costs when R had abandoned damages claim on basis of agreed resolution of matter – whether primary Judge erred in determining merits of substantive claim – whether the awarding of costs is a disincentive for settlement Jaffarie v Quality WORKERS COMPENSATION – claim for Jaffarie v Quality Castings 35 2017/92508 28/03/2018 Castings Pty Ltd weekly compensation and lump sum Pty Limited [2017] compensation in relation to spinal injury NSWWCCPD 2 allegedly suffered by appellant in course of employment with first respondent – Senior Arbitrator awarded weekly compensation of $300 for a closed period – decision of Senior Arbitrator affirmed on appeal by Presidential Member of Workers Compensation Commission – whether Presidential Member should have revoked Senior Arbitrator’s order for weekly compensation for a closed period – whether Presidential Member wrongly relied on concession said to have been made by appellant’s former – whether Presidential Member should have found Senior Arbitrator erred in failing to refer medical dispute to Accredited Medical Specialist WORKERS COMPENSATION – dismissal of claim for work injury damages because A was time-barred under s151D of the Workers Compensation Act 1987 (NSW) – extension of time of nine and a half years sought but refused – whether R suffered material prejudice – whether legal advisers were prevented by operation of Gower v State of New law gromgiving notice of claim prior to Lower court decision not 36 2017/206372 3/04/2018 South Wales assessment of whole person impairment – available on Caselaw whether finding plainly to when R provided a statement to A’s – where ground of prejudice found as to unavailableness of witnesses considered when no evidence led by R on point – whether A’s expert report incorrectly rejected on basis of factual assumptions but uncontrovertibly correct – whether fair trial possible Potkonyak v Legal DISCIPLINARY PROCEEDINGS – a Legal Services 37 2018/24893 Services 5/04/2018 number of allegations of unsatisfactory Commissioner v Potkonyak Commissioner professional conduct and professional (No 3) [2018] NSWCATOD misconduct were made against the appellant concerning his conduct in the course of child custody proceedings – complaints resulted in two sets of proceedings in the Tribunal – Tribunal found the appellant guilty of professional misconduct – following subsequent hearing, Tribunal ordered that the appellant be removed from the roll – whether the orders of the Tribunal are void on the grounds they are based on the obiter of judicial officers who conducted the proceedings the subject of the complaints – whether the Tribunal failed to give adequate reasons for its findings of professional misconduct – whether the appellant was denied procedural fairness – whether the Tribunal failed to consider the provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW), s 90 – whether the Tribunal erred in accepting certain information as correct – whether the Tribunal erred in failing to allow the appellant to admit certain evidence – whether the Tribunal’s reasons gave rise to reasonable apprehension of bias BUILDING & CONSTRUCTION – appellant is the Owners Corporation in respect of a mixed residential and commercial strata development – development involved the conversion of a warehouse owned by the The Owners Strata Plan No respondents – builder of the development is The Owners - Strata 66375 v Suncorp Metway 38 2017/205467 6/04/2018 now in liquidation – appellant brought a Plan No 66375 v King Insurance Ltd (No 2) [2017] claim for various defects – issue of whether NSWSC 739 the respondents are liable for defects on the basis that they were “developers” within the meaning of s 3A of the Home Building Act 1989 (NSW) and, if they were, whether their liability extends to defects that are the subject of the claim – primary judge found that the respondents were not developers and dismissed claim – whether primary judge erred in finding that the appellant had not discharged its onus in establishing that the respondents signed the underlying construction contract – whether primary judge erred in failing to find that the respondents were “developers” within the meaning of the Home Building Act 1989 (NSW) – whether primary judge erred in finding that even if the respondents had been “developers” of the property, they were not liable to the appellant for the defects alleged – whether primary judge erred in certain findings with respect to the alleged defects LAND AND ENVIRONMENT – appellant lives near a hotel operated by the respondent – live and recorded music is played in an outdoor beer garden at the rear of the hotel – appellant brought proceedings seeking an order that the respondent comply with the terms of a development consent granted in 2006 which contained a prohibition as to “live or recorded music or amplified sound” – Sally-Anne Maree Fagin v Fagin v Australian primary judge found that consent was no Australian Leisure and 39 2017/187102 Leisure and Hospitality 11/04/2018 longer operational as it had lapsed and Hospitality Group Pty Group Pty Ltd therefore respondent was not bound by it – Limited [2017] NSWLEC 59 whether primary judge was biased – whether primary judge erred in certain factual findings regarding works undertaken on the property – whether primary judge erred in construction of s 95(4) of the Environmental Planning and Assessment Act 1979 (NSW) – whether primary judge erred in approach to determining whether a consent had lapsed - whether primary judge erred in construing scope of development consent – whether primary judge erred in finding development consent had lapsed WORKERS COMPENSATION – recovery of workers compensation payments under s151Z(d) of Workers Compensation Act 1987 – worker employed by a related administration company to R - where primary Judge found R’s role on A’s site Coles Supermarkets was limited, but consistent with being the Australia Pty Ltd v actual employer – whether s151Z engaged Lower court decision not 40 2017/242343 11/04/2018 Ready Workforce Pty – whether injury was caused by A’s available on Caselaw Ltd negligence – cross-appeal – quantum – apportionment – adequacy of reasons- CONTRACT – breach – R liable for any default on part of sub-contractor – whether erred in finding that related company was not a subcontractor when it was a separate legal entity CONSTITUTION – Civil and Administrative Decisions Tribunal – matter between the residents of different States – Gatsby was a tenant and a resident of Queensland at time of application – Gatsby was a landlord and resident of Queensland at time of Attorney General for application - whether NCAT was exercising 2018/66655 New South Wales v administrative or judicial power Johnson v Dibbin; Gatsby v 2018/66660 41 Gatsby; Attorney 12/04/2018 under Residential Tenancies Act Gatsby [2018] NSWCATAP 2018/71811 General for New South 2010 (NSW) – whether Appeal Panel had 45 2018/71862 Wales v Johnson jurisdiction to determine that it was a “court of a State” for the purposes of Ch III and s39 of Act 1903 (Cth) – whether erred in determining that it was such a Court – whether it ought to have concluded it was not such a Court and that it did not have jurisdiction Il Vizio Corp Pty Ltd v CONTRACT – dispute arose between Lower court decision not 42 2017/342744 13/04/2018 Cashflow Finance parties regarding payment of goods available on Caselaw Australia Pty Ltd provided by the respondent to the appellant – common ground that the respondent had to prove delivery of goods to trigger payment obligations – whether primary judge erred in failing to find that the goods the subject of the disputed invoices were [not] in fact delivered – whether primary judge erred in admitting into evidence a spread sheet setting out the 26 disputed invoices and in giving weight to the spread sheet – whether primary judge erred in finding that it was a term of the agreement that the appellant must dispute delivery within seven days – whether primary judge erred in finding that there was an effective assignment of all of the debts the subject of the invoices to the appellant REAL PROPERTY – appellants are registered proprietors of premises leased by the first respondent – lease contains four options to renew – appellants commenced proceedings challenging the validity of the respondent’s attempts to exercise the first and second of the options to renew – options exercised in 2010 and 2015 respectively – primary judge found that Papantoniou v Stonewall Hotel Pty Ltd options were validly exercised – whether 43 2017/244752 Stonewall Hotel Pty 16/04/2018 v Papantoniou [2017] primary judge erred in finding that first Ltd NSWSC 964 respondent validly exercised its option in 2010 by serving a notice in writing to a duly authorised agent of the landlord – whether primary judge ought to have held that by reason of the first respondent not having validly exercised the 2010 option, no subsequent option was capable of being exercised – whether appellants suffered forensic prejudice and disadvantage McGinn v Ashfield PROCEDURE – appeal dismissed - motion McGinn v Ashfield 44 2011/239285 17/04/2018 Council to reopen based on actual fraud – effect of Council [2012] NSWCA 238 subsequent environmental plan on earlier decision – whether new plan constituted fraud – whether appeal ought to be reopened PROFESSIONAL NEGLIGENCE (medical) – appellant suffers from schizophrenia and was under the treatment of the respondent from October 2005 to November 2010 – appellant suffered spinal injuries and ankle fractures as a result of jumping from a balcony on 6 November 2010 whilst suffering from hallucinations – appellant commenced proceedings against respondent seeking damages for physical Lower court decision not 45 2016/351845 Huang v Wong 18/04/2018 injuries and mental harm – alleged by on Caselaw appellant that respondent had failed to provide reasonable care, had refused to admit the appellant to hospital on various occasions, and misled the appellant and her family as to the full-range of available mental health services – whether primary judge erred in giving for the respondent and in making costs orders in the respondent’s favour CONTRACT – respondent is a finance company which lent money to an exporter to purchase goods for export – exporter engaged the appellant company, a freight forwarder, to arrange shipment of its products – in the course of shipping these Cro Travel Pty Ltd v Australia Capital Financial products, appellant created documents Australia Capital Management Pty Limited v 46 2017/322488 19/04/2018 which had the characteristics of a bill of Finance Management Freight Solutions (Vic) Pty lading – exporter provided these to the Pty Ltd Limited [2017] NSWDC 279 respondent as security for the borrowings – when exporter defaulted on its obligations it was found that the bills of lading were not valid securities – respondent brought action for misleading and deceptive conduct under the Australian Consumer Law and breach of warranty of authority with respect to the issuing of the bills of lading and the representations they carried – primary judge found that both claims were made out – whether primary judge erred in finding that the appellant represented that each bill of lading was an instrument providing an entitlement to obtain delivery of the goods – whether primary judge erred in certain factual findings regarding the bills of lading – whether primary judge erred in finding that the appellant engaged in false and misleading conduct within the meaning of s 18 of the Australian Consumer Law – whether primary judge erred in finding that a breach of warranty by the appellant was the cause of the respondent’s loss ADMINISTRATIVE LAW (other) - whether Regulations and Fishery Management Plan ultra vires – doctrine of – construction of legislation – whether amending regulations implementing alterations to Management were an authorised amendment – whether “new” plan – whether regulations arbitrary, Elliott v Minister Elliott v Minister capricious or an abuse – whether authority Administering administering Fisheries 47 2018/56889 20/04/2018 to amend of a kind is within the description Fisheries Management Management Act 1994 all amendments – Rights and Obligations Act 1994 [2018] NSWSC 117 associated with statutory commercial fishing licences - whether primary Judge erred in finding that the subsidised share trading market was a market in quota shares rather than access shares– whether erred in holding that notice had been given of changes in the statutory measures relating to quotas