Supreme Court of NSW Court of Appeal Decisions Reserved at 20 April 2018 Number Case Name Heard Issues Judgment 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 – trial judge’s assessment of evidence 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 LAW – 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 Police “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 - Constitution – whether institutional integrity of Court distorted by removal of power of Court to decide issue – whether legislation required Court to implement decision of the Executive – whether unconscionable restraint on AD from accessing restrained funds to defend proceedings ADMINISTRATIVE LAW (judicial review) – the applicant, a barrister, 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 Lawyers 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 barristers in New South Wales TORTS (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 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 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 contributory negligence – 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 contract and misleading or Weir Services deceptive conduct – before arbitral tribunal 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 bar 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 regulation 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 tort 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 EQUITY – 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,