Supreme Court of NSW Court of Appeal

Decisions Reserved at 5 June 2020

Number Case Name Heard Issues Judgment Below

1 2019/153561;

2019/215243

Hochbaum v RSM

Building Services Pty Ltd;

Whitton v Technical and

Further Education

Commission t/as Tafe

NSW

21/10/2019 WORKERS COMPENSATION – appellant suffered injury in

the course of his employment with respondent employer –

respondent’s insurer paid appellant weekly compensation

payments – payments subsequently ceased pursuant

to Workers Compensation Act 1987 (NSW), s 39 –

appellant sought continuation of payments on the basis

that s 39 did not apply as his degree of permanent

impairment exceeded 20% – appellant’s impairment was

assessed at 21% – payments were reinstated – appellant

sought back payments for intervening period – appellant

was found to be entitled to back payments – respondent

appealed – primary judge found in favour of respondent –

whether primary judge erred in the interpretation of s 39

WORKERS COMPENSATION – appellant suffered injury

during the course of her employment with respondent –

appellant received weekly compensation payments –

RSM Building Services

Pty Ltd

v Hochbaum [2019]

NSWWCCPD 15;

Technical and Further

Education Commission

t/as TAFE NSW v

Whitton [2019]

NSWWCCPD 27

compensation payments ceased after 260 weeks pursuant

to Workers Compensation Act 1987 (NSW), s 39, as

appellant’s whole person impairment (WPI) was assessed

at less than 20% – appellant’s WPI was later assessed at

32% – compensation payments were reinstated from date

of assessment – appellant sought payment for the period

between cessation of payment and date of assessment –

senior arbitrator found appellant entitled to payment –

respondent appealed – primary judge set aside senior

arbitrator’s determination – whether primary judge erred

in construction of s 39 – whether primary judge erred in

finding appellant not entitled to compensation for the

disputed period

2 2018/389585 Ghosh v Medical Council

of NSW

7/11/2019 PROFESSIONAL NEGLIGENCE (medical) – appellant was a

general medical practitioner – appellant treated her own

son, who is autistic, including prescribing medication for

him – Health Care Complaints Commission and

Department of Family and Community Services carried out

investigation of appellant – respondent imposed on

appellant a condition “not to practise medicine” –

appellant sought removal of condition – Tribunal

confirmed condition imposed by respondent – whether

Tribunal lacked jurisdiction – whether Tribunal failed to

take into account mandatory considerations – whether

Tribunal failed to consider relevant evidence – whether

Tribunal considered irrelevant evidence – whether Tribunal

exercised power in a legally unreasonable way – whether

Tribunal erred in making certain factual findings – whether

Ghosh v Medical Council

of NSW [2018]

NSWCATOD 186

Tribunal failed to give adequate reasons – whether

appellant was denied procedural fairness

3 2019/173246;

2019/306508;

2019/306634;

2019/306670

Lee v Strelnicks; Souaid v

Nahas; Cassim v Nguyen;

Rixon v Arsalan

14/11/2019 TORT (neg) – motor vehicle collision – special damages for

hire of replacement vehicle – whether Local Court Assessor

erred in applying a “need” test to determine whether hire

was reasonable – extent to which use of vehicle before

accident relevant – extent to which use of replacement

vehicle after accident relevant – whether “actual costs

measure” or “market rate measure” should be applied –

motor vehicle collision – special damages for hire of

replacement vehicle – whether damages assessed by

market cost of vehicle actually hired taking into account

the market availability of equivalent vehicle

Lee v Strelnicks [2019]

NSWSC 526; Nguyen v

Cassim [2019] NSWSC

1130; Rixon v Araslan

[2019] NSWSC 1136;

Souaid v Nahas [2019]

NSWSC 1132

4 2019/207900 Blendell v Blendell 4/12/2019 SUCCESSION – deceased made two wills, a 2007 Will and a

2015 Will – appellant was spouse of deceased at time of

her death – respondent was one of deceased’s four

children – appellant named executor and sole beneficiary

under 2015 Will – appellant commenced proceedings

seeking grant of probate of 2015 Will – deceased’s children

and the sole executor named in 2007 Will opposed grant of

probate of 2015 Will – argued circumstances gave rise to

Decision not available

on Caselaw

suspicion 2015 Will did not express mind of deceased –

certain of deceased’s children sought declaration that

appellant would hold any property obtained under 2015

Will on constructive trust on basis that 2015 Will was

procured by undue influence – deceased’s children, in the

alternative, sought orders for family provision – primary

judge found 2015 Will valid and not procured by undue

influence – primary judge made family provision orders in

relation to each of deceased’s children – whether primary

judge erred in finding inadequate provision for respondent

in circumstances where he withheld material evidence

relating to his financial circumstances – whether primary

judge erred in finding respondent not adequately provided

for in circumstances where deceased not in breach of any

moral duty owed to him – whether primary judge’s

discretion miscarried

5 2019/196566 Primary Securities Ltd v

Aurora Funds

Management Ltd

13/02/2020 CORPORATIONS – change of responsible entity of listed

managed investment scheme said to have occurred by

resolution at meeting called by members under s 252D of

the Corporations Act 2001 (Cth) – first respondent was

incumbent responsible entity and appellant was incoming

responsible entity – first respondent brought proceedings

alleging that the meeting and resolutions were invalid –

primary judge found meeting was invalid – whether

primary judge erred in finding that the meeting was

procedurally deficient – whether primary judge erred in

finding that substantial injustice within the meaning of s

1322(2) had been occasioned by the procedural

In the matter of Aurora

Funds Management

Limited [2019] NSWSC

630

irregularities of the meeting – whether primary judge erred

in not finding that any substantial injustice could be cured

by an order of the court – whether the primary judge erred

in having regard to certain allegations made by the first

respondent

6 2019/376331 GAR v Attorney General

for the State of NSW

19/02/2020 ADMINISTRATIVE LAW (judicial review) – applicant was

convicted and sentenced for having sexual intercourse

without consent with his former wife – applicant brought a

number of applications under s 78 of the Crimes (Appeal

and Review) Act 2001 (NSW) – primary judge, on fourth

application, refused to consider or otherwise deal further

with the application – whether primary judge erred in

treatment of fresh evidence – whether primary judge erred

in failing to find that fresh evidence overcame s 79(3)(a) of

the Crimes (Appeal and Review) Act

GAR – Application for an

inquiry into conviction

pursuant to s 78 of the

Crimes (Appeal and

Review) Act 2001 [2019]

NSWSC 982

7 2019/217041 Chief Commissioner of

State Revenue v Downer

EDI Engineering Pty

Limited

20/02/2020 TAX – respondent contracted with Foxtel to deliver and

install equipment for Foxtel subscription television at

premises of Foxtel customers – respondent subcontracted

with third parties to complete the work – subcontractors

would acquire relevant materials from respondent’s

warehouse, transport those materials to customers’

premises and, after inspecting premises and discussing

logistics with customer, install relevant equipment –

respondent objected to appellant’s assessment of

respondent’s payroll tax liability and appellant disallowed

the objection – primary judge found in favour of

respondent – whether primary judge erred in finding

Downer EDI Engineering

Pty Ltd v Chief

Commissioner of State

Revenue [2019] NSWSC

743

subcontracts fell within s 32(2)(a) of Payroll Tax Act

2007 (NSW) – whether primary judge erred in finding

subcontracts fell within s 32(2)(d)(i) of Payroll Tax Act –

whether primary judge erred in finding penalty tax and

interest should, if payable, be less than that imposed by

the assessment

8 2019/335705 Lianos v Order of AHEPA

NSW Inc

27/02/2020 CORPORATIONS – appellants were three members of first

respondent – appellants brought proceedings challenging

the validity of amendments to first respondent’s

constitution and resolutions passed subsequent to the

amendments – first respondent sought, in event that the

constitutional amendments were invalid, orders under s

1322(4) of the Corporations Act 2001 (Cth) – foundational

documents of first respondent were “complex and

obscure” and record keeping was “patchy” – primary

judge found in favour of first respondent – whether

primary judge erred in making certain factual findings –

whether primary judge erred in interpretation of

foundational documents – whether primary judge erred in

finding that the amendments to the constitution and

certain resolutions passed thereafter were valid – whether

primary judge erred in finding certain management

members did not breach their fiduciary duties

In the matter of Order of

AHEPA NSW Inc. [2019]

NSWSC 1329

9 2019/235412 Ea v Diaconu 27/02/2020 TORTS (other) – summary dismissal - misfeasance in public

office and malicious prosecution – acquitted of offences

under Criminal Code but found guilty of offences under

Migration Act – where alleged that re-trial after hung

Ea v Diaconu [2019]

NSWSC 795

should not have occurred when credit of Crown’s

witnesses were seriously in doubt – where alleged that

prosecution continued to justify the “use of the public

purse” - whether applicant’s claim in respect of

misfeasance doomed to fail – whether pleaded claim for

malicious prosecution so replete with deficiencies that no

reasonable cause of action disclosed – whether first

respondent reacting to applicant’s evidence in trial capable

of being misfeasance

10 2019/313960 Macquarie International

Health Clinic Pty Ltd v

Sydney Local Health

District

28/02/2020 CONTRACT – long-running dispute between appellant and

respondent in relation to construction of private hospital

and medical centre on respondent’s land – deed entered

into between parties – respondent issued default and

termination notices under deed – notices premised on

non-compliance by appellant with construction timetables

– appellant brought proceedings against respondent

contending notices were invalid because respondent had

no right to promulgate new timetables or failed to act in

accordance with contractual obligation of good faith, or

because the appellant complied with the timetables –

primary judge found in favour of respondent – whether

primary judge erred in making various findings of fact –

whether primary judge erred in construing terms of deed –

whether primary judge erred identifying the relevant

question for the purposes of s 129(1) of the Conveyancing

Act 1919 (NSW)

Macquarie International

Health Clinic Pty Ltd v

Sydney Local Health

District [2019] NSWSC

1199

11 2019/178161 DIF III - Global Co- 3/03/2020 CORPORATIONS – first respondent, a subsidiary of Babcock DIF III – Global Co-

Investment Fund, LP v DIF

Capital Partners Limited

& Brown Ltd, carried on a funds management business – it

established a new investment fund – first appellant, a

limited liability partnership, held funds contributed by

investors – second appellant was responsible for

partnership’s management – first respondent was

appointed to manage partnership’s investments pursuant

to Management Agreement –partnership invested USD25

million into acquisition of a US corporation – investment

was unsuccessful – partnership commenced proceedings

against, among others, first respondent and its investment

committee – primary judge dismissed proceedings –

whether primary judge erred in finding investment

committee did not make misleading and deceptive

representations as to commerciality of investment –

whether primary judge erred in finding first respondent did

not engage in misleading and deceptive conduct by failing

to disclose risk that investment would not be commercially

viable – whether primary judge erred in dismissing

negligent misstatement claim against investment

committee – whether primary judge erred in finding first

respondent did not breach Management Agreement –

whether primary judge erred in dismissing claim for

indemnity against professional indemnity insurers

Investment Fund LP v

Babcock & Brown

International Pty

Limited [2019] NSWSC

527

12 2019/267950 Mohareb v Palmer 5/03/2020 ADMINISTRATIVE LAW (other) – Vexatious Proceedings Act

– whether erred in finding that all of the applicant’s

proceedings were commenced vexatiously – whether

denied procedural fairness in being heard on application –

whether primary Judge reversed onus of proof by requiring

Palmer

v Mohareb [2019]

NSWSC 975

applicant to show that he was not vexatious – bias

13 2019/129821 Liprini v Hale 6/03/2020 PROFESSIONAL NEGLIGENCE (legal) – appellant retained

respondents, appellant’s former solicitors, in respect of

dispute with appellant’s brother regarding parents’ estate

– parents each left a will that excluded appellant –

appellant alleged respondents breached duty of care by

failing to commence proceedings in relation to mother’s

estate prior to mediation of proceedings in relation to

father’s estate – alternatively, appellant alleged

respondents breached duty of care in formulation of

orders following mediation – primary judge found in favour

of respondents – whether primary judge erred in finding

respondents did not breach duty of care – whether primary

judge erred in failing to find alleged breach caused

appellant to suffer loss – whether primary judge erred in

finding doctrine of advocates’ immunity applied in respect

of alleged negligent formulation of orders

Liprini v McIntyre [2019]

NSWSC 355

14 2019/382391 ACN 004 410 833 Ltd (in

liq) v Walton

11/03/2020 CORPORATIONS – examination orders under s596A of

Corporations Act – where examination alleged to support

private causes of action that do not benefit the company -

application to set aside – whether respondent’s

predominant purpose for examination was an improper

purpose – whether predominant purpose would benefit

creditors or contributories of applicant

In the matter of ACN

004 410 833 Limited

(formerly Arrium

Limited) (subject to a

deed of company

arrangement) [2019]

NSWSC 1606

15 2019/19004 SW v MK 12/03/2020 TORTS (other) – appellant sought damages for injuries she

sustained while exiting a moving taxi driven by respondent

– respondent alleged that prior to this incident, appellant

threatened him with a knife and attempted to rob him –

primary judge found respondent not liable – whether

primary judge erred in finding appellant was engaged in an

illegal enterprise – whether primary judge erred in finding

respondent did not owe appellant a duty of care – whether

primary judge erred in finding that, in any event,

respondent did not breach that duty – whether primary

judge erred in finding respondent acted in self-defence

pursuant to Civil Liability Act 2002 (NSW), s 52 – whether

primary judge erred in failing to find respondent

intentionally pushed appellant out of taxi and that this

constituted an offence – whether primary judge erred in

application of s 54 – whether primary judge erred in

finding appellant guilty of contributory negligence –

whether primary judge erred in consideration of CCTV

evidence – whether primary judge erred in assessment of

damages

SW v MK (No 5) [2019]

NSWDC 242

16 2019/122117 Warner Capital Pty

Limited v Shazbot Pty

Limited

13/03/2020 CORPORATIONS – second appellant and second

respondent conducted an insolvency practice which traded

through a proprietary company acting as trustee of a unit

trust – units were owned by first appellant and first

respondent – first appellant and first respondent also held

shares in fourth appellant – second appellant and second

respondent terminated relationship – dispute arose as to

parties’ entitlements – primary judge found second

Shazbot Pty Ltd v

Warner Capital Pty

Ltd [2018] NSWSC 1645

respondent entitled to an account of assets and liabilities

on the basis that a partnership existed between second

appellant and second respondent – primary judge also

found first respondent entitled to an account of profits or

equitable compensation arising from transfer of its shares

in fourth appellant to first appellant – whether primary

judge erred in finding a partnership existed – whether

primary judge erred in finding partnership included the

holding of shares in fourth appellant – whether primary

judge erred in determining business of partnership –

whether primary judge erred in finding second appellant

breached fiduciary duties owed to second respondent –

whether primary judge erred in finding second appellant

breached fiduciary duties in respect of transfer of first

respondent’s shares in fourth appellant – whether

appellants were denied procedural fairness – whether

primary judge erred in making certain factual findings

17 2019/220052 Carter v Hastings River

Greyhound Racing Club

19/03/2020 TORTS (negligence) – appellant suffered injuries at

respondent’s greyhound racing track while operating a

catching pen gate – brought proceedings in negligence

against respondent – primary judge found respondent not

liable – whether primary judge erred in finding operating

the gate was a “dangerous recreational activity” within the

meaning of s 5K of the Civil Liability Act 2002 (NSW) –

whether primary judge erred in finding respondent had not

breached its duty of care – whether primary judge erred in

finding alleged breach of duty of care was not factually

causative of appellant’s injuries – whether primary judge

Carter v Hastings River

Greyhound Racing

Club [2019] NSWSC 780

erred in finding harm was not within the scope of liability –

whether primary judge erred in apportionment of liability

for contributory negligence

18 2019/292791 Piatti v ACN 000 246 542

Pty Ltd

23/03/2020 TORTS (negligence) – appellant is representative of

deceased’s estate – deceased had been in the employ of

first respondent and, both in the course of that work and

other work, worked with asbestos sheets manufactured

and supplied by second respondent – deceased died from

mesothelioma – shortly before his death, deceased

brought negligence proceedings against first and second

respondents – appellant took over proceedings on

deceased’s death – primary judge found in favour of

appellant – whether primary judge erred in restricting

damages for gratuitous domestic assistance to the number

of hours provided by the deceased to his de facto spouse

as at the date the liability for the disease arose, for the

purposes of s 15B of Civil Liability Act 2002 (NSW)

Piatti v ACN 000 246 542

Pty Ltd & Anor [2019]

NSWDDT 7

19 2019/150753 The Owners - Strata Plan

No 30791 v Southern

Cross Constructions (ACT)

Pty Limited (in liq)

25/03/2020 TORTS (negligence) – excavation, shoring and piling works

were undertaken for a residential development – works

caused aesthetic and structural damage to nearby

apartments – first appellant and lot owners of nearby

apartments whose internal walls were affected

commenced proceedings against first respondent, which

was engaged to construct the development, second

respondent, first respondent’s insurer, and third

respondent, structural engineers – primary judge found

respondents not liable for damage to apartments –

The Owners – Strata

Plan 30791 v Southern

Cross Constructions

(ACT) Pty Ltd (in liq) (No

2) [2019] NSWSC

440; The Owners –

Strata Plan 30791 v

Southern Cross

Constructions (ACT) Pty

Ltd (in liq) (No 3) [2019]

whether primary judge erred in determining scope of

respondents’ duty of care to appellants – whether primary

judge erred in finding respondents did not breach their

duty – whether primary judge applied the wrong test for

causation – whether primary judge erred in finding

respondents did not cause damage suffered – whether

primary judge erred in making certain factual findings

NSWSC 560

20 2019/265863 Coffs Harbour City

Council v Noubia Pty

Limited

26/03/2020 LAND AND ENVIRONMENT – respondent sought

development consent from appellant for a mixed

development near Coffs Harbour -- pursuant to condition

of development consent, certain of respondent’s lots were

transferred to appellant – appellant brought proceedings

against respondent seeking compensation under ss 54(1)

and 55 of Land Acquisition (Just Terms) Act 1991 (NSW) –

question as to liability to pay compensation and highest

and best use of transferred lots – primary judge found in

favour of appellant – whether primary judge’s reasons

were inadequate – whether primary judge erred in

treatment of disputed evidence and competing

submissions – whether primary judge denied appellant

procedural fairness

Noubia Pty Ltd v Coffs

Harbour City

Council [2019] NSWLEC

113

21 2019/165631 E Co (a pseudonym) v Q

(a pseudonym); Q (a

pseudonym) v A (a

pseudonym)

27/03/2020 EQUITY – third, fourth and fifth respondents are

appellant’s sons – first and second respondents are

companies of which sons are directors – respondents

allege appellant encouraged the expectation that appellant

would make his properties available for use in a family

business until his death and leave the properties to his

E Co v Q [2018] NSWSC

442; E Co v Q (No

2) [2018] NSWSC 445; E

Co v Q (No 3) [2018]

NSWSC 646; E Co [a

pseudonym] v Q [a

sons on his death – appellant disinherited his sons and

sought to take possession of properties – sons brought,

among other claims, a proprietary estoppel claim – primary

judge found estoppel claim made out – whether primary

judge took into account irrelevant considerations in finding

appellant encouraged expectation – whether primary

judge erred in finding certain conduct of appellant

encouraged expectation – whether primary judge erred in

finding fifth respondent acted in reliance on expectation –

whether primary judge erred in finding fourth and fifth

respondents suffered detriment – whether primary judge

erred in determination of relief to be granted

pseudonym] (No

4) [2019] NSWSC 429

22 2019/333199 Australian Executor

Trustees (SA) Limited v

Kerr

3/04/2020 EQUITY – appellant was trustee for respondent members

of forestry scheme – appellant consented to the sale of

trees and land and the discharge of the respondent’s

security without receiving proceeds of sale and procuring

alternative security – first respondent, as special purpose

trustee for other members, brought proceedings against

appellant for breach of trust – appellant conceded breach

and primary judge found breach caused damage and that

appellant was unable to rely on legal advice it received in

relation to sale – whether primary judge erred in allocating

the onus of proving causation – whether primary judge

erred in certain findings on causation – whether primary

judge erred in failing to make certain factual findings about

the legal advice – whether primary judge erred in finding

appellant was unable to rely on advice – whether primary

judge erred in finding the encumbrances were trust

Kerr v Australian

Executor Trustees (SA)

Ltd; Australian Executor

Trustees (SA) Ltd v Fuller

and others trading

as Sparke Helmore Lawy

ers [2019] NSWSC 1279;

Kerr v Australian

Executor Trustees (SA)

Ltd; Australian Executor

Trustees (SA) Ltd v Fuller

and others trading

as Sparke Helmore Lawy

ers (No 2) [2019] NSWSC

1438

property – whether primary judge erred in finding South

Australian apportionment legislation, and not New South

Wales apportionment legislation, applied to the

respondent’s claims

23 2019/335346 Pham v Gall 20/04/2020 PROCEDURE – application to set aside judgment made in

his absence – alleged contract to share lottery winnings

being on an annuity basis - whether erred in not being

satisfied that there was a real likelihood that it would be

unjust to allow orders to stand – whether test is a real

likelihood that it would be unjust rather than being not

satisfied it was unjust – whether failed to take into account

that alleged contract was not enforceable in absence of

consideration – whether erred in concluding that

applicant’s signature on contract was plausibly his –

whether failed to take into account concessions made

about not recovering past payment

Gall v Pham (No. 2)

[2019] NSWSC 1294

24 2019/301319 Caron v Janani 21/04/2020 CORPORATIONS – first, second and third respondents

(“companies”) operated “Ponzi scheme” – scheme

promoted as foreign exchange trading business – rather

than investing new investors’ capital deposits, companies

purported to pay investment and capital returns to earlier

investors – ASIC obtained freezing orders over companies’

accounts – appellants deposited funds in accounts after

freezing order – liquidators of companies sought orders

and directions as to manner in which they should

distribute account funds – unlike funds invested before

freezing order, appellants’ funds could be separately

In the matter of

Courtenay House Capital

Trading Group Pty

Limited (in liq) and

Courtenay House Pty

Limited (in liq) [2019]

NSWSC 1113

identified as part of remaining funds in the account –

primary judge found funds in account could be distributed

to investors on basis that funds deposited by them into

that account were held on trust – primary judge found that

appellants’ funds could not be treated differently to other

investors’ funds and were to rank pari passu with those

investors – whether primary judge erred in not

distinguishing between pre- and post-freezing order

investor funds

25 2019/338853;

2020/99958

Motor Yacht Sales

Australia Pty Ltd v Blann

22/04/2020 CONTRACT – appellant in business of importing and selling

luxury vessels – respondent purchased vessel from

appellant – contract for sale contained a term that the

boat would be berthed at Rose Bay Marina for three years

at $5,500 per month paid by the purchaser – appellant

brought proceedings against respondent seeking to

recover unpaid mooring fees – primary judge found in

favour of respondent – whether primary judge erred in

failing to find the contract contained an obligation on the

respondent to pay the amount specified in the berthing

clause or as varied – whether the primary judge erred in

finding the respondent was not liable to pay the rent from

the time the vessel was sold

Motor Yacht Sales

Australia Pty Limited

trading as The Boat

Boutique Company v

Robert Blann [2019]

NSWDC 558

26 2019/309141 Chatoor v Health Care

Complaints Commission

of NSW

23/04/2020 DISCIPLINARY PROCEEDINGS – appellant was senior

cardiology specialist – professional standards committee

found him guilty of unsatisfactory professional conduct for

inserting a permanent pacemaker for a patient without

sufficient clinical indication and approving the transfer of

that patient from one hospital to another in circumstances

where proper arrangements had not been made for the

patient’s review prior to discharge – committee

reprimanded appellant and imposed practice conditions on

his registration – appellant appealed to the Civil and

Administrative Tribunal – Tribunal found against appellant

– whether Tribunal erred in failing to apply the standard

for unsatisfactory professional misconduct within the

meaning of s 139B of the Health Practitioner Regulation

National Law (NSW) – whether the Tribunal erred in failing

to have proper regard to certain matters – whether

Tribunal erred in treatment of certain expert evidence –

whether Tribunal erred in making certain findings of fact –

whether Tribunal erred in imposing unnecessary or

inappropriate registration conditions

Chatoor v Health Care

Complaints

Commission [2019]

NSWCATOD 124

27 2019/216946 Sica v Brophy 24/04/2020 TORTS (other) – appellant and respondent were

neighbours and became engaged in a dispute – respondent

struck appellant in the head and the force of the blow

caused appellant to fall to the ground –

respondent charged with and convicted of assault

occasioning actual bodily harm – appellant brought

proceedings seeking compensatory, aggravated and

exemplary damages for assault and battery – primary

Decision not available

on Caselaw

judge found in favour of respondent – whether primary

judge erred in finding respondent was acting in self-

defence

28 2019/313856 RD Miller Pty Ltd v Roads

and Maritime Services

NSW

24/04/2020 LAND AND ENVIRONMENT – claim for compensation under

Roads Act 1993 (NSW) – whether a “before and after”

approach to construction is open – whether principle that

a person cannot take advantage of their own wrong

applies to compensation proceedings - refusal of leave to

amend points of claim to allow both approaches - whether

no reasonable cause of action – whether primary Judges

erred in applying strict pleading principles when not a

court of pleading

RD Miller Pty Ltd v

Roads and

Maritime Services [2019

] NSWLEC 129

29 2019/356885 Singh v Lynch 27/04/2020 TORTS (negligence) – appellant and respondent both

professional jockeys -- appellant suffered serious head

injury when fell off his mount during a race – appellant

brought proceedings alleging respondent negligently

handled his mount causing appellant’s fall and injuries –

parties agreed on quantum – primary judge found in

favour of respondent on issue of liability – whether

primary judge erred in failing to find respondent breached

duty of care owed to appellant in light of other findings –

whether primary judge erred in making or failing to make

certain factual findings – whether primary judge erred in

approach to question of breach – whether primary judge

erred in defining “obvious risk”, and identifying the

relevant risk, for purposes of ss 5F and 5L of the Civil

Liability Act 2002 (Cth)

Singh v Lynch [2019]

NSWSC 1403

30 2018/393204;

2018/393214

Gilmore Finance Pty Ltd v

Aesthete No 3 Pty Ltd

30/04/2020 COSTS – appellants were ordered to pay respondent’s

costs on party/party basis – respondent claimed costs in

the sum of $147,349.08 – $77,864.08 was allowed by costs

assessor – respondent appealed costs assessor’s decision,

seeking $141,666.38 – respondent argued costs items

disallowed by costs assessor were fair and reasonable –

primary judge found costs incurred by respondent were

fair and reasonable – whether primary judge erred in

failing to consider whether costs assessor’s decision

resulted from legal, factual or discretionary error –

whether primary judge erred in ordering judgment for

respondent for a sum of money, rather than issuing

certificates pursuant to Legal Profession Uniform Law

Application Act 2014 (NSW), ss 87-88

Aesthete No 3 Pty

Limited ACN 127 464

966 v Gilmore Finance

Pty Limited ACN 104 792

627 and Anor [2018]

NSWDC 1

31 2019/335419 Dr Windsor v Health Care

Complaints Commission

30/04/2020 DISCIPLINARY – appellant was registered as general

practitioner in NSW – first respondent received an

anonymous written complaint about appellant’s

professional conduct – health check panel considered

appellant under influence of husband and concerned she

may act on, or share, his “delusional beliefs” – appellant

failed to attend psychiatric examination as directed –

registered psychologist determined appellant not fit to

practise – panel suspended appellant’s registration as a

medical practitioner under s 150 of the Health Practitioner

Regulation National Law (NSW) – first respondent referred

matter to Director of Proceedings under s 39(1)(a)

of Health Care Complaints Act 1993 (NSW) – Occupational

Division of NCAT found appellant not currently competent

Health Care Complaints

Commission v

Windsor [2019]

NSWCATOD 149

to practise and cancelled her registration as general

practitioner – whether decision of Tribunal was affected by

bias – whether Tribunal was improperly constituted –

whether Tribunal’s discretions miscarried – whether

Tribunal erred by failing to consider certain of the

appellant’s evidence or to decide certain issues – whether

Tribunal misconstrued certain legislative instruments –

whether Tribunal erred in making, or failing to make,

certain findings of fact – whether Tribunal engaged in

misconduct

32 2019/278581 Dickson v Northern Lakes

Rugby League Sport &

Recreational Club Inc

1/05/2020 TORTS (negligence) – appellant was subject to a “spear

tackle” or “dangerous throw” instigated by second

respondent when playing for his local Rugby League team –

tackle was contrary to Laws of Rugby League – appellant

sustained severe head injuries as a result of tackle –

appellant brought proceedings against first respondent

alleging it was vicariously liable for negligence of second

respondent, who was a registered player of the first

respondent – primary judge found in favour of

respondents – whether primary judge erred in his reliance

on Evidence Act 1995 (NSW) s 140(2) – whether primary

judge erred in his reasoning about intention of legislature

in enacting Civil Liability Act 2005 (NSW) – whether

primary judge erred in conclusions made about expert

evidence – whether primary judge erred in distinguishing

between a neck injury intentionally caused in a spear

tackle and a facial injury so caused – whether primary

judge erred in disagreeing with the presumption that tort

Dickson v Northern

Lakes Rugby League

Sport & Recreational

Club Inc & Anor (No

2) [2019] NSWDC 433

defendants intend the natural and probably consequences

of their actions – whether primary judge erred in his

interpretation of s 3B(1)(a) of the Civil Liability Act –

whether primary judge erred in failing to apply the

principle in Browne v Dunn – whether primary judge erred

in identifying the relevant “intentional act” for purposes of

s 3B(1)(a) – whether primary judge erred in

characterisation of the end stages of the tackle – whether

primary judge erred in his reasoning on credit of second

respondent – whether primary judge erred in making

various findings of fact – whether primary judge erred in

failing to accept, consider or consider adequately certain

evidence – whether primary judge relied upon an

irrelevant consideration

33 2019/301298 Meat Carter Pty Ltd v

Melides

4/05/2020 WORKERS COMPENSATION – respondent was paid workers

compensation benefits by appellant from 2014 – in 2017,

respondent’s whole person impairment was assessed at

60% -- appellant proceeded to pay benefits at higher rate

specified in s 38A of the Workers Compensation Act

1987 (NSW) from 2017 – respondent brought proceedings

seeking payment of arrears of benefits at s 38A rate from

2014 – arbitrator held respondent not entitled to payment

of arrears – on appeal, Presidential Member found in

favour of respondent – whether Presidential Member

misconstrued ss 32A and 38A of the Workers

Compensation Act

Melides v Meat Carter

Pty Limited [2019]

NSWWCCPD 48

34 2019/335449 Mentink v Olsen 4/05/2020 EQUITY – appellant was daughter of respondent’s Olsen v Mentink [2019]

deceased’s wife – deceased had withdrawn some $2.2

million and given that money to the appellant –

respondent brought proceedings alleging, inter alia, that

the appellant received that money by reason of undue

influence or unconscionability, that the deceased

otherwise lacked capacity to make the transfer or that the

$2.2 million was an asset of the partnership operated as

between the respondent and the deceased, such that the

appellant held the monies on trust and was also liable for

knowing assistance – primary judge found in favour of the

respondent – whether primary judge erred in finding the

transaction was affected by unconscionable conduct and

undue influence – whether primary judge erred in making

certain findings of fact – whether primary judge’s reasons

were inadequate – whether primary judge erred in finding

estoppel and change of position did not apply to a finding

of undue influence

NSWSC 1299

35 2019/277518 Wright v Apthorpe 5/05/2020 COSTS – indemnity costs – applicant ordered to pay

plaintiff’s and other defendant’s costs - where respondent

plaintiff recovered less than offer – where notice of

seeking indemnity costs was not given – where defendants

failed on their defences – whether erred in not ordering

costs on ordinary basis – whether erred in not requiring

each defendant to pay their proportion of costs

Apthorpe v QBE

Insurance (Australia)

Ltd [2019] NSWDC 135;

Apthorpe v QBE

Insurance (Australia)

Ltd [2019] NSWDC 390

36 2019/305409 Scott v Ennis-Oakes 7/05/2020 CONTRACT – appellant purchasers and respondent vendor

contracted for sale of land – subject land was lot in

proposed subdivision of respondent’s land – contract

Scott v Ennis-

Oakes [2019] NSWSC

1257

imposed reasonable endeavours obligation on respondent

to have subdivision plan registered within 12 months of

contract date – contract gave either party right to rescind if

subdivision not registered within that time – respondent

purported to rescind contract on that basis – appellants

accepted rescission was valid and brought proceedings

seeking loss of bargain damages – primary judge found in

favour of respondent – whether primary judge erred in

failing to conclude that the respondent’s rescission entitled

the appellants to loss of bargain damages – whether

primary judge erred in finding the contract came to an end

because of “supervening circumstances” – whether

primary judge erred in construing contract – whether

primary judge erred in finding the respondent did not

breach the clause requiring her to register plan promptly

37 2019/297322 Spotlight Pty Ltd v Fatseas

Investments Pty Ltd

8/05/2020 CONTRACT – appellant leased premises from respondent –

rainfall event resulted in damage to respondent’s premises

and appellant’s stock, fittings and fixtures – appellant

brought proceedings against respondent in negligence,

nuisance and contract – respondent cross-claimed against

appellant alleging breach of contract – primary judge found

in favour of respondent – whether primary judge erred in

making certain factual findings – whether primary judge

erred in finding respondent discharged its burden of proof

– whether primary judge erred in finding indemnity in

contract was engaged – whether primary judge erred in

finding appellant was in breach of lease – whether primary

judge erred in finding appellant’s breach causative of

Decision not available

on Caselaw

respondent’s loss – whether primary judge erred in finding

appellant did not have entitlement to rent abatement

under terms of lease

38 2019/251630 Alexandria Landfill Pty Ltd

v Roads and Maritime

Services

8/05/2020 LAND & ENVIRONMENT – appellant asserted interest in

various lands acquired by the respondent for the purposes

of the WestConnex development project – appellant

sought compensation under Land Acquisition (Just Terms

Compensation) Act 1991 (Cth) – primary judge found

compensation was owed for market value of land acquired

and for disturbance by way of legal costs and valuation

fees – whether primary judge erred in failing to have

proper regard to the considerations in s 55 of the Act –

whether primary judge erred in failing to provide any or

adequate reasons in relation to certain matters – whether

primary judge denied appellant procedural fairness –

whether decision was affected by apprehended bias–

whether primary judge erred in failing to find an issue

estoppel arose – whether primary judge erred in

interpretation of ss 57 and 59(1)(f) of the Act – whether

primary judge erred in failing to address attribution of loss

and attribution of conduct in relation to certain matters

Alexandria Landfill Pty

Ltd v Roads and

Maritime

Services [2019] NSWLEC

98

39 2019/344087 Left Bank Investments Pty

Ltd v Ngunya Jarjum

Aboriginal Corporation

12/05/2020 CORPORATIONS – appellant lessor and respondent lessee

entered into lease agreement – agreement contained

option for renewal – appellant made offer that if

respondent exercise option early, appellant would enter

into new lease on certain terms – offer accepted by

solicitor acting on instructions of respondent’s CEO –

Left Bank Investments

Pty Ltd

v Ngunya Jarjum Aborigi

nal Corporation [2019]

NSWSC 1352

formal lease not executed or exchanged – respondent

denied concluded agreement made – appellant brought

proceedings seeking damages for repudiatory breach –

primary judge found in favour of respondent – whether

primary judge erred in finding appellant had not

established that respondent’s CEO had authority to bind it

– whether primary judge erred in finding CEO not also held

out as a director of respondent – whether primary judge

erred in finding respondent was not estopped from

denying the existence of a binding agreement

40 2019/292994 CXZ CXZ v Office of the

Children's Guardian

12/05/2020 ADMINISTRATIVE LAW (other) – Children Protection

(Working with Children) Act 2012 (NSW) – applicant found

not guilty of murder in 1997 of stepmother’s partner on

basis he was acting as an automaton – absence of criminal

convictions since 1997 – whether Tribunal erred in

adopting a “three step” process in assessing the clearance

– whether erred in not applying statutory test in s30 –

whether erred in not considering whether granting a

clearance would pose a real and appreciable risk to

children

Children’s Guardian v

CXZ [2019] NSWSC 1083

41 2019/307949 Lepcanfin Pty Ltd v Lepfin

Pty Ltd

14/05/2020 CONTRACT – summary dismissal - dispute resolution

provisions of Development Deed – dispute over whether

applicant had waived its entitlement to receive an

additional profit distribution of $2.7M - where applicant’s

case is that the Expert’s determination that the distribution

was a penalty was outside the terms of the “waiver”

dispute referred – whether no triable issue – whether

Lepcanfin Pty Ltd

v Lepfin Pty Ltd [2019]

NSWSC 1328

dispute resolution provision preclude the applicant from

seeking declarations about the proper construction of the

Guarantees

42 2019/396770 Universal Property Group

Pty Ltd v Blacktown City

Council

15/04/2020 LAND AND ENVIRONMENT – appellant applied to

respondent to build dwelling and secondary dwelling on an

allotment – respondent relied upon cl 22(4)(a) of the State

Environmental Planning Policy (Affordable Rental Housing)

2009 (NSW) – by effluxion of time, respondent deemed to

have refused application – appellant appealed and

respondent prepared statement of facts and contentions

supporting its deemed refusal – primary judge found in

favour of respondent – whether primary judge erred in

finding that, to the extent of any inconsistency, the State

Environmental Planning Policy (Sydney Regional Growth

Centres) 2006 (NSW) prevailed over the State

Environmental Planning Policy (Affordable Rental Housing)

– whether the primary judge erred in identifying the

provision that resolved any inconsistency between the Acts

– whether primary judge erred in finding the Acts were in

irreconcilable conflict

Universal Property

Group Pty Ltd v

Blacktown City

Council [2019] NSWLEC

179

43 2019/325559 Bauer Media Pty Limited

t/as Network Services

Company v Khedrlarian

18/05/2020 WORKERS COMPENSATION – first respondent injured at

work while on the premises of appellant – first respondent

brought proceedings against appellant in the District Court

for damages under the Workers Compensation Act

1987 (NSW) Pt 5 Div 3 – District Court judge found in

favour of first respondent – Court of Appeal remitted

proceedings to District Court – primary judge found in

Decision not available

on Caselaw

favour of the first respondent – whether primary judge

erred in making certain factual findings – whether primary

judge erred in treatment of evidence – whether primary

judge erred applying ss 5B and 5D of the Civil Liability Act

2002 (NSW) – whether primary judge erred in apportioning

liability to the second respondent – whether primary judge

erred in assessing damages

44 2019/289986 Davies v Whitehaven Coal

Mining Ltd

18/05/2020 TORTS (negligence) – appellant was mine worker employed

by respondent – appellant was injured in course of his

work when he slipped and fell while dismounting from a

load-haul-dump machine – appellant brought proceedings

against respondent alleging negligence and breach of

statutory duty – primary judge found in favour of

respondent – whether primary judge erred in failing to find

respondent breached its duty of care by, inter alia,

modifying the machines – whether primary judge erred in

making and failing to make certain factual findings –

whether primary judge erred in findings on causation –

whether primary judge erred in finding appellant was guilty

of contributory negligence when he was acting in

accordance with the system of work supplied to him

Davies v Whitehaven

Coal Mining Ltd [2019]

NSWSC 1125

45 2019/387501 Haertsch v Whiteway 20/05/2020 SUCCESSION – deceased’s estate was distributed

principally to his second wife (‘the widow’) who later died

without issue – first respondent (daughter of deceased)

then brought a family provision application under

the Family Provision Act 1982 (NSW) against the estate, or

notional estate, of the deceased -- family provision

Estate Whiteway [2019]

NSWSC 166

application out of time – primary judge found first

respondent entitled to a family provision order against so

much of the widow’s estate as was designated as the

notional estate of the deceased – whether primary judge

erred in determining he had jurisdiction to make the order

sought under s 24 of the Family Provision Act 1982 (NSW) –

whether primary judge erred in extending the time for the

first respondent to bring the claim against the second

appellant – whether primary judge erred in finding first

respondent had been left with inadequate provision for

her education, maintenance and advancement – whether

primary judge’s reasons inadequate – whether primary

judge erred in failing to consider certain matters and to

treat properly certain evidence

46 2019/135932 Al Maha Pty Limited v Liu 21/05/2020 CONTRACT – appellant, a property development company,

and respondent, a real estate agent, entered into an

agreement whereby respondent agreed to assist appellant

in selling off-the-plan apartments – appellant agreed to

pay respondent commission – respondent sold a number

of apartments – appellant paid some but not all

commissions – respondent sought payment of outstanding

commissions – appellant denied it was liable to pay due to

non-compliance with Property, Stock and Business Agents

Regulation 2003 (NSW) – respondent conceded non-

compliance but sought an order under Property, Stock and

Business Agents Act 2002 (NSW), s 55A – primary judge

found respondent entitled to relief under s 55A – whether

primary judge erred in finding there was a significant

Wei Liu v Al Maha Pty

Ltd [2019] NSWDC 106

power imbalance between the parties – whether primary

judge erred in application of s 55A – whether primary

judge erred in finding respondent’s reliance on non-

compliance with Regulations was disingenuous

47 2019/363801 Forrest v Director of

Public Prosecutions

26/05/2020 ADMINISTRATIVE LAW (judicial review) – applicant charged

and convicted of dealing with the proceeds of crime in the

Local Court – applicant unsuccessfully appealed to District

Court – whether primary judge erred by failing to provide

adequate reasons for refusing to state a case to the Court

of Criminal Appeal under s 5B(2) of the Criminal Appeal Act

1912 (NSW)

Decision not available

on Caselaw

48 2019/404200 Sydney Local Health

District v Macquarie

International Health Clinic

Pty Ltd

29/05/2020 TORTS (other) – long-running dispute between appellant

and respondent in relation to construction of private

hospital and medical centre on appellant’s land – appellant

wrongfully terminated appellant’s lease and evicted

appellant – respondent brought proceedings for, inter alia,

damages for trespass to land – primary judge found in

favour of the respondent – whether primary judge erred in

application of the user principle – whether primary judge’s

discretion not to permit appellant to advance certain

arguments or to re-open the proceedings below miscarried

– whether the primary judge erred in failing to consider

certain evidence – whether primary judge erred in failing

to have regard to causation and restitutionary principles –

whether primary judge erred in making certain findings of

fact – whether primary judge erred in adjusting award to

take account of taxation – whether primary judge erred in

Macquarie International

Health Clinic Pty Ltd v

Sydney Local Health

District; Sydney Local

Health District v

Macquarie Health

Corporation Ltd (No

12) [2019] NSWSC 916

assessing hypothetical earnings and costs of the hospital

49 2020/95805 Wallis v Rudek 29/05/2020 EQUITY – equitable interest in property – family

arrangement – transferee pays off mortgage on property –

equity in property exceeds amount owing – transferor

permitted to remain in property – licence agreement not

signed – relationship breakdown – Baumgartner v

Baumgartner equity recognised – equitable compensation

granted

Wallis v Rudek [2020]

NSWSC 162

50 2020/19628 Baldwin v State of New

South Wales

1/06/2020 ADMINISTRATIVE LAW (other) – abrogation of privilege

against self-incrimination - Crimes (High Risk Offenders)

Act 2006 (NSW) – conditions imposed relating to searches

and seizures of person, home and vehicle – whether s11(1)

authorises conditions which abrogate privilege – whether

authorises the unlawful conduct of a third party – whether

compliance dependent upon the state of mind of a third

party

State of New South

Wales v Baldwin [2019]

NSWSC 1882

51 2019/335260 Dyldam Developments

Pty Ltd v Strata Plan

85305

2/06/2020 BUILDING & CONSTRUCTION – claim for breach of

statutory warranties and defective works – whether claim

was within time if first and second interim occupation

certificates were valid - whether erred in holding

occupation certificate invalid – whether invalidity of

certificate is a matter for the Land & Environment Court –

whether issuing of occupation certificate determines

completion of residential building work for purposes of

Home Building Act 1989 (NSW) – whether NCAT exceeded

its jurisdiction in determining the validity of the occupation

certificate – whether interim occupation certificates were

Dyldam Developments

Pty Ltd v Owners of

Strata Plan 85305 [2019]

NSWCATAP 229

valid and not in breach of Environmental Planning and

Assessment Act 1979 (NSW)

52 2019/403286 Michael Brown Planning

Strategies Pty Limited v

Wingecarribee Shire

Council

3/06/2020 LAND AND ENVIRONMENT – statutory construction –

proposed residential development in flood risk area –

whether deferred commencement condition to resolve

flood risk permissible under the relevant planning clause –

whether “is compatible with the flood hazard” to be

interpreted as requiring a flood mitigation measure in

place before development

Michael Brown Planning

Strategies

v Wingecarribee Shire

Council (No 2) [2019]

NSWLEC 192

53 2019/393045 Mangano v Bullen 4/06/2020 REAL PROPERTY – first respondent and the deceased,

through an incorporated company, purchased a series of

properties including one in which the pair resided – the

company was eventually deregistered – some years later,

the pair witnessed the affixing of the company’s seal on a

transfer of the property to themselves as tenants in

common – the transfer was registered and, shortly before

his death, the deceased converted the tenancy in common

to a joint tenancy – by survivorship, the first respondent

became the sole registered proprietor – appellant,

daughter of the deceased, brought proceedings alleging

that the first respondent’s title to the property was

defeasible by reason of fraud upon the National

Companies and Securities Commission (the statutory

owner of the property following the company’s

deregistration) – primary judge found in favour of the first

respondent – whether primary judge erred in failing to

decide the proceedings in accordance with the principles

Mangano v

Bullen [2019] NSWSC

1704

set down in Cassegrain v Gerard Cassegrain & Co Pty

Ltd (2015) 254 CLR 425 and related case law – whether

primary judge erred in making findings of fact contrary to

or inconsistent with the evidence – whether primary judge

erred in making inferences without a factual basis –

whether the primary judgment otherwise contains errors

of fact

54 2019/335719;

2019/335731;

2020/70625;

2020/70655

Arcidiacono v The Owners

- Strate Plan No 17719;

Arcidiacono v The Owners

- Strate Plan No 61233;

Arcidiacono v The Owners

- Strate Plan No 61233;

Arcidiacono v The Owners

- Strate Plan No 17719

4/06/2020 REAL PROPERTY – appellants were registered proprietors

of two parcels of land in the Sydney CBD – respondent

brought proceedings against the appellants claiming

various easements over the land – primary judge found

partially in favour of the respondent – whether primary

judge erred in holding that a right of carriageway by

prescription had been established – whether primary judge

erred in holding that certain easements were reasonably

necessary and not inconsistent with the public interest

within the meaning of s 88K of the Conveyancing Act

1919 (NSW) – whether primary judge erred in treatment of

certain evidence

The Owners – Strata

Plan No 61233 v

Arcidiacono; The

Owners – Strata Plan No

17719 v

Arcidiacono [2019]

NSWSC 1307

55 2019/381789;

2019/393098;

2020/63922

Cottle v NSW

Commissioner of Police;

Police Association of New

South Wales v

Commissioner of Police

(NSW Police Force);

Cottle v NSW

Commissioner of Police

5/06/2020 PROCEDURE – first respondent caused appellant “to be

retired” pursuant to s 72A of the Police Act 1990 (NSW) –

appellant brought proceedings in Industrial Relations

Commission (second respondent) alleging the decision was

a “harsh, unreasonable or unjust” “dismissal” within

meaning of s 84 of the Industrial Relations Act 1996 (NSW)

– a Commissioner determined the IRC lacked jurisdiction to

deal with the claim – Full Bench of IRC upheld appeal and

NSW Commissioner of

Police v Cottle [2019]

NSWSC 1588

set aside first respondent’s decision – first respondent

sought judicial review in Supreme Court – primary judge

found in favour of first respondent – whether primary

judge erred in declaring the IRC lacked jurisdiction to hear

and determine appellant’s claim – whether primary judge

erred in finding the jurisdiction given to the IRC under s 84

of the Industrial Relations Act was incompatible with s 72A

of the Police Act