supreme court of nsw court of appeal decisions reserved at ... · 6 2017/364536 jain v amit laundry...

Supreme Court of NSW Court of Appeal

Decisions Reserved at 1 February 2019

Number Case Name Heard Issues Judgment Below

1 2017/335183 Professional

Investment Services

Pty Ltd v Shawyer

24/05/2018 TORTS (other) – misleading and

deceptive conduct – limitations –

respondents brought claim against

appellant company alleging breach of

duty of care and misleading and

deceptive conduct – appellant claimed

that proceedings were statute barred –

primary judge held that respondents

could bring claim – whether primary

judge erred in determining the date on

which the respondents’ causes of

action accrued – whether primary judge

erred in failing to find that action for

breach of duty was barred by s 14(1)(b)

of the Limitation Act 1969 (NSW) –

whether primary judge erred in failing to

find that respondents’ cause of action

alleging misleading and deceptive

conduct was barred by s 12GF(2) of

Lower court decision not

on Caselaw

the Australian Securities and

Investments Commission Act

2001 (Cth)

2 2017/298772 Sanpoint Pty Ltd v

V8 Supercars

Holdings Pty Ltd

25/05/2018 CONTRACT – V8 Supercars

Championship structured so that to be

entitled to participated, each team must

hold a Racing Entitlement Contract

(REC) in respect of each car entered –

number of teams able to participate Ltd

– appellant held an REC and wished to

retire from participation – this was

effected through the appellant

surrendering its REC to the first

respondent, who then had authority to

sell it by tender – tender process in

relation to the appellant’s REC yielded

no bids and REC was sold for a price of

$20 000 on the basis that its market

price was nil – appellant challenged the

legitimacy of this process –

respondents sought declaration that

appellant had no rights under the REC

– appellant brought cross-claim alleging

that first respondent breached the

terms of the REC in its manner of sale

– primary judge found that first

respondent did not breach the REC and

appellant did not suffer any recoverable

loss – primary judge made orders

sought by respondents – whether

V8 Supercars Holdings

Pty Ltd v Sanpoint Pty

Ltd [2017] NSWSC 1043

primary judge erred in failing to find that

first respondent breached the terms of

the REC inasmuch as it failed to ensure

the sale was for the most advantageous

price possible – whether primary erred

in failing to find that tender process was

in breach of the REC – whether primary

judge erred in certain factual findings –

whether primary judge erred in finding

that appellant was precluded from

making certain claims – whether


the appellant had established loss

3 2017/2433087 Martin v

Hawkesbury Sports

Council Incorporated

18/06/2018 TORTS (negligence) – respondent

suffered injury to her leg when she

tripped over a steel retention cable

while attending a football game –

appellants occupied the park where the

injury occurred and were responsible

for its care and maintenance –

respondent brought a claim for

damages in negligence – primary judge

found that injury was caused by a

breach of the appellants’ duty of care –


that the installation of concrete blocks

with a retention cable created a risk of

injury and failure to remove the cable

was a breach of duty by the appellants

– whether primary judge erred in

Decision not on Caselaw

admitting certain expert evidence –


the respondent was entitled to

damages for past and future gratuitous

domestic care services – whether

primary judge erred in assessment of

damages

4 2017/203820 Williams v Metcash

Trading Ltd

21/06/2018 TORTS (negligence) – appellant

employed by a labour hire company

which provided services to respondent

– appellant worked as a casual picker

and packer at the respondent’s product

distribution centre – appellant

commenced proceedings against the

respondent alleging that he sustained a

back injury as a result of the

respondent’s negligence in failing to

provide a safe system for picking and

packing – primary judge found that the

respondent breached its duty of care to

the appellant but was not satisfied that

the element of causation was made out

– whether primary judge erred in law in

finding that the “factual causation”

requirement under s 5D(1)(a) of

the Civil Liability Act 2002 (NSW) was

not satisfied – whether primary judge

erred in fact in concluding that

causation was not made out – whether

primary judge erred in scope and

Williams v Metcash

Trading Pty Ltd [2017]

NSWDC 154

content of duty of care – whether

primary judge erred in certain factual

findings

5 2018/9237 Fletcher v State of

New South Wales

9/08/2018 TORTS (other) – appellant was

travelling home by train with friends

after a birthday celebration in Kings

Cross – transport police observed the

appellant consuming alcohol and

swearing – police officer directed the

appellant to leave the train and

accompanied him to the vestibule to

wait for the next station – friend

accompanied the appellant –

confrontation ensued in the vestibule

and on the platform at the next station –

appellant and his friend brought claim

for damages – appellant claimed

damages for trespass to the person,

assault and battery, wrongful

imprisonment and personal injury

damages – appellant was partially

successful and was awarded a sum of

$12,848 – respondent was ordered to

pay 70% of appellant’s costs – whether


initial restraint of appellant on railway

platform was a battery and unlawful

imprisonment – whether primary judge

erred in finding that the police officers

reasonably apprehended a breach of

Drew Cuthbertson v

State of New South

Wales; Daniel Fletcher v

State of New South

Wales [2017] NSWDC

367

the peace – whether primary judge

erred in characterising appellant’s

conduct – whether primary judge erred

in finding that use of force in taking

appellant to the ground was reasonably

necessary – whether award of

damages can be made for costs of

defending criminal proceedings – effect

of plaintiff’s own provocative conduct on

award for exemplary and aggravated

damages

6 2017/364536 Jain v Amit Laundry

Pty Ltd

28/08/2018 EQUITY – appellant is sole registered

owner of property – since its acquisition

in 1999, ground floor of property has

been occupied by respondent – upper

floor has been occupied by appellant

since 2003 – respondent has paid rent

since 2008 – respondent commenced

proceedings seeking declaration that

appellant holds the title to the property

as trustee for the respondent under a

resulting trust – presumption of

resulting trust said to arise from

payment by respondent of purchase

price for the property – in the

alternative, respondent sought

declaration that property was held on

express trust – primary judge found that

there was no express trust but that a

presumption of resulting trust arose and

Amit Laundry Pty Ltd v

Jain [2017] NSWSC 1495

had not been rebutted – whether

primary judge erred in misidentifying

and misapplying the principles under

which a presumption of resulting trust

may be rebutted – whether primary

judge erred in ordering any alteration of

the register of land titles in respect of

the property

7 2018/160051 Ku-ring-gai Council v

Ichor Constructions

Pty Ltd

13/09/2018 EQUITY – arbitration – waiver –

estoppel – whether consent can be

inferred from written record of transcript

- whether arbitrator had acted as a

mediator during the special session

which enlivened the restriction in

s27D(4) of Commercial Arbitration Act

2010(NSW) – whether parties had

consented to arbitrator continuing –

whether waiver of objection to the

arbitrator continuing had taken place –

whether R was estopped from relying

on the statutory restraint on the

arbitrator continuing – jurisdiction –

whether right of appeal displaced by

s14(3)

Ku-ring-gai Council v

Ichor Constructions Pty

Ltd [2018] NSWSC 610

8 2018/119688 Ta Lee Investments

Pty Ltd v Antonios

19/09/2018 CONTRACT – second respondent is a

developer who undertook an apartment

development in Lane Cove – second

respondent went into liquidation –

disputes arose among lenders to the

Lum v MV Developments

(Lane Cove) Pty Ltd

(in liq) [2017] NSWSC

247

second respondent and putative

purchasers of apartments concerning

rights in relation to the apartments –

principal proceedings settled but cross-

claims brought by appellant and first

respondent remained on foot – both

cross-claims sought a declaration

regarding the parties’ rights to a certain

apartment – cross-claim brought by

appellant dismissed and specific

performance ordered in favour of the

first respondent – whether primary

judge erred in construing contract relied

on by first respondent – whether

primary judge erred in failing to draw

a Jones v Dunkel inference – whether


findings with respect to the preparation

of the contract – whether primary judge

erred in certain factual findings with

respect to performance obligations

under the contract – whether primary

judge erred in failing to find that there

was an equitable charge over the

apartment in favour of the appellant –

whether primary judge erred in rejecting

certain evidence – whether primary

judge erred in ordering specific

performance

9 2018/88868 Bega v Lauvan Pty

Ltd

5/10/2018 CONTRACT – respondents entered

into a facility agreement with the

appellant as borrower – agreement

recorded that the appellant had

requested the respondents provide the

facility to her for the purpose of

assisting with short-term lending to

family members for proposed

commercial investment opportunities –

a dispute arose as to whether the

appellant had any liability to the

respondents under the agreement –

primary judge found that the appellant

had a liability of $1 million plus interest

and further ordered that the

respondents were entitled to

possession of a certain property owned

by the appellant – whether primary

judge erred in failing to find that no

monies were advanced under the

agreement – whether primary judge

erred in finding that certain persons had

actual and ostensible authority to

request the advance of $1 million under

the facility agreement in circumstances

where the respondents did not plead

any case of actual or ostensible

authority – whether primary judge erred

in finding that the respondents had

established that the requirements in s

Lauvan Pty Ltd v

Bega [2018] NSWSC 154

5(1)(b) and s 5(1)(d) of the National

Consumer Credit Protection

Act2009 (Cth) did not apply in respect

of the credit provided by the

respondents to the appellant – whether


the respondents had engaged in a

credit activity without holding a licence

contrary to s 29(1) of the National

Consumer Credit Protection Act –

whether primary judge erred in holding

that the appellant would not be entitled

to relief under s 180 of the National

Consumer Credit Protection Act

10 2018/186196 Chief Commissioner

of State Revenue v

Adams Bidco Pty Ltd

11/10/2018 TAX – issue of whether the respondent

was liable to pay landholder duty under

the Duties Act 1997 (NSW) upon his

acquisition of all of the issued capital in

Ingham Enterprises Pty Ltd – Ingham

Enterprises acted as a holding

company for InghamsEnterprises Pty

Ltd, which operated a poultry

production business in Australia and

New Zealand – respondent contended

that he was not liable to pay landholder

duty because he was entitled to rely on

the primary producer exemption in s

163D of the Act – primary judge found

that the respondent was entitled to the

exemption – whether primary judge

Adams Bidco Pty Ltd v

Chief Commissioner of

State Revenue [2018]

NSWSC 735

erred in construing the words “land

used for primary production” within the

meaning of s 163D(2) of the Act –

whether primary judge erred in

approach to inquiry required by s 163D

– whether primary judge erred in certain

factual findings

11 2018/122722 Wilh Wilhelmsen

Investments Pty Ltd

v SSS Holdings Pty

Ltd

12/10/2018 CONTRACT – respondent commenced

proceedings claiming sum of $189,103

plus costs and interest for mobile

phones sold and delivered to appellant

– goods were ordered by an employee

of the appellant who fraudulently

claimed the orders were made on

behalf of the appellant company –

employee put in place complex scheme

to prevent detection of fraud – primary

judge found that the employee had

ostensible authority to act on behalf of

the appellant company and that as a

result the respondent was entitled to

claim the monies owed from the

appellant – whether primary judge erred

in finding that the employee had

ostensible authority to place orders for

the appellant – whether primary judge

erred in certain factual findings going to

ostensible authority – whether, in the

alternative, if the respondent did rely on

a “relevant representation of authority”,

SSS Holdings Pty Ltd

trading

as MobileCorp ABN

22003702725 v

WILH Wilhelmsen Invest

ments Pty Ltd ACN

076859151 [2018]

NSWDC 77

the primary judge erred in finding that

the reliance was reasonable – whether

primary judge erred in finding that the

appellant was vicariously liable for the

conduct of its employee in

circumstances where the respondent

did not plead this case

12 2018/84054 Hee v State Transit

Authority (NSW)

15/10/2018 WORKERS COMPENSATION –

appellant injured in the course of his

employment – respondent’s insurer

agreed to pay appellant weekly

compensation based on his pre-injury

average weekly earnings – appellant

then made claim for weekly

compensation pursuant to s 38A of

the Workers Compensation Act

1987 (Cth) – s 38A entitles workers with

highest needs to a minimum weekly

payment in certain circumstances –

Senior Arbitrator found that appellant

was not entitled to payment – appellant

appealed to Workers Compensation

Commission – President affirmed

Arbitrator’s decision – whether

President erred in construing

application of s 38A – whether

President erred in interpreting s 38A

contrary to the intention in the second

reading speech – whether President

erred in holding that Arbitrator found

Hee v State Transit

Authority of New South

Wales [2018]

NSWWCCPD 6

that there was no loss of income –

whether President erred in holding that

probable earnings were irrelevant

13 2018/35941 Berger v Law

Society of NSW

19/10/2018 PROFESSIONAL NEGLIGENCE (legal)

– complaints made against the

appellant relating to failure to make

costs disclosures and misappropriation

of funds – respondent commenced

disciplinary proceedings in the Civil and

Administrative Tribunal – Tribunal found

that respondent was guilty of

professional misconduct and

unsatisfactory professional conduct and

ordered that the appellant’s name be

struck off the roll of lawyers – whether

Tribunal erred in finding that the

appellant was guilty of professional

misconduct – whether Tribunal erred in

finding that the appellant was guilty of

unsatisfactory professional conduct –

whether Tribunal erred in ordering that

the appellant’s name be struck off the

roll

Council of the Law

Society of NSW v Berger

(No 2) [2018]

NSWCATOD 4

14 2018/81252 Ku-ring-gai Council v

Bunnings Properties

Pty Ltd

19/10/2018 LAND AND AND ENVIRONMENT –

s56A appeal under Land and

Environment Court Act 1979 (NSW)

from Commissioner’s decision

approving development –

Commissioner did not accept

Ku-ring-gai Council v

Bunnings Properties Pty

Ltd (No 2) [2018]

NSWLEC 19

development but in 2015 hearing but

accepted offer of respondent to prepare

updated plans – fresh merits hearing in

2017 upholding alternate plans –

whether approach in first hearing was a

permissible “amber light” approach –

whether Commissioner exceeded the

constraints of that approach – whether

approach is consistent with principle of

finality – whether approach is in the

nature of an advisory opinion – whether

“amber light” approach only permits

specific amendments found by the

Commissioner rather than an invitation

at large to recast development - costs

15 2018/197301 Cando Management

and Maintenance

Pty Ltd v

Cumberland Council

25/10/2018 LAND AND ENVIRONMENT –

respondent commenced proceedings

seeking various declarations and orders

in relation to a multi-dwelling

townhouse development owned by the

appellant – no occupation certificate

issued in relation to the development as

no construction certificate had been

issued – respondent claims that

development was carried out in breach

of certain conditions of the

development consent and that

development consent lapsed –

appellant filed cross-summons seeking

declaration that the consent had not

Cumberland Council v

Cando Management and

Maintenance Pty

Ltd [2018] NSWLEC 83

lapsed and that it would carry out

required work within 6 months –

primary judge found that appellant had

carried out a prohibited development for

which no consent was in force –

primary judge ordered that appellant be

restrained from using the premises until

use authorised by development

consent – whether primary judge erred

in refusing to determine the appellant’s

entitlement to discretionary relief sought

in the cross-summons – whether

primary judge erred in exercising her

discretion to make the orders she did in

the circumstances – whether primary

judge gave inappropriate weight to

certain evidence – whether primary

judge erred in finding that development

consent had lapsed

16 2018/123694

2018/123699

2018/124363

2018/230017

2018/234658

2018/251007

Onley v

Commissioner of the

Australian Federal

Police; Menon v

Commissioner of the

Australian Federal

Police; Anquetil v

Commissioner of the

Australian Federal

Police

30/10/2018 ADMINISTRATIVE LAW (other) –

respondent brought civil proceedings

against the appellant and others under

the Proceeds of Crime Act 2002 (Cth)

seeking orders that certain itemised

property be forfeited to the

Commonwealth and that a pecuniary

penalty be paid to the Commonwealth –

in May 2017, ex parte orders were

made in the proceedings which

included an order restraining the

The Commissioner of the

Australian Federal Police

v Cranston (No 8) [2018]

NSWSC 365 (Fullerton

J); The Commissioner of

the Australian Federal

Police v Cranston (No

10) [2018] NSWSC 542

(Fullerton J)

appellant from dealing with the property

and an order that the appellant be

examined in relation to his affairs –

appellant sought relief against these

orders, including their stay – primary

judge refused stay of examination

proceedings and reserved

consideration of balance of the relief

sought – following further hearings,

primary judge refused the remaining

relief sought – whether primary judge

erred in assessment of material

prejudice or risk of prejudice for the

purposes of determining whether to

stay an examination under

the Proceeds of Crime Act – whether

primary judge erred in construction

of Proceeds of Crime Act – whether


findings – whether primary judge erred

in declining to stay the examination and

in declining to limit the scope of the

examination

17 2018/136405 Seymour Whyte

Constructions Pty

Ltd v Ostwald Bros

Pty Ltd (in liq)

30/10/2018 BUILDING & CONSTRUCTION – in

2016 appellant entered into contract

with respondent as subcontractor to

perform road works on the Pacific

Highway – head contractor was Roads

and Maritime Services – in July 2017,

respondent served on appellant a

Seymour Whyte

Constructions Pty Ltd v

Ostwald Bros Pty Ltd

(in liq); Ostwald Bros Pty

Ltd (in liq) v Seymour

Whyte Constructions Pty

payment claim pursuant to s 13 of

the Building and Construction Industry

Security of Payment Act 1999 (NSW) –

in August, appellant served a payment

schedule which identified the

“scheduled” amount as significantly less

than the amount claimed – two weeks

later, appellant terminated the contract

under a clause which provided for

termination without cause – the

following day, directors of respondent

resolved to appoint administrators –

appellant did not pay any of the

scheduled amount and respondent

made adjudication application under

the Act – following adjudication

determination, appellant commenced

proceedings claiming that the

determination was void – dispute as to

whether application was made within

time required by contract – primary

judge found that contract should be

rectified in manner contended by

respondent and accordingly found that

determination was valid – whether

primary judge erred in holding that

contract should be rectified – whether


respondent could not bring an action for

recovery under s 16(2)(a)(i) where it


had made an adjudication application

under s 17(1)(a)(ii) – whether primary

judge erred in failing to find that Part 3

of the Act is not available to a company

in liquidation

18 2018/164325 Nominal Defendant

v Cordin

6/11/2018 MOTOR ACCIDENTS (MACA) –

respondent suffered injuries when a

bicycle he was riding was involved in a

motor accident with a motor vehicle –

respondent brought claim for damages

– primary judge found that respondent’s

claim was made out – whether primary

judge erred in finding that the

respondent’s bicycle was struck from

behind by an unidentified motor vehicle

– whether primary judge erred in factual

findings regarding the respondent’s

cognitive state and level of

consciousness at the scene of the

accident – whether primary judge erred

in finding that the respondent did not

tell the treating ambulance officer that

his fall was caused by hitting a pothole

– whether primary judge erred in

treatment of contemporaneous clinical

notes – whether primary judge erred in

treatment of evidence given by

ambulance officer and treating

clinicians – whether primary judge erred

in failing to give proper weight to video


available on Caselaw

evidence of expert witnesses – whether

primary judge erred in awarding costs

against the appellant on an indemnity

basis

19 2018/177130 Sills v State of NSW 13/11/2018 TORTS (negligence) – appellant was

medically discharged from the New

South Wales Police Force – appellant

brought claim in negligence, alleging

that over the course of her service she

was exposed to numerous traumatic

incidents, as a result of which she

suffered a psychological and/or

psychiatric injury – primary judge found

that the appellant had failed to establish

that the respondent had breached its

duty of care – whether primary judge

erred in failing to find that the

respondent had breached its duty of

care – whether primary judge erred in

finding that the respondent discharged

its duty of care – whether primary judge

erred in reliance upon, or application of,

the principles of personal privacy –

whether primary judge erred in rejecting

certain evidence

Melanie Sills v State of

New South Wales [2018]

NSWDC 119

20 2018/178977

2018/236109

AEA Constructions

Pty Ltd v

Wharekawa; AEA

Constructions Pty

13/11/2018 TORTS (negligence) – first respondent

was injured when a nail fired from a

power tool struck him in the temple –

first respondent was working as a

Wharekawa v AEA

Constructions Pty Ltd;

Building Partners Pty Ltd

v AEA Constructions Pty

Ltd v Building

Partners Pty Ltd

builder’s labourer at the time of the

injury – nail was fired from tool on the

property adjacent to first respondent’s

work site – the workman who fired the

tool was employed by the appellant –

first respondent brought claim for

damages in negligence – first

respondent was employed by second

respondent – second respondent

commenced proceedings against

appellant claiming indemnity under

the Workers Compensation Act

1987 (NSW) for compensation paid to

the first respondent – primary judge

found that both claims were made out –

whether primary judge erred in

characterising relevant risk – whether


findings regarding the first respondent’s

injuries – whether primary judge erred

in certain factual findings regarding the

first respondent’s employment

prospects – whether primary judge

erred in assessment of damages


21 2017/213601 Lazarus v ICAC 23/11/2018 ADMINISTRATIVE LAW (judicial

review) – applicants brought appeals in

the District Court against convictions in

the Local Court pursuant to Crimes

(Appeal and Review) Act 2001 (NSW),

s 18 – applicants unrepresented in the


on Caselaw

District Court – appeals dismissed in

the absence of the applicants –

whether primary judges failed to attend

to “obligation to decide the appeal of

the applicants by way of rehearing on

the basis of the evidence in the original

Local Court proceedings” – whether

primary judges erred in failing to

conclude underlying court attendance

notices were invalid – CONSTITUTION

– whether validating Act extended to

pending criminal proceedings – whether

the establishment of ICAC impacted on

the judicial functions of the District

Court – whether impermissible

interference in judicial process

22 2018/273702 Globe Church Inc v

Allianz Australia

Insurance Ltd

26/11/2018 INSURANCE – appellant held an

insurance policy in respect of a church

building – appellant alleged that

damage occurred to the property

between 8 June 2007 and 31 March

2008 – first respondent denied

indemnity on 30 September 2011 –

second respondent denied indemnity

on 5 April 2011 – appellant filed

statement of claim on 4 November

2016, alleging breach of contract –

respondents argued appellant’s claims

were statute-barred by Limitation Act

1969 (NSW), s 14 (1) – primary judge

Globe Church

Incorporated v Allianz

Australia Insurance

Ltd [2018] NSWSC 1367

ordered separate determination of two

questions and removal into Court of

Appeal – whether limitation period

commenced to run from time damage

was suffered or from time indemnity

was denied – whether any of the

appellant’s claims in respect of the

insurance policy for any of the alleged

property damage that occurred

between 8 June 2007 and 31 March

2008 accrued at the time of alleged

damage – whether any of the

appellant’s claims in respect of the

policy for that damage are maintainable

23 2018/154603 Carbone v Mills 27/11/2018 REAL PROPERTY – orders sought for

specific performance of contract for

sale of land by respondents – whether

applicants had validly exercised a call

option under option agreement –

whether reasonable belief that call

option had been extended by a month –

whether applicant relied upon

representations of respondent –

whether conversation operated to

establish an estoppel

Carbone v Mills [2018]

NSWSC 496

24 2018/127720

2018/292117

Hutchinson v State

of NSW

27/11/2018 TORTS (other) – appellant brought

claim in tort for damages arising from

an incident involving a struggle with

police and his subsequent arrest –


on Caselaw

claim dismissed – whether primary

judge erred in failing to determine

certain factual issues – whether primary

judge failed to consider or gave

improper weight to certain evidence –


there was no requirement that the

police officers comply with s 201 of the

Law Enforcement (Powers and

Responsibilities) Act 2002 (NSW) –

whether primary judge erred in certain

factual findings – whether primary

judge erred in failing to find that an

unreasonable use of force was used in

applying handcuffs to the appellant

25 2018/170879 Beech v Squire 29/11/2018 SUCCESSION – appellants are adult

children of the deceased’s first

marriage – respondent is the

deceased’s second wife – deceased

left the whole of his estate to the

respondent and appointed her executor

of his will – no provision was made for

the appellants or their sister, who is not

a party to the proceedings –

respondent and the deceased

separated shortly before his death –

appellants brought a claim for family

provision – primary judge dismissed

claim – whether primary judge erred in

finding that the will of the deceased

Beech v Squire [2018]

NSWSC 594

made adequate provision for the

appellants – whether primary judge

erred in accepting certain evidence of

the respondent regarding a loan she

had made – whether primary judge

erred in finding that the respondent

does not have any property or

significant assets – whether primary

judge erred in finding that the

respondent’s claim outweighed that of

the appellants

26 2018/159409 Roads and Maritime

Services v United

Petroleum Pty Ltd

30/11/2018 LAND & ENVIRONMENT – appellant

compulsorily acquired land and

improvements located at Harwood on

the Pacific Highway – respondent

occupied the land as tenant under an

informal lease and operated a service

station and restaurant on it –

respondent claimed compensation for

loss attributable to disturbance based

on costs of relocating business or,

alternatively, permanent loss of profits –

appellant contended that no

compensation was payable as

compensation for the operation of the

business was accounted for in the

compensation paid to the owner of the

land – primary judge found that

respondent was entitled to costs

reasonably incurred as a natural

United Petroleum Pty

Limited v Roads and

Maritime Services [2018]

NSWLEC 35; United

Petroleum Pty Limited v

Roads and Maritime

Services (No 2) [2018]

NSWLEC 64

consequence of the acquisition

pursuant to s 59(1)(f) of the Land

Acquisition (Just Terms Compensation)

Act 1991 (NSW) – parties were unable

to agree on final quantum and primary

judge made further orders determining

this sum – whether primary judge erred

in finding that lost profits could

constitute costs reasonably incurred

within the meaning of s 59(1)(f) –


that respondent was entitled to loss

attributable to disturbance under s

59(1)(f) in an amount being the

difference between the rent paid by the

respondent before the acquisition and

the rent payable to the appellant after

the acquisition pursuant to s 34 of the

Act

27 2018/200753 Campbell v Hamilton 6/12/2018 REAL PROPERTY – appellant and first

and second respondents entered into

agreement granting respondents

certain rights of access over appellant’s

land – an easement was registered –

terms of registered easement differed in

several respects from agreement,

including description of land benefitted

– respondents made these

amendments without informing

appellant – respondents’ land was

Campbell v

Hamilton [2018] NSWSC

806

subsequently subdivided – appellant

contended that agreement merely

granted a personal right of access,

which was not enforceable against

successors in title – primary judge

found agreement granted an easement

– whether primary judge erred in finding

that agreement “clearly indicates” the

land benefitted within the meaning

of Conveyancing Act 1919 (NSW), s

88(1) – whether primary judge erred in

finding that parties had mutual

knowledge that there was no approved

plan of subdivision at the time

agreement was entered into – whether

primary judge erred in finding that a

reference to the land benefitted as

being “approximately 3,649 square

meters”, which was inconsistent with

other references to this land, could be

ignored as a mistake – whether primary

judge erred in relying on extrinsic

material or applying the falsa

demonstration principle – whether


the amendments caused the registered

easement to become enforceable

against successors in title

28 2018/242893 Kai Ling (Australia)

Pty Ltd v

6/12/2018 CONTRACT – dispute arose regarding

the operation and construction of an

Rosengreen v Saadie Gr

oup Pty Ltd [2018]

Rosengreen option for the purchase of an

undeveloped part of a lot in Pennant

Hills – option was conditional on

subdivision approval being obtained

from local council – issue of whether

the subdivision approval was required

to occur within a six month, or

reasonable, timeframe or was not

constrained by a time limitation –

respondent is the registered proprietor

of the land – appellant and another

company, Saadie Group Pty Ltd, each

claim to be entitled to the option –

primary judge found that neither

company held an entitlement to acquire

the land – primary judge found that

appellant had no contractual

relationship with respondent – whether

primary judge erred in determining that

there was no contractual relationship

between the appellant and the

respondent – whether primary judge


respondent executed a document

which authorised the change of grantee

under the deed of option

from Saadie Group to the appellant –


that no consideration moved from the

appellant to the respondent in support

NSWSC 1068

of the grant of option rights

29 2018/380092 State of NSW v

Dargin

29/01/2019 TORTS (other) – trespass – separate

question - respondent subject to a

curfew under a bail undertaking –

curfew did not include a Court imposed

enforcement condition – letter sent by

respondent to NSW Police withdrawing

implied right to enter premises – NSW

Police attended respondent’s premises

to doorknock and verify that respondent

at home – whether police officers had a

right to enter premises to verify

compliance of bail absent enforcement

condition

30 2018/285652 Li v Attorney

General for NSW

31/01/2019 ADMINISTRATIVE LAW (judicial

review) – applicant convicted of and

sentenced to a term of imprisonment for

knowingly taking part in supply of a

prohibited drug – applicant applied for

an inquiry into sentence imposed

pursuant to Crimes (Appeal and

Review) Act 2001 (NSW), s 78 –

primary judge dismissed applicant’s

application on the basis that there was

no appearance of a doubt or question

as to any mitigating circumstances in

the case pursuant to s 79(2)

Li v Attorney General for

New South Wales [2018]

NSWSC 674

31 2018/184604 Trajkovski v 1/02/2019 PROFESSIONAL NEGLIGENCE (legal) Trajkovski v

Simpson – appellant and her husband separated

in 2006 – in 2007 appellant obtained

orders by consent in the Family Court

under which her husband was to pay

her $850,000 – appellant did not

receive agreed sum – first respondent

is a solicitor and second respondent is

his incorporated legal practice – in

2007 and 2008 respondents acted for

husband on the mortgage and sale of

various properties owned by the couple,

their companies and the husband’s

parents – appellant brought claim

against the respondents for damages in

negligence, alleging that they failed to

exercise reasonable care to secure

from the proceeds of sale the balance

of monies due to her under the Family

Court orders – whether primary judge


respondents acted for the appellant in

relation to the sale of certain properties

– whether primary judge erred in failing

to find that the respondents had

breached the duty owed to the

appellant – whether primary judge erred

in approach to the Solicitors Conduct

Rules – whether primary judge erred in

finding that the appellant had granted

ostensible authority to her husband with

Simpson [2018] NSWSC

720

respect to the sale of certain property –

whether primary judge erred in certain

factual findings – whether primary judge

failed to give sufficient weight to certain

evidence – whether primary judge erred

in failing to find that the respondents

had a conflict of interest – whether

primary judge erred in finding that the

respondents were not aware that the

appellant was acting under duress at

the material time – whether primary

judge erred in finding that s 21 of the

Australian Consumer Law, relating to

unconscionable conduct, had no

application – whether primary judge

erred in making credit findings against

the appellant

32 2018/177223 Bezer v Bassan 1/02/2019 TORTS (negligence) – appellant

sustained personal injury in a motor

vehicle accident – appellant brought

claim in negligence – primary judge

found in favour of respondent –

whether primary judge erred in making

certain factual findings and inferences

having regard to conflicting evidence

and expert evidence, including whether

appellant was the driver of the vehicle

at the time of the accident – whether


credibility of witnesses – whether


available on Caselaw


damages – whether primary judge

failed to give sufficient reasons

supreme court of nsw court of appeal decisions reserved at ... · 6 2017/364536 jain v amit laundry...

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