Wednesday, 8 November 2023 

GONZALES v ATTORNEY GENERAL OF NSW 2023/198416 (Lonergan J – 3/4/23)

ADMIN LAW (judicial review) – the applicant was convicted of murdering his sister and parents in 2004 – he unsuccessfully appealed his convictions – in 2021 the applicant applied to the NSWSC pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) for an inquiry into his convictions, noting that this was his fourth application, having been unsuccessful three times prior – the primary judge found that the applicant’s submissions provided no reason to doubt or question his guilt – whether the primary judge erred in failing to address fresh evidence not dealt with at trial – whether the primary judge erred in finding that exculpatory evidence had been considered in previous proceedings – whether the primary judge erred in failing to give adequate weight to “factors of great importance”.

Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 4) [2023] NSWSC 323

Thursday, 9 November 2023

FINNISS v STATE OF NSW 2023/88354 (Neilson DCJ – 22/2/23)

TORTS (other) – assessment of damages – the appellant was a cleaner employed by Facilities First Australia Pty Ltd (FF), which provided cleaning services to public schools, including Avalon Public School (APS) – the appellant worked as a cleaner at APS under several employers since 2005, and worked 40 hours/week – whilst retrieving toilet paper from the APS basement, the appellant struck the crown of his head on the lintel of the doorframe, suffering injuries – the primary judge found that ss 5G and 5F of the Civil Liability Act 2002 (NSW) (CLA) applied, such that the risk of injury was obvious – the primary judge found that the real cause of the appellant’s injury was his own act in standing up prematurely (which may have been precipitated by wearing a baseball cap) and gave judgment for the respondent – the primary judge made hypothetical findings as to the assessment of damages, noting that the Workers Compensation Act 1987 precluded the appellant from obtaining damages against FF, and that there would be findings of apportionment and contributory negligence in the assessment – whether the primary judge failed to address the issue of duty of care – whether the primary judge made errors regarding the risk of harm pursuant to s 5B of the CLA – whether the primary judge failed to properly deal with the question of causation pursuant to s 5D of the CLA – whether the primary judge improperly applied ss 5F and 5G of the CLA to the case – whether the primary judge erred as to his findings on apportionment – whether the primary judge erred as to his findings on the employment relationship, purportedly a material fact – whether the primary judge failed to provide sufficient reasons – whether the primary judge erred as to his findings on psychiatric harm – whether the primary judge erred in failing to afford the appellant procedural fairness.

Finniss v State of New South Wales (No. 1) [2023] NSWDC 83 (Neilson DCJ) (primary judgment, delivered ex tempore)

Finniss v State of New South Wales (No. 2) [2023] NSWDC 121 (Neilson DCJ) (evidentiary ruling, not appealed)

LEE v ATL 2023/133934 (Fagan J – 6/4/23)

CONTRACTS – the respondent advanced $14m to Gondon HLHS Epping Pty Ltd (the Borrower) pursuant to a loan agreement – the appellant was one of four guarantors under the Loan Agreement – the Borrower defaulted, and the respondent claimed a total debt with interest of $16.5m from the appellant – among other defences, the appellant contended that a “side letter agreement” between the respondent and the Borrower discharged his obligations as a guarantor by application of Ankar Pty Ltd v National Westminster (1987) 162 CLR 549 (the Ankar principle) – the primary judge held that the Ankar principle did not apply – whether the primary judge erred by failing to apply the Ankar principle – whether the primary judge erred in finding that the appellant entered into a contract of guarantee with the respondent – whether the primary judge erred in finding that the side letter agreement was entered into before the loan agreement.

ATL (Australia) Pty Ltd v Cui [2023] NSWSC 336 

Friday, 10 November 2023

KERRY FISHER v NONCONFORMIST 2023/93737 (President Judge Phillips)

NICOLE CLIFFORD v NONCONFORMIST 2023/119752 (President Judge Phillips)

MARK CLIFFORD v NONCONFORMIST 2023/123788 (President Judge Phillips)

WORKERS COMPENSATION – the deceased was employed by the respondent as a courier driver – the deceased died from a heart attack during the course of his employment – the appellants (the deceased’s wife and two children) pursued death benefits under the Workers Compensation Act 1987 (the Act) alleging that the heart attack was causally related to the employment due to stress and exposure to traffic related air pollution (TRAP) – several experts were engaged by the parties to provide opinions on the cause(s) of the heart attack – after an initial hearing and subsequent appeal, the proceedings were remitted to the PIC, where the Member held the appellants had established a personal injury within the meaning of s 4(a) of the Act, but had not established that the employment was a substantial contributing factor to the injury within the meaning of s 9A of the Act – the appeal to the PIC President Judge was dismissed, the Member’s findings on the application of s 9A and the weight given to the expert evidence upheld – whether the primary judge erred in law in his determination of the requirements of s 9A of the Act – whether the primary judge erred in his treatment of the evidence regarding the causation of the deceased’s death – whether the primary judge erred in failing to find that the employment was a substantial contributing factor to the injury.

Fisher v Nonconformist Pty Ltd [2023] NSWPICPD 12 (Decision not available on Caselaw)

Monday, 13 November 2023

PROTHEROE v PROTHEROE 2023/94803 (Slattery J)

EQUITY – the appellant and respondent are respectively father and son who contest the beneficial ownership of two properties, Elmore and Shannon Vale (the Properties), and associated farming equipment – the respondent worked for the appellant as a farmer for over 20 years, for accommodation and little to no wages – the primary judge accepted the respondent pursued this route in reliance on representations made by the appellant that the respondent would have future ownership of the “farms” – in 2008, the appellant and the family trust (CHP) financed the purchase and development of an irrigation development by taking out a loan facility with NAB – in 2012, the loan facility with NAB fell into default – NAB threatened proceedings in 2013 against CHP and the appellant for a debt of $11.9m – the relationship between the appellant and respondent soured, with the respondent acknowledging his financial dependence on the appellant, and sought to sell farming equipment to alleviate the NAB debt – in July 2017, after mediation and negotiation attempts, a settlement deed (Deed) was signed between several parties, including NAB, the appellant, CHP and the respondent – the primary judge found that each of the appellant and CHP acknowledged an indebtedness to NAB of $6,742,291.90, and if a settlement sum of $1m was paid to NAB, NAB would not pursue its judgment for the debt and possession of all the family’s properties – the Deed released all the parties from cross-claims between themselves – the sum was paid by the appellant using short term financing, saving the Properties and Delwood (another family property) – the other properties were sold – Delwood was later sold to pay the short term financing – the primary judge held that equitable estoppel was successfully made out – whether the primary judge made various factual errors with regard to equitable estoppel and obligations pursuant to the Deed – whether the primary judge erred in finding that the Court ought to exercise its equitable jurisdiction to grand equitable relief – whether the primary judge failed to consider the advantages obtained by the Respondent in the execution of the Deed – whether the primary judge erred in finding that the Respondent would suffer substantial detriment.

Protheroe v Protheroe [2023] NSWSC 188

Tuesday, 14 November 2023

CIRRUS v JET AVIATION 2023/164682 (Ball J – 5/5/23)

CONTRACT – the appellant provided software development services to the respondent under a contract entered into in August 2018 – the issue before the primary judge concerned the correct construction of a price adjustment formula contained in the contract – terms key to this formula were not defined – the primary judge found that the construction favoured by the respondent was correct – whether the primary judge erred in the construction of the relevant clauses.

Cirrus Real Time Processing Systems Pty Ltd v Jet Aviation Australia Pty Ltd [2023] NSWSC 464 

CARVER v STATE OF NEW SOUTH WALES 2023/232351 (Hammerschlag CJ in Eq – 14/7/23)

REAL PROPERTY – the appellant has occupied a cottage (the Cottage) since 1996 – the Cottage is located partially on Crown land and is Heritage Listed – the respondent Crown sought orders for possession of the land – the appellant pleaded that the Cottage was a chattel owned by him and not a fixture acceded to the land; its Heritage Listed status would therefore require planning permission to demolish or remove it – the appellant also pleaded that the Crown’s claim is time barred under the Limitation Act 1969 (NSW) – the primary judge rejected the appellant’s submissions and entered judgment in favour of the Crown – whether the primary judge erred in the factual findings made in relation to the possession of the Cottage – whether the primary judge erred in the application of the Limitation Act – whether the primary judge erred in finding that the Cottage was a fixture that had acceded to the land – whether the primary judge erred in the application of s 13.1(1)(b) of the Crown Land Management Act 2016 (NSW) – whether the time allowed by the primary judge to issue the writ of possession was unfair.

State of New South Wales v Carver [2023] NSWSC 828 

Wednesday, 15 November 2023

A-CIVIL v CEEROSE 2023/169019 (Richmond J – 2/5/23)

BUILDING & CONSTRUCTION – the appellant and first respondent entered into a subcontract, with the appellant as subcontractor, to carry out excavation work (the contract) – the first respondent terminated the contract in July 2022 – the appellant served a payment claim and the first respondent provided a payment schedule in response which rejected the claimed amount in its entirety – the second respondent (the adjudicator) issued a determination that the adjudicated amount to be paid was over $160,000 – the first respondent challenged the validity of the adjudication determination asserting a denial of procedural fairness – the primary judge found that there was a material denial of procedural fairness in relation to the decision to include the retention monies claim in the adjudication amount and set aside that part of the adjudication determination – whether the primary judge erred in finding that the adjudicator’s decision to include the retention monies claim in the adjudication amount was affected by jurisdictional error.

Ceerose Pty Ltd v A-Civil Aust Pty Ltd (No 2) [2023] NSWSC 345 

SADER v ELGAMMAL 2023/300979 (Pain J – 8/9/23)

LAND & ENVIRONMENT – applicants prosecuting their neighbours, the respondents, for contempt on the basis that they have not demolished 2 concrete slabs on the foreshore of property at Connells Point, contrary to orders of Duggan J made on 30 September 2022 – dispute as to whether the concrete slabs have been demolished – applicants filed a NOM seeking orders for an independent engineer to access the site and assess the true state of the slabs – NOM heard by primary judge expeditiously and dismissed on case management principles – whether the primary Judge erred in the exercise of her discretion and/or erred on a wrong principle, including that privilege against self-exposure to penalty was another basis why access orders to the site should not be made. 

Sader v Elgammal (No 2) [2023] NSWLEC 92

Thursday, 16 November 2023

SYDNEY METRO v G & J DRIVAS 2023/111636 (Duggan J – 13/3/23)

LAND & ENVIRONMENT – the respondents held a freehold interest over land in Parramatta (the Land) – the appellant compulsorily acquired the Land for the purpose of the Sydney Metro Project under the Land Acquisition (Just Terms Compensation) Act 1991 (the Act) – the Valuer-General valued the acquisition in the amount of $145 million, based on the market value of the Land and associated disturbance costs – the respondents objected to this amount under s 66 of the Act and claimed $212 million as compensation for the market value of the Land and disturbance costs under ss 55(a) and 59 of the Act – the respondents claimed that there was a decrease in the market value of the Land caused by the proposal to carry out the Sydney Metro Project as developments were discontinued and such a decrease should be disregarded for the purposes of market value pursuant to s 56(1)(a) of the Act – the primary judge accepted s 56(1)(a) applied to account for future developments being discontinued – the primary judge accepted that the Land was held as a part of the stock trade of the respondents’ business, such that it was an actual use of land for the purposes of s 59(1)(f) of the Act and the respondents were entitled to the disturbance fees for replacing the Land – whether primary judge erred in applying s 56(1)(a) of the Act in relation to the market value of the Land – whether the primary judge erred in finding that compensation for stamp duty, legal fees and loan establishment fees in the purchase of replacement land may be awarded under s 59(1)(f), rather than ss 59(1)(c)-(e), and that such a claim could not be maintained under ss 59(1)(c)-(e).

G&J Drivas Pty Ltd v Sydney Metro [2023] NSWLEC 20

Friday, 17 November 2023

PD v AA 2023/63196 (Chen J – 5/8/22)

TORTS (other) – the respondent brought a claim for damages for mental harm against the appellant in relation to historical sexual misconduct – the appellant conceded that he was charged with, and convicted of, an offence arising out of that misconduct, however there was no evidence before the court of the actual charge laid against him nor any evidence of what sentence was imposed following the conviction – the primary judge held that the balance of probabilities favoured that the misconduct occurred in the manner alleged by the respondent – the primary judge found that the causes of action of assault and battery were made out – the primary judge assessed the respondent’s damages at common law and awarded general damages in addition to damages for loss of earning capacity – whether incompetence of counsel gave rise to the denial of a proper hearing – whether the primary judge failed give adequate reasons or make enquiries as to the appellant’s absence at trial, his capacity or his status as bankrupt – whether the primary judge erred in finding that the appellant caused the respondent’s loss – whether the primary judge erred in assessing damages.

AA v PD [2022] NSWSC 1039

DOYLE v MILES 2023/63191 (Cavanagh J – 15/10/21)

TORTS (other) – the respondent brought a claim for damages for psychiatric injury against the appellant in relation to historical sexual assaults – the appellant was charged with, and convicted of, an offence arising out of that misconduct, and was in prison at the time of the proceedings – the primary judge accepted the respondent’s version of events – the primary judge did not accept that the plaintiff has been suffering from a psychological condition in the nature of depression since immediately after the assaults took place – the primary judge assessed the respondent’s damages at common law and awarded general damages in addition to damages for loss of earning capacity – whether incompetence of counsel gave rise to the denial of a proper hearing – whether the primary judge failed to give adequate reasons or make enquiries as to the appellant’s absence at trial, his capacity or his status as bankrupt – whether the primary judge erred in finding that the appellant caused the respondent’s loss – whether the primary judge erred in assessing damages.

PP v DD (No 2) [2021] NSWSC 1312

DOYLE v LEWIS 2023/63182 (Davies J – 18/2/22)

TORTS (other) – the respondent brought a claim for damages for psychiatric injuries against the appellant in relation to historical sexual misconduct – the appellant conceded that he was charged with, and convicted of, an offence arising out of that misconduct, however there was no evidence before the court of the actual charge laid against him nor any evidence of what sentence was imposed following the conviction – the primary judge accepted the respondent’s evidence – the primary judge assessed the respondent’s damages at common law and awarded general damages in addition to damages for loss of earning capacity and aggravated damages – whether incompetence of counsel gave rise to the denial of a proper hearing – whether the primary judge failed to give adequate reasons or make enquiries as to the appellant’s absence at trial, his capacity or his status as bankrupt – whether the primary judge erred in finding that the appellant caused the respondent’s loss – whether the primary judge erred in assessing damages.

Lewis v Doyle [2022] NSWSC 92 

Monday, 20 November 2023

EPPINGA v KALIL 2023/135849 (Weber SC DCJ – 21/4/23)

DEFAMATION – the respondents operated a veterinary clinic – the appellant was undertaking unpaid work experience at the respondents’ clinic – the appellant made several posts on social media accusing the respondents of mistreating animals, maintaining unhygienic and hazardous environments, and the first respondent of assault – the respondents published a response to the allegations on the clinic’s Facebook page, accusing the appellant of attempting to steal drugs from the practice and using vile and racist profanity (the Facebook post) – the appellant alleged that the Facebook post was defamatory – the respondents pleaded that the Facebook post was a response to an attack, attracting qualified privilege – the appellant pleaded malice – the primary judge found in favour of the respondents – whether the primary judge erred in concluding malice was not established  – whether the primary judge erred in failing to make evidentiary findings against the respondents – whether the primary judge erred in making findings inconsistent with undisputed evidence – whether the primary judge’s conduct and reasons give rise to apprehended bias against the appellant.

Kalil v Eppinga [2023] NSWDC 107

DEPARTMENT v TONKS 2023/159371 (Black J – 20/4/23)

CORPORATIONS – Cth paid entitlements to employees of a company being wound up – question of whether a liquidator’s remuneration, costs and expenses excluding Re Universal Distributing costs are to be paid in the order of priority established by s 556 of the Corporations Act 2001 (Cth) (as the liquidator contends) or in the order of priority in s 561 of the Act (as the Cth contends).  

In the matter of BCA National Training Group Pty Ltd (in liq) [2023] NSWSC 366

Wednesday, 22 November 2023

ECO-PACT v LAW SOCIETY 2023/128416 (Griffiths AJ – 29/3/23)

ADMIN LAW (other) – Ms Saldaneri provided legal services to the appellant and its sole director (Mr Meknas) in relation to an insurance claim dispute – upon Ms Saldaneri’s request for legal fees, $20,000 was deposited into her trust account – $80,000 was paid by the appellant into Ms Saldaneri’s office account – the appellant claimed an amount of $94,468 from the Legal Practitioners Fidelity Fund as pecuniary loss caused by Ms Saldaneri’s default – the primary judge held that the $20,000 was withdrawn by Ms Saldaneri for her legal services – the primary judge held that the $80,000 was not “trust money” as defined by s 129 of the Legal Profession Uniform Law as it was paid for the purpose of withholding money from the appellant’s creditors – whether the primary judge erred in finding that Ms Saldaneri was entitled to withdraw the entire $20,000 deposit – whether the primary judge erred in finding that the $80,000 payment was not trust money. 

Eco-Pact Pty Ltd v Law Society of NSW [2023] NSWSC 283 (Griffiths AJ – principal judgment)

Eco-Pact Pty Ltd v Law Society of NSW (No 2) [2023] NSWSC 410 (Griffiths AJ – costs)

Thursday, 23 November 2023

CLARKE v HEALTH CARE COMPLAINTS COMMISSION 2022/356036 (Hon Cowdroy in NCAT – 17/11/22)

CLARKE v HEALTH CARE COMPLAINTS COMMISSION 2023/40617 (Hon Cowdroy in NCAT – 17/11/22)

DISCIPLINARY – cancellation of registration as a nurse pursuant to s149C(1)(a) of Health Practitioner Regulation National Law – whether applicant suffers from a physical or mental condition – whether condition detrimentally affects her capacity to work as a nurse – whether evidence supported the findings made – whether findings can be made on matters in the past – whether Commission failed to act as a model litigant.

COMMISSIONER v RITSON 2023/261025 (Dhanji J – 21 July 2023)

ADMINISTRATIVE LAW – decision of NCAT that the Commissioner had breached section 14 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) known as ‘Information Protection Principle 7’, by denying the 1st respondent access to his personal information upon request – issues regarding NCAT then ordering access, but failing to take into account that the Commissioner had not yet determined the conditions, limitations and exemptions that may apply – issues of principle regarding the PPIP Act, NCAT’s powers and also possibly of the Government Information (Public Access) Act 2009 (NSW) – question of whether the primary Judge erred in dismissing the Commissioner’s appeal from a decision of the NCAT Appeal panel (which itself dismissed an appeal brought by the Commissioner from the decision of NCAT).

Commissioner of Police v Ritson (“DVT”) (No 2) [2023] NSWSC 854

Friday, 24 November 2023

D RAMSAY v MINISTER FOR LANDS & WATER 2023/229215 (Pain J – 26/6/23)

A RAMSAY v MINISTER FOR LANDS & WATER 2023/229221 (Pain J – 26/6/23)

LAND & ENVIRONMENT – Alexander and Annette (the “Flintrock” appellants) owned a farm (Flintrock) and David (the “Banchory” appellant) owned a farm (Banchory), both located on a floodplain in Warren, NSW – the respondent granted floodplain harvesting access licences for fewer unit shares of water sought by the appellants – the appellants made Class 1 applications for each of the farms’ water allocation pursuant to s 386(1) of the Water Management Act 2000 (NSW) (the WMA) on the basis that the respondent’s determinations were refusals of access licence applications – the respondent sought a summary dismissal of each application – the primary judge summarily dismissed the proceedings – whether the primary judge erred in finding that s 368 of the WMA did not confer a merits appeal right on the appellants – whether the primary judge erred in the construction of s 368 of the WMA.

Ramsay v The Minister for Lands and water; Hospitality and Racing, The Minister administering the Water Management Act 2000 [2023] NSWLEC 66

Monday, 27 November 2023

SP No 97315 v ICON 2023/151217 (Darke J – 13/4/23)

BUILDING AND CONSTRUCTION – primary claim for damages to make good various defects in the common property of the “Opal Tower” strata scheme – claim for defects in sunshades referred to referee – referee favoured ‘C bracket methodology’ – applicant filed Notice of Motion challenging referee’s report – Notice of Motion dismissed – whether the primary Judge’s discretion miscarried – rule in House v The King - whether referee’s report should be varied.

The Owners - Strata Plan No 97315 v Icon Co (NSW) Pty Ltd [2023] NSWSC 363

MANNING VALLEY COUNCIL v ALLAN 2023/149403 (Gibson DCJ – 14/4/23)

WORKERS COMPENSATION – respondent injured by racehorse in 2004 – received statutory workers compensation until 1 July 2015 – certified over the threshold on 22 September 2017 – commenced District Court proceedings on 27 January 2022, about 14 years out of time – whether there is any reviewable error in the primary Judge’s decision to grant the respondent leave to commence proceedings out of time – evidence relating to key witnesses’ memory.

Allan v Manning Valley Race Club Limited ACN 00329548 [2023] NSWDC 89

Tuesday, 28 November 2023

TENG XIE v AIYI QIN 2023/125615 (Kunc J – 22/3/23)

EQUITY – the parties engaged in a grape growing and exporting venture (the Venture) as conceived by a non-party to proceedings (Mr Jiang) – a unit trust and company (the fifth appellant) were created for the Venture – the respondent was the trustee of the unit trust and the first to fourth appellants were unitholders – at the relevant time, the respondent was the sole director of the fifth appellant – Mr Jiang would deposit funds for the Venture into a bank account (IMBK) – the respondent would withdraw funds from IMBK for the purposes of the Venture – a dispute arose as to whether four withdrawals the subject of three transactions (the impugned transactions) were for the purpose of the Venture or as otherwise authorised by Mr Jiang – the primary judge held that the appellants failed to prove that the funds the subject of the impugned transactions were assets of the unit trust such that the appellants failed in their claim for an account of the funds – the primary judge held in obiter that the withdrawals subject to the impugned transactions were not authorised by Mr Jiang – whether the primary judge erred in failing to find that the respondent held the funds the subject of the impugned transactions on trust for the first and fifth appellant.

CLARK v ZELE 2023/221746 (Peden J – 14/6/23)

CONTRACT – the respondents entered into a written contract to purchase land from the appellant for $1.5 million and paid $150,000 as a deposit (the Contract) – the appellant failed to complete and the respondents sought specific performance of the Contract – in July 2022, Parker J held that the Contract was binding and enforceable and ordered specific performance of the Contract, but reserved for consideration the repayment of the deposit and damages for the appellant’s breach of the Contract – in October 2022, Parker J made further orders noting it was impossible to obtain specific performance and relisted the matter in the Real Property List before Peden J for the determination of those numerous matters – in November 2022, the respondents terminated the Contract due to the appellant’s failure to perform his obligations.

In May 2023, the matter came before the Real Property List judge, Peden J, and the appellant sought to file a notice of motion seeking leave to issue subpoenas, which was listed before Robb J – Robb J noted that, among other things, the Court had informed the appellant that he would not be permitted at the hearing on 14 June 2023 to challenge the validity of any order made by the Court to date and, in particular, any order made by Parker J, and if the appellant did seek to have any such orders set aside he would have to do so by lodging an appeal to the Court of Appeal after Peden J had determined the remaining issues in the proceedings.

At the hearing on 14 June 2023 before Peden J, the appellant accepted that the orders must be made in accordance with Parker J’s findings concerning the deposit, but sought a stay of such orders so he could lodge an appeal – Peden J refused to grant a stay, and the orders her Honour proposed to make concerning the refund of the deposit sums held by the Court – Peden J declared that the Contract (that Parker J had determined to be valid and binding) was terminated by the respondents in November 2022 and ordered that the deposit sums be released by the Court and by an external stakeholder. 

The appellant’s notice of appeal in terms, is an appeal regarding the 14 June 2023 orders made by Peden J, which challenges Peden J’s orders for the return of the deposit sums and appears to contend that the deposit was forfeited.  The appellant confirmed at the Directions on 11 October 2023 before Registrar Jones that he did not seek to challenge the findings by Parker J that the Contract was valid and binding or any issue regarding a stay in Peden J’s orders.

Zele v Clark (delivered ex tempore by Peden J on 14 June 2023; unavailable on Caselaw)

Wednesday, 29 November 2023

RAHME v KEKATOS LAWYERS 2023/221770 (Schmidt AJ – 18/5/23 & 16/6/23)

COSTS – $35,000 in unpaid costs sought to be recovered by the law firm from its client - purported inconsistencies in two judgments delivered by Schmidt AJ – whether client obtained impermissible windfall as a result of wrongdoing and abuse of process - whether principal judgment should be recalled - whether the primary judge erred in finding that the appellant was liable for the respondent’s costs. 

Kekatos Lawyers Pty Ltd v Rahme [2023] NSWSC 528 

Kekatos Lawyers Pty Ltd v Rahme (No 2) [2023] NSWSC 651

PALLAS FAMILY SUPERANNUATION FUND v LENDLEASE 2023/291528

CIVIL PROCEDURE - Representative proceedings – Notice of Motion removed by Ball J in the Commercial List to the Court of Appeal for the Court to determine a question of the Supreme Court’s power pursuant to sections 175(1), 175(5) and 176(1) of the Civil Procedure Act 2005 (NSW) or otherwise to approve a notice to Group Members of the right to register to participate in any settlement, or to opt out of the proceedings where notice contains particular notation challenging correctness of Wigmans v AMP Ltd (2020) 102 NSWLR 199 in light of Parkin v Boral Ltd (2022) 291 FCR 116.

Friday, 1 December 2023

BABAYI V EDEN PARK FRUITS 2023/168144 (Harrison AsJ – 5/5/23)

WORKERS COMPENSATION – the appellant was employed by Pak Farm, a company that has since been deregistered – the first respondent engaged Pak Farm to prune trees in its orchards – whilst pruning trees, the appellant fell from a ladder and suffered injury – there were no eyewitnesses to the accident, and the appellant gave evidence with the assistance of an interpreter – the primary judge held that the appellant was not a credible witness – the primary judge held that the risk of falling was an obvious risk against which there was no duty to warn by s 5H of the Civil Liability Act 2005 (NSW) (CLA) – the primary judge, also held that the first respondent did not breach its duty of care pursuant to ss 5B, 5C of the CLA, and that if it had, the appellant was 60% contributorily negligent – whether the primary judge erred in finding there was an obvious risk – whether the primary judge erred in the application of s 5B of the CLA – whether the primary judge erred in failing to consider the factual background of the appellant, as a non-skilled, non-English speaking refugee – whether the primary judge erred in finding the appellant was 60% liable for the injury – whether the primary judge erred in failing to find the deficiencies in the system of work devised by the respondents – whether the primary judge erred in refusing to admit the evidence of the appellant’s eldest daughter.

Ali Khan Babayi v Eden Park Fruits Pty Ltd [2023] NSWSC 473

KEARNEY v GROW CHOICE 2023/208516 (Gibb DCJ – 2/6/23)

CONTRACT – in 2015 the respondent entered into an agreement with the appellant’s business, North West Direct Sales Pty Ltd (North West), by which the respondent was to store and sell its goods from North West’s warehouse, in exchange for North West charging a fee to move the goods out of storage for delivery – a further oral contract of guarantee is alleged to have been in place between the respondent and the appellant in his personal capacity, by which the appellant would pay the respondent monies owed under the primary agreement through proceeds of sale from a property that he owned personally - whether the primary judge erred in finding that an oral contract existed.

Grow Choice Pty Limited ACN 161 264 884 v North West Direct Sales Pty Ltd ACN 001 894 471 and Simon Peter Kearney, District Court of NSW Sydney civil jurisdiction, Sydney No 2021/283955 (Decision not available on Caselaw)