Allen & Ors v TriCare (Hastings) Pty Ltd & Anor [2015] NSWSC 416

JUDICIAL REVIEW – decision of NSW Civil and Administrative Tribunal – Residential Parks Act 1985 –application to terminate residential site agreements – necessity for Tribunal to be satisfied that compensation for cost of relocating dwelling to new location has been determined under s 128 – relocation not possible – Tribunal erred in concluding that order for termination could be made where no relocation was to occur – whether Tribunal approach to s 113(3A)(b) correct – s 113(3A)(b) does not require agreement with resident – Tribunal can assess value of dwelling under s 130A in application under s 113A – discretion to refuse relief where internal appeal available – whether explanation for not pursuing appeal adequate – discretion not exercised – relief granted.

Allen & Ors v TriCare (Hastings) Pty Ltd & Anor [2015] NSWSC 416 (17 April 2015)

Duncan v New South Wales; NuCoal Resources Limited v New South Wales; Cascade Coal Pty Limited v New South Wales [2015] HCA 13

CONSTITUTIONAL LAW – Judicial power – Independent Commission Against Corruption produced reports which recommended passing legislation to cancel three exploration licences granted under Mining Act 1992 (NSW) – Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) ("Amendment Act") inserted Sched 6A into Mining Act 1992 (NSW), cancelling three licences without compensation – Whether Amendment Act involves exercise of judicial power in nature of, or akin to, bill of pains and penalties.

CONSTITUTIONAL LAW – Constitution Act 1902 (NSW) – Legislative competence of New South Wales Parliament – Whether Amendment Act is "law" within meaning of s 5 of Constitution Act 1902 (NSW).

CONSTITUTIONAL LAW – Inconsistency between Commonwealth and State laws – Provision of Amendment Act authorised use or disclosure of information contained in works – Whether provision of Amendment Act inconsistent with Copyright Act 1968 (Cth) and invalid to extent of inconsistency.

Duncan v New South Wales; NuCoal Resources Limited v New South Wales; Cascade Coal Pty Limited v New South Wales [2015] HCA 13

Joanne Elizabeth Young v Josephine Aapa Smith [2015] NSWSC 400

REAL PROPERTY – voidable transactions – transfer of property – transfer made pursuant to alleged trust agreement – intent to defraud creditors – future creditors – whether agreement made with intent to defraud creditors – whether transfer made with intent to defraud creditors – requisite state of mind – inferences to be drawn.

TRUSTS - existence of trust - express trust - intention to create trust - impact of subsequent conduct.

TRUSTS - abandonment or abrogation - conduct inconsistent with existence of trust - inferences to be drawn.

Joanne Elizabeth Young v Josephine Aapa Smith [2015] NSWSC 400 (10 April 2015)

Pandeli v Hou [2015] NSWCATAP 58

APPEAL - questions of law - breach of warranty under Home Building Act,1989 (NSW) - whether evidence discharged burden to prove breach of statutory warranties.

CONTRACT - terms of contract between the parties - work to be done - objective assessment of contractual terms - work done by contractor - warranty to undertake work in proper and workmanlike manner.

EVIDENCE - no adequate evidence as to quantum of appellants’ loss - remittal for determination on proper evidence.

Michael John Askew v John Paul Askew [2015] NSWSC 192

EQUITY - Succession - claim for family provision order under Succession Act s 59 - Where applicant is an adult child of deceased - Where deceased did not make provision for applicant in will - Whether adequate provision made for proper maintenance, education and advancement in life of applicant - Consideration of matters under Succession Act s 60(2) - Disentitling conduct alleged - Value of the estate’s property in dispute - Extent of debts in dispute - Issues in respect of the plaintiff’s and defendant’s circumstances - Question of right to reside or life interest in favour of deceased’s brother - Plaintiff’s right to costs challenged - Order for cost capping sought by defendant - Application by plaintiff to reopen - Provision as a lump sum or percentage of net real estate proceeds.

Lisa Doust appeared for the plaintiff.

Reasons for the decision can be found here.

Siddique v Director General of the Department of Education and Communities NSW [2015] NSWCATAD 27

DISCRIMINATION - disability in the area of employment - Administrative Decisions Tribunal Act 1997 (NSW) - Anti-Discrimination Act 1977 (NSW) - Civil and Administrative Tribunal Act 2013 (NSW).

Siddique v Director General of the Department of Education and Communities NSW [2015] NSWCATAD 27.

Jewelsnloo Pty Ltd v Sengos [2015] NSWSC 80

PROCEDURE – civil – interlocutory issues – application by plaintiff for leave to reopen its case to admit additional evidence – prejudice to defendants opposing application in circumstances where new evidence will make fundamental changes to basis of plaintiff’s case – evidence that plaintiff unable to compensate defendant for costs of responding to new evidence if plaintiff ordered to do so – no explanation for failure to tender evidence at earlier stage.

Civil Procedure Act 2005 (NSW), Pt 6, Div 1, s 56.
Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 20, 243(a).
Fair Trading Act 1987 (NSW), s 42.

Spuds Surf Chatswood Pty Ltd v PT Ltd (No 4) [2015] NSWCATAP 11

RETAIL LEASE – scope of remitted hearing – issue estoppel – remedies for unconscionable conduct – assessment of damages for lost profits – orders granting partial relief from liability for rent.

Spuds Surf Chatswood Pty Ltd v PT Ltd (No 4) [2015] NSWCATAP 11 (12 February 2015)

Commissioner of Police v Joseph [2015] NSWCATAP 9

Counsel | Dr Christos Mantziaris 

FIREARMS LICENSING – Application for firearms dealers licence – refused by Commissioner – Commissioner’s decision set aside by Tribunal on review – Appeal by Commissioner – Whether Tribunal erred in its approach to consideration of the Commissioner’s application to have considered material regarded by the Commissioner as relevant – Held that Tribunal erred - Whether refusal on the ground of fitness and refusal on the ground of public interest involved the determination of jurisdictional facts – Held not – Whether the Tribunal properly construed the scope of the public interest discretion – held Tribunal erred – Leave granted to extend appeal to merits. Administrative Decisions Review Act 1997, s 63; Firearms Act 1996, s 11(3), s 11(7), s 7.

Commissioner of Police v Joseph [2015] NSWCATAP 9 (10 February 2015)

Coffey Information Pty Limited v Cullen [2015] FCA 28

PRACTICE AND PROCEDURE – application for order for discovery – alleged misuse of confidential information by prospective respondents – whether reasonable belief that prospective applicant may be entitled to relief – whether more than suspicion or assertion – whether insufficient information to determine whether to commence proceedings – whether prospective respondents have relevant material – whether reasonable enquiries undertaken by prospective applicant – exercise of discretion.

Reasons for the decision can be found here.

Australia and New Zealand Banking Group Limited v Desmond Patrick John Last [2014] NSWSC 1719

SUCCESSION – executors and administrators – management of estate of missing person by NSW Trustee – whether order should be made to commit the estate to management – whether defendant ‘missing’ – whether alternatives to management preferable – whether mortgagee has standing to seek order – held, order made for management.

Tim Castle represented the Plaintiff.

Reasons for the decision can be found here.

Murphy v Westpac Banking Corporation [2014] FCA 1104

CONTRACTS – contracts of employment – misleading or deceptive conduct – ss 52 and 53B of Trade Practices Act 1974 (Cth) – retention incentive scheme – whether employer disclosed true nature of scheme to employees – whether alleged non-disclosure of scheme amounted to deceit or negligence on part of employer – whether employee enjoyed contractual rights to bonus or incentive – relevance of discretion to award bonus or incentive – whether implied term that such discretion cannot be exercised capriciously, arbitrarily or unreasonably – whether withholding of incentives from employees a discretion so exercised – whether implied term of mutual trust and confidence – application of Commonwealth Bank of Australia v Barker[2014] HCA 32; (2014) 88 ALJR 84 – whether scheme induced employees not to seek alternative employment – whether incentives available to employees upon retrenchment.

CONTRACTS – contracts of employment – seconded employees – application and interpretation of secondment policy – whether seconded employees in temporary or permanent position.

CONTRACTS – contracts of employment – termination – whether reasonable notice given – meaning of “reasonable notice” – whether change in employee duties over time effects contractual variation of notice provisions – application of Quinn v Jack Chia (1991) 1 VR 567.

CONTRACTS – contracts of employment – wrongful dismissal claims – whether employer redundancy policy forms part of terms and conditions of contract of employment – construction and interpretation of redundancy policy – whether application of policy varies over time – whether employee secondment affects application of redundancy policy – whether payment in lieu of notice acceptable.

DAMAGES – measure of damages – breach of contract of employment – damages in respect of contractual bonuses – quantification of the value of a lost opportunity.

TORTS – negligence – whether representatives of employer owed duty of care to employees – whether employer acted with reasonable care – quantification of loss on the part of employee.

Jingalong Pty Ltd v Todd (No 3) [2014] NSWCA 353

PRACTICE AND PROCEDURE - application for freezing order pending resolution of appeal.

 Reasons for the decision can be found here.

Borcherdt v Scott [2014] NSWCA 339

APPEAL - appeal from a decision of a Local Court Magistrate - appeal limited to errors of law or errors of mixed fact and law - no such error demonstrated in Magistrate's resolution of conflicting evidence.

Limitation Act 1969 (NSW); Local Court Act 2007 (NSW) ss 39, 40; Supreme Court Act 1970 (NSW) s 101(2)(r); Partnership Act 1892 (NSW) ss 1, 2; Uniform Civil Procedure Rules 2005 rr 20.26, 42.15A.

Andrew Tokley SC and Michael Rennie represented the Respondent.

Reasons for the decision can be found here.

Luxcon Developments No. 2 Pty Ltd v Ratner [2014] NSWSC 861

EQUITY - Equitable remedies - Injunctions - Interlocutory injunctions - Whether an interlocutory injunction should be granted pending outcome of further proceedings - Whether defendant is entitled to set aside $1.5 million of the profits of sale of land - Serious question on determination of enforcement of joint venture agreement to be tried in further proceedings - Serious question to be tried on amount of net profits and percent of profit share owed to defendant - Balance of convenience favoured granting of interlocutory injunction.

Royal Commission into Trade Union Governance and Corruption

CORRUPTION - Health Services Union case study - counsel for Health Services Union, NSW.

Australian Competition and Consumer Commission v Gordon Superstore Pty Ltd [2014] FCA 452

CONSUMER LAW – retailer refused customer refund for a refrigerator and two replacement refrigerators – retailer told customer that their refund policy does not apply to large appliances – retailer told customer that customer’s remedy is only with manufacturer – retailer told customer that customer will not get a refund until retailer gets money from the manufacturer – orders sought by consent – appropriateness of penalty.

Competition and Consumer Act 2010 (Cth) ss 224, 232, 246; Evidence Act 1995 (Cth) s 191
Australian Consumer Law ss 18, 29(1)(m), 54;  Federal Court of Australia Act 1976 (Cth) ss 21, 43.

Dover v Lewkovitz [2013] NSWCA 452

PERSONAL PROPERTY - assignment of bare right to damages constituted by rights arising under or out of a lease - assignee a beneficiary under a discretionary trust which indirectly owned shares in assignor company - whether assignee had a "genuine commercial interest" in the rights - Trendex Trading Corporation v Credit Suisse [1982] AC 679 - whether necessary for the existence of a relevant genuine commercial interest that the assignee has a pre-existing legal right against the assignor.

Australian Consumer and Competition Commission v Camavit Pty Ltd [2013] FCA 1397

CONSUMER LAW – Consumer guarantee provisions misleading or deceptive conduct – representations about the existence, exclusion or effect of a guarantee, right or remedy – admitted contraventions – agreed orders – whether orders appropriate – whether civil penalty within appropriate range – compliance program.

K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4 (2 February 2009)

Constitutional law (Cth) – Chapter III – Judicial power – Vesting of federal jurisdiction in State courts – Whether Licensing Court of South Australia a "court of a State" within meaning of s 77(iii) of Constitution – Whether Licensing Court invested with federal jurisdiction by s 39(2) of Judiciary Act 1903 (Cth) ("Judiciary Act") – Integrity of State courts – Requirement of impartiality and independence for repository of federal jurisdiction – Statutes – Interpretation – "Criminal intelligence" defined to include information which "could reasonably be expected" to prejudice criminal investigations.