Ratkovic v Hadzic [2019] NSWSC 1627

COSTS – costs of and incidental to a notice of motion filed by the plaintiff – where settlement reached between the plaintiff and the defendant and the notice of motion was not dealt with on its merits – where term of the settlement was that the plaintiff was to bear the burden of any order for costs made in favour of the respondent in relation to the plaintiff’s notice of motion – held appropriate to make a gross sum costs order.

Madeleine Bridgett represented the defendant.

The reasons for the decision can be found here.

MACURA V SARASEVIC (NO.2) [2019] NSWSC 1621

CIVIL PROCEDURE - Notice of Motion - Application by law firm seeking declaratory relief and claiming an equitable lien over a settlement sum that had been paid in court - where the applicant was the law firm acting for the plaintiff - where the applicant’s legal fees remain outstanding - where motion dealt with after determination of the substantive issue in the proceedings - whether the applicant had standing - whether an equitable lien had arisen in present case - whether the applicant was instrumental in obtaining the settlement result - held there was a sufficient causal link between the applicant’s efforts and the settlement result - equitable lien established.

Kirralee Young represented the Applicant on motion.

Reasons for the decision can be found here.

Vella v Commissioner of Police (NSW) [2019] HCA 38

Constitutional law (Cth) – Judicial power – Constitution – Ch III – State Parliament – Institutional integrity of State courts – Where s 5(1) of Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) provides that State court may make order if satisfied that specified person has been convicted of serious criminal offence or involved in serious crime related activity and satisfied that reasonable grounds to believe that making of order would protect public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where s 6(1) of Act provides that order against that specified person may contain such prohibitions, restrictions, requirements and other provisions as court considers appropriate for purpose of protecting public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where proceedings under Act are civil proceedings – Whether making order exercise of judicial power – Whether powers conferred by Act incompatible with State court's role as repository of federal judicial power – Whether powers conferred by Act substantially impair institutional integrity of State court.

Dr. James Stellios represented the defendant.

The reasons for the decision can be found here.

IP v CHIANG

PRACTICE AND PROCEDURE - Application to vary orders to permit sale of property to fund legal representation in proceedings - whether party may be heard on application where prima facie in contempt - whether “rule” discretionary - principles of Young V Jackman; Hadkinson v Hadkinson - Civil Procedure act 2005 (NSW), ss 55-64.

Kirralee Young represented the Plaintiff.

Reasons for the decision can be found here.

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Gooley v NSW Rural Assistance Authority (No 3) [2019] NSWSC 1314

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EVIDENCE — records of prior communications concerning FOS complaint – admissibility – hearsay – prior consistent statement.

EVIDENCE — Opinion evidence — Expert opinion – economist’s opinion about conduct of bank towards customers – admissibility – Makita principles.

CONTRACTS – Performance – Variation of Terms – variation of loan repayment terms – need for consideration – assumption of risk that variation may benefit either party.

CONTRACTS — Misleading conduct under statute — variation of loan terms purportedly without customer’s knowledge and approval – misleading or deceptive conduct - unconscionable conduct - estoppel.

BANKING AND FINANCE — Banks – Statutory unconscionability – two year commercial loan – “asset lending” – breach of term of contract incorporating Banking Code of Practice.

BANKING AND FINANCE — Banks – breach of term of contract incorporating Banking Code of Practice cll 25.2 and 2.2 – requirement under term for co-operation between the customer and Bank – no breach by fixing final date for repayment after period of forbearance.

BANKING AND FINANCE — Banks — Bank accounts — Interest – entitlement to charge interest at contractual rates following expiry of loan – entitlement to interest on amounts paid and set aside for costs – repudiation – termination.

Tim Castle represented the Defendant.

Reasons for the judgement can be found here.

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Zervas v Burkitt (No 2) [2019] NSWCA 236

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APPEAL – Misleading or deceptive conduct – accessorial liability – representation as to future conduct – determination of liability where applicant held liable for causes of action not pleaded against him – whether failure to accept offer of insurance was a failure to mitigate loss – apportionment of liability – variation of costs orders – joint and several liability

Tim Castle and David Edney represented the Appellant.

Reasons for the decision can be found here.

Macarthur Projects Pty Ltd v Cottage Developers Pty Ltd [2019] NSWSC 1149

CIVIL PROCEDURE— Summary disposal — Dismissal of proceedings — Abuse of process – application for dismissal of proceedings or the striking out of the statement of claim or orders in respect of costs incurred in earlier proceedings – whether an abuse of process to bring fresh proceedings in circumstances where the first proceedings were dismissed for their failure to provide security for costs.

Tim Castle represented the Defendants.

Reasons for the decision can be found here.

Nguyen v Minister for Home Affairs [2019] FCAFC 128

MIGRATION – decision of Minister, personally exercising the power under s 501BA of the Migration Act 1958 (Cth), to set aside revocation decision and to cancel the appellant’s spouse visa – whether Minister’s finding that there was an ongoing likelihood the appellant will re-offend was legally unreasonable – whether the Minister formed the view that he was precluded from inviting the appellant to make submissions or provide further material and thereby misunderstood the operation of s 501BA – Ibrahim v Minister for Home Affairs [2019] FCAFC 89 applied.

PRACTICE AND PROCEDURE – appeal from a single judge of the Court – whether leave should be granted to rely on an amended notice of appeal.

PRACTICE AND PROCEDURE – appeal from a single judge of the Court – whether Full Court should exercise its discretion to receive further evidence.

Theresa Baw and Renae Kumar represented the Appellant.

Reasons for the decision can be found here.

Commonwealth Bank of Australia v Daleport Pty Ltd (in receivership) (No 6) [2019] NSWSC 958

CIVIL PROCEDURE – separate determination of questions – where appropriate – where parties labouring under different understandings as to the relief able to be claimed by the defendants in their defences – plaintiff contending no monetary remedy available beyond extent of its claim – evidence of defendants’ impecuniosity – whether proceedings futile – whether leave to discontinue should be granted on terms that there be no order as to costs.

Tim Castle represented the Plaintiff.

Reasons for the decision can be found here.

Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978

ADMINISTRATIVE LAW – appeal from Civil and Administrative Tribunal – whether decision made by validly constituted tribunal – four-member tribunal was constituted for the purposes of the hearing – whether principal member could separately and simultaneously constitute herself as the tribunal to decide legal questions – single member of a multi-person tribunal which has already been constituted not authorised to constitute himself or herself as the tribunal on unstated informal basis or to make a decision unilaterally without recourse to the balance of the tribunal – decision void.

COSTS – whether successful plaintiff ought pay defendant’s costs of proceedings – defendant invited to file submitting appearance – defendant not neutral contradictor – costs follow the event.

COSTS – suitors’ fund – application for suitors’ fund certificate – appropriate to grant certificate where defendant did not contribute to error made by tribunal.

Kirralee Young represented the plaintiff.

The reasons for the decision can be found here.

Commissioner of Police, New South Wales Police Force v Holdsworth [2019] NSWCATAP 167

APPEAL – interlocutory decision to extend time – whether leave should be granted to appeal – whether discretion miscarried.

Dr Christos Mantziaris represented the applicant.

The reasons for the decision can be found here.

MASSON AND PARSONS & ORS [2019] HCA 21

Constitutional law (Cth) – Courts – Federal courts – Federal jurisdiction – Matter arising under Commonwealth law – Where Commonwealth law provides rules in respect of parentage of children born of artificial conception procedures – Where State law provides irrebuttable presumption that biological father of child conceived by fertilisation procedure is not father in specified circumstances – Whether s 79(1) of Judiciary Act 1903 (Cth) operates to pick up and apply text of State law as Commonwealth law – Whether State law regulates exercise of jurisdiction – Whether Commonwealth law has "otherwise provided" within meaning of s 79(1) of Judiciary Act – Whether tests for contrariety under s 79(1) of Judiciary Act and s 109 of Constitution identical – Whether State law applies of its own force in federal jurisdiction.

Family law – Parenting orders – Meaning of "parent" – Where Family Law Act 1975 (Cth) presumes best interests of child served by shared parental responsibility – Where s 60H of Family Law Act provides rules in respect of parentage of children born of artificial conception procedures – Where appellant provided semen to first respondent to conceive child with belief that he was fathering child – Where appellant had ongoing role in child's financial support, health, education and general welfare and enjoyed extremely close and secure attachment relationship with child – Where first respondent later in de facto relationship with second respondent – Where appellant found to be "parent" within ordinary meaning of word but not under s60H – Whether s60H exhaustive of persons who may qualify as "parent" of child born of artificial conception procedure – Whether "parent" used in Family Law Act according to ordinary meaning except as otherwise provided – Whether appellant is "parent" within ordinary meaning – Whether ordinary meaning of "parent" excludes "sperm donor" – Whether appellant is "sperm donor".

Constitution, s 109.
Family Law Act 1975 (Cth), ss 4, 60B, 60EA, 60G, 60H, 61D, 61DA. Judiciary Act 1903 (Cth), s 79(1).
Status of Children Act 1996 (NSW), Pt 3 Div 1.

Michelle McMahon, Dr James Stellios led by Brett Walker SC represented the first and second respondents.

Reasons for the decisions can be found here.

In the matter of Garfox 86 Pty Limited [2019] NSWSC 442 (18 April 2019)

CORPORATIONS — Dissolution — Reinstatement — Where company twice deregistered administratively for non-payment of fees — Company holds real property — Company solvent — Corporations Act 2001 (Cth) s 601AH(3)(d) — Scope of Court’s power — Orders made for re-organisation of shareholding and officeholding to reflect parties’ dealings.

K J Young represented the Plaintiff.

Reasons for the decision can be found here.

Lawrence v Ciantar; Ciantar v Lawrence [2019] NSWSC 464

CONTRACTS – written terms – oral terms – construction – whether plaintiff contractually obliged to carry out and complete certain works – whether joint venture agreement or contract caught by Home Building Act 1989 (NSW)

CONTRACTS – interpretation – ambiguity – evidence of surrounding circumstances – evidence of prior negotiations – evidence of subsequent conduct

STATUTORY INTERPRETATION – definitions – Home Building Act 1989 (NSW) – meaning of “residential building work” – contract to do sub-division works including construction of a driveway, retention tank and drainage works – whether preparatory works under contract constituted “residential building works”

Elisabeth Peden and Jennifer Mee represented the First and Second Defendants.

The reasons for the decision can be found here.

Liability limited by a scheme approved under Professional Standards Legislation.