New South Wales Court of Appeal - Decisions of Interest Search



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11 to 20 of 957:

  1. 25/11/2016
    Appeal: general legal principles on appeal; approach to inferences drawn from facts found by trial judge

    The respondent was riding his motorcyle and collided with a motor vehicle driven by the appellant. The appellant was changing lanes to enter a parking space and did not see the respondent. The trial judge found the appellant negligent but apportioned contributory negligence 80:20 in favour of the respondent. The respondent cross-appealled against this apportionment. The appellant argued that the respondent positioned his motorcycle such that he gave himself no opportunity to observe the slowing of the appellant’s vehicle and her activiation of the indicator.

    Court findings: The Court considered that respondent was under an obligation to take reasonable care for his own safety. While this standard encompasses driving defensively, it does not mean diriving in such a manner as to avoid all risk. This is a question to be assessed on the facts of the case. The duty of a driver does not extend so far as requiring them to drive in such a manner that there is no risk of an accident. In this case, the respondent did not breach the requisite standard and the appellant should bear full responsibility.

    NSWCA cases cited: Dos Santos v C Morriss Painting & Decorating (2006) NSWCA 54


    Eicas v Dawson  [2016] SASCFC 124
  2. 25/11/2016
    Torts: negligence; contributory negligence; motor vehicle accident; appellant was driving car and hit appellant on motorcycle when changing lanes to park; whether appellant totally responsible for accident; whether respondent took reasonable care for his own safety

    The respondent was riding his motorcyle and collided with a motor vehicle driven by the appellant. The appellant was changing lanes to enter a parking space and did not see the respondent. The trial judge found the appellant negligent but apportioned contributory negligence 80:20 in favour of the respondent. The respondent cross-appealled against this apportionment. The appellant argued that the respondent positioned his motorcycle such that he gave himself no opportunity to observe the slowing of the appellant’s vehicle and her activiation of the indicator.

    Court findings: The Court considered that respondent was under an obligation to take reasonable care for his own safety. While this standard encompasses driving defensively, it does not mean diriving in such a manner as to avoid all risk. This is a question to be assessed on the facts of the case. The duty of a driver does not extend so far as requiring them to drive in such a manner that there is no risk of an accident. In this case, the respondent did not breach the requisite standard and the appellant should bear full responsibility.

    NSWCA cases cited: Dos Santos v C Morriss Painting & Decorating (2006) NSWCA 54

    Eicas v Dawson  [2016] SASCFC 124
  3. 16/11/2016
    Corporations: application to set aside statutory demand made under Corporations Act 2001, s 459G; procedure for challenging a statutory demand; agreement made between Mr Caratti and two officers of the Australian Taxation Office regarding security for debt; belief that this was “global settlement”; statutory demand served under s 459E(5)

    NSWCA cases cited: Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd [2013] NSWCA 344; (2013) 85 NSWLR 601


    MNWA Pty Ltd v Deputy Commissioner of Taxation  [2016] FCAFC 154
  4. 26/10/2016
    Estoppel:

    estoppel by convention; assumption as to contract of guarantee; common assumption; whether finding of assumption could be challenged on appeal; assumption mixed fact and law

    George 218 and other companies within the Bazzo group received a number of loans from two companies. Each of the loans was supported by a guarantee. In 2008, the assets of these two companies, including the loan agreements, were transferred to Bank of Queensland. Companies within the group defaulted on their loan repayments and the Bank sought to enforce the guarantee.

    The appellants alleged the Guarantees were not enforceable by the Bank and the Bank argued that the parties conducted their relationship on the common assumption that the previous guarantees had legal effect as between them. The trial judge found that there was a common assumption that the guarantees secured the money due. On this basis, he found that estoppel by convention was made out.

    Court findings: An assumption of mixed fact and law as to private legal rights may be regarded as an assumption of fact for the purposes of the law of estoppel by convention. Such an assumption could ground an estoppel by convention.

    NSWCA cases cited:

    MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39

    Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; [2007] 69 NSWLR 603
     

    George 218 Pty Ltd v Bank of Queensland Ltd [No 2]  [2016] WASCA 182
  5. 07/10/2016
    Costs:

    discretion to make non-party costs order; costs ordered against litigation funder; litigation funder provided funds to plaintiff; plaintiff’s claim failed; litigation funder had only $100 in paid-up capital; non-party costs order sought against litigation funder and sole director and sole shareholder of litigation funder; trial judge ordered non-party costs; factors to be considered in ordering non-party costs; whether trial judge erred by ‘piercing the corporate veil; role of the litigation funder

    Bakers Investment Group (Australia) Pty Ltd brought a claim against Caason Investments Pty Ltd for breaches of contract. Bakers obtained funding from Global Litigation Funding Pty Ltd. Bakers claim ultimately failed. A number of security for costs orders had been made during the course of proceedings but the amount ordered was less than the amount claimed by Caason. Caason sought non-party costs orders against Global, and its sole director and sole shareholder, as well as other associated parties. The trial judge ordered that Global, the director and shareholder be jointly liable for costs.

    Court findings: House v King error required to be demonstrated to interfere with a discretonary costsd order made by a trial judge. Factors commonly taken into account in determining whether or not to make a non-party costs order. The Court considered the role of litigation funders and concluded that the circumstances of the case provided ample basis for the judge to exercise the discretion in making an order. The orders against Global’s director and shareholder did not ‘pierce the corporate veil’ but rather reflected an order appropriate to fit the justice of the case as to who should bear the burden of costs.
     

    Carter v Caason Investments Pty Ltd  [2016] VSCA 236
  6. 30/09/2016
    Appeal:

    principles applied in determining an appeal against factual findings; approach to inferences drawn from facts found by trial judge; where conflicting oral testimony

    Oral agreement for the loan of money, including that interest would be charged. A dispute arose as to whether compound interest was payable and, if so, the basis on which it should be calculated. The trial judge found an implied term that compound interest was payable.

    Court findings: The Court found that the case law does not support the proposition that an implied term to pay compound interest can be inferred from the fact that such a term is customarily implied into loan agreements of a similar nature. It also considered the principles to be applied in determining an appeal against factual findings, noting that recent authorities indicate a trend away from judicial restraint.

    NSWCA cases cited: Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 311 ALR 494


    Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd  [2016] ACTCA 49
  7. 30/09/2016
    Contract:

    oral loan agreement; interest to be charged; whether implied term that interest was to be compound interest; whether interest to be calculated daily; implied terms; whether necessary in order to give business efficacy to loan agreeement

    Oral agreement for the loan of money, including that interest would be charged. A dispute arose as to whether compound interest was payable and, if so, the basis on which it should be calculated. The trial judge found an implied term that compound interest was payable.

    Court findings: The Court found that the case law does not support the proposition that an implied term to pay compound interest can be inferred from the fact that such a term is customarily implied into loan agreements of a similar nature. It also considered the principles to be applied in determining an appeal against factual findings, noting that recent authorities indicate a trend away from judicial restraint.

    NSWCA cases cited: Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 311 ALR 494
     

    Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd  [2016] ACTCA 49
  8. 22/07/2016
    Administrative law: identification of jurisdictional error; respondent contracted to complete various works in the development of an iron ore mine; respondent entered into sub-contract with appellant for construction work in relation to a port servicing the mine; respondent exercised a right of termination and a deed was executed making provision for the respondent to pay some $45 million to the appellant; appellant applied for adjudication under the Construction Contracts Act 2004 (WA); adjudicator determined respondent was required to pay some $23 million; legislation conferred adjudicator with jurisdiction to determine whether any party to a payment dispute liable to make payment; whether adjudicator’s determinations vitiated by jurisdictional error; whether failure to have regard to, or misconstruction of, construction contract constituted jurisdictional error; difficulty of formulating any precise definition of jurisdictional error; importance of focusing on proper construction of the enactment conferring jurisdiction; proper construction of Act compelled conclusion that jurisdictional error not established where adjudicator misconstrues contract or makes an error in the application of its terms to the facts found.
    Laing O’Rourke Australia Construction Pty Ltd v Samsung C&T Corporation  [2016] WACA 130
  9. 21/07/2016
    Trade and commerce: statutory unconscionability; allegations of unconscionable conduct in the sale and marketing of treatments for premature ejaculation and erectile dysfunction; ACCC alleged contraventions of s 51AB of the Trade Practices Act 1974 (Cth) and s 21 of the Australian Consumer Law; primary judge held that claims of unconscionable conduct made out; whether primary judge impermissibly engaged in own fact-finding in relation to medical efficacy of treatments; whether unfair/unreasonable sales pressure may constitute unconscionable conduct; whether individual factors themselves insufficient to constitute unconscionable conduct may together so constitute; undesirable to attempt comprehensive definition of what constitutes unconscionable conduct; no single factor determinative; necessary to consider all the circumstances.
    NRM Corporation Pty Ltd v Australian Competition and Consumer Commission  [2016] FCAFC 98
  10. 15/07/2016
    Corporations: managed investment schemes; appellants were directors of the responsible entity of a managed investment scheme; board of directors passed resolution resolving that constitution be amended to provide for new and increased fees to be paid to the responsible entity on the occurrence of certain events; constitution prohibited amendments of scheme constitution in favour of or benefit to the responsible entity; power of responsible entity under s 601GC of the Corporations Act 2001 (Cth) to change constitution; whether responsible entity reasonably considered amendments would not adversely affect members’ rights; whether “members’ rights” encompass right to have scheme administered according to existing constitution; whether directors breached duties to scheme members in passing resolution; natural and ordinary meaning of the expression “members’ rights” apt to encompass right to have scheme managed according to the terms of its constitution; purported amendments lodged with ASIC valid until set aside; directors found not to have breached duties.
    Lewski v Australian Securities & Investments Commission  [2016] FCAFC 96