Murdoch v Mudgee Dolomite & Lime Pty Limited (in liq) [2022] NSWCA 12

EQUITY - fiduciary obligations - scope of duty - company’s contracts to provide crushing services to a mine were preformed by a director’s and employee’s own companies without disclosure - whether constituted a breach of duty - whether inability to company to preform its obligations a defence - whether acquisition of seperate quarry in Victoria within scope of duty - scope of fiduciary duty identified by company’s actual course of conduct - primary judge correct to hold that performance of company’s exisiting contracts was breach of duty, and acquisition of seperate quarry in Victoria not in breach of duty.

EQUITY - remedies for breach of fiduciary duty - account of profits - contracts entered into by companies controlled by director and employee in breach of fiduciary and statutory duties - contracts incapable of rescission - whether principles in Peninsular and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189; [1938] HCA 16 precluded account of profits - consideration of breadth and continuing applicability of principles in Peninsular and Oriental Steam Navigation Company v Johnson - principles only applied to cases where fiduciary acquires property when acting on behalf of principal - principles inapplicable to contract for the supply of services.

EQUITY - remedies for breach of fiduciary duty - account of profits - discretionary witholding of relief - where principal is less than full informed, but nonetheless “stands by” while fiduciaries continue to derive profits - whether principal had sufficient information to make it inequitable to stand by while profits continued to be made, and thereafter to obtain an account of those profits - profits made after October 2011 held not to be within account.

APPEAL - procedural fairness - complaint that aspects of reasoning at first instance denied procedural fairness - appeal by rehearing - not said that different evidence would have been led - no retrial sought - appellate court empowered and required to make appropriate findings - any denial of procedural fairness incapable of being material - in any event no denial of procedural fairness.

EVIDENCE - coincidence evidence - whether primary judge’s reasoning contravened coincidence rule - evidence tendered without objection - reasoning concerning company’s actual course of conduct not amount to use of evidence contrary to s 95 of Evidence Act 1995 (NSW).

John Kelly SC and Dr Christos Mantziaris appeared for the Appellants and Cross Respondents.

Reasons for the decision can be found here.

Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071

APPEAL - application for leave to appeal – whether exercise of discretion disclosed error – meaning of “impracticable” – grounds in support of leave to appeal not made out – leave to appeal refused.

Michael Whitbread and Michael Seck represented the Respondent. 

Reasons for the decision can be found here.

Garram v Garram [2019] FamCAFC 239

FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders requiring the children’s care to change from the mother to the father – Where the children’s views were considered – Where the children’s views were not the only consideration – Where sufficient weight was given to relevant s 60 CC considerations – Where no miscarriage of justice occurred – Appeal dismissed – Mother to pay the father ’s costs of the appeal in a fixed sum.

Michelle McMahon represented the defendant.

The reasons for the decision can be found here.

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

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.

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.

East Coast Pipeline Pty Ltd v Workers' Compensation Regulator [2016] QIRC 101

WORKERS' COMPENSATION - APPEAL AGAINST DECISION – whether psychological injury sustained - whether employment the major contributing factor to any injury - whether decompensation causally connected with management action – whether injury arose out of or in the course of reasonable management action.

Lisa Doust appeared for the appellants.

Reasons for the decision can be found here.

Kekatos v Westpac Banking Corporation [2016] NSWCA 205

APPEAL – application for leave – where default judgment for money sum and possession of property set aside by consent – where subsequent application to set aside consent order and reinstate default judgment but for lesser amount – whether arguable defence to judgment for lesser amount – leave refused.

Tim Castle and Daniel Moujali represented the Respondent.

Reasons for the judgement can be found here.

Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 88

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – KNOWING RECEIPT – where an employee of the applicant induced the first respondent, through its managing director, the second respondent, to invoice the applicant for work done by a company owned and controlled by the employee – where in fact no such work had been performed by the employee’s company and the invoices were a fabrication – where the applicant submitted that the issue of the fictitious invoices by the respondents constituted knowing assistance of the employee – where the applicant submitted that the respondents knowingly received the proceeds of payment of the invoices – whether the respondents’ held the kind of knowledge necessary to be found accessorily liable for the employee’s breach of fiduciary duty.

EQUITY – GENERAL PRINCIPLES – MISTAKE RECOVERY OF MONEY PAID OR EXPENDED – MONEY PAID BY MISTAKE – MISTAKE OF FACT – where the applicant paid money to the first respondent under an operative mistake of fact – where the respondents entered into the arrangement with the applicant’s employee in good faith – where the respondents would be placed in a worse position if ordered to make restitution of payments that it had passed on to the employee’s company than if it had not received payments from the applicant at all – whether the respondents could rely on a change of position defence to a claim by the applicant for restitution.

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the proposed appeal does not raise any significant questions of law but rather the application of well-established principles of law to the facts – whether, in the circumstances, leave to appeal should be granted.

Tim Castle and James Green represented the Applicant.

Reasons for the judgement 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.