PRACTICE – summary dismissal – application for leave to appeal – order preventing re-litigation of the same cause of action without leave – whether fresh proceedings within scope of order – no error in decision of primary judge – no explanation for why leave not sought.
LEGISLATION - Real Property Act 1900 (NSW), s 58.
Richard Parsons appeared.
APPEAL - question of law – denial of procedural fairness – expert evidence – no opportunity to reply.
Michelle McMahon appeared for the successful appellant.
APPEAL – whether appeal incompetent having regard to s 101(1) of the Supreme Court Act 1970 – appellant did not appeal from judgment or order of primary judge but challenged obiter observations as to construction of s 130A of the Residential Parks Act 1998 (NSW) and sought to clarify or correct order remitting matter to the Tribunal in that respect – appeal dismissed as incompetent.
APPEAL — home building - defects - assessment of quantum meruit.
CIVIL LAW - workers compensation insurance – requirement for employer to hold current policy – debt or civil penalty arising from failure of employer to hold policy – relevant limitation period – appeal against decision of Magistrate – whether action constituted “proceedings for an offence” – whether Magistrate so found – submission that Court bound by purported finding – submission rejected – combative approach to litigation – whether notice of contention should be permitted – conflicting versions of conversations between counsel – when cause of action accrued to the Authority – ambiguity in legislation – appeal allowed.
David Rayment represented the Respondent.
APPEAL - Fair Work Act 2009 s.604 - Appeal of decision - appeal refused.
Dr Chris Ward appeared for Lend Lease Building.
Counsel | David Rayment
PRACTICE AND PROCEDURE – application for leave to appeal - application for leave to amend pleading - representative proceeding under Federal Court of Australia Act 1976 (Cth) Pt IVA – claim for compensation for loss or damage resulting from misstatement in, or omission from, disclosure document under Corporations Act 2001 (Cth) s 729 - claims of misleading or deceptive conduct - causation – market-based causation – whether primary judge erred in rejecting proposed amendments to reflect market-based causation case – whether the market-based causation case is a viable one in the context of the claim under s 729 - whether reliance is a necessary element under s 729 - leave to appeal granted – appeal allowed.
Corporations Act 2001 (Cth) ss 728, 729(1), 729(2), 1041H
Australian Securities and Investments Commission Act 2001(Cth) s 12DA
Corporate Law Economic Reform Program Bill 1998 (Cth)
Fair Trading Act 1999 (Vic) s 9
Federal Court of Australia Act 1976 (Cth) s 31A, Pt IVA, s 37M(3)
Federal Court Rules 2011 (Cth) rr 8.21, 16.21, 16.55
CONTRACTS – appeal from decision of a single judge of the Federal Court of Australia – construction of contract – shareholder agreements – claim by respondent of entitlement under indemnity provisions – meaning of “member loan” in indemnity provisions – whether primary judge erred in quantification of respondent’s entitlement – where respondent alleged misleading and deceptive conduct by appellant – whether primary judge erred in holding that respondent had not proved his loss – where respondent alleged breach of contract by appellant – whether primary judge erred in finding no contravention of shareholder agreements.
EVIDENCE – when statement in an agreement or contractual document will constitute admissible evidence of an admission.
COSTS – where respondent succeeded on one claim but not others – whether the primary judge erred in ordering appellant to pay respondent’s costs.
Dr Chris Ward appeared for the appellants.
APPEAL - appeal against orders of the Consumer and Commercial Division of the Civil and Administrative Tribunal - home building - rectification order against weight of the evidence - failure to state reasons - appeal allowed - matter remitted for rehearing.
INDUSTRIAL LAW - Appeal - interpretation of the coverage provisions in two enterprise agreements.
APPEAL – application for leave to appeal – parens patriae jurisdiction of Supreme Court unsuccessfully invoked – earlier interim care order made by Children’s Court – no available statutory appeal from that order –change in circumstances since application for leave filed – final findings made by Children’s Court as to need for protection – no utility in allowing leave to appeal.
CHILD WELFARE – interim care order by Children’s Court – parens patriae jurisdiction of Supreme Court invoked – whether Children’s Court proper forum to determine best interests of children.
Children and Young Persons (Care and Protection) Act 1998(NSW), ss 9(1), 43(1), 45, 71, 72, 247.
Civil Procedure Act 2005 (NSW), ss 56, 71.
Court Suppression & Non-publication Orders Act 2010 (NSW), s 7.
Supreme Court Act 1970 (NSW), ss 69, 101.
CAC v The Secretary, Department of Family and Community Services [2015] NSWCA 105 (24 April 2015).
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.
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.
Liability limited by a scheme approved under Professional Standards Legislation.