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Notices of contention

Fuller v Albert (No 3) [2021] NSWCA 226 [7] At the outset, it needs to be understood that a Notice of Contention – unlike a Notice of Appeal, or a Notice of Motion – is not a process which seeks relief, and does not require disposition in the sense of orders being made pursuant to it, or dismissing it. A…

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Contractual damages for anxiety and distress

The appellant was not entitled to damages for inconvenience and distress caused by the respondent’s failure to indemnify for the same reasons as her consequential business loss claim. Nor was this a case in which the exception to the non-recovery of contractual damages for anxiety, distress and disappointment was engaged, as her losses did not…

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Obvious risk: framing the relevant risk

Cox v Mid-Coast Council [2021] NSWCA 190 It was not appropriate specificallyto identify the Ferris wheel in the characterisation of the risk of harm: at [1] (Meagher JA); [41]-[42] (Payne JA); [85] (Emmett AJA). Although the risk of harm must be identified with sufficient specificity to capture the harm which resulted from its materialisation on the facts of…

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Legal advice – misleading and deceptive

Bartier Perry Pty Ltd v Paltos [2021] NSWCA 158 Mr Paltos sought damages under s 236 of the Australian Consumer Law. While the measure of damages under s 82 of the Trade Practices Act 1974 (Cth) (which is relevantly in similar terms to s 236) is not necessarily the same as for negligence (see Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; [2004] HCA 3), Mr Paltos formulated…

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Obviousness & contributory negligence

Wollongong City Council v Williams [2021] NSWCA 140 TORTS — Negligence — Appellant injured as a result of falling on the first step on a stepped path in a park — Whether the primary judge erred in finding that the appellant had breached the duty of care which it owed to the respondent — Primary…

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Proving fraud

Musa v Alzreaiawi [2021] NSWCA 12 It is not in dispute that the primary judge correctly held that s 140(2) of the Evidence Act applied to the proceedings with the consequence that when determining whether her Honour was satisfied of Mr Musa’s case on the balance of probabilities, she was to take into account from a non-exhaustive list of matters:…

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Rusu was incorrectly decided

Gregg v R [2020] NSWCCA 245 As I have stated, the trial judge also concluded, relying on the decision in Rusu (National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539), that s 48(1) of the Evidence Act merely prescribes the means of adducing evidence of the contents of a document and leaves untouched questions of authenticity. It is not…

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Slip and fall on public boat ramp

Bowman v Nambucca Shire Council [2020] NSWSC 1121 The plaintiff brought negligence proceedings against Nambucca Shire Council relating to a slip and fall occurring on 22 February 2015 on the Scotts Head Marine Boat Ramp at Forster Beach, Scotts Head. The defendant had the care, control and management of a boat ramp. The boat ramp was constructed with the…

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TPD – ETE (education training experience) clauses

Sandstrom v FSS Trustee Corporation & Anor [2020] NSWSC 200 Applicable Legal Principles – Interpretation of the ETE Clause ETE clause policy wordings similar to those in the FSS Policy and the PBRI Policy have received extensive judicial consideration both at first instance and on appeal. From those cases statements of applicable principle can be…

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