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Separate determination of questions
Mills v Dunpec Pty Ltd [2024] NSWSC 340 Chen J The relevant principles relating to the power to order a separate determination have been summarised in a number of cases, including Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013)…
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Summary dismissal under r 13.4
Mills v Dunpec Pty Ltd [2024] NSWSC 340 Chen J A purpose of r 13.4 is to “save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings” and to protect “the interests of the…
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Expert evidence: Kmart Australia Ltd v Marmara
in EvidenceKmart Australia Limited v Marmara [2024] NSWCA 249 58 Kmart relied on the line of cases beginning with this Court’s decision in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (“Makita”) and running through…
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Duty of an occupier to the employee of a subcontractor: building sites
Value Constructions Pty Ltd v Badra [2024] NSWCA 181 NEGLIGENCE — Duty of care — Duty of occupier to employee of subcontractor — Whether it was reasonable for occupier to assume that that a competent contractor would have addressed the…
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Psychiatric injury and foreseeability in the employment context
Karzi v Toll Pty [2024] NSWCA 120 101 These three cases, Koehler, Kozarov and Stevens illustrate how fact-specific torts cases are and how the principles operate in different factual situations. They highlight why the High Court in Koehler held that…
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Increased income after injury does not preclude damages for future loss
Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295 Increased income does not necessarily preclude damages for future loss of earning capacity: see Russell v J Hargreaves & Sons Pty Ltd (1956) 30 ALJR 533 at 533-534 (Dixon CJ and McTiernan J). The…
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Intoxication and propellers
At around 2:30pm on 25 January 2020, a hat belonging to one of the members of the group was “unexpectedly blown into the water by strong winds”. Mr Liccardy dived into the water while the boat was moving to retrieve…
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Single bollard on shared pedestrian & bike path
Ballina Shire Council v Moore [2023] NSWCA 155 Full text In deciding whether the precaution of removing the bollard should have been taken, the trial judge relied on a statement in a safety audit report that one bollard “is unlikely…
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Submitting appearance may not avoid costs order
Administrative review of a “minor injury” dispute under the Motor Accident Injuries Act — costs of a submitting appearance by the insurer. ADMINISTRATIVE LAW — judicial review — jurisdictional error — gateway function requiring President to consider whether there was…
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The frailty of human memory in fact finding
in EvidenceAlexakis v Masters (No 2) [2023] NSWSC 509 In view of the frailty of human memory, the inability of Mr McClure to give evidence and the parties’ self-interest, more weight is to be placed on the contemporaneous documents where they are available, the…
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Proving conversations: the modern approach
in EvidenceThe Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 This brings to mind the recent observations of Jackman J in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381…
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Pro hac vice: transfer of control to a host employer
Mt Owen Pty Ltd v Parkes [2023] NSWCA 77 Where a worker is undertaking work on the premises of, and under direction from another party, the transfer of control may lead to a shift of liability from the legal employer…
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Onus of proving a solicitor’s retainer: Burton v Babb
Burton v Babb [2023] NSWCA 242 The party challenging a legal practitioner’s retainer bears the onus of proving that the legal practitioner has not been retained. However, depending on the quality of the challenger’s evidence, an evidentiary onus may move to the…
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Application for itemised bill of costs from previous solicitors — Application for declaration that costs assessment application is just and fair — TROUBLING ASPECTS
Benton v CMC Lawyers Pty Ltd [2022] NSWSC 1548 74. Seventh, whilst I accept that the bifurcation between solicitor and barrister in New South Wales has reduced, and is reducing, markedly, the structure whereby Mr Quinlivan rendered a separate memorandum…
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Most of the cases
in GeneralA collection of cases and passages gathered over my practice, arranged by topic. It is reproduced in full on the Authorities page, and many of the entries also appear as individual notes on this site.
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fact & law
31. In principle, the construction of a term of a lease will involve a question of law. Often there is difficulty in determining whether what is said to constitute an error is an error as to (i) the fact finding,…
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Jandson Pty Ltd v Edmonds: slip rule
Jandson Pty Ltd v Edmonds [2022] NSWCA 61 The Court held (Bell CJ, Macfarlan and White JJA agreeing), refusing leave to appeal with costs, that in circumstances where a judge has or is said to have overlooked a particular argument…
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Chalak v G & G Mikhael Pty Ltd: summary dismissal
Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116 15. The constraints on granting summary disposal stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [2] have been applied in both contexts. Barwick…
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BGC Securities (Australia) Pty Limited v Shillington: preliminary discovery
BGC Securities (Australia) Pty Limited v Shillington [2022] NSWSC 611 Legal principles 5.3 Discovery of documents from prospective defendant (1) If it appears to the court that: (a) the applicant may be entitled to make a claim for relief from…
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Matar v Jones: undeclared income
Matar v Jones [2011] NSWCA 304 15 … The overwhelming probabilities are in my view that, as he indicated when he gave evidence for the second time, the appellant did not disclose the lease payments for income tax purposes. 16…