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Dyldam Developments Pty Limited v Jones: economic loss
Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 https://www.caselaw.nsw.gov.au/decision/549fe4d83004262463c29252 65 Mr King SC for Bricklaying submitted that the primary judge made errors in the calculation of economic loss. He submitted that, having regard to the income tax returns that…
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Dwight v Bouchier & Ors: undeclared income
Dwight v Bouchier & Ors [2003] NSWCA 3 51 His Honour’s approach in accepting the reality of the business is consistent with that of the High Court in Husher v Husher (1999) 197 CLR 138 at 147 – 149 regarding…
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AMP General Insurance Ltd. v. Kull & Anor: undeclared income
AMP General Insurance Ltd. v. Kull & Anor. [2005] NSWCA 442 69 Mr. Russell submitted there was a number of errors in the judgment of the primary judge concerning economic loss. The income declared in the tax returns was $4,000.00,…
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Lancaster v Foxtel Management Pty Ltd: reasons
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 Basten AJ “54 The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to…
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Wipro v New South Wales: the re-enactment presumption
Wipro v NSW (2022) 110 NSWLR 520 Fifthly, the first defendant relies on the re-enactment presumption that “where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already…
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Guardianship and financial management
Secretary, NSW Department of Communities and Justice and Anor v ZYM and Anor [2022] NSWSC 935 Ability One Financial Management and Anor v JB by his tutor AB [2014] NSWSC 245 Holt v Protective Commission (1993) 31 NSWLR 227 M…
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Conduct of trial: departing from the pleaded case
I am disinclined to accept Sydney Trains’ pleading point. True it is that Argo should have positively pleaded the conduct on the part of Sydney Trains which, so it alleged, produced the result that that conduct was the sole effective cause of Ms Michael’s injury notwithstanding Infrastruction’s own breach. Argo did not…
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Unchallenged expert evidence
in EvidenceAmaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 1. In an appeal restricted to points or errors of law,…
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Jones v Dunkel: when the inference is available
in EvidenceAmaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 The mode of reasoning suggested by Jones v Dunkel is directed to fact…
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Advance rulings on evidence
in EvidenceThe Owners – Strata Plan No 90189 v Parkview Constructions Pty Ltd [2022] NSWSC 1382 As Stevenson J observed in Sydney Attractions Group Pty Ltd v Schulman [2012] NSWSC 951 at [5][6]: It is useful to consider the circumstances in which courts have acceded…
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Admissions and authority to make them
in EvidenceVicarious Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 In the absence of any express authorisation for Mr Bird to make admissions on Ms Clancy’s behalf, and in circumstances…
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The correct characterisation of risk: Tapp
in NegligenceTapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454 [107] The correct approach to characterisation of the risk for the purposes of breach of duty under s 5B of the Civil Liability Act was adopted in…
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Identifying the risk: the level of generality
in NegligenceTapp (2022) 273 CLR 454 [110] Although the identification of the appropriate level of generality will not always be straightforward, there are four significant matters that must guide the reasoning process concerning the selection of the correct level of generality.…
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Reasons
in AppealLichaa v Boutros [2021] NSWCA 322 The need for reasons and the content of reasons to satisfy that obligation were conveniently summarised in Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 per Ipp JA, with whom Bryson JA and Stein AJA…
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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…
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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…
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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…
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What is a “relevant order” under the Federal Courts (State Jurisdiction) Act 1999 (NSW)
Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 Per Bell P; Leeming JA agreeing at [147]; Emmett AJA agreeing at [169]: The order dismissing the Federal Court proceedings for want of jurisdiction was not a “relevant order” for the…
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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…
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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…