| |
|
| | NCAT Legal Bulletin Issue 9 of 2019
|
| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue of the Legal Bulletin features summaries of recent decisions from the Supreme Court of New South Wales, Federal Court of Australia, High Court of Australia and the NSW Court of Appeal: - Stevenson v Ashton [2019] NSWSC 1689
- Gill v Ethicon Sàrl & Ors (No 5) [2019] FCA 1905
- BMW Australia V Brewster & Anor; Westpac Banking Corporation & Anor v Lenthall & Ors [2019] HCA 45
- Gordon v Level (No 2) [2019] NSWCA 275
- Nagamuthu v Shanmugarajah [2019] NSWCA 288
|
| |
Supreme Court of New South Wales
|
| Stevenson v Ashton [2019] NSWSC 1689
6 December 2019 - Harrison AsJ
In brief: This decision is an appeal from the Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT or the Tribunal), concerning the proper construction and application of sections in the Home Building Act 1989 (NSW) (the HB Act) relating to “major defects” and “practical completion” of home building work.
Facts The appellant, Mr Stevenson, is the current owner (the Owner) of a terrace house in Darlinghurst, formerly owned by the respondent, Ms Ashton (the Builder). When the Builder owned the property, she carried out various additions and alterations pursuant to an owner-builder permit obtained in August 2013. In 2016, soon after the Owner bought the property, he noticed a water leak during a period of heavy rain, and consulted with the Builder.
First instance proceedings in NCAT
On 20 November 2016, the Owner commenced proceedings in NCAT for breaches of the statutory warranties set out in s 18B of the HB Act. The Owner claimed that the building contained defects to the first floor balcony, the roof and gutters, the plumbing, the cladding and the windows in the eastern wall. The Builder denied that the building contained the alleged defects. Further, the builder contended that, because “completion” of the works had occurred in May 2014 for the purposes of ss 3B and 18E of the HB Act, the Tribunal did not have jurisdiction to determine the owner’s claims in respect of defects which were not “major defects” as defined in s 18E(4), as these were time barred beyond 2 years.
Under s 3B(3)(d) of the HB Act, the presumed date of practical completion of owner-builder work (unless an earlier date can be established) is 18 months after the issue of an owner-builder permit. As the permit in this case was issued on 7 August 2013, the presumed date of completion was 6 January 2015 ([102]).
However, at first instance, the Senior Member in NCAT found that the presumption in s 3B(3) did not apply, accepting that the Builder had established an “earlier date for practical completion” in May 2014 ([14], [102]). Accordingly, the Senior Member accepted the Builder’s contention that the Tribunal only had jurisdiction over the Owner’s application with respect to “major defects”.
The Senior Member went on to determine that the first floor balcony and the cladding items were “major defects” within the meaning of s 18E(4), and ordered the Builder to pay the Owner $42,317.11 for the reasonable cost of their rectification ([15]-[16]).
Internal NCAT appeal
Both the Owner and Builder appealed the first instance decision. In her appeal, the Builder challenged the Senior Member’s finding that there were “major defects” in the balcony and cladding, arguing there was “no evidence” to support this determination ([17]). In his “cross-appeal”, the Owner challenged the Senior Member’s finding that the Builder had established an earlier date for practical completion for the purposes of s 3B. Further, the Owner argued that the Senior Member had applied the wrong legal test for determining whether a defect is a “major defect” under s 18E, resulting in an erroneous finding that the roof and plumbing defects were not major defects ([18]).
Date of practical completion
The Appeal Panel dismissed the Owner’s cross-appeal, finding that the Senior Member’s analysis of the evidence about the date of practical completion was correct ([25]).
In its reasons, the Appeal Panel stated that, “for the Owner to have commenced the proceedings within the limitation period for a claim concerning defects other than a ‘major defect’, he would have to prove that […] the residential building work remained incomplete after 20 November 2014” (i.e. within 2 years before the Owner commenced NCAT proceedings). In this regard, the Appeal Panel found, the evidentiary challenge faced by the Owner was “substantial” ([23], [106]).
Meaning of “major defect”
The Appeal Panel allowed the Builder’s appeal, reversing the findings of the Senior Member that the balcony and cladding were major defects ([28]). In coming to this conclusion, the Appeal Panel made the following statements about the test for establishing a “major defect” ([26]): - a major defect “must be part of a ‘major element’ of a building” (such as waterproofing);
- the party arguing there is a major defect must prove the extent to which the defect impacts on the habitability or the integrity of the building;
- the defect does not need to be shown to make the habitation or use of the building impossible, but “must be such that the habitation or use of the building (or any part of it) cannot be for its intended purpose”;
- the consequences of the defect must be “shown to have, or to probably have, a proven consequence” for the habitation or use of the building, or to the integrity of the building;
- this requires “proof of something more than inconvenience”;
- there must be “evidence as to the actual impact”;
- the evidentiary onus “cannot be satisfied by speculation or assumption”;
- the possible consequences of the defect must be “at the high end of consequences, or impacts upon a building”;
- “there must be evidence of a real possibility of destruction, not merely incidental damage or superficial deterioration”;
- these elements need to be proven by evidence of “what the impact has actually been, or what it probably will be”;
- evidence from the occupants or users of the building would be necessary to establish these elements of the claim;
- expert evidence may assist in establishing that the consequences of the defect are “imminent or probable”, but is not conclusive; and
- evidence of the impact upon the inhabitability or use of a building will “rarely be a matter for expert evidence, and more often will be a matter of fact, not opinion”.
Appeal to Supreme Court
On appeal to the Supreme Court, the Owner set out 4 grounds of appeal, only 2 of which Harrison AsJ found it necessary to consider ([117]). The Owner submitted that the Appeal Panel erred in holding ([40]):
(1) that establishing a “major defect” within the meaning of s 18E(4) of the HB Act requires:
a) proven consequence for the habitation or use of a building, or to the integrity of the building;
b) a proven or probable inability to inhabit or to use the building;
c) probative evidence of the actual impact of a defect upon a building, or what it probably will be; and/or
d) evidence of a real possibility of destruction; and
(2) that for the purposes of s 3B(3) of the HB Act, the owner bore the onus of proving that the residential building work on the subject property was not completed before 20 November 2014.
Harrison AsJ allowed the appeal on both grounds, finding that the Appeal Panel took an erroneous approach to the tests for both a “major defect” and “practical completion” under the HB Act.
Establishing a “major defect”
Her Honour first noted that the Appeal Panel’s use of the phrase “must be shown to have, or probably have, a proven consequence” does not adopt the language of “causes, or is likely to cause” used in s 18E(4)(a) of the HB Act. With the proviso that it would be “preferable” for the Appeal Panel to have used the precise language of the section, she accepted the meaning in this instance was “not materially different” ([69]-[71]).
Harrison AsJ went on to make the following comments about the Appeal Panel’s approach to the meaning of “major defect” under s 18E:
- The Appeal Panel’s statement that proof of a defect’s consequences requires “evidence as to the actual impact” suggests that the Appeal Panel was “only concerned with defects which had already caused the [relevant] consequences”, omitting the inclusion in s 18E(4)(a) of consequences which a defect is “likely to cause” ([73]);
- The conclusion that evidence from homeowners is necessary to establish that a major defect exists “cannot be correct”, as the legislation “does not require such evidence, nor is the likelihood of a major defect causing the consequences in s 18E(4)(a)(i) to (iii) a matter about which a home owner may be capable of giving evidence”. Rather, it may well be that such evidence is “better, or even exclusively, the subject of expert opinion” ([74]);
- The Appeal Panel’s statement that the consequences of a major defect must be “imminent or probable” seems to “attach a sense of immediacy to major defects which is not otherwise required” by s 18E(4) ([76]);
- Although at times the Appeal Panel did state the complete test in s 18E(4)(a), the “overall effect of its reasons is to seem to require that a major defect is one which is presently manifested and dire” ([76]).
- This pattern was reinforced by the Appeal Panel’s approach to assessing the role of expert evidence in establishing the existence of a major defect. In relation to the impact of water proofing defects on the both the balcony and the cladding, the Appeal Panel continued to place “too great an emphasis on the present manifestation of the consequences under s 18E(4)(a)(i) to (iii)” ([87], [92]).
Establishing a date of “practical completion”
In relation to the Owner’s second ground of appeal, Harrison AsJ referred to the principle articulated in Bailey v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293 that, where a party seeks to rely on a limitation period which it must prove by establishing an earlier date, the onus of proof rests with the person making the assertion. In these proceedings, that person was the Builder ([109]).
After reviewing the comments made by the Appeal Panel, read “as a whole and in context”, Harrison AsJ concluded that the “inescapable effect of the Appeal Panel’s plain words” was to reverse that onus of proof from the builder to the plaintiff. This was an error of law ([113]-[114]).
Her Honour rejected the Builder’s submission that, even if the Appeal Panel erred on this point, it made “no material difference to the outcome” because the Appeal Panel separately found that the builder had established the earlier completion date on the evidence. Based on the conflicting evidence put forward by the Owner and Builder, her Honour was “not satisfied” that a different result could not have been produced if that evidence were considered afresh ([115]-[116]).
Accordingly, the Appeal Panel’s decision was set aside, and the matter remitted to NCAT for determination according to law ([120]).
Read the decision on the NSW Caselaw website.
|
| Federal Court of Australia
|
| Gill v Ethicon Sàrl & Ors (No 5) [2019] FCA 1905
21 November 2019 - Katzmann J
In brief: This case was a class action brought by three women, each of whom suffered complications after surgery involving the transvaginal implantation of synthetic mesh devices, manufactured and supplied by the respondents. The three applicants – Kathryn Gill, Diane Dawson and Ann Sanders – successfully sued the respondents for breaches of the Trade Practices Act 1974 (Cth) (the TPA) and the Competition and Consumer Act 2010 (Cth) (the CCA), as well as for common law damages in negligence. Although the three applicants were the “representatives” in this litigation, the class action was an “open” one ([13]).
Facts The first and second respondents – Ethicon Sàrl and Ethicon Inc. (collectively, Ethicon) – are both foreign corporations, members of the Johnson & Johnson group of companies, and the manufacturers of the implantable mesh products (referred to as the Ethicon devices). The Ethicon devices were supplied to the third respondent, Johnson & Johnson Medical Pty Limited (JJM), a related Australian company responsible for promoting and supplying the Ethicon devices to Australian hospitals and doctors ([7]-[9]).
The Ethicon devices fell into two categories – SUI devices, designed to treat stress urinary incontinence, and POP devices, intended to treat pelvic organ prolapse ([11]). The Ethicon devices were promoted as being effective in restoring normal anatomy and sexual function, not subject to degradation or weakening by tissue enzymes, and having high patient satisfaction. The instructions for use (IFU) supplied with the Ethicon devices warned of some possible adverse reactions and contraindications. However, a number of potential complications, known to the respondents from the time the Ethicon devices were first supplied, were not disclosed, and those that were disclosed were often minimised. Some of the potential complications could occur with any form of pelvic surgery, while others were unique to implantable synthetic mesh devices ([12]).
When previously developed and marketed overseas in Europe, the Ethicon devices had each received a “CE marking” – a certification that indicates conformity with health, safety, and environmental protection standards for products sold within the European Economic Area. In particular, European Directive 93/42/EEC, also known as the ‘Medical Devices Directive’, included a list of 14 requirements designed to protect patients and users from harm ([1392], [1398], [1404]). When the Ethicon devices were entered in the Australian Register of Therapeutic Goods, all but one class of device with the CE marking was accepted for registration without any independent assessment of their safety or efficacy ([1391], [1397]).
The applicants in this case were implanted with an Ethicon device in March 2001, January 2007 and May 2009 (respectively). Two of the three applicants suffered from pelvic organ prolapse, while the other suffered from stress urinary incontinence ([14]). Following their implants, each of the applicants experienced extreme pain. In two of the three cases, complications emerged less than one year after the implant. Despite multiple operations attempting to remove the pelvic mesh, all three applicants continued to experience chronic pain, as well as multiple other physical and psychiatric symptoms. In two of the three cases, the applicants’ original symptoms (prolapse in one case, stress urinary incontinence in the other) returned. All three applicants gave evidence that their ongoing symptoms have affected their relationships, their ability to work and engage in physical and social activities, their sense of self, and their general quality of life (see generally [3921]-[4063] re Kathryn Gill, [4100]-[4198] re Diane Dawson, and [4237]-[4344] re Ann Sanders).
The applicants alleged that the respondents contravened the following provisions of the TPA and the CCA ([15]): - s 74B, TPA: because the Ethicon devices were not reasonably fit for the particular purpose for which they were acquired and not fit for their disclosed purpose under s 55 of Sch 2 to the CCA – that is, the Australian Consumer Law (ACL);
- s 74D, TPA: because the Ethicon devices were not of merchantable quality and did not comply with the guarantee given by s 54 of the ACL in that they were not of acceptable quality;
- s 75AD, TPA and s 138, ACL: because the Ethicon devices were supplied with, respectively, a “defect” or “safety defect”; and
- s 52, TPA and s 18, ACL: because the information the respondents released in connection with the Ethicon devices, including the IFU, and the way in which they were marketed and promoted was misleading or deceptive or likely to mislead or deceive consumers.
The applicants further alleged that the respondents were liable to them in negligence for ([16]):
- failing to undertake any, or any adequate, clinical or other evaluation of the Ethicon devices before releasing them in Australia;
- failing to conduct any, or any adequate, evaluation of safety and effectiveness of the Ethicon devices after their release in Australia; and
- failing to inform them, their treating doctors, and/or the hospitals in which the treatments were administered, of the inadequate evaluations about, and the risks of, or susceptibilities to, complications of the kinds from which they suffered.
HeldKatzmann J concluded that the applicants’ claims were made out on all counts.
In relation to the applicants’ statutory claims, her Honour found:
- Each of the sections of the TPA and ACL that the applicants alleged were contravened applies to conduct by corporations “in trade or commerce”.
- Her Honour rejected the respondents’ argument that their conduct was not “in trade or commerce”, holding that, under the TPA and ACL, trade or commerce “plainly includes the export to Australia of foreign-made goods” ([3130]-[3131]).
- In addition, she rejected the argument put forward by Ethicon that the statutory causes of action did not apply to them because neither had a place of business in Australia and they did not carry on business in Australia during the relevant period ([3132])
- Rather, her Honour held that, amongst other things, by supplying the Ethicon devices on a regular basis to an Australian company and, jointly with that company, promoting them to Australian consumers, Ethicon was carrying on business in Australia ([3144]-[3146]).
ss 74B, 74B, 74AD, TPA and s 138, ACL – defective goods, unfit for purpose, and of unmerchantable quality:
- It was common ground that, if the applicants succeeded in arguing that the Ethicon devices were supplied with a “defect” within the meaning of s 74AD of the TPA, or a “safety defect” within the meaning of s 138 of the ACL, then they were entitled to succeed on two other statutory counts – that the devices were unfit for the particular purpose for which they were acquired, and that they were of unmerchantable quality ([3160], [3544]).
- There is no material difference between s 75AD of the TPA and s 138 of the ACL, or between s 75AC of the TPA and s 9 of the ACL (in which “defect” and “safety defect” are defined). Apart from the substitution of “safety defect” for “defect”, the provisions are identical ([3166]).
- The case law establishes that a product may have a defect even if the defect is one which only affects some people, and that, while the law does not require that products be absolutely free of risks, it does require that manufacturers and suppliers disclose those risks ([3174]).
- In determining whether a product has a defect, in that its safety is less than persons generally are entitled to expect, all relevant circumstances must be taken into account, including the manner in which, and the purposes for which, the goods have been marketed. One factor that will have a bearing on this question is whether the product satisfied relevant regulatory requirements and standards ([1342]).
- The question of whether the level of safety of the goods in question is less than persons generally are entitled to expect imports an objective standard – that is, the answer depends on what the public at large is entitled to expect, not on the expectations of the applicants (see [3165]-[3172]).
- At the very least, Katzmann J held, “where a medical device carries risks when used as intended, persons generally are entitled to expect that the manufacturer would provide medical practitioners with the information and warnings necessary to enable them to make a balanced, cautious, and informed judgment about whether to recommend implantation with one or other of the devices to their patients and to enable patients to make a balanced, cautions, and informed decision about whether to consent to such a procedure” ([3376]).
- In this case, the relevant goods were marketed as safe and effective in the treatment of the conditions for which they were indicated, while risks were minimised or not mentioned at all ([3260]).
- Further, the use of the CE marking on the devices constituted a representation that the Ethicon devices met the requirements for CE marking and that the manufacturers had taken the necessary steps to enable them to apply the mark. Katzmann J held that persons generally were entitled to expect as much ([3377]).
- However, the expert evidence established that none of the Ethicon devices satisfied all the requirements for CE marking either at the time the marks were applied or at any relevant time thereafter ([3495]).
- Having regard to all the relevant circumstances, Katzmann J was satisfied that, at all relevant times, all the Ethicon devices had a “defect” or “a safety defect” within the meaning of the TPA and the ACL respectively ([3458], ([3500]).
s 52, TPA and s 18, ACL – misleading or deceptive conduct
- For almost all of the time period relevant to the class action proceedings, few of the pleaded complications or inadequacies of Ethicon’s clinical evaluations were disclosed in the IFU issued with the devices or in any of the promotional material that was tendered in evidence.
- Based on the representations made in the IFU and the marketing material, Katzmann J also found at all material times the Ethicon devices were on the market, the respondents engaged in conduct which was misleading or deceptive or likely to mislead or deceive a not insignificant number of patients and surgeons as to both their safety and efficacy ([3607]).
In relation to the applicants’ claims in negligence, Katzmann J held:
- All three respondents had a duty to exercise reasonable care in the supply and marketing of the devices. That duty ([3627], [3643]):
- extended to providing accurate information about the performance and safety of the devices and information that was not apt to mislead, including warnings about all but one of the pleaded complications; and
-was not confined to the period before the devices were made or placed on the market, but was a continuing obligation to evaluate their safety, keep abreast of information about the nature and extent of potential complications, and to convey that information to users of the devices.
- Ethicon also had a duty to take reasonable care in the design, testing and evaluation of the devices, however, her Honour was not persuaded that the scope of JJM’s duty was that extensive ([3626]). Rather, the duty of care owed by JJM, as the supplier but not the manufacturer, was to take reasonable steps to ensure that the information conveyed about the devices was accurate, not misleading, and sufficient to alert both medical practitioners and prospective patients about the true risks associated with the use of the devices ([3644]).
- In considering whether the respondents each failed to meet the standard of care required of them, Katzmann J found:
- the pre-market evaluations of the Ethicon devices showed a lack of reasonable care for the safety of the women for whose benefit they were intended and promoted. At all material times, Ethicon was driven by commercial considerations. Staying ahead of the competition was their pre-eminent concern, while safety was a secondary consideration ([3762], [3774]).
- the post-market evaluation of the Ethicon devices was also deficient and fell well short of the standard of care required of a reasonably prudent manufacturer in Ethicon’s position, in response to the foreseeable risks of injury and having regard to the gravity of the potential consequences ([3827]).
- the information about the potential risks in the IFU and promotional material provided by the respondents did not conform to the standard required of a reasonably prudent manufacturer or supplier in their position. It fell well short of capturing all known, let alone reasonably foreseeable, risks and was apt to mislead both doctors and patients about the safety and efficacy of the various devices ([3878]).
- In the light of these findings, Katzmann J held that each of the respondents was negligent ([3879]).
- As the manufacturer of the Ethicon devices, Ethicon breached its duty to each of the applicants by failing to conduct adequate clinical evaluations of the safety of the devices, and failing to provide adequate warnings of the risks associated with their implantation and about the shortcomings of their evaluations ([3883]).
- As the distributor in Australia, JJM also breached its duty to the applicants by similarly failing to provide adequate warnings of the risks of the pleaded complications and of the limitations of the clinical evaluations ([3884]).
- In relation to limitation period arguments advanced by the respondents, Katzmann J found that Mrs Sanders’ claim for damages for misleading or deceptive conduct was out of time ([4773]), and accordingly this statutory claim was not successful. Mrs Sanders’ other statutory claims (ie. products having a “defect”/”safety defect”, not being fit for purpose, not being of merchantable quality) were not affected – they were brought in time.
- As to the limitation period arguments advanced by the respondents in relation to the negligence claims, Mrs Sanders’ and Mrs Gill’s actions for negligence were out of time ([4806], [4854]). However, her Honour also found that the court had the power to extend the limitation period for the claims in negligence, and decided it was appropriate to do so ([4832], [4863]).
Read the decision on the Federal Court of Australia website.
|
| | BMW Australia v Brewster & Anor; Westpac Banking Corporation & Anor v Lenthall & Ors [2019] HCA 45
4 December 2019 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court, by majority (Gageler and Edelman JJ dissenting), allowed two appeals – one from a decision of the Full Court of the Federal Court of Australia (the Westpac matter) and one from a decision of the Court of Appeal of the Supreme Court of New South Wales (the BMW matter). The appeals concerned the question of whether s 33ZF of the Federal Court of Australia Act 1976 (Cth) (the FCA) and s 183 of the Civil Procedure Act 2005 (NSW) (the CPA) empower the Federal Court of Australia and the Supreme Court of New South Wales, respectively, to make a “common fund order” (CFO) in representative proceedings (i.e. class actions) ([1]). While the courts below found that the FCA and CPA do provide for such a power, the majority of the High Court held they do not ([2]).
By way of background, the Westpac matter was a class action in which the respondents alleged that they had relied on advice from Westpac’s financial advisers to purchase insurance policies from Westpac Life. The respondents alleged that the advisers had breached their statutory and fiduciary obligations to them (and other group members) by failing to advise them of equivalent or more advantageous insurance policies offered by third-party insurers ([6]). The BMW matter was also a class action, relating to the national recall of BMW vehicles filled with defective airbags ([24]).
Both the BMW and Westpac proceedings were funded by litigation funders. In each proceeding, the litigation funder had entered into a litigation funding agreement with a small number of group members ([7], [27]).
A CFO, as described by the High Court plurality (Kiefel CJ, Bell and Keane JJ), is an order “characteristically made at an early stage in representative proceedings” providing for “the quantum of a litigation funder's remuneration to be fixed as a proportion of any moneys ultimately recovered in the proceedings, for all group members to bear a proportionate share of that liability, and for that liability to be discharged as a first priority from any moneys so recovered” ([1]). The purpose of seeking a CFO, as articulated by the solicitor for a respondent in the BMW matter, is commonly to assuage the concerns of a prospective litigation funder who would otherwise find it “uncommercial to fund class action proceedings on an open class basis where large numbers of people had individually suffered relatively modest loss and damage” ([28]).
Sections 183 of the CPA and 33ZF of the FCA similarly provide for the ability of the court to, “on its own motion or on application by a party or group member, make any order that the Court thinks appropriate or necessary to ensure that justice is done in the proceedings” ([9]).
In the proceedings below, the Full Federal Court and the Court of Appeal held that s 33ZF of the FCA and s 183 of the CPA, respectively, empowered the Federal and Supreme Court to make a CFO ([18], [31]). However, the High Court majority found that, properly construed, neither section empowers a court to make a CFO. In reaching this conclusion, the plurality said ([3]):
While the power conferred by these sections is wide, it does not extend to the making of a CFO. These sections empower the making of orders as to how an action should proceed in order to do justice. They are not concerned with the radically different question as to whether an action can proceed at all. It is not appropriate or necessary to ensure that justice is done in a representative proceeding for a court to promote the prosecution of the proceeding in order to enable it to be heard and determined by that court. The making of an order at the outset of a representative proceeding, in order to assure a potential funder of the litigation of a sufficient level of return upon its investment to secure its support for the proceeding, is beyond the purpose of the legislation. (emphasis added)
Further (at [51]-[52]), their Honours observed:
51. The text of each of s 33ZF and s 183 assumes that an issue has arisen in a pending proceeding between the parties to it, and that the proceeding will be advanced towards a just and effective resolution by the order sought from the court. The construction of ss 33ZF and 183 for which the respondents contend departs from this assumption. The making of a CFO does not assist in determining any issue in dispute between the parties to the proceeding; it does not assist in preserving the subject matter of the dispute, or in ensuring the efficacy of any judgment which might ultimately be made as between the parties; it does not assist in the management of the proceeding in order to bring it to a resolution. Nor does it assist in doing justice between group members in relation to the costs of litigation.
52. Court approval of arrangements with a non-party in order to enable a proceeding to be pursued at all could only be said to be appropriate or necessary to ensure that justice is done between the parties to the proceeding if one were to assume that maintaining litigation, whatever its ultimate merit or lack thereof, is itself doing justice to the parties. That would be to make an assumption about process for its own sake rather than the outcome of the process. Such an assumption cannot be attributed to the legislature having regard to the text of ss 33ZF and 183. (emphasis added)
Read the decision on the High Court of Australia website.
|
| NSW Court of Appeal
The NSW Court of Appeal publishes a regular bulletin containing summaries of its latest decisions of interest, as well as those of other appellate courts in Australia and the Asia Pacific. Below are links to decisions from recent bulletins. |
| REAL PROPERTY – Conveyancing Act 1919 s 88K – Easements – “Reasonably necessary” – where terms imposed on and limiting re use said to be uncertain in their practical operation – where terms in effect required use of alternative means of access in circumstances that were not readily capable of being assessed – where terms in substance required an alternative access route to be used in particular circumstances but where that alternative route would involve traversing property in breach of Crown Land Management Act 2016
Read the decision on the NSW Caselaw website.
APPEAL – corroborative evidence – whether evidence relied upon by primary judge corroborated evidence of the plaintiff which primary judge was not prepared to accept absent corroboration – meaning of corroborative evidence – corroboration by circumstantial evidence
UNJUST ENRICHMENT – monies admitted to be owing arising from participation in a “seetu” – admission that at least $100,000 owing – organiser of seetu refusing to pay – claim for monies had and received – restitution properly ordered
Read the decision on the NSW Caselaw website.
|
| | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication.
|
| |
