Court of Appeal reserved judgments as at 26 February 2016
HEARD ISSUES NUMBER CASE NAME Judgment Below
1 2014/275323
OXS PTY LTD v
SYDNEY HARBOUR
FORESHORE
AUTHORITY
9/06/2015
CONTRACTS - existence of contract - premises leased to plaintiff by respondent - lease expired - whether relevant correspondence between parties gave rise to binding contract to grant a new lease - whether relevant correspondence had sufficient certainty to give rise to an enforceable contract – Masters v Cameron - whether lease on "commercial terms" sufficiently certain – ADMINISTRATIVE LAW – whether ministerial consent was provided for entry into contract under Sydney Harbour Foreshore Authority Act 1998, s 19 - whether entry into contract was valid absent ministerial consent - whether relevant defendant is bound by implied term to seek ministerial consent -
TRADE PRACTICES - misleading or deceptive conduct - whether alleged representations were made by respondent - whether relevant representations were misleading or deceptive or likely to mislead or deceive - whether appellant had relied on alleged representations - whether it can be established that loss and damage suffered by appellant was caused by alleged representations - application of
Australian Consumer Law, s 18 and Retail Leases Act 1994, s 62D - TRADE PRACTICES - unconscionable conduct - whether respondent engaged in unconscionable conduct under Australian Consumer Law ss 20 and 22 and Retail Leases Act s 62B -
ESTOPPEL - representational - whether respondent has departed from relevant representation - whether respondent should be estopped from denying existence of contract or granting lease
2 2014/315541
3 2014/340020
SWIFT v WEARING-
SMITH
ALDI FOOD PTY LTD v
YOUNG
20/07/2015
14/08/2015
TORTS - occupier's liability - respondent fell off balcony in domestic premises when glass panel of balustrade gave way – scope and content of occupier’s duty of care – whether breach of duty of care – challenges to primary judge’s findings of facts as to the circumstances of the injury and mode of failure of the balustrade
TORTS – negligence – liability – breach – whether injury caused solely by respondent failing to take reasonable care for her own safety
– whether appellant ought to have taken any further precautions – Civil Liability Act 2002, s 5B – whether primary judge engaged in hindsight reasoning – whether risk was obvious – contributory negligence – DAMAGES – whether respondent suffered injury – whether primary judge erred in awarding damages for non-economic loss – Civil Liability Act 2002, s 16 – whether primary judge erred in awarding damages for future expenses “buffer” and domestic assistance – inadequate reasons
4 2014/371363
DOUEIHI v
CONSTRUCTION
TECHNOLOGIES
AUSTRALIA PTY LTD
14/09/2015
EQUITY – estoppel – proprietary estoppel – equitable lease for a term of five years with an option to renew – director of respondent company entered into discussions with appellants regarding lease of land to respondent – domestic and familial relationship connection between director and three appellants – director oversaw design and construction of premises and installed expensive manufacturing equipment for business – primary judge found that director did not believe that the appellants were bound to grant the respondent the lease – whether estoppel could be grounded on an assumption as to what the appellants “would permit as a matter of likely fact”– whether primary judge erred in distinguishing DHJPM v Blackthorn Resources Ltd [2011] NSWCA 348 – whether different equitable principles applied in a commercial context and in a domestic or family context – whether primary judge’s conclusions inconsistent with his evidential findings – whether reliance was unreasonable
Construction Technologies
Australia Pty Ltd v Doueihi &
4 Ors [2014] NSWSC 1717
5 2014/370134
6 2014/268341
BARTLETT v
AUSTRALIA & NEW
ZEALAND BANKING
GROUP LTD
15/09/2015
CONTRACTS – termination of contract of employment – alleged serious misconduct by appellant – sending of doctored internal ANZ email to journalist – construction of termination clause – whether respondent needed to establish that their opinion of serious misconduct was reasonable, formed in good faith and not arbitrary – whether contract contained implied term that the respondent’s opinion of serious misconduct must be reasonable, formed in good faith and not arbitrary – whether respondent established the appellant engaged in serious misconduct – DAMAGES – assessed in the hypothetical scenario that summary dismissal not available – most likely alternative scenario – whether respondent would have terminated contract of employment by paying the appellant in lieu of notice
Bartlett v Australia and New
Zealand Banking Group
Limited [2014] NSWSC
1662
CROWE-MAXWELL v
FROST
17/09/2015
CORPORATIONS – company in liquidation – small family business – no distinction between company and personal expenses in business records – whether payments to respondents were unreasonable director-related transactions – Corporations Act 2001 (Cth), s
588FDA – whether primary judge erred in applying reductions to the appellants claims – onus of proof – whether primary judged erred in finding payments were in lieu of wages – where relevant evidence solely within possession of respondents – PROCEDURE – natural justice – second respondent filed no appearance, defence or evidence – whether breach of natural justice to find in favour of second respondent
This list only records information regarding summons (judicial review), appeals and applications for leave to appeal that are heard concurrently with the appeal 1

Court of Appeal reserved judgments as at 26 February 2016
HEARD ISSUES NUMBER CASE NAME Judgment Below
7 2014/281808
BARRIE TOEPFER
EARTHMOVING AND
LAND MANAGEMENT
PTY LTD v CGU
INSURANCE LIMITED
25/09/2015
INSURANCE – arm of excavator being transported by a truck struck spans of Hexham Bridge, causing extensive damage – insurers disclaimed liability - conditions of insurance policy – whether truck driver was reckless – whether primary judge properly applied subjective rather than objective test – whether driver had actual knowledge of the danger – whether finding of driver's recklessness entitled insurers to refuse indemnity – whether driver breached reasonable care condition – onus of proof
Roads and Traffic Authority of New South Wales v
Barrie Toepfer Earthmoving and Land Management Pty
Ltd (No 7) [2014] NSWSC
1188
8
2015/115116;
2015/113597
McKEITH v ROYAL
BANK OF SCOTLAND
GROUP PLC; ROYAL
BANK OF SCOTLAND
GROUP PLC v JAMES
21/10/2015
ESTOPPEL – termination of appellant’s employment arising from takeover of employer by consortium – representations as to severance payment contained in employer’s redundancy policy – whether it was unconscionable to resile from representations – whether appellant resigned or was retrenched – CONTRACT – employment –- incorporation of terms – whether redundancy policy formed part of the contract of employment by reason of “a course of dealing” – CONTRACT – “unilateral” contract – whether representations by the consortium that redundancy policy would remain in place after takeover amounted to a contractual offer capable of acceptance – whether appellant accepted offer and provided consideration
James v Royal Bank of
Scotland; McKeith v Royal
Bank of Scotland [2015]
NSWSC 243
9 2015/102281
SECURE PARKING
PTY LTD v
WOOLLAHRA
MUNICIPAL COUNCIL
22/10/2015
CONTRACT – offer and acceptance - whether purported acceptance of tender offer by respondent was effective - whether acceptance corresponded to offer – whether, by its silence, the appellant agreed to vary the terms of the offer - whether essential terms of the contract were agreed – absence of agreement as to the commencement date of the contract – CONTRACT – whether parties intended to be bound upon acceptance of tender offer – whether agreement created obligation for the appellant to execute additional document – whether appellant repudiated contract by failing to execute document – TRADE PRACTICES – misleading and deceptive conduct – whether appellant had reasonable expectation that information would be disclosed – whether respondent’s failure to disclose information constituted misleading or deceptive conduct – information otherwise publicly available – Fair Trading Act 1987, s 42
Woollahra Municipal Council v Secure Parking Pty Ltd
[2015] NSWSC 257
10 2014/226722 FAJLOUN v KHOURY 23/10/2015
PROCEDURE – contempt of court – in proceedings brought by the Appellant, the Respondent successfully applied for a declaration that the Appellant was in contempt of a previous court order as he had failed to take steps to cause certain cash takings to be banked into certain bank accounts and converted those amounts to his own use – whether the primary judge erred in concluding that the payment of the sums allegedly due to the Appellant were not “required” within the meaning of the previous Court order – whether the primary judge erred in failing to find that the Appellant was an employee and creditor of the Second and Third Respondents during the relevant period of time – whether the primary judge erred in failing to find that the Appellant was entitled to receive certain amounts of money – whether the primary judge erred in finding that the Appellant was not entitled to retrospectively authorise payment for services he provided during the relevant time period of time – whether the primary judge erred in failing to determine the issue of the credibility of the witnesses
11 2014/370491
HART SECURITY
AUSTRALIA PTY LTD v
BOUCOUSIS
28/10/2015
EQUITY – fiduciary relationships – company director – loss of a commercial opportunity – first respondent was director of the appellant – whether first respondent attempted to divert opportunity away from appellant and obtain personal benefits – whether conflict between first respondent’s personal interests and duties to the appellant – causation – whether loss of opportunity to contract with third party caused by first respondent’s alleged breach – EQUITY – accessorial liability – second limb of Barnes v Addy – second to sixty-third respondents
(HWL respondents) partners at a law firm – whether HWL respondents knowingly assisting in first respondent’s breach –
CORPORATIONS – directors – whether first respondent director in breach of duties by attempting to divert opportunity away from corporation and obtain personal benefits – Corporations Act 2001(Cth) ss 181(1), 182(1) and 183(1) – causation – CORPORATIONS – whether HWL respondents knowingly involved in contravention of statutory duties – DAMAGES – date on which value of lost opportunity is calculated
Hart Security Australia Pty
Ltd v Boucousis & Ors
[2014] NSWSC 1654
12 2015/126713
JUROX PTY LTD v
FULLICK
28/10/2015
TORT - personal injury claim against host employer; system of work; employer’s liability; assessment of damages
Sandra
Bernadette Fullick v Jurox P ty Limited [2015] NSWDC
40
This list only records information regarding summons (judicial review), appeals and applications for leave to appeal that are heard concurrently with the appeal 2

Court of Appeal reserved judgments as at 26 February 2016
HEARD ISSUES NUMBER CASE NAME Judgment Below
13
2015/124297;
2015/214801
WOODLAWN CAPITAL
PTY LTD v MOTOR
VEHICLES
INSURANCE; MOTOR
VEHICLES
INSURANCE LTD v
McNAMARA
30/10/2015
JUDGMENTS AND ORDERS – interest up to judgment – interest accrued on funds held by appellant after freezing order – whether release and indemnity clause in agreement between parties applies to interest – whether outstanding fees owed to appellant a security interest – whether fees created beneficial interest having priority over respondent’s interest – whether appellant had right to retain possession of fund by way of lien – whether appellant indemnified under s 59(4) Trustee Act 1925
COSTS – indemnity costs – whether release and indemnity clause protected appellant against claim for costs – whether clause applies only to third parties – trustee costs – whether appellant indemnified by respondent in respect of trustee costs
Motor Vehicles Insurance
Ltd v Woodlawn Capital Pty
Ltd [2015] NSWSC 401
14 2015/140964
15 2015/247102
Z v Q
BUCKWORTH v
GLADIO PTY LTD
6/11/2015
WORKERS COMPENSATION – application for lump sum compensation – issue estoppel – resolution of earlier proceedings in
Commission by consent - consent finding that R had fully recovered – finding by Deputy President that arbitrator had no jurisdiction to make consent finding – whether that finding being a matter for exclusive jurisdiction of Approved Medical Specialist – whether consent finding defeated by s234 of Workplace Management and Workers Compensation Act 1998 (NSW)
Q v Z [2015] NSWWCCPD
25
19/11/2015
CONTRACT – contract for sale of shares in company title apartment – whether consent given for purchaser to accede to amendments to
‘house rules’ – whether implicit term that directors would not make a house rule prior to completion of contract that was not acceptable to purchaser – whether entitlement to rescind – whether valid rescission and entitlement to return of deposit – liability for directors of company for breach obligations by company
Gladio Pty Ltd v Buckworth
[2015] NSWSC 922
16
2015/104539;
2015/109911
PENRITH CITY
COUNCIL v HEALEY;
GIO GENERAL LTD v
HEALEY
27/11/2015
TORTS – negligence – personal injury – first respondent injured while lifting heavy bins – liability of contractor (appellant) for contractee’s employee (first respondent) – existence and scope of duty of care – whether appellant breached duty – challenge to factual findings as to the system the appellant had in place with respect to heavy or defective bins – challenge to findings as to the extent of the appellant’s knowledge about weight of bins – whether reasonable person in the appellant’s position would have foreseen the risk of injury – whether adding an additional rubbish collector would have sufficiently reduced risk of injury – DAMAGES – whether damages for non-economic loss, out-of-pocket expense and past and future attendant care services were excessive and against the weight of evidence – whether primary judge failed to make allowance for the first respondent’s inability to obtain work in the future in any event because of a degenerative condition – Fox v Wood damages – PROCEDURE – slip rule – whether damages for future attendant care services should be awarded on a gratuitous or commercial basis – whether matter can be revisited under the slip rule
Healey v Penrith City
Council [2014] NSWSC 723;
Healey v Penrith City
Council (No 2) [2014]
NSWSC 1870
17 2014/372593 KEITH v GAL 30/11/2015
TORTS – workplace accident – whether appellant suffered diminution in working capacity – whether there was an aggravation or deterioration of appellant’s pre-existing problems – whether primary judge erred in rejecting expert opinions – whether primary judge failed to deal with whole of Appellant’s evidentiary case as to economic incapacity
18 2015/84400 DR BIGGS v GEORGE 2/12/2015
PROFESSIONAL NEGLIGENCE – medical – whether consent for surgery properly obtained – non-English speaking patient – whether appellants owed a duty of care to ensure that translation was accurate and that respondent understood discussion – whether duty breached – causation – whether appellant’s consent was in fact uninformed by reason of a deficiency in information provided – whether respondent would have consented to surgery in any event – DAMAGES – whether award of damages for non-economic loss manifestly excessive – COSTS – whether appellants ought to pay expense of obtaining expert witness
George v Biggs [2015]
NSWDC 11, George v Biggs
& Anor (No 2) [2015]
NSWDC 43
19 2015/171010 LEE v ELGAMMAL 2/12/2015
PROFESSIONAL NEGLIGENCE – legal - respondent executed guarantee for loan between bank and third party in agreement by which the bank agreed to release a $230,000 term deposit – appellant solicitor witnessed signature but admitted a failure to provide advice as to extent of liability – bank called in guarantee for full amount of loan – respondent contended that he believed that the extent of his liability was limited to the value of his Taxi Licence or of the term deposit – causation – whether respondent would have refused to sign guarantee had he understood it was for the full value of the loan – whether bank would have accepted lesser guarantee – EVIDENCE
– Civil Liability Act, s 5D(3) – whether affidavit evidence of respondent’s understanding was admissible – affidavit evidence admitted during trial but ruled inadmissible in judgment – whether respondent’s oral evidence admissible where evidence resulted from crossexamination that would not have occurred had the affidavit evidence been ruled inadmissible at trial
This list only records information regarding summons (judicial review), appeals and applications for leave to appeal that are heard concurrently with the appeal 3

Court of Appeal reserved judgments as at 26 February 2016
HEARD ISSUES NUMBER CASE NAME Judgment Below
20 2015/184423
COMMONWEALTH
BANK OF AUSTRALIA v ACN 076 848 112
PTY LTD
9/12/2015
CORPORATIONS – leave to proceed under s444E of Corporations Act 2001 (Cth) -order for production in aid of or ancillary to application– whether insurance policy documents had no relevance to application for leave to proceed – whether relevance of documents confined to their absence of their effect on other creditors – whether A ought to have been able to inspect documents before the grant of leave to determine whether it ought to avail itself of such leave – whether real prospect of defence costs exceeding the limit available under the policy – application of Civil Procedure Act 2005 to pre-litigation process
Commonwealth Bank of
Australia v ACN 076 848
112 Pty Ltd [2015] NSWSC
666
21 2013/175752
TANAMERAH
ESTATES PTY LTD v
TIBRA CAPITAL PTY
LTD
9/12/2015
PRACTICE AND PROCEDURE – setting aside refused leave application – whether a “travesty of justice” – whether a miscarriage of justice – whether erred in not holding that director may represent corporation without leave of the Court – whether erred in holding that a valid personal claim is necessary for a director to be a co-applicant – whether wrongful conduct by Basten JA & Sackville AJA in determining leave application
Tanamerah Estates Pty Ltd as the trustee for Alexander
Superannuation Fund v
Tibra Capital Pty Ltd [2013]
NSWCA 266
22 2015/194997
PYRMONT POINT PTY
LTD v WESTACOTT
1/02/2016
ADMINISTRATIVE LAW – refusal of leave to appeal from NCAT – lease of bottle shop –whether lease subject of Retail Leases Act 1994
– lease granted pursuant to an option in original lease – whether erred in including period of original lease to new lease to calculate 25 years exclusion period – when new lease is a new starting point for the 25 year calculation
Pyrmont Point Pty Ltd v
Westacott [2015] NSWSC
783
23
2015/87043;
2015/254676
HOXTON PARK
RESIDENTS ACTIONS
GROUP INC v
LIVERPOOL CITY
COUNCIL
2/02/2016
CONSTITUTIONAL LAW – independent non-government religious school – Malek Fahd Islamic School – effect of funding by
Commonwealth – whether ‘establishes’ a religion, ‘imposes’ any religious observance or ‘prohibits’ the free exercise of religion
– Constitution, s 116 – STANDING – whether appellants had standing to challenge validity and laws and executive acts relating to
Commonwealth funding in respect of past expenditure – PROCEDURAL FAIRNESS – whether primary judge sufficiently addressed the appellant’s case – failure to make findings – use of emotive and unfavourable terms to describe the appellant’s case
Hoxton Park Residents
Action Group Inc v Liverpool
City Council [2015] NSWSC
136
24 2015/183148
CARANGELO v STATE
OF NEW SOUTH
WALES
3/02/2016
TORTS – negligence – psychiatric injury – appellant suffered many traumatic incidents over 35 year career in police force – trial judge found that the respondent had breached a duty of care owed to the appellant by failing to provide psychiatric assessment and to provide support during Police Integrity Commission inquiry – causation not made out – Civil Liability Act 2002, s 5D(1) – whether s 5D(1) required that the respondent’s breach be a necessary condition of the appellant’s damages or alternatively a material contributor – whether an
“exceptional case” for the purposes of s 5D(2) – whether circumstances properly construed as amounting to loss of a chance only and therefore incapable of supporting factual causation
Carangelo v State of New
South Wales [2015]
NSWSC 655
25 2015/149229
VALUER-GENERAL OF
NEW SOUTH WALES v
ORIENTAL BAR PTY
LTD
4/02/2016
VALUATION – valuation of lands to which heritage restriction applies – Valuation of Land Act 1916 – respondents challenged determination of land values by Valuer General – Valuer General used incorrect estimate of Gross Floor Areas (GFA) – whether primary judge’s orders consistent with acceptance of evidence that the land values would be higher than the valuation issued by the Valuer General
Oriental Bar Pty Limited v Valuer-General [2015]
NSWLEC 59
26 2015/181753
LIU v THE AGE
COMPANY PTY LTD
5/02/2016
DEFAMATION – stay of orders for preliminary discovery on undertaking not to rely upon defence of qualified privilege – whether granting of stay after unsuccessful defence of preliminary discovery an abuse of process – whether proceedings against R an effective remedy instead of the sources – whether failed to consider case management principles in granting stay – whether discretion miscarried by permitting re-litigation of issues already determined – whether costs should have been awarded on an indemnity basis
Liu v The Age Company Pty
Limited (No 2) [2015]
NSWSC 276
27 2015/185735 ZAHED v IAG LTD
28
2015/134822;
2015/153328
BANKSTOWN CITY
COUNCIL v ZRAKIA;
ROADS AND
MARITIME SERVICE v
ZRAKIA
5/02/2016
9/02/2016
ADMINISTRATIVE LAW – judicial review of determination of motor accidents compensation claims assessor – challenge to findings as to past and future care requirements – requirement to give reasons pursuant to the Motor Accidents Compensation Act 1999 (NSW), s 94 and relevant guideline – whether necessary to give reasons for accepting or rejecting particular evidence
IAG Limited t/as NRMA
Insurance v Zahed [2015]
NSWSC 657
TORTS – motor vehicle accident – whether duty of care as planning authority – whether obligation to consider safety of road users at intersection – whether A could require owner of premises to erect a traffic control sign - whether s43A or 44 of Civil Liability Act
2002 (NSW) operate to defeat claim – apportionment – whether breach of duty - TORTS – extent of duty of roads authority to install signage – consideration of limits to A’s resources for installing signs – whether failure so unreasonable that no authority could properly consider the failure to be reasonable for s 43A
Zrakia v Walsh [2015]
NSWSC 485
This list only records information regarding summons (judicial review), appeals and applications for leave to appeal that are heard concurrently with the appeal 4

Court of Appeal reserved judgments as at 26 February 2016
HEARD ISSUES NUMBER CASE NAME Judgment Below
29 2014/185879
30 2014/367996
31 2015/113760
ROYAL GUARDIAN
MORTGAGE
MANAGEMENT PTY
LTD v NGUYEN
HEATH v GREENACRE
BUSINESS PARK
BARRAK
CORPORATION PTY
LTD v JASWIL
PROPERTIES PTY LTD
10/02/2016
CONTRACT – construction and interpretation - employment contracts – the Appellant brought proceedings for breach of contract and the recovery of commissions payed to companies in which Respondents, who were former employees of the Appellant, had interests – the
Respondents cross-claimed for the non-payment of bonuses and profit shares due to them under their employment contracts – the primary judge gave judgment for the Respondents in respect of the Appellant’s claim and allowed their cross claim – whether the primary judge erred in interpreting the employment contracts – whether the primary judge erred in finding that the Respondents were not in breach of their employment contracts despite their involvement in the other companies – whether the primary judge erred in calculating the profit share – whether the primary judge erred in finding that the bonuses were not paid to the Respondents – ADMINISTRATIVE
LAW – procedural fairness – bias – whether the primary judges’ involvement in the questioning of witnesses gave rise to a reasonable apprehension of bias – whether comments made by the primary judge regarding the credibility of the witnesses gave rise to a reasonable apprehension of bias - whether primary judges’ private communications with Counsel for the Respondent gave rise to a reasonable
Royal Guardian Mortgage
Management Pty Ltd v
Nguyen [2014] NSWSC 665 apprehension of bias
10/02/2016
12/02/2016
COSTS – indemnity costs – gross sum costs order – costs order against non-party director of defendant company (fourth respondent) now in liquidation – whether director responsible for defendant company’s raising defence and cross-claim on matters he knew were untrue
REAL PROPERTY – conveyancing – settlement aborted by reason of errors – purchaser failed to comply with notice to complete – breach of essential time stipulation – whether vendor’s conduct contributed to breach – whether vendor entitled to serve notice to terminate – EQUITY – whether unconscientious for vendor to rely on legal right to terminate
Greenacre Business Park
Pty Ltd & Ors v Deliver
Australia Pty Ltd [2014]
NSWSC 1646
Jaswil Properties Pty Ltd
ATF Jaswil Unit Trust v
Barrak Corporation Pty Ltd
[2015] NSWSC 391
32 2015/120476
HAROLD R FINGER &
CO PTY LTD v
KARELLAS
INVESTMENTS PTY
LTD
16/02/2016
CONTRACT – commercial lease agreement – repudiation by first respondent – entitlement to terminate following repudiation – validity of purported termination – whether appellant ready and willing to perform the contract – whether appellant also in breach of contract – essential and non-essential terms – whether provision providing for automatic reduction in rent applied – DAMAGES – subsequent development of part of property for residential purposes – whether profits from residential development to be taken into account in quantifying damages – whether evidence sufficient to quantify profits – allowances for hypothetical contingencies
Harold R Finger & Co Pty
Ltd v Karellas Investments
Pty Ltd [2015] NSWSC 354
33
2014/239426;
2014/249038;
2014/319803;
2014/318985
DUNCAN v ICAC;
McGUIGAN v ICAC;
ATKINSON v ICAC;
CASCADE COAL PTY
LTD v ICAC
18/02/2016
ADMINISTRATIVE LAW – whether breach of s184(1) of Corporations Act could result in a finding of “corrupt conduct” when the conduct alleged could not amount to a breach – whether conduct could adversely affect the official functions of an official – whether “public interest” in cl 8B(b) of Environmental Planning and Assessment Regulation 2000 extended beyond environmental considerations – whether information relating to the “Obeid involvement” which was alleged to have been not disclosed to the Independent Board
Committee was already in the public domain – whether s193E(1)(b) of Crimes Act 1900 could apply to the circumstances – procedural fairness
Duncan v ICAC McGuigan v
ICAC Kinghorn v ICAC
Cascade Coal v ICAC
[2014] NSWSC 1018
34 2015/118223 JAMES v DOUGLAS 22/02/2016
35
2015/183291;
2015/223337
ARFARAS v
VOSNAKIS
23/02/2016
SUCCESSION – construction of will – testamentary trusts – will set up a primary trust for the testator’s wife which upon her death would revert to secondary trusts for the testator’s four daughters - testator’s son-in-law named as ‘Appointor’ for the primary trust – nature of the appointor’s powers under the will – whether it justified the appointor’s purported removal and replacement of two of the original trustees of the primary trust with himself and his wife – intention of the testator – whether extrinsic evidence sufficient to demonstrate direct instructions or actual intention of the testator – principles of construction – whether rectification of will available under the general law
Douglas v James [2015]
NSWSC 299
EQUITY – estoppel – appellant held licence to burial plot for two persons – appellant agreed with respondent that if he buried the deceased in the plot he could have the second spot for himself – whether appellant estopped from denying agreement to transfer burial plot – whether respondent relied on statements of appellant in the exercise of his right of burial of the deceased – whether the contractual licence with the cemetery conferred a right capable of attracting the application of estoppel – whether respondent suffered detriment by refusal of appellant to transfer licence – whether exhumation legal or practical – whether transfer of licence would cause appellant to suffer detriment
Vosnakis v Arfaras [2015]
NSWSC 625
This list only records information regarding summons (judicial review), appeals and applications for leave to appeal that are heard concurrently with the appeal 5

Court of Appeal reserved judgments as at 26 February 2016
HEARD ISSUES NUMBER CASE NAME Judgment Below
36 2015/159005
COMMISSIONER OF
TAXATION OF THE
COMMONWEALTH OF
AUSTRALIA v 4
DOONAN STREET
COLLINSVILLE PTY
LTD (IN LIQUIDATION)
23/02/2016
TAXES AND DUTIES – running balance account (RBA) maintained by appellant in respect of the first respondent – appellant issued five offsets against the credit balance in RBA (the Debits) – Debits issued after the date of winding up order, but were with respect to transactions conducted prior to winding up order – whether appellant had power to issue Debits after appointment of the liquidator
– Taxation Administration Act 1953 (Cth), Pt IIB, Div 3 – whether amount of the Debits were a “credit… that an entity is entitled to under taxation law” – Taxation Administration Act 1953, ss 8AAZL(1)(b), 8AAZLA
In the matter of
4 Doonan Street Collinsville
Pty Ltd (in liq) [2015]
NSWSC 437
37 2015/217252
38 2015/142512
MAKAROV v
ATTORNEY GENERAL
OF NEW SOUTH
WALES
26/02/2016
ADMINISTRATIVE LAW – criminal law – application for an inquiry into conviction – Crimes (Appeal and Review) Act 2001, s 78 – application brought on the basis of matters which had emerged since the date of conviction concerning witnesses who gave evidence against the applicant – whether doubt as to guilt – whether material relied upon by the applicant sufficient to give rise to a sense of disquiet or unease in allowing the convictions to stand
Application of Victor
Makarov pursuant to s. 78 of the Crimes (Appeal and
Review) Act 2001(NSW)
[2013] NSWSC 1468
FISTAR v
RIVERWOOD LEGION
AND COMMUNITY
CLUB LTD
26/02/2016
EQUITY – funds misappropriated from respondent by employee and paid to fraudster – fraudster gave money to appellant to “repay” funds earlier advanced to the fraudster by the appellant – appellant an innocent party – whether misappropriated money can be traced to appellant –– whether appellant a volunteer
REAL PROPERTY – exceptions to indefeasibility – whether personal claim available against appellant to defeat appellant’s indefeasible title
Riverwood Legion &
Community Club Ltd v Repaja & Co Pty Ltd
[2015] NSWSC 383
39 2015/256264
LYNN v STATE OF
NEW SOUTH WALES
26/02/2016
ADMINISTRATIVE LAW – Crimes (High Risk Offenders) Act 2006 s22 – whether “unacceptable risk” – whether failed to consider effect of restraint on liberty after punishment had been served – whether risk was unacceptable
State of New South Wales v
Scott David Lynn [2015]
NSWSC 665
This list only records information regarding summons (judicial review), appeals and applications for leave to appeal that are heard concurrently with the appeal 6