Monthly Archives: April 2010

Dante De Grazia trading as All Sydney Building Services v Nicholas Solomon & Ors [2010] NSWSC 322 (28 April 2010)

Building, engineering and related contracts
The Contract
Claim by builder for variations and delay costs
Whether Court can adjust date for practical completion under contract
Whether architect/proprietors estopped from pleading that that builder’s claims were not made in compliance with the relevant contractual procedures and therefore must fail
The principle in Liebe v Molloy
Whether the plaintiff builder’s claims for variations and delays made out on the evidence
Relevant principles where the architects are simultaneously the proprietors
Whether architect had duty to act impartially
Whether this duty breached
Performance of work
Whether it is possible to assess delay where construction programming has not occurred
Whether the expert evidence relied upon by the parties should be accepted
Cross-claim by defendants against builder for defective work
Courts and judges generally
Relevant principles for making a finding of fraudulent conduct
Whether allegation of fraudulent conduct made out
Trade Practices Act 1974 (Cth) and related legislation – Consumer protection
Misleading or deceptive conduct or false representations
Whether brochure produced by cross-defendants was misleading or deceptive
Whether cross-claimants proved reliance on particular representations
Whether causation shown in cross-claim
Whether relevant limitation period had expired
Whether evidence showed that cross-defendants’ product was not fit for purpose.

The principles: fraudulent conduct

89 There is a plethora of authority in support of the proposition that the Court is bound to see that a case of fraud is clearly proved. An allegation of fraudulent intent is one of the most serious allegations capable of being made. Actual dishonesty is said to be “the hallmark of fraud”. The gravity of the allegation has been said to be such that whereas section 140(1) of the Evidence Act 1995 (NSW) stipulates a single standard of proof for all civil cases, namely the balance of probabilities, Section 140(2) preserves the doctrine in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362; Pedler v Richardson (Supreme Court of New South Wales, Young J, 16 October 1997, unreported) at 10-11. See also McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315, 319. More recently in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 the High Court has put the matter in the following terms:

“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”

90 This leaves the Court in the position where Mr Solomon’s claim that the Builder forged/concocted exhibit P 10 to further his case is rejected.

Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 (23 April 2010)

CONTRACT – loan agreement – pre-contractual statement under Credit Code – part of offer – offer accepted – deed not necessary – addition of “per” to lender’s signature – not material change – Real Property Act ss 36(10)(a), 36(11), 51A
Conveyancing Act ss 23C, 38 not relevant – intention to create legal relations manifested – agreement binding – no question of principle. MORTGAGE – signed by solicitor for mortgagee to certify correctness of dealing – solicitor’s name substituted – not material alteration – mortgage secured an enforceable loan agreement – memorandum validly incorporated – no question of principle. PROCEDURAL FAIRNESS – application for adjournment in order to apply to consolidate with other proceedings – application for adjournment due to late production of evidence – leave to apply again if prejudice shown – no procedural unfairness – solicitor appearing for himself – not to be treated as unrepresented litigant. EVIDENCE – Evidence Act ss 135, 136 – no unfair prejudice – no error shown. AGENCY – authority to sign for lender – on facts, was authority – in any event, ratification established – not necessary for ratification to know particular act of agency.

Batterham v Makeig [2010] NSWCA 86 (22 April 2010)

CONTRACTS- construction and interpretation of contracts- whether on its proper construction, a clause requiring respondent to pay consultants’ costs and costs ancillary to consultants’ services obliged the respondent to pay council fees that parties knew were being utilised to pay consultants’ costs incurred by the council- primary judge focused on the character of fees as “lodgement fees”- in the circumstances, and according to the language of the clause and the layman’s agreement as a whole construed according to its commercial purpose, the trial judge erred in finding that the respondent was not obliged to pay fees.
CONTRACTS- discharge, breach and defences to action for breach- whether respondent breached and repudiated agreement and whether appellant justified in treating breach as repudiation- whether adherence to an incorrect interpretation of a contract when bona fide dispute as to true construction- arguable construction not the reason for non-payment- where respondent did not pay fees in a timely manner as part of “poker game” to obtain written agreement as to refunding and remuneration from council- viewed objectively, the “poker game” conveyed a blanket refusal of an essential term and constituted a repudiation justifying appellant’s termination.
DAMAGES- discount rate for vicissitudes and present value- primary judge discounted damages by 12.5% for the possibility that put and call options exercisable until November 2012 might not be exercised- further discount required to cover present value of money and general vicissitudes.
TRADE PRACTICES- misleading or deceptive conduct- whether project agreement should be set aside because respondent’s representation that he was an “experienced project consultant” constituted misleading or deceptive conduct- question of fact whether respondent was “experienced”- whether “professional” connoted competence- claim fails because no reliance on the representation and thus no loss “by” respondent’s conduct under Fair Trading Act 1987, ss 68, 72.

PNJ v DPP [2010] VSCA 88 (21 April 2010)

EVIDENCE – Admissibility – Criminal proceedings – Coincidence evidence – Whether sufficient degree of similarity – Whether significant probative value – Whether court must consider possibility of concoction or contamination – Coincidence evidence inadmissible – Evidence Act 2008 (Vic) s 98.

CRIMINAL LAW – Appeal – Interlocutory appeal – Admissibility of evidence – Nature of appeal – Whether appellate court should decide for itself whether evidence admissible – R v Zhang [2005] NSWCCA 437; (2005) 227 ALR 311, L v Tasmania (2006) 15 Tas R 381, considered.

CRIMINAL LAW – Appeal – Interlocutory appeal – Judge’s certificate – Decision concerns admissibility of evidence – Cross-admissibility relevant to severance – Decision affects conduct at trial – Criminal Procedure Act 2009 (Vic) – s 295(3)(a), (b).

AA Shi Pty Ltd v Avbar Pty Ltd [2010] FCA 368 (16 April 2010)

PRACTICE AND PROCEDURE – notice of motion to discharge ex parte interim injunction under Trade Practices Act 1974 (Cth) – whether full disclosure of material facts to Court by applicant for injunction – respondents reliant on affidavit sworn by solicitor for respondents – no personal knowledge or identification of sources of information in affidavit

R v Steven Wayne Hillier [2010] ACTSC 33 (16 April 2010)

CRIMINAL LAW – trial by judge alone – murder – circumstantial case – evidence of motive, opportunity and consciousness of guilt and DNA evidence – reasonable possibility of contamination of DNA evidence – consciousness of guilt evidence not proved beyond reasonable doubt – verdict of acquittal entered.

EVIDENCE – burden of proof in relation to DNA evidence and consciousness of guilt evidence – proof beyond reasonable doubt required because of importance of evidence to Crown case.

EVIDENCE – waiver of rules of evidence under s 190 of Evidence Act 1995 (Cth) – tender of transcript of first trial.

R v DF [2010] ACTSC 31 (15 April 2010)

CRIMINAL LAW – trial by judge alone – offence of act of indecency upon person above the age of 10 but under the age of 16 – accused found guilty.

CRIMINAL LAW – trial by judge alone – offence of act of indecency without consent – reasonable doubt whether offence committed within dates specified in indictment – accused found not guilty.

CRIMINAL LAW – two charges depending on uncorroborated evidence of complainant – finding that elements of first charge made out beyond reasonable doubt – finding that second charge cannot be made out as to dates specified in indictment – application by counsel to review finding on first count having regard to finding on second count – finding on second count relates to reliability of evidence about dates, not complainant’s veracity or honesty – no requirement to find reasonable doubt about first charge as a result of doubt about second charge.

EVIDENCE – requirement that complainant in sexual offence proceeding not be identified – accused’s granddaughter a complainant in another sexual offence proceeding – granddaughter’s complaint relevant to defence in this proceeding – difficulty of dealing with defence arguments properly without indirectly identifying granddaughter – names of all family members, including accused, suppressed – Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 40.

EVIDENCE – complainant’s evidence of earlier complaints to mother admitted – evidence remained admissible despite exclusion of mother’s evidence of complaint – Evidence Act 1995 (Cth), s 108(3).

EVIDENCE – prior consistent statements by complainant – defence case included claims that complainant’s evidence had been fabricated or reconstructed or was the result of suggestion – evidence of earlier complaints by complainant admitted – Evidence Act 1995 (Cth), s 108(3).

EVIDENCE – operation of Evidence Act 1995 (Cth) in judge-alone trials in ACT – requirement that judge take into account a warning that a Territory law would require to be given to a jury – whether “warning” includes directions or comments – effect of Evidence Act provisions expressed to apply where there is a jury – meaning of “Territory law” – Evidence Act not a “Territory law” under Legislation Act 2001 (ACT) – provisions of Evidence Act expressed to apply in jury trials may not be applicable to judge-alone trials in ACT.

EVIDENCE – possible unreliability of evidence of complainant and other prosecution witnesses – complainant’s cousin’s role in instigation of complaints – whether complaints reflected “false” or “recovered” memory – complainant’s faulty recall of incidental details – implausibility of allegation about second incident – “improvement” in evidence of prosecution witnesses.

EVIDENCE – possible unreliability of complainant’s evidence – whether complainant or another prosecution witness had a motive to lie – whether another witness’s motive to lie could affect reliability of complainant’s evidence – whether complainant’s inherently central role in the possible conviction of the accused renders her evidence unreliable.

EVIDENCE – complainant encouraged to make formal complaints by cousin – no necessary implications for truth of complaints – complainant’s evidence not unreliable by reason only of complaints having been encouraged.

EVIDENCE – allegations of “false” or “recovered” memories – no evidence that complainant’s memories had ever been lost – no evidence suggesting creating or implanting of memories – mistakes about matters of detail are not the same as, or evidence of, “false” or “recovered” memory.

EVIDENCE – “improvement” in evidence between committal and trial does not render evidence necessarily unreliable – implausibility of matters in evidence not a reason for finding evidence unreliable – allegation of acts of indecency in presence of others not necessarily implausible.

EVIDENCE – character evidence – weight to be given to character evidence from witnesses who decline to hear details of allegations.

EVIDENCE – evidence taken by video link from Victoria on voir dire – direction under Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 20 only available in respect of a participating State – participating States are those in which provisions are in force in terms substantially corresponding to Part 3 of that Act – Victorian legislation is not corresponding legislation – Victoria is not a participating State – no order available under s 20 – Practice Direction not a sufficient basis for admitting evidence in criminal trial, even with consent of other party – evidence excluded.

EVIDENCE – delay in making complaints – Longman warning – Evidence Act 1995 (Cth), s 165B – requirement under s 165B for defence to identify significant forensic disadvantage claimed to result from delay – significance of delay in absence of sworn denial by accused – significance of delay having regard to extensive cross-examination of complainant about details of allegations.

Calliden Group Limited v Australian Unity Limited [2010] NSWSC 263 (13 April 2010)

Proper construction
Deed whereunder plaintive purchases capital in insurance companies
Dispute concerning amount of adjustment to be made to the purchase price following completion and way in which amount of adjustment was to be determined
Consideration of sundry different actuarial methods
Consideration of methods of estimating reinsurance recoveries

179 There is a plethora of authority in support of the proposition that the Court is bound to see that a case pursuing allegations of this type are clearly proved: cf Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170. The gravity of such allegations has been said to be such that whereas section 140(1) of the Evidence Act 1995 (NSW) stipulates a single standard of proof for all civil cases, namely the balance of probabilities, Section 140(2) preserves the doctrine in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362; Pedler v Richardson (unreported, Supreme Court of NSW, 16 October 1997, Young J) at 10-11. See also McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315, 319.

180 Allegations such as those here sought to be made fell far short of what is required bearing in mind the gravity of the matters alleged.


ADMINISTRATIVE LAW – administrative tribunals – procedure – distinction between stay of orders and order temporarily reversing administrative decision – [Administrative Decisions Tribunal Act 1997] (NSW), s 60(2)
PROCEDURE – judgments and orders – stay of orders – distinction between stay of orders and order temporarily reversing reviewable decision
STATUTORY INTERPRETATION – purposive approach – statutory derogation from procedural fairness – tribunal obliged to prevent disclosure when hearing application for review of administrative decision – whether obligation applies to hearing of application for ‘stay’ of administrative decision pending review – [Security Industry Act 1997] (NSW), s 29(3)
WORDS & PHRASES – “criminal intelligence report” – “otherwise affecting the operation of the decision under review”


On 23 July 2009, the Commissioner of Police revoked licences held by the applicants under the Security Industry Act 1997 (NSW). The applicants lodged an application within the Administrative Decisions Tribunal (“the Tribunal”) for review of the revocation decision, as well as for a stay of the decision under s 60(2) of the Administrative Decisions Tribunal Act 1997 (NSW) (“the ADT Act”), pending the determination of the review. On 30 July, Deputy President Hennessy heard the stay application, declined to grant it, and set down the hearing of the review application for 17 August. During the hearing of the application, her Honour admitted and took into consideration a confidential exhibit, involving “criminal intelligence reports or other criminal information”, which was not provided to the applicants. This course of action was taken in accordance with the obligations imposed upon the Tribunal by s 29(3) of the Security Industry Act, which applied in circumstances where the Tribunal was “determining an application for review of any decision … to revoke a licence.”

On 4 August, the applicants lodged an application to appeal to the Appeal Panel against the refusal of the stay, on the basis that her Honour had erred in holding that s 29(3) applied to the hearing of the stay application. The appeal was allowed on 11 August, and the matter remitted to Deputy President Hennessy, who on 13 August granted the stay.

On 12 August, the Commissioner filed a summons in the Common Law Division seeking leave to appeal against the Appeal Panel’s decision. On 16 December Rothman J quashed the decision of the Appeal Panel. The applicants now seek leave to appeal from the decision of Rothman J.

The issue for determination on appeal was whether the obligation upon the Tribunal imposed by s 29(3) of the Security Industry Act applies to the hearing of an application for a stay of the Commissioner’s decision.

The Court held, dismissing the appeal:

1. An order in the nature of a ‘stay’ granted pursuant to s 60(2) of the ADT Act is a decision made in the course of review proceedings, which will affect, on a temporary basis, the operation of the reviewable decision. It is thus distinguishable from the common usage of a stay, granted to preserve the status quo or the subject matter of an appeal, pending a final determination of that appeal: [16], [19]–[21], [95].

McBride v Walton (unreported, NSWCA, 27 August 1993), referred to.

2. Neither the specific language of s 29(3), nor its statutory context or purpose, supports a construction that would render the determination of a ‘stay’ application a discrete and separate function to that of determining an application for review of a reviewable decision: [21]–[25], [122], [126], [129], [146], [166]–[167].

Commissioner of Police v Gray [2009] NSWCA 49; 74 NSWLR 1, referred to.

3. Section 29(3) accordingly applies to the hearing of an application for an order that has the effect of temporarily reinstating a licence under the Security Industry Act that has been revoked when that reinstatement is made, pending the determination by the Tribunal of an application for review of that revocation: [26], [179].

ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 (13 April 2010)

REAL PROPERTY- easements- equity- relief against forfeiture- grantor with contractual right to have easement released if dominant tenement owner breached conditions- whether relief against forfeiture should be granted- whether requirement of unconscionable conduct on respondents’ part- breaches caused substantial inconvenience and loss of amenity to the servient tenement- no error in trial judge refusing relief. REAL PROPERTY- easements- court imposed easement- whether regard had to the rights of the servient tenement owner in determining whether “reasonably necessary”- whether regard to effect on servient tenement proper in assessment of “reasonably necessary”- Conveyancing Act 1919, s 88K.

Evidence Act 1995, s 55

114 However, I should make one comment on the fact finding exercise below. Under s 55 of the Evidence Act 1995 , what a judge sees on a view is evidence in the case. As I understand it, the practice I adopted in equity is now fairly standard and that is that, after the view, the judge hands down a draft note of his or her observations at the view, hears counsel before settling the final version and then records that note in the transcript or as an exhibit. In that way, everyone knows what facts the judge has taken in as a result of the view.

115 It would seem in the instant case that that process was commenced and a draft note produced, but then the process was abandoned. As a result it is understandable that a person against whom a finding of fact is stated in the reasons for judgment to have been derived from the view may justly consider that there has been unfairness.

116 In the instant case, there were some findings in this category. However, none of these went to the core of the decision and any problem here is no reason to disturb the decision.

Johnstone v State of New South Wales [2010] NSWCA 70 (9 April 2010)

ARREST – arrest at common law – Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 – requirement to inform of the “true reason” for arrest
ARREST – arrest without warrant – Crimes Act 1900 – s 352 – preconditions for arrest – lawfulness of arrest
OFFENCES – Transport Administration (Railway Offences) Regulation 1994 – cl 41 – requirement to provide warning
LICENCE – implied licence – trespass on railway land – hole in fence to railway land – whether hole in fence amounts to implied licence – whether prior use or use by other of hole in fence amounts to implied licence
EVIDENCE – Evidence Act 1995 – ss 55 & 56 – relevant evidence – evidence used for multiple purposes – credit findings – whether medical evidence as to damage can be used in adverse credit findings
EVIDENCE – Evidence Act 1995 – s 136 – unfairly prejudicial evidence – procedural fairness – limiting use of evidence – need for an application under s 136 to be made

MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 3) [2010] NSWSC 243 (31 March 2010)

claim for damages for misfeasance in public office and negligence
planning decision of Council
Plaintiffs call town planner as witness
town planner had advised and represented Plaintiffs during application to Council
town planner had advised and assisted Plaintiffs concerning claim for damages
whether town planner ought be allowed to give expert opinion evidence
claim that town planner lacked objectivity
whether evidence ought be excluded under s.135 Evidence Act 1995
voir dire procedure
objection overruled