3 July – 16 July 2023
NSW Court of Appeal Decisions
Restitution; Contracts: implied terms
Carpenter & Anor v Morris & Anor  NSWCA 154
Tastex (controlled by Mr Morris) and Central West (controlled by Mr Carpenter) had a long-term partnership for mining and selling Gandee granite. When the partnership dissolved, Tastex continued to operate in Central West’s mine until amendments to the Mining Act required Tastex to obtain a mining licence. For a three-year period during the partnership, Mr Morris had been receiving monthly payments beyond the agreed division of profits. The Court of Appeal found that an action for money had and received may be commenced even if there is an alternative claim in equity for knowing receipt of property obtained in breach of fiduciary obligations. The Court further upheld the primary judge’s finding that there was no implied term that Mr Morris would procure an exploration or mining licence as the term was unnecessary to facilitate the reasonable and effective operation of the contract.
Leases: option to renew; Contracts: variation and waiver
Willis Australia Ltd v AMP Capital Investors Ltd  NSWCA 158
Willis entered into a lease with AMP for a suite in a building. The lease included an option to renew if certain conditions were fulfilled. Willis gave notice of their intention to exercise the option. However, only some of the conditions were satisfied. They then withdrew that notice. The Court of Appeal found that Willis was not bound by its notice of renewal as it had only fulfilled some of the conditions of the option. AMP could not waive the timely performance of condition 5, being the provision of a bank guarantee, because the performance of that condition was not a right that could be waived.
Limitation of Actions: personal injury; discoverability
Anderson v State of NSW; Perri v State of NSW  NSWCA 160
Two boys, aged 14 and 13, were strip searched by police officers. The primary judge found that the strip searches constituted assault but not child sexual abuse and that the limitation period for the causes of action had expired. In refusing leave to appeal, the Court of Appeal found that the strip searches did not constitute “child abuse” or “sexual abuse” within the meaning of s 6A of the Limitation Act. The applicants’ “capable persons” (their carers) were in a position to have known or ought reasonably to have known that further legal advice should have been sought before the limitation period expired.
Negligence: occupiers’ liability
Blue OP Partner Pty Ltd v De Roma  NSWCA 161
Ms De Roma tripped and fell while walking over a steel utility pit lid and frame set in a footpath. The appellant was responsible for inspecting, maintaining and ensuring the safety of the lid and frame. In allowing the appeal, the Court of Appeal found that the obviousness of a “risk of harm” depends on the level of particularity with which the risk is described. The generality of the risk should be the same for questions of negligence and of obvious risk. Here, the risk should have been characterised as the risk of tripping on an uneven surface created by the presence of the utility pit lid and frame within the concrete footpath. Section 5F(1) was satisfied because from the perspective of a reasonable person taking care for her own safety, the risk of tripping was made obvious by the presence of an uneven surface or surfaces ahead. Therefore, the appellant did not owe a duty to warn the respondent of the risk.
Australian Intermediate Appellate Decision(s)
Consumer Law: s 236(1) of the Australian Consumer Law
Blu Logistics SA Pty Ltd v Flogineering Pty Ltd  FCAFC 103
The five appellants were road hauliers who deliver milk to milk processors. The primary judge found that they had contravened ss 18 and 29(1)(e) and (g) of the ACL by misrepresenting that their tankers had measurement instruments whose statutory compliance was approved by Flogineering, the manufacturer of the instruments and the entity exclusively entitled to assess compliance. The form of the misrepresentation was an approval number applied by a technician unaffiliated with Flogineering. In dismissing the appeal but allowing the cross-appeal, the Full Court of the Federal Court of Australia found that Flogineering suffered loss of the opportunity to sell its exclusive right to apply the approval number to the meters. The Court also upheld the finding, on evidence about the highly regulated nature of the milk industry, that it was more likely than not that one or more milk processors had checked and therefore relied on the impugned approval number . The primary judge also discounted Flogineering’s compensation on the counterfactual that, had the processors insisted on proper approval of the meters, the hauliers may have opted to change to a competitor’s model instead. The Court overturned this discount because it was improbable the hauliers would have acted any differently than they did until the primary judge enjoined them from making the misrepresentation.
Limitation of Actions
Angelo Edward Gianchino v Victoria Elizabeth Gianchino (in Her Personal Capacity and Her Capacity as Executor of the Estate of Susan Martha Gianchino)  VSCA 162
The Court of Appeal of Victoria has found that the relevant right of action under s 14(1) of the Limitations of Actions Act 1958 (Vic) accrues when adverse possession is taken of the land, whereas s 14(4) provides for a statutory fiction which deems adverse possession to have occurred as between joint tenants in certain circumstances. For s 14(4), ouster of one co-owner must be proved for the other co-owner to establish possessory title against the other co-owner. Evidence of the ousted co-owner’s intention is only relevant to its bearing on the question of the co-owner in adverse possession’s intention. The Court further found that the payment of mortgage instalments, or the storing of possessions on the land, by the ousted co-owner was not a use of the land.
Asia Pacific Decision(s)
Dr Jaya Thakur v Union of India & Ors  INSC 616
The Supreme Court of India has found that it was valid for the President to amend, by ordinance, two Acts so as to allow extensions to the term of appointment for two senior government officeholders: it could not be established to the required standard that the amendments were ultra vires or violated constitutional rights. However, the decision to extend the tenure of one of the two officeholders was invalid because the effect of mandamus issued in a 2021 decision made before the amendments was to prohibit extensions to that particular civil servant’s term in office. The Court found that, although the legislature could “remove the basis” for a court’s decision, it was impermissible to use legislation to disturb judicial orders crystallising the rights as between specific parties. The original mandamus therefore still stood and any decision to extend the particular officeholder’s tenure, even if the decision relied on the amendment, was invalid.
Philipp v Barclays Bank UK PLC  UKSC 25
The United Kingdom Supreme Court has allowed an appeal from a decision to summarily dismiss a claim brought by a victim of fraud against the bank which carried out payment instructions given directly by the victim. The Court found that in a contract with a bank, an express term is required to establish a duty not to carry out a payment instruction given directly by a customer if the bank believes that the customer is a victim of fraud. The Quincecare duty only applies where the payment instruction is given by an agent of the customer, because the validity of the instruction may be in doubt. However, the Court found that the claim that the bank breached its duty in not acting promptly to attempt to recall the payments after they were made after being notified of the fraud should not have been summarily dismissed.