Latest Decisions of Interest

12 February 2024 – 24 February 2024

NSW Court of Appeal Decisions

Equity: Charitable trusts

Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30

The Court of Appeal (Bell CJ, Ward P, Leeming JA) has held that the Necropolis Act 1867 created a charitable trust recognised by equity over Catholic burial land at Rookwood Cemetery capable of continuing even despite the repeal of its originating statute. The mere existence of the power to alter or extinguish this trust (which arose following the repeal of the statute) did not itself alter or extinguish the trust: a distinction must be drawn between the existence of a power and the exercise thereof. Further, the Court held that proceeds generated from the use of trust property may be held on trust as property of the trust, and such proceeds are immune from the abolition of the trust so far as that abolition strictly concerned the land in question, rather than other trust property.


Contracts: Interpretation

Mie Force Pty Ltd v Allianz Australia Insurance Ltd [2024] NSWA 23

The Court of Appeal (Ward P, White and Kirk JJA) has dismissed an appeal in relation to the meaning of “agent” and “subcontractor” for the purposes of coverage under an insurance policy. The Court was divided on the meaning of “agent”, with White and Kirk JJA holding that the primary judge erred in not understanding the term in its established sense as a legal term of art (as someone with authority to create binding relations between the principal and a third party), whereas Ward P agreed with the primary judge that the term “agent” should be afforded its ordinary sense (as someone who steps into the shoes of another in performance of a task). As to the term “subcontractor”, the Court emphasised the importance of distinguishing between various types of policies, and rejected the appellant’s proposed construction of that term on the basis that it would transform into a “subcontractor” any person providing services to a contractor.


Consumer Law: Misleading and deceptive conduct

Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35

The Court of Appeal (Bell CJ, Stern JA and Basten AJA) has reaffirmed the settled principles for misleading or deceptive conduct claims in Australia, as well as the elements for a claim of tortious deceit. This discussion was in the context of allegations that DCA Sydney Enterprises Pty Ltd solicited funds with the deceptive representation that the funds were to secure streaming rights for the 2021 Rugby League World Cup. The primary judge found that the sole director of DCA was liable for misleading and deceptive conduct, and tortious deceit, but not DCA’s CFO. This latter finding was reversed by the Court of Appeal.


Workers Compensation: Causation 

Fisher v Nonconformist Pty Ltd [2024] NSWCA 32

The Court of Appeal (Meagher JA, Kirk JA and Simpson AJA) dismissed appeals brought by the wife and children of a deceased courier driver against decisions of the Personal Injury Commission refusing their claims under the Workers Compensation Act 1987 (NSW). The Court of Appeal clarified what is meant by “point of law” for the purposes of s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), which allows internal appeals from a decision of the Commission where a litigant is “aggrieved … in point of law”. The Court stated that it is the grievance which must be “in point of law”, such that the decision of the Commission need not necessarily be on a point of law, so long as the grounds of appeal are on points of law. The Court further clarified the need to refer to, and apply, statutory language, and observed that a failure to refer to judicial exposition of statutory language does not necessarily constitute an error.


Australian Intermediate Appellate Decision(s)

Contracts: Interpretation

Bagata Pty Ltd & Anor v Sunstorm Pty Ltd [2024] QCA 17

The Queensland Court of Appeal (Morrison JA, Martin SJA and Williams J) has found what constitutes a “manifest error” for the purposes of appealing an expert determination in the context of a lease dispute. The Court concluded that the term is to be construed using the typical methods of construing a contract; that the “error” may be one of fact or law; and that for an error to be “manifest”, it must be shown to appear on the face of the award, and is not rendered “manifest” by its mere existence. The Court also clarified that a lease stipulation that a tenant takes a property on an “as is/where is” basis does not confer a right upon the landlord to store chattels on the premises after the commencement of the lease.


Evidence: Use of criminal conviction in civil proceeding

Osborne v Butler [2024] VSCA 6

The Victorian Court of Appeal (Emerton P, McLeish and Taylor JJA) has clarified the operation of ss 91 and 92(2) of the Evidence Act 2008 (Vic). The Court held that s 91 permits the admission of evidence of a conviction as proof of the fact of conviction, and that the exception in s 92(2) exists to let in evidence of a prior conviction to prove the existence of a fact that was in issue in criminal proceedings. The Court held that, the party against whom such evidence is admitted is entitled to seek to displace that evidence, and no such factual inquiry or contestation is foreclosed by the mere admission of the evidence.


Asia Pacific Decision(s)


Alalääkkölä v Palmer [2024] NZCA 24

The New Zealand Court of Appeal (Collins, Katz and Mallon JJ) has addressed a novel issue of law concerning the classification of copyright in artistic works for the purposes of property division on divorce. The Court held that the “bundle of rights” that constitutes a party’s copyright is not a unique phenomenon, and should be considered “property” for the purpose of the Property (Relations) Act 1976 (NZ). Further, the Court held that copyright in artistic works, where acquired by a spouse during a relationship, is properly considered “relationship property”, not “separate property”. However, in light of the unique and personal nature of the copyright in these circumstances, it was proper for the appellant, as author and creative force behind the artworks, to retain the copyrights, and instead pay compensation to meet the required property adjustment.


International Decision(s)

Contracts: Remoteness

Armstead v Royal & Sun Alliance Insurance Company [2024] UKSC 6

The United Kingdom Supreme Court (Lord Briggs, Lord Leggatt, Lord Burrows, Lord Richards, Lady Simler SCJJ) has held that a sum which a hirer of a has agreed to pay a hire company in the event the car became unavailable due to a motor accident  is not too remote to be unrecoverable in a  negligence claim against the party responsible for the accident. In so holding, the Court reiterated the tenets of the classic test of remoteness in the tort of negligence as laid down in The Wagon Mound. The Court clarified that, in these and like-circumstances, the loss must be a pre-estimate of the hire company’s loss of use so as to be within the realm of reasonable foreseeability, and that there is nothing wrong in principle, in a case where actual loss may be difficult to calculate, in using an amount estimated in advance of the contractual liability.


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