New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Appeal


  1. 15/02/2017
    Appeal: recovery proceedings; collateral attack; jurisdiction of State courts

    Officers of the Commissioner of Taxation investigated the tax affairs of Anglo American Investments Pty Ltd, obtaining certain information from the taxation authorities in the Cayman Islands. The Deputy Commissioner of Taxation subsequently issued notices of tax assessment to Anglo American, and later commenced debt recovery proceedings in the Supreme Court. 

    The issue on appeal was whether the Supreme Court erred in striking out Anglo American’s amended defence, in which Anglo American contended that the tax assessments were tainted by “conscious maladministration”.


    • Leave to appeal the decision of the Supreme Court should be refused, because the amended defence was bound to fail.
    • Obiter, the effect of s 9 of the Administrative Decisions (Judicial) Review Act 1977 (Cth) is that State courts do not have jurisdiction otherwise granted under s 39(2) of the Judiciary Act 1903 (Cth) to issue a declaration, certiorari or an injunction in a “review” of the making of an income tax assessment. However, State courts do have jurisdiction to grant the remedies available to the Federal Court by reason of s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

    Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation  [2017] NSWCA 17
  2. 07/02/2017
    Appeal: building case ultimately determined in District Court; s 69 Supreme Court Act 1970 (NSW); supervisory jurisdiction

    Torbey Investments entered into a building contract with Mr and Mrs Ferrara, pursuant to which it undertook building and construction work on the Ferraras’ residential property in Maroubra. Completion was delayed for several reasons, and the Ferraras pruported to terminate the contract.

    The issue on appeal was whether the contract had been validly terminated and what were the appropriate orders. This raised a question:

    • whether the contractual terms imposing procedural requirements and time limits for notices of breach and termination were mandatory; and
    • relating to the power of the Court of Appeal to substitute orders in the exercise of its supervisory jurisdiction.


    • The contract had been validly terminated, and the owners were entitled to recover the cost of completion.
    • The order of the District Court with respect to interest, made in favour of the Ferraras despite their not being entitled to interest and not having sought it, should not have been made. Accordingly, the orders made in favour of the Ferraras should be altered.
    • The Court of Appeal, in the exercise of its supervisory jurisdication, has the power to make an order not merely quashing the determination of the court below, but making in its place the only order available in law, consistent with the reasoning of the court below. Therefore, the Court of Appeal ordered that Torbey Investments is liable to the Ferraras for damages for defective and incomplete building works in the amount that should have been ordered by the District Court.

    Torbey Investments Corporated Pty Ltd v Ferrara  [2017] NSWCA 9
  3. 23/12/2016
    Appeal: scope of supervisory jurisdiction of Supreme Court; whether jurisdiction restricted absent an express privative clause; whether jurisdiction limited to non-jurisdictional errors of law on face of record; inter-relationship of Supreme Court Act 1970 (NSW), s 69 and Building and Construction Industry Security of Payment Act 1999 (NSW)

    Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2)  [2016] NSWCA 379
  4. 23/12/2016
    Appeal: precedent; application to reopen earlier judgment of Court; decision as to scope of supervisory jurisdiction; consideration of subsequent authorities; resolving uncertainty in reasoning

    Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2)  [2016] NSWCA 379
  5. 23/12/2016
    Appeal: stay of proceedings pending High Court special leave application; principles to be applied; equitable jurisdiction to intervene in relation to unconscionable bargains; partial stay granted

    Wu v Ling (No 3)  [2016] NSWCA 381
  6. 22/12/2016
    Appeal: interlocutory decision; whether party can wait for final judgment and appeal as of right; consequences of one defendant seeking leave to appeal and another not; whether other defendant estopped

    Zhang v ROC Services (NSW) Pty Ltd; National Transport Insurance by its manager NTI Ltd v Zhang  [2016] NSWCA 370
  7. 21/12/2016
    Appeal: supervening enactment of legislation after judgment reserved rendering appellate proceedings “moot except as to costs”; whether in proceeding to judgment Court impermissibly delivered “advisory opinion”; whether Court should set aside principal judgment; appropriateness of proceeding to determination where costs at first instance remain in issue as between the parties

    Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2)  [2016] NSWCA 375
  8. 16/12/2016
    Appeal: Supreme Court Act 1970 (NSW) s 75A; further evidence on appeal; special grounds; appellant sought to tender evidence of revised consumption percentages based on data more recent than that used by Prof Luntz; evidence that Prof Luntz intended to include revised percentages in new edition of book; whether evidence could have been obtained at trial with reasonable diligence; whether prejudice would be caused by admission of evidence

    Norris v Routley; Routley v Norris  [2016] NSWCA 367
  9. 08/12/2016
    Appeal: jurisdiction; proceedings against bankrupt; appeal from separate question regarding leave to commence proceedings in the Equity Division; Bankruptcy Act 1966 (Cth) s 58; whether appeal lay to Court of Appeal; whether prohibition on instituting and determining appeal other than in a federal court in s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applied; whether appeal involved a matter for determination arising under the Bankruptcy Act

    Morris Finance Ltd v Brown  [2016] NSWCA 343
  10. 06/12/2016
    Appeal: jurisdiction of District Court; decision of statutory body to cancel rental subsidies; whether District Court has jurisdiction to hear resulting statutory debt claim and claims for unpaid rent and unpaid occupation fees; whether such claims are “in respect of” a decision of a public body for purposes of Supreme Court Act 1970 (NSW), s 53(3B)(b)(iv); whether claims therefore would have been assigned to Common Law Division under District Court Act 1973 (NSW), s 44 and therefore within jurisdiction of District Court

    New South Wales Land and Housing Corporation v Quinn  [2016] NSWCA 338