Clough Projects Australia Pty Ltd v Elecnor Australia Pty Ltd
[2026] NSWCA 111|Court of Appeal (NSW)|2026-06-15
Before: Bell CJ at [1]; Ward P at [125]; Free JA at [126].
The Court of Appeal upheld the decision to send Clough’s claim for contribution over called security to arbitration while leaving Elecnor’s acquisition dispute in court. The two disputes were legally distinct: the contribution claim could be decided on its own, but the bad-faith allegation was part of Clough’s defence to Elecnor’s acquisition claim. Elecnor had not given up arbitration of the contribution claim because it sought a stay soon after that claim was brought. The Court also considered the acquisition dispute unsuitable for arbitration because it involved the statutory effect of a DOCA and potential creditor interests. Both sides’ appeals failed.
INTERNATIONAL ARBITRATION — arbitration agreement — stay of proceedings under s 7(2) of International Arbitration Act 1974 (Cth) — whether proceedings involved “matter[s]…capable of settlement by arbitration” — meaning of “matter” as distinct from “proceedings” — arbitrability — where bad faith defence was part of the same “matter” as claim — where cross-claim was a distinct matter — where cross-claim involved construction of deed of company arrangement and was not arbitrable INTERNATIONAL ARBITRATION — arbitration agreement — stay of proceedings — meaning of “through or under” in s 7(4) of the International Arbitration Act 1974 (Cth) — whether third-party defence was brought “through or under” party to arbitration agreement INTERNATIONAL ARBITRATION — arbitration agreement — stay of proceedings — whether arbitration agreement was “inoperative” under s 7(5) of the International Arbitration Act 1974 (Cth) — whether agreement was waived, abandoned or repudiated by commencement or continuation of curial proceedings CONTRACT — ready, willing and able — whether disputing of cross-claim meant party was not ready, willing and able to perform contractual obligations —confined to essential obligations
Malouf v Mavrakis t/as Mavrakis & Associates Lawyers
[2026] NSWCA 113|Court of Appeal (NSW)|2026-06-15
Before: Griffiths AJA
The applicant was challenging District Court orders through judicial review rather than an appeal. While that challenge was pending, he asked the Court of Appeal to prevent the orders from being acted on. The Court applied the familiar stay principles used for appeals. It considered that the proposed review raised serious questions, that money paid out of a trust account might not be recoverable, and that the stay was expected to be relatively short. It therefore paused the specified orders, but required the applicant to move the proceedings along with all deliberate speed. The Court did not decide whether the judicial review would ultimately succeed.
CIVIL PROCEDURE — Court of Appeal — Supervisory jurisdiction — Stay of District Court orders — No issue of principle
Crown v Arbitrium Credit Partners Pty Ltd
[2026] NSWCA 110|Court of Appeal (NSW)|2026-06-15
Before: Payne JA; Mitchelmore JA
The Court of Appeal allowed Crown more time to seek permission to appeal the order deeming him served, but refused permission. It considered that the primary judge could rely on the email evidence when ordering substituted service. The proposed appeal raised a factual procedural dispute, did not show a reasonably clear injustice, and concerned costs orders totalling $59,000. The application was dismissed with costs.
APPEALS — leave to appeal — principles governing — whether reasonably clear injustice rising above merely arguable — where dispute is a factual matter of practice and procedure — where orders of primary judge were as to costs only COSTS — party/party — court’s discretion — where primary judge made interlocutory order that the applicant was taken to have been served with interlocutory process — whether preconditions for exercise of discretion by primary judge were satisfied
Whittorn v Siu
[2026] NSWSC 666|Supreme Court of NSW|2026-06-11
Before: Meek J
SUCCESSION — Familial disputes — Deceased survived by two adult children (P1 and P2, together Ps) of a long-standing marriage ended in 2014 and a companion/de facto wife (D) with whom he formed a relationship in 2013 — Property was purchased in 2019 and settled in 2021 solely with funds from the deceased, held in joint tenancy as between the deceased and D — Post the deceased’s death, D by lodgement of a Notice of Death form held the Property solely and changed her Will excluding Ps as beneficiaries — Ps advance various claims of entitlement to the Property (via the deceased’s estate or directly) including by means of a resulting trust, constructive trust, promissory estoppel, (binding) oral agreement and a back-up family provision claim for P2 — D cross claims for family provision relief — Held Ps entitled to relief in respect of the Property with the D having a right of residence in the Property subject to holding the remainder interest for the Ps to be gifted to them under D’s Will — Family provision relief declined TRUST — Discussion of legal principles bearing upon trusts and categorisation preferences and inconsistencies RESULTING TRUSTS — Discussion of terminology — Discussion of fact-finding and presumptions — Discussion of aspects of resulting trust fact-finding — Discussion of timing for considering intention CONSTRUCTIVE TRUSTS — Discussion of terminology — Discussion of formalities and nature of interest PROMISSORY ESTOPPEL — Outline of principles CONTRACT — Oral agreements affecting real property — Failure to plead Statute of Frauds defence — Lack of writing belatedly raised as issue in defendant’s separate list of issues — Lack of writing was not the subject of any developed submission and not an obstacle to relief for the Ps ORDERS — Injunctive relief regarding property may be recorded on the title to the property by means of the Court orders being annexed to NSW Land Registry Services ‘Request’ Form (Form 11R) SUCCESSION — Family provision — Eligibility — Adopted child — Obligations of the legal practitioners to provide details regarding adoption in particular where child was adopted interstate under since repealed legislation — On assumed facts, P2’s adoption does not affect adoptee’s status as a child of the deceased SUCCESSION — Family provision — Disclosure by applicants of material and financial circumstances — Form and nature of disclosure requirements discussed — Contention that D had failed to properly disclose financial circumstances rejected SUCCESSION — Family provision — Outline of claim for provision — Claimants who provide little or no outline of their claim for provision and no details or evidentiary base to support it run a risk that the claim will be dismissed PRACTICE AND PROCEDURE — Court Books — Issues with poor quality inputted images — Legal practitioners (or parties) who provide electronic Court Books should ensure that the input images or scans are of a sufficiently good quality to enable easy OCR conversion and readable text. That includes by use of high-resolution scanning equipment and ensuring very good or favourable lighting and contrast conditions when capturing images PRACTICE AND PROCEDURE — Lists of issues — The purpose (or a prime purpose) of an agreed list of real issues is to reduce down to an essence the critical matters factual, legal or otherwise, that are said to be determinative or going to be likely to be determinative of the outcome in the case — A direction to provide an “agreed” list is to be understood to require actual co-operation between practitioners as distinct from provision of separate lists (without good explanation) — Lists of issues which simply convert each prayer for relief into question format often are of limited utility and run the risk that no insight is given as to crucial factual or legal questions — Lists should not contain issues not otherwise pleaded or not fairly foreshadowed to affected parties in a timely way prior to the hearing — Lists containing numerous issues should be refined to ensure the list is not antithetical to the just, quick and cheap overriding purpose COURT CONDUCT — Expectations regarding conduct of attendees in court during examination of witnesses discussed — Audible, visible or any other overt paralinguistic expressions or reactions to questions and answers should be avoided by Court observers to avoid risks of inappropriately influencing witnesses and examiners LEGAL PRACTITIONERS - Conduct of legal practitioners in court during examination of witnesses WORDS & PHRASES — trust (relational) — jus accrescendi
Keybridge Capital Ltd v Bolton
[2026] NSWCA 109|Court of Appeal (NSW)|2026-06-11
Before: Stern JA
The Court of Appeal treated the three challenged orders separately. It considered Keybridge’s appeal sufficiently arguable for a stay application, but did not decide whether Keybridge would win the appeal. The immediate transfer of money under order 3 was stayed because of the risk that Keybridge might have difficulty recovering it if it later succeeded. Orders 5 and 7 were not stayed: order 5 mattered to Mr Bolton’s ability to prepare for a trial due to start shortly after the appeal hearing, while no evidence showed that order 7 would require payment before the appeal was decided.
PROCEDURE — application for stay of orders pending appeal — where expedition of appeal ordered — where freezing orders in place — where balance of convenience favoured stay of order
Abdel-Hady v Commonwealth of Australia
[2026] HCA 17|High Court of Australia|2026-06-10
Before: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
The High Court rejected the Commonwealth's proposed defence to a false-imprisonment claim. The officer had detained Mr Abdel-Hady under migration legislation and in line with the understanding of the law in Al-Kateb. But NZYQ later held that the legislation did not authorise detention in the relevant circumstances, and the Commonwealth accepted that the detention was unlawful. The Court held that reliance on the earlier understanding did not itself create lawful authority or a new common law defence. The protection for officials executing court orders in Stradford did not apply because this officer acted under legislation, not a judicial order. The special-case answer was No.
Tort – False imprisonment – Defences – Where plaintiff detained under s 189(1) of the Migration Act 1958 (Cth) following visa cancellation – Where since 28 July 2022 there was no real prospect of plaintiff's removal from Australia becoming practicable in reasonably foreseeable future – Where in November 2023 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 reopened and overruled Al-Kateb v Godwin (2004) 219 CLR 562 – Where effect of NZYQ was that ss 189(1) and 196(1) of the Migration Act did not authorise plaintiff's detention from 28 July 2022 – Where Commonwealth accepted elements of tort of false imprisonment established – Where Commonwealth accepted it was vicariously liable for liability of detaining officer – Where Commonwealth propounded novel common law defence to negative liability from 28 July 2022 to time of orders in NZYQ on 8 November 2023 – Whether Commonwealth's defence should be recognised to negative common law liability of detaining officer for tort of false imprisonment.
Constitutional law – Judicial power – Where detaining officer reasonably understood statutory duty to be to keep plaintiff in immigration detention by reason of Al-Kateb – Whether protection of officer from liability would enhance respect for and compliance with law declared by High Court – Whether Queensland v Stradford (a pseudonym) (2025) 99 ALJR 396; 421 ALR 376 supported novel defence.
Words and phrases – "agency", "bound to execute", "common law defence", "common law judicial immunity", "compliance with the law", "constitutional invalidity", "constitutional responsibility", "derivative liability", "detaining officer", "detention", "direct liability", "false imprisonment", "immunity", "institutional imperatives", "judicial independence and impartiality", "judicial power", "law enforcement privilege", "legal norm", "legislative power", "no real prospect of removal", "novel defence", "principle of legal equality", "purported performance", "reasonably foreseeable future", "rule of law", "separation of powers", "statutory duty", "unlawful non-citizen", "vicarious liability".
Constitution, Ch III.
Migration Act 1958 (Cth), ss 3A, 5, 189(1), 196(1), 198.
Public Service Act 1999 (Cth), ss 7, 13(4), 15.
Canadian Charter of Rights and Freedoms, s 24.
Commissioner of Taxation v Bendel
[2026] HCA 18|High Court of Australia|2026-06-10
Before: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
The majority held that the trust deed and resolutions set aside the trust income for the corporate beneficiary on separate trusts. They did not, on their proper construction, require the trustee to pay immediately. Because the beneficiary's failure to ask for payment was not itself an act providing financial accommodation or a loan transaction, the unpaid entitlements did not fall within the Division 7A loan provisions relied on by the Commissioner. The appeal was dismissed. Jagot and Beech-Jones JJ disagreed, finding that the beneficiary had provided financial accommodation by knowingly allowing the trustee to retain amounts it owed.
Income tax (Cth) – Assessable income – Distributions to entities connected with private company – Loans treated as dividends under s 109D of Income Tax Assessment Act 1936 (Cth) ("ITAA 1936") – Where deed of settlement of discretionary trust required amounts set aside for any beneficiary to be held on separate trust – Where trustee made resolutions to set aside amounts of net income for corporate beneficiary – Where corporate beneficiary had unpaid present entitlements – Whether resolutions to set aside amounts effected distributions – Whether amounts set aside sufficiently certain for creation of separate trusts – Whether relationship of debtor and creditor arose between trustee and corporate beneficiary – Whether unpaid present entitlements were loans for purposes of s 109D(3) of ITAA 1936.
Words and phrases – "admission of indebtedness", "advance of money", "corporate beneficiary", "debtor/creditor relationship", "deemed dividend", "discretionary object", "discretionary trust", "distribution", "financial accommodation", "in substance effects a loan of money", "loan", "loan of money", "making a loan", "net income", "obligation of repayment", "obligation to repay", "pending payment", "private company beneficiary", "repay", "same amount", "separate trust", "set aside", "time to pay", "unconditional duty to pay", "unpaid present entitlement".
Income Tax Assessment Act 1936 (Cth), ss 44(1), 95, 97, 109C, 109D, 109E, 109F, 109XA, 109XB, 109ZD.
Income Tax Assessment Act 1997 (Cth), ss 6‑25, 104-55, 960‑100(1).