Andrew Combe

Andrew is an experienced barrister who was called to the Bar in 2005, having previously been a senior associate at a mid sized Sydney law firm. Andrew has a Bachelor of Laws and Masters of Laws (Corporate and Commercial) from the University of New South Wales. Andrew is a past lecturer in Commercial Law and the Law of Commercial Associations at the University of New England.

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Since being called to the Bar, Andrew has developed a broad practice in civil litigation. Andrew has appeared in the NSW Workers Compensation Commission, Claims Assessment Review Service and Consumer, Trader & Tenancy Tribunal (now known as NCAT); the NSW Local Court, District Court and Supreme Court (including the Court of Appeal); the Federal Circuit Court of Australia, Family Court of Australia, Federal Court of Australia and High Court of Australia. Andrew also acts for parties in international commercial arbitration under the UNCITRAL Model Law.

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Andrew has been involved in many significant cases in commercial law, bankruptcy law, family law, insurance law and banking law. Andrew advises and appears for individual litigants; bankruptcy trustees and corporate liquidators; and corporate litigants including insurers, statutory corporations and statutory insurers.

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Andrew is a member of the NSW Bar Association Common Law Committee and has drafted submissions on law reform for submission by the NSW Bar Association to the NSW Government. Andrew is an advocacy instructor for the NSW Bar Association and has instructed at the Readers Courses.

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Andrew has also been a regular presenter at legal conferences presented by the New South Wales Bar Association and at overseas legal conferences including in Italy. His seminar papers have been widely circulated amongst the legal profession.

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Significant cases that Andrew has appeared as counsel for the successful party include the following:

Glad Cleaning Service Pty Ltd & Anor v Vukelic [2010] NSWSC 422: Action to recover monies paid by mistake. A worker overcompensated due a mistake by the workers compensation insurer was held liable by the Supreme Court to make restitution to the workers compensation insurer pursuant to the principles of unjust enrichment. Andrew appeared for the successful workers compensation insurer.

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Roderick May Sutherland as trustee of the property of Barry Paul Pescosta, a bankrupt v Jennifer Byrne Smith [2011] FMCA 632: Action to set aside a property transfer. A trustee in bankruptcy successfully applied to the Federal Magistrates Court as a bankruptcy court to set aside a transfer of property under a Binding Financial Agreement. Andrew appeared for the successful trustee in bankruptcy.

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McDonald v Price [2011] NSWSC 70: Appeal to the Supreme Court from a judgment of the Local Court as to costs. The Supreme Court held that a Practice Note cannot override the operation of the Civil Procedure Act 2005 (NSW). Andrew appeared for the successful respondent to the appeal.

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Permanent Mortgages Pty Ltd v MacFadyen [2012] NSWSC 130: Action by a mortgagee to enforce a mortgage was successful with the Supreme Court rejecting an argument by the mortgagor that a lender is in a fiduciary position or a owed duty of care to a customer. It was confirmed that fiduciary duties and common law duty of care to a borrower are not imposed on a lender unless the lender advised on the commercial venture the subject of the loan or assumed an obligation to advise on the commercial venture the subject of the loan. Andrew appeared for the successful mortgagee.

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Rent Plus Ltd v Sorenson (No 2) [2013] NSWSC 67: Enforcement in the Supreme Court of a foreign judgment of the District Court of New Zealand under the Foreign Judgments Act 1991. Andrew appeared for the successful applicant for registration of the foreign judgment.

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Doble Express Transport Pty Ltd (administrator appointed) v John L. Pierce Pty Ltd [2016] NSWCA 352: Negligence in driving heavy vehicles on a fogbound highway with failure of a truck driver approaching an intersection to drive according to conditions. The trial and appeal required an analysis of the prevailing conditions at the time and confirmed the obligation of a truck driver to drive at a speed that enabled the truck to slow or stop to avoid an obstruction on the highway. An application for special leave to the High Court was refused. Andrew appeared at the trial, for the successful respondent on the appeal and for the successful respondent in the unsuccessful application for special leave to the High Court.

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Duarte v Coshott [2017] FCA 1238: Application in the Federal Court of Australia to set aside a Bankruptcy Notice issued when the majority of the debt had been paid but the purported creditor had failed to acknowledge payments in the bankruptcy notice, thereby engaging in conduct that was described by the Court as “highly misleading”. This matter considered invalidity of a Bankruptcy Notice under sections 30 and 41 of the Bankruptcy Act 1966 (Cth). Andrew appeared for the successful applicant to set aside the Bankruptcy Notice.

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Robert Coshott v Charmaine Duarte [2018] NSWSC 731: Application by Robert Coshott for judicial review and to quash a finding of a Magistrate of the Local Court of NSW that Mr Coshott falsely swore an affidavit in support of a garnishee order entered in the Local Court. This matter considered but rejected an argument made by Mr Coshott that he was owed a duty of procedural fairness before such a finding could be made. The Supreme Court held that as Mr Coshott was a witness, not a party to the garnishee order and the application to set aside the garnishee order, there was no authority to support the submission he was entitled to procedural fairness before a finding of dishonesty could be made in respect of the affidavit. Andrew appeared for the successful Defendant opposing the application for judicial review.

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Hankin & Anor & Nankervis [2018] FCCA 2075: Approval of consent orders in a dispute for property orders under s 79 of the Family Law Act 1975 (Cth). The trustee of the bankrupt wife submitted that s 60 of the Bankruptcy Act 1966 (Cth) stayed pending proceedings for property orders under s 79 of the Family Law Act and that if the trustee did not elect to continue the property orders proceedings, the proceedings were abandoned. The Federal Circuit Court found that s 60 had the effect as submitted. Andrew appeared for the successful trustee of the bankrupt wife.

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Wentworth Community Housing Limited v Brennan [2019] NSWSC 152: Application for judicial review of a decision of the Registrar of the Workers Compensation Commission of NSW. The Supreme Court found the Registrar erred in refusing to allow an appeal to proceed against an approved medical specialist’s assessment of permanent impairment in a psychological injury claim. Evidence of conduct potentially contrary to the subjective complaints of injury was not referred to by the medical specialist and it was held the Registrar erred at law in not allowing the appeal to proceed. Andrew appeared for the successful employer seeking judicial review.

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Nguyen v Pasarela [2020] NSWSC 1730: Andrew appeared for the successful defendant in an application for judicial review of a medical assessment and an appeal from that assessment in the Workers Compensation Commission. At issue was whether the Guidelines for the assessment of permanent impairment were followed. The Supreme Court found that the assessment had been conducted in accordance with the Guideline and the application was dismissed.

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Moffett v Robin [2021] NSWDC 211: Andrew appeared for the successful first defendant in a claim for substantial damages arising from a personal injury. This was a complex case and a significant issue for determination was whether the first defendant was an “employee” of the second defendant and entitled to an indemnity under the Employees Liability Act 1991 (NSW). Amongst other things, the District Court found the first defendant was an employee and therefore entitled to such and indemnity meaning the claim for damages against the first defendant could not succeed.

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Papers which Andrew has presented or have been published include the following:

• “Offers of Compromise under Rule 20.26 of the Uniform Civil Procedure Rules” presented at New South Wales Bar Association Personal Injury and Common Law Conference 11 March 2017.

• “Admissibility of Parentage Testing Evidence in Family Law Proceedings” presented at Europe Asia Medico-Legal Conference, Lake Como, Italy, July 2016.

• “Dealing with a Bankrupt, when is a discussion of objections to discharge a “threat”?” presented at National Practical Bankruptcy Congress 28 October 2015.

• “Seminar on Discovery” presented at Young Lawyers’ Training Day, Sydney

• “Financial Agreements under the Family Law Act” published in NSW Bar News, Autumn 2013