Cases and authorities

Sentence only - special circumstances.

Strike out statement of claim - security for costs - particulars

PROCEDURE - security for costs - no matter of principle

STATUTES: Acts of Parliament - interpretation - operation of s 112(2) of the Civil Procedure Act 2005 (NSW) - meaning of "title" - REAL PROPERTY: - Torrens system - writ for the levy of property - effect of registration

WILLS - Legacies - Ademption - Property subject of specific legacy sold prior to death of testator - sale in exercise of power of attorney - whether sale resulted in benefit to attorney - whether sale within attorney's authority - whether ademption of legacy - s 163B Conveyancing Act 1919.

CRIMINAL LAW - appeal against conviction - murder - whether the jury were misdirected as to provocation under s 23(2)(b) and s 23(3)(a) of the Crimes Act - whether there was a failure to direct the jury as to consciousness of guilt - the proper use of the evidence of the appellant's accounts and any inconsistency therein.

FAMILY LAW - De facto relationships - Statutory power to make orders adjusting property interests of parties - Matters to be considered - Large capital gain in matrimonial home owned by respondent - Respondent able to keep home because of contributions by appellant of about one-quarter its value - Whether primary judge should have considered whether the appellant should have some benefit from this capital gain - Extent of appellate intervention.

TAXATION - declaration with respect to liability for goods and services tax - appeal - whether leave to appeal is required - whether following the tender of the assessments and declaration s 59 of the Taxation Administration Act 1953 precludes the Court from considering issues which relate to the amount shown in the assessment or declaration - whether it was correct to dismiss proceedings in the exercise of the Court's discretion

Sentence - Manslaughter of infant by mother - Criminal Negligence: Conceal Serious Offence.

CORPORATIONS - arrangements and reconstructions - arrangement with creditors - companies in liquidation - where proposed scheme preserves regime of application of assets in winding up but modifies procedures for proof and assessment of claims - whether features providing additional information to creditors with claims on reinsurance should be included - whether "scheme administrators" subject to sufficient controls - whether "scheme adjudicators" within statutory concept of person administering compromise or arrangement - whether leave should be granted under s.411(7) to allow existing liquidators to be scheme administrators

LANDLORD AND TENANT: Agreement to lease – Creation of Relationship of Landlord and Tenant – Commencement of Term or Tenancy – Duration of Term – Subject Matter of Lease – Form and Contents of Lease – Rent – Termination of Tenancy

CONTRACT – terms of contract – whether breach – whether a percentage availability item to two decimal places found in spreadsheets attached to contract became a term of contract as being warranties by cross-defendant - whether warranties or collateral warranties and whether breach – whether collateral contract – s52 Trade Practices Act - whether cross defendant made certain representations - which cross-claimant relied on – whether reasonable grounds for making representations

Application for leave to appeal - reopening application - assertion of fresh evidence of fraud - evidence would have been available at first instance - would not have brought a different result - reopening refused.

Practice and Procedure - Inspection and forensic examination of electronic back up files said to be damaged - Failure to comply with Courts orders - Courts power to order defence to be struck out - Overriding Purpose of Civil Procedure Act 2005 and Rules of Court

CORPORATIONS - Winding Up - Application - Abuse of process - where concurrent proceedings at law foreshadowed - where no genuine dispute on reasonable grounds as to debt

PROCEDURE - costs - where no determination on the merits - CORPORATIONS - deregistration - whether plaintiff "aggrieved" by deregistration - plaintiff was director - whether possible s.197 exposure contributes to "aggrieved" status - whether attempt to become creditor by taking assignment of debt after deregistration created "aggrieved" status

CONVEYANCING [11]- Deposit- Deposit by insurance bond- When bond terminates. CONVEYANCING [65]- Time- Notice to complete- Original solicitors for each party replaced by new firms- Who may give or receive notices. TRADE & COMMERCE [92]- Misrepresentation- "Off-the-plan" contract for sale of apartment- Vendors represented to purchasers that apartment would be built to certain layout- Apartment built to different layout- Whether exculpatory clause in contract barred rescission under Trade Practices Act- Whether representation induced purchasers to enter contract.

appeal against conviction for shooting at a person with intent to do grievous bodily harm - fracas in club - three shots fired - security guard injured by bullet - expert evidence - videotape evidence with time counter - still photographs as evidence - whether verdict unreasonable - whether miscarriage of justice resulted from failure to direct the jury - the meaning of "shoot at" - indispensable facts of Crown case - evidence referred to in summing up - obligation of trial judge in summing up - application for leave to appeal against sentences imposed - subjective circumstances - contrition and remorse - criminality - youth - reduced value of pleas of guilty - pre-trial custody

PRACTICE & PROCEDURE – Application to amend grounds of appeal – Where proposed new ground would raise an issue that could have been the subject of additional evidence at first instance – Where new ground asserted reversal of onus

Damages – exemplary damages – whether exemplary damages can be awarded against the State in relation to a tort committed by a police officer – whether s8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) or policy considerations prevents an award of exemplary damages against the State

Standing to seek an exclusion order - separate question of standing - Criminal Assets Recovery Act - restraining order and forfeiture order had been made - consent orders made forfeiting property of the defendant - Mr. Masri lent Mr. Keen $64,000 - Mr. Keen agreed to sell his motor cruiser to Mr. Masri in full payment of debt - Mr. Masri does not have standing to seek an exclusion order - ancillary orders under s.12 - ancillary orders must be incidental and subordinate to the restraining order - statutory scheme is directed to specified interests in property.

COSTS - plaintiff succeeds on basis not raised until trial - whether severable issue - whether sufficient cause to deprive plaintiff of costs

EVIDENCE - expert opinion evidence on responsibilities of chairman, managing director and finance director - whether s 79 satisfied - evidence relating to new business currently making losses, where expert does not depose to experience in such a business - whether evidence should be rejected on discretionary grounds under s 135 - defendants denied leave to subpoena company records

Succession. - Family Provision. - Claim by mother. - Whether Plaintiff is an eligible person in relation to Deceased. - Factors warranting the making of the application. - Financial and material circumstances of Plaintiff. - Absence of contact between Plaintiff and Deceased during last six years of Deceased's life. - Relevance of services performed by Plaintiff for Deceased. - Competing claims of beneficiaries. - Needs of Plaintiff. - Whether Plaintiff, who has resided in rented accommodation for past eleven years, is entitled to obtain from the estate a benefit sufficient to purchase a residence.

Negligence - whether trial judge erred in assessment of damages - no issue of principle

APPEAL – question of law – inconsistent findings – no question of principle - ND

TRUSTS – Contest over the ownership of the proceeds of mortgaging a former family home – whether at acquisition date the second respondent, Aroona (a family company) held the former family home on resulting trust for the appellant, Mrs Killen – whether the equitable interest in former family home passed to Mrs Killen pursuant to resolution recorded in minute of 8 July 1974 Aroona directors’ meeting.

LIMITATION ACT: application for extension of time - action by former police officer for damages for psychological injury - effects of incidents during police service, including Wood Royal Commission and rejection for promotion - whether viable cause of action - explanation for delay - prejudice to defendant

LIMITATION ACT: application for extension of time - action by former police officer for damages for psychological injury - effects of incidents during police service, including Wood Royal Commission - whether viable cause of action - whether adequate explanation for delay

INJUNCTIONS – Interlocutory injunctions – reconsideration and variation – where appropriate – where fresh evidence produced which could have been obtained for previous hearing on matters which were agitated in previous hearing

Defamation - Admissibility of evidence - Tendency evidence - Imputations - Truth/Falsehood of Allegation - Signficiant probative value

CONTRACTS [105] – General contractual principles – Construction and interpretation of contracts – Implied terms – Generally – Principles to be applied – Necessity to give business efficacy to contract.

EQUITY – Remedies – Injunctions – Asset Preservation Order

Courts - Responsibility of Court to remind parties that common sense can sometimes lead to a negotiated accommodation

CORPORATIONS – LIQUIDATION – SECURITY FOR COSTS – Company in liquidation without immediately available funds to pursue claim – no insurmountable impecuniosity sufficiently demonstrated on evidence – security for costs required.

Adoption - change in given name or names of child - what is a given name - given name or names as at what time - whether addition of a name is a change - special reasons related to the interests of the child - weight to be given to calling child by new name in period prior to adoption application. D

MORTGAGES - remedies of mortgagee - appointment by mortgagee of agents - mortgagee purports to appoint "as mortgagee in possession" - whether actions of mortgagee through agents and actions of agents should be enjoined if mortgagee not in truth "in possession" - ability of mortgagee to make new appointment at any time - no utility in order sought

BUILDING AND CONSTRUCTION - progress payments - Building and Construction Industry Security of Payment Act - duty of adjudicator to consider submissions as incident of measure of natural justice required by the Act - whether duty discharged

TORTS - Negligence - Duty of Care - Employee of company caring out warehouse functions sustained back injury unloading a container of electrical goods - Whether injured workman owed a duty of care by warehouse owner analogous to the non-delegable duty owed by an employer to an employee - Whether warehouse owner owed a duty of care to the injured workman of the type in Stevens v Brodribb Sawmilling Co Pty Ltd (1985-1986) 160 CLR 16

NEGLIGENCE-- occupier's liability -- occupier of private land -- duty of care to trespassers it allowed to pass over its land -- approach to risks -- relevance to breach of duty -- whether reasonable response by occupier to obviousness of risk. - NEGLIGENCE -- contributory negligence -- where deliberate and voluntary decision to undertake obvious and serious risk -- relevance of personal responsibility in apportionment of liability -- plaintiff's duty to take care for own safety. - Section 5R of Civil Liability Act.

Appeal - Negligence - Personal injury - Damaged pavement- Obvious danger in daylight not at time of injury - Apportionment - Damages - Construction of subs 15(3) of Civil Liability Act 2002.

quantification of damages - liability of NSW Police Service previously determined - whether damages to be quantified determined under Motor Accidents Act 1988 ("MAA") or by common law principles - injury within meaning of MAA - purpose and objects of MAA - MAA does not create rights or new rights - MAA does not create a compensation scheme - purpose of MAA is to confine costs of compensation for personal injury caused by motor accidents - meaning of "motor accident" - meaning of "accident" - compulsory third party insurance provisions - general damages - future medical expenses - past voluntary assistance - future commercial assistance - economic loss - post injury earning capacity - future economic loss - superannuation

Bailment by informal loan of equipment - implied promise to return - conduct of bailees amounting to conversion.

FAMILY LAW AND CHILD WELFARE - application to stay order of Children's Court having the effect of returning children to mother - invocation of Supreme Court's inherent jurisdiction - assessment of children's best interests - serious question to be tried - balance of convenience favours children remaining in Minister's care pending final determination

PROCEDURE - contempt, attachment and sequestration - range of penalties available - principles to take into account in fixing sentence - standard of proof of facts relevant to sentence - availability of imprisonment as a sentence for contempt arising from breach of orders of court in civil proceedings - principles for exercise of discretion to impose imprisonment even if contemnor has not been served with sealed order endorsed with warning that imprisonment is a possible consequence of breach - preconditions for imposition of community service order - effect of plea of guilty - sentencing for multiple contempts - EVIDENCE - burden of proof, presumptions and weight and sufficiency of evidence - standard of proof for facts relevant to sentencing for contempt of court - CRIMINAL LAW - sentencing - whether community service order able to be imposed when imprisonment not possible for that particular offender and offence, but possible for the general category of offences which the offender has committed - meaning of "part of a planned or organised criminal activity" in list of aggravating factors in section 21A Crimes (Sentencing Procedure) Act 1999

PRACTICE AND PROCEDURE – STAY – Two sets of proceedings between same parties raise overlapping issues – appeal in one set of proceedings will resolve many of the issues in the other – appeal imminent – trial of other proceedings still distant – whether a stay should be granted pending determination of appeal.

Appeal from Consumer Trader and Tenancy Tribunal - damages - building contract - "a question with respect to a matter of law" - recovery of rent under Fair Trading Act if property unable to be rented - recovery of pre-judgment interest under Fair Trading Act/Consumer Trader and Tenancy Tribunal Act.

Jurisdiction-inherent power of Supreme Court-application to remove matter pending in Industrial Relations Commission to Supreme Court- breach of contract- unfair contract-Jurisdiction of Courts (Cross-Vesting) Act 1987

Sentencing - Rehabilitation - Sentence not suspended - Sentencing Judge's discretion - No error.