Cases and authorities

CORPORATIONS - voluntary administration - doubt about validity of appointment of administrators - whether appointment to be validated

MORTGAGES - EQUITY - remedies - injunctions – injunction to restrain exercise of power of sale – whether rule in Inglis' case allows for mortgagee to be sufficiently protected without payment in - EQUITY - equitable doctrines - marshalling - application by purchaser from mortgagor to restrain prior mortgagee from selling – whether owner of subsequent equitable interest can enforce equity to marshal against prior mortgagee.

Corporations Law. Application to wind up defendant on the grounds of insolvency. Summons dismissed as an abuse of process.

NEGLIGENCE - death as a result of a dust-related condition - exposure to asbestos dust and fibre in the course of employment - failure to warn or protect - employer's claim of indemnity or substantial contribution from asbestos-spraying company - apportionment of liability as between tortfeasors - weight given to actual knowledge of one defendant compared to the constructive knowledge of the other defendant - no error of law. (ND)

NEGLIGENCE - damages - death as a result of a dust-related condition - survival of cause of action - s3(2) Survival of Causes of Action Act 1940 (SA) - dependant's action per Civil Liability Act 1936 (SA) - damages offset because of pecuniary benefits passing to the plaintiff as beneficiary under an intestacy - estate swollen with the proceeds of the deceased's action - uncertainty as to the size of the distributable estate - onus of establishing the estate's capacity to pay the plaintiff - evidentiary stand-off at trial - location of evidentiary onus - computation of damages issue - whether mitigation of damages issue - persuasive burden and evidentiary burden - proof of financial loss required proof of share as a beneficiary of the deceased's estate. (ND)

NEGLIGENCE - death as a result of a dust-related condition - exposure to asbestos dust and fibre in the course of employment - sub-contractor - failure to warn or protect - admission of affidavit in accordance with s25(3) Dust Diseases Tribunal Act 1989 - concession at trial that affidavit had been admitted in other proceedings - affidavit not read or admitted in other proceedings - affidavit of no significance to the appeal - challenge to apportionment of liability. (ND)

NEGLIGENCE - death as a result of a dust-related condition - mesothelioma - duty of care - foreseeability - whether nature and level of exposure to asbestos-dust was foreseeable - foreseeability of the precise risk of injury suffered not required - reasoning in CSR v Wren (1997) 44 NSWLR 463 - breach of duty - failure to warn - contribution between tortfeasors - apportionment of liability - moral culpability or blameworthiness. (ND)

Criminal Law - Sentencing for maliciously inflict grievous bodily harm, malicious wounding, being in company assault occasioning actual bodily harm and manslaughter.

TRUSTS - constructive trusts – parents and brother overseas sent money to defendant in Australia to buy family home - property purchased and registered in name of defendant only – parents and brother emigrated to Australia and resided together with defendant in the home - subsequent breakdown in family relations - whether property held on trust by defendant for the parties as tenants in common - whether common intention to give money to defendant for purpose of purchasing property for the family, or as unconditional payment for services rendered by him to family company - property held on constructive trust by defendant for the parties as tenants in common in equal shares - no question of principle - turns on own facts

Appeal decision of CTTT - damage to persian rug

FAMILY LAW - Adoption - Application for adoption by biological mother and stepfather - Consent of biological father to commencement of adoption proceedings but not adoption order - Where child is of sufficient age and maturity to give sole consent under s 54(2) - Adoption Act 2000 (NSW) ss 28(3), 54(1)(b), (c), (2), 56(2), 95(3), 101(4) - Held that an adoption order can be made in favour of a birth parent - Order made as sought in summons.

Criminal Practice & Procedure - sentence - white collar crime - insider trading - company director - traded after receiving adverse auditor's report - plea - but not admit knew insider trading - age - delay - hardship to family - civil penalty findings - effect on character.

Plaintiff seeking to amend statement of claim - conference of medical experts - joint expert report - issues that had not been raised in the experts' joint report - experts not asked to express an opinon on the issue - plaintiff identified a liability issue in the proposed amended statement of claim - whether the joint expert report can or should operate as a restricting factor on the discretionary power to grant an amendment to pleadings - possible utility test

Security for costs - Discretionary factors.

CORPORATIONS - Winding up - creditors statutory demand - where no application made to set aside demand - application for leave to rely on ground which could have been relied on in such application - materiality of ground to proof of solvency - where dispute tends to rebut inference of insolvency by explaining non-compliance with demand

Building and Construction. Acceptance of report of a Referee under Part 72 of the Supreme Court Rules. Whether point should have been taken before Referee. Whether any error disclosed. Report adopted.

Criminal Law - Sentencing - manifestly excessive - misuse of aggravating factors - special circumstances - young offenders - whether offender should be treated as an adult - principles of sentencing minors and juveniles

CRIMINAL LAW AND PROCEDURE - OFFENDER RECEIVED LENIENCE FOR PROMISE OF ASSISTANCE IN PROSECUTING CO-OFFENDER - GIVES EVIDENCE AT TRIAL OF THAT CO-OFFENDER BUT RENEGES AT SECOND TRIAL - LONG DELAY NOT CONTRIBUTED TO BY RESPONDENT - CROWN APPEAL TO REMOVE BENEFIT EARLIER RECEIVED - SENTENCE CLOSE TO EXPIRY - CUSTODIAL ELEMENT FULLY SERVED - RETAINED DISCRETION TO DISMISS CROWN APPEAL EXERCISED

ADMINISTRATIVE LAW- Privative clause- Whether court's jurisdiction ousted. INDUSTRIAL LAW- Franchise agreement- Unfair contracts- Applicant sought avoidance of agreement in Industrial Relations Commission- Unsuccessful- Application for certiorari, mandamus and prohibition- Contract held to be induced by misrepresentation at first instance- Commission in its discretion refused relief- No basis on which an appeal or prerogative orders could be granted, even if court had jurisdiction to grant them. (ND)

BUILDING CONTROL AND TOWN PLANNING - Development applications - Planning schemes - Bulky goods salesroom - Whether application a nullity - Whether purported consent was "to" the application - Requirement of Local Environmental Plan as to areas for specified use - Whether applied at time of consent or thereafter - Whether SEPP 1 applied - Whether Council could have been satisfied as to requirement - Whether consent valid.

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Agreement for sale of business and goodwill - Whether unregistered trade name excluded from contract and purchasers/lessees granted a revocable licence to use the name - Whether a collaterall agreement to that effect - Whether evidence of pre-contract negotiations on use of name admissible - Whether restriction on use of name in later lease void as an attempt to assign future property or as an assignment of goodwill in gross - On expiration of lease, lessor opens business in same premises under now registered business name - Lessees threaten to continue business under the name from premises 200 metres away - Whether passing off - Whether misleading or deceptive conduct

(Corporations) (Power of Attorney) - Purported appointment of director of company - purported allotment of shares - whether holder of power of attorney of director and shareholder in coma could utilise the power of attorney - whether general meeting or directors had power to allot shares - fiduciary duty of directors with respect to power to allot shares - whether power of attorney available for performance of director's duty - fiduciary obligations attached to power of attorney - non-voting member's right to notice of meeting - whether meeting of one was a meeting - whether validation under s 1322 was available - nature and scope of s 1322.

SUCCESSION - probate - application for revocation of grant of probate - undue influence - evidence that defendant prepared documents later signed by testator, including last 2 wills - defendant able to exercise control over testator - whether such control sufficient to constitute "coercion". - SUCCESSION - probate - application for revocation of grant of probate - issue that of testamentary capacity - testator aged 94 at date of will and suffering from progressive dementia - evidence that testator had signed documents containing false statements - requirement for testator to bring a reasoning mind to competing claims on his estate. - EQUITY - equitable remedies - charges - improvements made to deceased's estate by plaintiff - benefit obtained by plaintiff - where no evidence of added value. - EQUITY - breach of contract - claim for contract based on promise by deceased to leave land to plaintiff in a will - contract not in writing - effect of s54A Conveyancing Act.

Criminal law - sentence - murder of offender's elderly parents - pleas of guilty - offender suffers from mental condition.

Practice and Procedure - Cross Vesting - Special Federal matter - Identification of 'matter' - Whether special reasons shown for Supreme Court to hear proceedings

CORPORATIONS - winding up - creditors statutory demand - appeal from Associate Judge's refusal to set aside - application to extend time for compliance pending hearing of appeal - analogous to application for stay pending appeal - where balance of convenience would favour extension - where no arguable case of error.

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and letters of administration - double probate granted - executor to whom double probate granted removed - form of orders appropriate to effect that removal

INJUNCTIONS - mortgages - requirement that mortgagor seeking injunction to restrain sale pay mortgage money into court - nature of requirement where arguable that power of sale has not arisen. - COSTS - indemnity costs - where mortgage provides for indemnity costs to be added to secured moneys - court not bound to award indemnity costs.

TORTS - conversion - measure of damages - when goods converted by sale, whether selling agent's commission to be deducted from selling price in assessing damages - whether GST payable on sale to be deducted in assessing damages - time as at which damages assessed - DAMAGES - measure and remoteness of damages in actions for tort - conversion - measure of damages - when goods converted by sale, whether selling agent's commission to be deducted from selling price in assessing damages - whether GST payable on sale to be deducted in assessing damages - time as at which damages assessed

Sentence appeal - offences under s91E and s91F Crimes Act 1900 - multiple offences - common factual elements - same effective sentence for both series of offences - double punishment - appeal upheld

appeal against severity of sentence - offence of assault occasioning actual bodily harm whilst in company - two offences of robbery whilst in company - pleas of guilty - whether sentences imposed were manifestly excessive - parity with sentences imposed upon co-offenders - subjective circumstances - remorse - youthful offender - prior good character - difference in sentencing accounted for by difference between charges - totality of offending

Forensic procedure on a suspect - non-intimate buccal swab - aggravated robbery - offence occurred at the victim's home - no DNA evidence from crime scene - procurement of evidence against a person who is already a suspect - reasonable grounds to believe the suspect committed teh relevant offence - affidavit evidence provided factual material to support the belief the plaintiff was a suspect - material placed before a magistrate.

LEGAL PROFESSIONAL PRIVILEGE: Documents of a company subject of search warrant - company deregistered - documents prepared before deregistration for legal advice - whether privilege survives deregistration - whether company's solicitor has standing to claim privilege.

Plaintiff convicted of harassment and intimidation of a police officer - conduct - judicial notice taken of plaintiff's campaign against police - plea in bar - double punishment - charge of intimidation against the plaintiff subsumes the charge of harassment.

PROCEDURE - Supreme Court procedure - granding of interim payments under s82 - plaintiff previously obtained judgment against defendant - defendant using delaying tactics - in circumstances would not cause undue hardship to defendants

CRIMINAL LAW AND PROCEDURE - EVIDENCE - DENIAL BY ACCUSED WHEN CONFRONTED BY POLICE WITH ALLEGATION - DENIAL MAINTAINED AT VIDEO RECORDED INTERVIEW HELD SHORTLY THEREAFTER - OBJECTION BY CROWN TO ADMISSION OF EXCULPATORY MATERIAL - HEARSAY - BASIS OF EXCEPTION TO HEARSAY RULE - MAINTENANCE OF COMMON PRACTICE - GENERAL DUTY OF CROWN TO TENDER SUBJECT TO OBJECTIONABILITY OF CONTRIVED MATERIAL - ACCUSED GIVES EVIDENCE FOLLOWING RULING REQUIRING HIM TO DO SO IN ORDER TO MAKE EARLIER DENIALS ADMISSIBLE - RULING ERRONEOUS BUT NO RESULTANT MISCARRIAGE - DISCUSSION OF VARIETY OF APPROACHES TO EVIDENCE OF EXCULPATORY STATEMENTS - SENTENCE - TRIAL JUDGE MISINFORMED AS TO APPLICABLE MAXIMUM PENALTY - IMPOSITIONS IN EXCESS OF MAXIMUM - APPEAL AGAINST SENTENCE ALLOWED AND APPELLANT RESENTENCED

Criminal law - disparity of sentences - whether less severe sentence warranted - justifiable sense of grievance - applicant received the same sentence as his brother - no basis for the claimed disparity - the facts did not permit a basis for distinguishing between the sentences - age alone was not a sufficient basis in these circumstances for distinguishing between the sentences

appeal against severity of sentence - plea of guilty to charge of intimidation - plea of guilty to charge of assault occasioning actual bodily harm, committed in company - aggravating factors of offences - accumulation of sentences - custodial circumstances - no error shown

Criminal law - sentence - mental disorder - knowledge of the gravity of actions - insufficient regard to applicant's history of mental illness - less weight given to general deterrence - altered mental state - impairment of both judgment and volitional control - drug abuse - mental disorder is causally related to commission of offences - diminution of sentence having regard to applicant's mental condition - mental condition may increase importance of deterrence of offender - alcohol, valium and other medications consumed prior to offences - applicant did not possess a full understanding of the authority and requirements of the law

CRIMINAL LAW AND PROCEDURE - INDICTMENT SIGNED BY PERSON NOT AUTHORIZED SO TO DO PURSUANT TO STATUTE - TRIAL THEREFORE A NULLITY - EXERCISE OF DISCRETION TO ORDER NEW TRIAL

Leave to appeal decision of Costs Assessor & Review Panel

COSTS - where proceedings compromised - whether grounds to depart from general rule that each party bear its own costs - no question of principle.

CONTRACTS [142]- Aboriginal land- Joint venture between developers and Aboriginal Land Council- Developer proposed to acquire Land Council's land and Land Council was to share in profits of development- Statute required approval from supervisory body before Land Council could dispose of land- Effect of statute and contract meant approval was condition precedent to performance- Approval not given- Whether defendant materially contributed to failure of condition- Whether duty of co-operation required defendant to continue to seek approval once it had not been given- Consequences of termination. STATUTES [51]- Interpretation- Aboriginal land- Contract for development of land- Approval required before land could be disposed of- Contract for sale or disposal of land without approval void- Contract stipulated that approval was condition precedent- Whether contract amounted to "disposal"- Prohibition on sale without approval not a prohibition on entering contract to sell where approval is condition precedent.

FAMILY LAW - adoption - whether in an intercountry adoption not governed by Chapter 5 Adoption Act 2000 Court should order a copy of its orders be released to the Department to be transmitted to the overseas authority through whom the adoption was organised - whether consent of alleged foreign guardian to be dispensed with - whether consent of natural parents to be dispensed with - what counts as "reasonable inquiry" for the purpose of deciding whether to dispense with consent - WORDS AND PHRASES - "cannot, after reasonable inquiry, be found"

Proceeds Assessment Order - Restraining Order - Variation

CONVEYANCING - Vendor and Purchaser - Notice to complete - where parties are co-owners, and purchasers are purchasing from themselves and defendant - whether purchasers entitled to insist on vendor contributing to costs of sale - whether notice by purchasers to complete to defendant and not themselves also as vendors is sufficient

BUILDING AND CONSTRUCTION - adjudication certificate under Building and Construction Industry Security of Payment Act 1999 issued - application for injunction to restrain builder from applying for certificate relating to the determination - balance of convenience - terms upon which injunction to be issued - whether security to be provided for payment of amount of adjudication determination plus interest - whether security to be provided for amount of adjudicator's fees not paid by proprietor

PRACTICE - application for summary disposal of proceedings under Part 13 rule 5 Supreme Court Rules - proceedings brought by summons - purpose of receiving and examining evidence on such an application - PRACTICE - commencement of proceedings - leave under Felons (Civil Proceedings) Act 1981 to commence action - when granted to person who has committed a serious indictable offence - granting of leave nunc pro tunc - granting of leave to appear or be represented at an application for such leave -form of leave to grant - MENTAL HEALTH - mental hospitals and institutions - transfer of a person imprisoned in a prison to a hospital under section 97 Mental Health Act 1990 - whether time limits for a certificate arising under section 21(4) Mental Health Act 1990 apply to such a transfer - whether such a transfer can consist of a notional change in status of a person who is already in a place which is both a prison and a hospital, without any physical movement of that person - whether the certificates required by section 97 Mental Health Act 1990 can take the form of certificates of two psychiatrists - whether any requirement for psychiatrists to permit writing down of answers given to their questions - whether Chief Health Officer has power to delegate his powers under section 97 Mental Health Act 1990 - whether a certificate for the purpose of section 97 Mental Health Act 1990 must be based solely on personal observations of the medical practitioner who gives it - whether Mental Health Review Tribunal validly vested with jurisdiction to decide matters under section 86(1) Mental Health Act 1990 - ADMINISTRATIVE LAW - particular persons and bodies - Mental Health Review Tribunal - whether The University of Wollongong v Metwally (1984) 158 CLR 447 prevents that Tribunal from giving decisions - TORTS - assault - whether Theophanus v The Herald and Weekly Times (1994) 182 CLR 104 bears upon any such claim

LIMITATION OF ACTIONS - Extension of limitation period for claim for personal injury - Length and reasons for delay - Prejudice to defendant - Likelihood of a fair trial - Application for extension supported by affidavit of solicitor only - No affidavit from applicant - Whether evidence supporting application sufficient to give Court satisfactory understanding of why proceedings not commenced in time - Whether prejudice to defendant such that would not be just and reasonable to extend time - Limitation Act 1969 s 60C(2)