Cases and authorities

PROCEDURE - COSTS - Costs of cross-claim - Cross-claimant fails because plaintiff's claim against cross-claimants fails - Whether plaintiff should pay cross-defendant's costs.

Maintenance and champerty - Dismiss or stay proceedings - Focus should be on the tendency of the funding arrangements to produce an abuse of process rather than whether champerty and maintenance exist - Whether it is reasonably arguable that the funder of the proceedings has a genuine commercial interest in their subject matter - The interest must be rights-based and not a mere hope. - Abuse of process - Dismiss or stay of proceedings - Focus should be on the tendency of the funding arrangements to produce an abuse of process rather than whether champerty and maintenance exist - Relevant factors include the existence of a reasonably arguable genuine commercial interest and the control of proceedings by a person not formally a party to them - Lack of proportionality between the value of the rights, the subject of the proceedings, and any subsisting right independent of the proceedings does not necessarily lead to a tendency to amount to an abuse of process - Person controlling the proceedings in the name of the nominal plaintiff has no potential liability for the successful defendant's costs leading to a tendency to amount to an abuse of process. D

CORPORATIONS - winding up by the court - application by liquidator for orders discharging liquidator and directing deregistration of company - surplus assets transferred by liquidator to sole shareholder without court's leave - whether excusing order should be made

PROCEDURE [483] - Judgments and orders - Varying and setting aside - General rules - Party precluded from conducting case by surprise - Utility of setting aside order - Whether different order would be made.

Criminal Law - appeal against sentence - cumulative sentences - special circumstances - ratio of non-aparole period

Crown appeal against inadequacy of sentence - joint offence of robbery whilst armed with an offensive weapon, with the infliction of grievous bodily harm - aggravating features - pleas of guilty - Rai: plea of guilty to unrelated charge of robbery - Amohanga: prior sentences for detaining for advantage and robbery in company - prior criminal records - whether sentences imposed were manifestly inadequate - nature of error in sentencing - cumulative and concurrent sentencing - condition under which Amohanga at liberty at the time of the offence - whether offences in category of worst of their kind - prospects of rehabilitation of offenders - proportion between non-parole period and head sentence

Criminal law - Appeal against sentence - Totality - One course of criminal conduct - Redressing previous leniency - Seriousness of offence of dishonesty in employment

Criminal Law - Crown Appeal - Principles - Manifest inadequacy - breach of parole - criminal history, use of - cumulative sentencing

CRIMINAL PRACTICE & PROCEDURE - Crown appeal against inadequacy of sentence - standard non parole - sentence 30% of standard non parole - no reasons for reduction - sentence manifestly inadequate - resentence - principles on Crown appeal - double jeopardy.

CRIMINAL LAW - whether sentencing judge erred in finding the Applicant was in a position of influence over his brothers - whether educational attainments of Applicant taken into account by sentencing judge as an aggravating factor - whether sentences manifestly excessive - parity - maximum sentence for offence - legitimate sentencing range - whether sufficient weight given to subjective features of Applicant before and after the offence.

Appeal - severity of sentence - offences of specially aggravated kidnapping and robbery whilst armed - youth and rehabilitation - quantification of discount for pleas - form of order

Sentence - appeal against severity - importation of heroin - trafficable quantity - sentence after re-trial - deportation of offender - extra-curial punishment

CONTRACTS - unfair work contracts - right to apply to Industrial Relations Commission - whether accrued or acquired before application made - effect of amendments to Act - INDUSTRIAL LAW - unfair work contracts - right to apply to Industrial Relations Commission - whether accrued or acquired before application made - effect of amendments to Act - STATUTES - amendment - effect on rights acquired or accrued - right to take advantage of statute - D

CONTRACTS - unfair contracts - jurisdiction of Industrial Relations Commission - no jurisdiction where contract terminated 12 months before application - INDUSTRIAL LAW - unfair contracts - jurisdiction of Industrial Relations Commission - no jurisdiction where contract terminated 12 months before application - STATUTES - retrospective effect - presumption against - limitation period - contrary intention - D

TORT - Assault - False arrest - Arrest by police in entrance hall of apartment block - Whether police trespassing - Whether arrest lawful - PROPERTY - Tenancy in common - Whether and in what circumstances licence by one tenant in common revocable by another tenant in common.

Unsuccessful sterilisation procedure - child born with cerebral palsy - delay - explanation for delay and prejudice.

Appeal decision of CTTT - meaning of "indemnity" the the Home Building Act

MENTAL HEALTH - order for management of estate of protected person made by Supreme Court of NSW - inconsistent order for management of estate of that protected person made by ACT tribunal - effect of order of ACT tribunal on NSW order - whether power exists to revoke NSW order - whether NSW order should be revoked - whether Protective Commissioner to be directed to pay all assets to managers appointed under ACT order - CONFLICT OF LAWS - inconsistent orders of NSW court and ACT tribunal - full faith and credit - how inconsistency resolved

Claim for payment - election to make a claim for compensation or damages - entitlement to summary relief.

CORPORATIONS [278]- Winding up- Removal of liquidator- Animosity between petitioning creditor and directors- Liquidator alleged to be too closely aligned with interests of petitioning creditor- Factors involved- Directors not co-operating- No other interests involved- Difficult to remove liquidator where well acquainted with business and liquidation almost complete.

Limitation of actions - claim for damages for personal injury - application for extension of limitation period - whether just and reasonable to extend time - the issue of prejudice.

PRACTICE AND PROCEDURE - costs - application by shareholder for winding up order not pressed after appointment of voluntary administrator - question of costs unresolved - plaintiff shareholder seeks costs order against other shareholder - such order made despite no determination on merits of plaintiff's substantive claim

Criminal Law - Sentence - Crown appeal against sentence for dangerous driving - suspended sentence - whether manifestly inadequate - finding of judge as to culpability of respondent based upon blood alcohol reading taken 2 1/2 hours after the impact erroneous - appeal allowed and respondent re-sentenced.

Crown appeal - order pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 - serious offences of sexual misconduct upon offender's stepdaughter

PRACTICE AND PROCEDURE - whether applications should be heard in the absence of the public - ex parte applications by liquidators for approval of making of agreements by them - agreements relevant to conduct of separate proceedings in which recoveries sought by liquidators from third parties - need upon such applications to disclose matters of a highly sensitive and confidential kind about the separate proceedings - public interest in due and orderly conduct of windings up for benefit of creditors - public interest in administration of justice in the separate proceedings - whether these outweigh public interest in open justice in relation to hearing of liquidators' applications for approval

CONTRACTS [17]- Domestic arrangement- Mother built dwelling on daughter and son-in-law's property- Mother permitted to occupy dwelling provided she did not vacate- Insufficient evidence to rebut presumption that arrangement was not a binding contract. EQUITY [33]- Charge over land- Dwelling built by mother on daughter and son-in-law's land- Breakdown in relations- Whether unconscionable for defendants to retain benefit of dwelling- Mother entitled to minimum equity necessary to remedy unconscionable retention of windfall by defendants.

Cooperatives Act - Offences of Officers - Improper use of position for advantage - Failure to act honestly - Falling below reasonable standards - Sentence

ENVIRONMENT AND PLANNING - Development consent - Whether grant of consent lawful - Whether building exceeded height limit mandated in Council's Local Environmental Plan (LEP) - Proper construction of definition of "height" in LEP - Proper approach to construction of delegated legislation - Object or purpose of the height control

Criminal Practice & Procedure - application to exempt gambling winnings at Casino from forfeiture order.

Appeal under s 5 F Criminal Appeal Act - refusal of District Court to adjourn trial - unavailability of witnesses - challenge to exercise of discretion

application for leave to appeal against severity of sentence - robbery in company with wounding - detain person in company with intent to obtain advantage - robbery in company - detain - pleas of guilty - offences taken into account - applicant on conditional liberty - accumulation of sentence - youthful offender - special considerations applying to sentencing of children - totality - subjective circumstances - whether overall sentence manifestly excessive - special circumstances - promotion of rehabilitation - sequential and partially overlapping sentences - ratio between non-parole period and overall sentence

CORPORATIONS - winding up - application by liquidator for leave to appoint himself administrator - applicable principles - court's interest in seeing that some purpose will be served

Whether a Site Management Agreement terminated pursuant to s 24(2) of the Community Land Management Act 1989 - The meaning of the term "its effect" in s 24(2)(a) of the Act - Whether disclosure of the possibility that a party may be a company related to the developer is adequate for disclosure - Whether disclosure of a range of possible terms is adequate

CORPORATIONS - voluntary administration - administrator appointed by bank as secured creditor - all facilities called up - subsequent willingness of bank to reinstate facilities - evidence of solvency if facilities reinstated - whether court should order termination of administration on undertaking given to court by bank

CORPORATIONS - application for order that ASIC reinstate registration of company - indication by ASIC that it does not oppose application if order is for reinstatement "for the limited purpose disclosed" - inability of court to order reinstatement for a purpose - need for ASIC to review its standard approach or to assist court with submissions on a future occasion

Family Provision. Application under Family Provision Act by deceased's second wife. The house the only asset in the estate left equally to widow and son of first marriage. Orders for further provision. Discussion of costs effects of the Court's order.

Contract for production shoots - extrinsic evidence - implied term - entire contract - reasons - indemnity costs and leave.

PROCEDURE - DISTRICT COURT - CRIMINAL LAW - Open justice - Non-publication orders - Whether District Court has power to make orders against the publication of names of alleged victims of the crime of causing another to be placed into sexual servitude - Whether analogous to categories of victims of blackmail and/or informers.

Leave to amend pleadings - whether amended pleading was doomed to fail - conveyancing transaction - implied warranty to prepare answers to requisitions with reasonable care and skill - duty of care in negligence arising out of a vendor/purchaser relationship - necessity of identifying particular persons who knew the answer was false. (ND)

Negligence - employer's duty of care to provide safe system of work - avoiding exposure to unnecessary risk of injury - robbery of pizza delivery driver - order by mobile phone - new customer - caller rang again - call back by employer unanswered - whether employer should have called off delivery - evidence of recognised risk of robbery and circumstances of suspicion - including mobile phone orders from new customer when call back unanswered - finding of negligence open to judge. D

Reference under Part 72 of the Supreme Court Rules. Whether Referee adopted an appropriate method of determining reference. Report adopted.

PROCEDURE - miscellaneous procedural matters - Mareva orders - jurisdiction of court to make Mareva order in aid of a foreign Mareva order - PRIVATE INTERNATIONAL LAW - foreign judgments - effect and enforcement - Mareva order made in the Bahamas - appropriateness of an Australian Mareva order in aid of the Bahamas order - PROCEDURE - Mareva orders - whether desirable to have a value below which assets are not to be reduced expressed in a foreign currency - PROCEDURE - Mareva orders - whether proceedings seeking substantive relief need to be commenced in this Court before this Court can make a Mareva order

REAL PROPERTY [315] - Partition of land - Statutory trust for sale or partition - New South Wales - Contract between co owners for sale of land and division of proceeds - Contract not carried out - Whether trustees for sale should be appointed.