Cases and authorities

Compliance with s49 - consequences of non-compliance and availability of s67 - inconsequential error concerning basis for relief - futility.

PRACTICE & PROCEDURE - pre-trial directions for filing of evidence - plaintiff applies to file new expert's report on 93rd hearing day - discretionary considerations

Criminal Law - Sentence - s 21A(d) - whether error in taking into account the criminal record - whether sentence for injuries not attributable to the acts of the applicant

PROCEDURE - COSTS - Whether affected by Calderbank letters - Whether otherwise questions of costs should be re-opened.

Criminal Law - Summing up - failure to give direction on absence of motive in circumstantial case - Evidence - failure to give warning under s165 of Evidence Act on the basis that witness may be bias - Sentencing - gaol murder - sentence not excessive.

CONVEYANCING [76] - Relationship of vendor and purchaser - Breach of contract - Deposit - Recovery or forfeiture - Other cases - Recovery of deposit - Statutory power to order - Circumstances in which order refused - INTERPRETATION [26] - Admissibility of extrinsic evidence in relation to instruments - Matters particularly relating to contract - In general - Relevant principles - Surrounding circumstances in aid of interpretation.

BUILDING AND CONSTRUCTION - adjudication certificate under Building and Construction Industry Security of Payment Act 1999 issued - application for injunction to restrain appointing authority from issuing certificate relating to the determination, and to restrain recipient of the determination from filing any such certificate - balance of convenience - provision of bank guarantee - form of orders

BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Adjudicator's determination - Whether "delay damages" under contract are "for" construction work or related goods and services - Whether delay damages can be included in payment claims under the Act.

BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Adjudicator's determination - Whether "delay damages" under contract are "for" construction work or related goods and services - Whether delay damages can be included in payment claims under the Act.

CORPORATIONS - winding up - voluntary winding up - deregistration following filing of liquidator's final return - considerations relevant to exercise of court's discretion to defer deregistration - power to order deregistration "on a specified day" - whether day ascertained by reference to uncertain event is a "specified day"

[LEASE] - Whether option to renew validly exercised [CONTRACT] - Whether agreement reached for additional terms of lease - whether in writing [NEGLIGENCE] - Whether solicitors breached duty of care - Whether breach of contractual obligation

Termination of residential tenancy agreement - duty to provide conciliation - threshold requirements - findings to be made - circumstances of the case and special circumstances.

Succession. Family Provision. Claim by elderly de facto widower. Small estate, consisting of only a modest house property. Right of residence given to Plaintiff. Whether Plaintiff has been left without adequate provision for his proper maintenance. Competing claims of beneficiaries. Practical consequences if usual costs orders are made. House would need to be sold, and Plaintiff would be left without accommodation.

ASSOCIATIONS AND CLUBS - incorporated associations - winding up - grounds for winding up - standing to make application for winding up - distribution of surplus property - CORPORATIONS - incorporated association - winding up - grounds for winding up - standing to make application for winding up - distribution of surplus property

CONTRACTS - Construction - Rent review clause in a lease - Meaning of "value of the land" - Clause derived from s 6A of the Valuation of Land Act 1916 (NSW) and so "value of the land" has the same meaning as its equivalent in s 6A. D

LAND AND ENVIRONMENT - Land and Environment Court's power to remedy breach of Local Government Act - Land transferred to Council pursuant to condition of development consent - Land subsequently reconveyed by Council to private owner - Reconveyance in breach of provisions of Local Government Act - Private owner became registered proprietor of land - Whether Court could, pursuant to power to remedy breach of Act, order private owner to retransfer land to Council where private owner not itself in breach of Act - PROPERTY - Conveyancing - Indefeasibility of title - Whether private owner acquired indefeasible title upon registration despite fact that transfer made in breach of Local Government Act - Real Property Act 1900 s 42 - Local Government Act 1993 s 45(1)

PROCEDURE - Appeal - Judgment for plaintiff set aside - Later application for return of money paid as a condition of a stay of execution - Whether service of application on solicitor sufficient - Whether interest should be awarded - Whether condition as to payment of money appropriate.

REAL PROPERTY [315] - Partition of land - Statutory trust for sale or partition - New South Wales - Distribution of proceeds of sale - Compromise agreed to by seven of eight co owners - Orders made binding on eighth co owner as well.

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - whether caveat to be extended when registered proprietor alleges extension would be futile because caveators would get nothing from the sale

Plaintiff had pre-existing disabilities - hospitalisation following motor vehicle accident - treatment for blood loss - dosage of opiates given - hydration of the patient - plaintiff developed inhalation pneumonitis - multiple organ failure - admission to intensive care unit - need for plaintiff to have been closely monitored - breach of duty by the hospital - general damages - damages for past care and assistance - damages for future care.

CORPORATIONS [196]- Receivership- Group of 12 companies administered by two receiver/managers- Receivers in receipt of surplus- Court approached for directions as to how to deal with surplus- Companies operated on consolidated basis- Affairs intermingled- Difficulties arising in determining individual subsidiary's contribution to holding company's indebtedness when operated on consolidated basis.

Motor vehicle accident - plaintiff hit whilst crossing an intersection in her wheelchair - traffic signal was green for the driver as he approached the intersection - four wheel drive in the right turn lane which obscured defendant's vision of the plaintiff's wheelchair coming out in front of the four wheel drive - stationary vehicle in left hand lane when lights turned green - plaintiff traversed the crossing when the "don't walk" sign was red - whether the danger was foreseeable - was reasonable care exercised.

DE FACTO RELATIONSHIPS - Property (Relationships) Act - costs

PROCEDURE - RES JUDICATA - Proceedings for damages for fraud in obtaining judgment - Whether necessary to have judgment set aside.

Court of Appeal remitter to trial judge of nominate issues - Unsuccessful party before Court of Appeal seeks special leave from High Court - Whether Court at first instance should proceed with remitter - Question of amended pleadings

CORPORATIONS - winding up - whether bona fide dispute exists as to existence of debt - appropriateness of deciding legal question on which the alleged dispute depends - CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - payment claim under Building and Construction Industry Security of Payments Act 1999 - whether service of Payment Claim within 12 months after construction work was last carried out is a "basic and essential requirement" to validity of an adjudication determination

Rental equipment - did the parties enter into a contract - alleged failure to communicate acceptance and to satisfy condition precedent - leave considerations - no error.

TAXES AND DUTIES - Stamp duties - The former s 275 of the Duties Act 1997 granted an exemption from duty on dutiable transactions by a society or institution that performed certain charitable or benevolent functions - Whether a corporate trustee of a charitable trust is a society or institution

Mental Health (Criminal Procedure) Act 1990 - accused not fit to be tried - special hearing of criminal charge - notice of election for special hearing to proceed before judge alone - judge to be satisfied that accused, before making election, sought and received advice in relation to that election from barrister or solicitor (s 21A) - person making election must understand what is involved in such an election - obligation on judge is to be satisfied that the barrister or solicitor was satisfied that the accused properly understood the nature of the election he was making - material in psychiatric reports on mental illness defence giving rise to some concern as to whether accused was fit to make the election - judge made no inquiries of solicitor giving advice as to whether any psychiatric assessment had been obtained of the accused's competence to make election - Section 21A not satisfied - not mere procedural irregularity, but error of such fundamental importance that order pursuant to s 7(4) of Criminal Appeal Act 1912 inappropriate - purpose of s 7(4) - relevance of evidence relating to mental illness to specific intent

EQUITY - fiduciary duty of solicitor - execution of mortgage - conflict of interest - duty of disclosure - benefit from transaction - liability to account for unauthorised benefit - knowledge of circumstances giving rise to conflict. (D)

CONTRACT-Commercial contracts- Plaintiff seeking to purchase two restaurants- First purchase completed- Second purchase not completed- Seven aspects of deal unclear- In circumstances contract in fourth class of Masters v Cameron- How court deals with problems of incomplete contract.

CORPORATIONS - winding up - appeal against rejection of proof of debt - TRADE AND COMMERCE - misleading or deceptive conduct - pre-contract representations by one party as to that party's future conduct - contract as made contains promises based on the representations - whether representations actionable under Trade Practices Act ss.51A and 52 - TRUSTS AND TRUSTEES - money paid under commercial contract not to be applied by recipient except in particular ways - part applied in unauthorised way - whether breach of resulting trust in favour of payer - equitable compensation for breach of trust

Sentence - manslaughter - substantial impairment - drug induced psychosis - victim impact statements - that victim was drug dealer irrelevant - significance of youghfulness of offender

EQUITABLE ASSIGNMENTS - Future property - Plaintiff solicitors assisted defendant client with court proceedings - Claim that solicitors' costs were secured by a charge over prospective proceeds of sale of house - Whether there was an agreement to charge - Whether agreement to keep fund separate - Agreement to charge not made out on the evidence - LEGAL PRACTITIONERS - Particular lien - Claim by solicitors over defendant's share of proceeds of sale of house - Whether proceeds were the fruits of the action - Whether lien attached to so much of the proceeds as reflected the successful resistance to the opposite party's claim - Common law lien distinguished from charge under statute - Held that no lien arose.

INJUNCTIONS - quia timet injunction to restrain television broadcast by reason on potential interference with pending criminal trial - availability of injunction to restrain contempt of court - whether serious question to be tried demonstrated - PROCEDURE - contempt, attachment and sequestration, availability of injunction in Supreme Court to restrain apprehended interference with course of justice in pending trial in the District Court - whether serious question to be tried made out

Inferior Courts - Local Court - civil claim - appeal - jurisdiction - whether jurisdiction to order claim to determination by arbitrator - whether registrar's order a procedural irregularity - whether arbitrator without jurisdiction - whether judgment should be set aside

Murder - reckless indifference to human life - plea of guilty - significance of standard non parole period - reference point or guidepost.

EVIDENCE - expert opinion evidence by forensic accountant - admissibility on "paragraph-by-paragraph" basis - discretionary considerations

TRUST - ORAL AGREEMENT - Whether Defendant acquired title to property pursuant to oral agreement with Plaintiff that the Plaintiff would provide the purchase price and the Defendant would enter the contract on behalf of the Plaintiff - question of fact.

COSTS - COMPROMISED PROCEEDINGS - The Defendants found a means of resolving the parties' problems after litigation had commenced - proceedings dismissed by consent - who should pay the costs.

CORPORATIONS - winding up - leave to proceed against company in liquidation - apparently arguable case - relief of a proprietary nature sought - no opposition by liquidator - leave granted

LIMITATION OF ACTIONS - disability - mental illness - automatic extension of limitation period - plaintiff entitled to three year extension from date of last period of disability - D

CORPORATIONS - winding up - appointment of provisional liquidator - factors relevant to appointment - undertaking as to damages - powers appropriate to confer

TAXES AND DUTIES - Stamp duties - Whether an acquisition of shares in a land rich private company is made on execution of the contract for sale of shares or when the purchaser is entered on the company's register of members - Whether the Duties Amendment (Land Rich) Act 2003, which took effect on the date the Duties Amendment (Land Rich) Bill 2003 was introduced to the Legislative Assembly, should be construed as not applying to acquisitions of interests in land rich landholdings under contracts for sale of shares entered into before that date - Whether the Supreme Court may on a review under the Taxation Administration Act 1996, s 97(1) make a decision in place of that of the Chief Commissioner or whether its powers are limited to the principles for review of a discretion discussed in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 and House v The King (1936) 55 CLR 499 - Whether the Chief Commissioner should have determined under the Duties Act 1997, s 119(2) that the application of land rich duty to the acquisition of shares in companies rendered land rich by the Duties Amendment (Land Rich) Act 2003 under a contract for sale of shares executed before its commencement was not just or reasonable and the acquisition was exempt

PRACTICE AND PROCEDURE - discretion to set aside or vary orders made in absence of party - where provisional liquidator appointed - where orders made one week later to wind up and appointing provisional liquidator as liquidator - whether notice of application for winding up order given - whether defendant's failure to appear deliberate - whether circumstances had changed between appointment provisional liquidator and application for winding up order - whether company insolvent so that setting aside winding up order futile - whether winding up order ought to be set aside - nature of discretion to vary or set aside winding up order - whether discretion ought to be exercised.

Mental Health - Imposition of limiting term on juvenile offender with severe mental impairment - approach to sentencing a person who was a young child at the time of the offence - whether general deterrence warranted - long delay since offence - term imposed is manifestly excessive.

CRIMINAL LAW AND PROCEDURE - LISTING BY APPLICANT IN PERSON OF MISCONCEIVED APPLICATION TO REVIEW BAIL - ORE TENUS APPLICATION ON HIS BEHALF BY COUNSEL FOR BAIL TO BE GRANTED - BAIL PENDING APPEAL - SPECIAL OR EXCEPTIONAL CIRCUMSTANCES NOT SHOWN - REFUSED ON MERITS - COMMENT ON UNDESIRABILITY OF ORIGINAL BAIL APPLICATIONS BEING MADE TO COURT OF CRIMINAL APPEAL

NEGLIGENCE - employment (building site) - bricklayer in partly constructed residential building - worker exited from building by walking through opening for sliding door - worker claimed to have tripped on unstable metal cover placed over door runner (for glass door, not yet in place) - claim against employer (bricklayer subcontractor) and also against head contractor as occupier - DCJ did not accept worker's evidence of manner in which he tripped i.e. causation in instability in metal cover - unsuccessful challenge to findings - consideration of Betts v. Whittingslowe reasoning - decision on facts.