Cases and authorities

PRACTICE AND PROCEDURE - subpoena - application to set aside - whether abuse of process - legitimate forensic purpose

Summary Dismissal of Proceedings - Absence of Standing

CORPORATIONS - winding up - liquidator who is party to proceedings ordered to pay costs - application for liquidator to be denied indemnity from the company's assets for his own costs and the costs he has been ordered to pay - notice to produce documents relating to costs incurred - whether appropriate to set aside notice to produce - whether appropriate to order limit on use made of documents produced

appeal against severity of sentence - importing not less than the traffickable quantity of cocaine - plea of guilty - subjective circumstances - co-offenders - parity - former s16G (Crimes Act 1914)

CONTRACT - RESCISSION - Whether vendor had done everything reasonable to procure registration of plan of subdivision within stipulated time.

TAXES AND DUTIES - Goods and Services Tax - Gambling supplies - Calculation of net profits from gambling - Total amounts wagered less total monetary prizes - Whether unpaid refunds excluded from total amounts wagered - Acceptance of a bet on outcome of gambling event is a gambling supply - Race, game or other event for which there is an outcome is a gambling event - Whether terminated totalizators, scratchings, abandonment, postponement, no-races, walkovers, or no backings mean no outcome or no relationship to an outcome - Whether a New Tax System (Goods and Services Tax) Act 1999 (Cth), Div 126 is an exclusive code for gambling supplies - Whether adjustments are limited to GST on non-gambling supplies - Whether payment of a refund in a subsequent tax period can constitute an adjustment - Whether dividends declared but unpaid are excluded from total monetary prizes - TAB Rules prevent payment of dividend or refund on cash bets without presentation of a betting ticket - Whether TAB is liable to pay a dividend on declaration or on presentation of a betting ticket - Refunds and dividends unpaid after 12 months become the property of TAB under the Totalizator Act 1997, s 75 - Does windfall arise without GST consequence

Right to a jury trial in a civil action - s.85 Supreme Court Act - "interests of justice require" - seeking an order for a trial by jury - departure from normal method of trial - issues of an ethical, moral or social nature - general community contemporary values - allegation of criminal conduct by third parties - allegation of breach of duty

CONTRACTS - Construction of clause in partnership agreement - Whether a notice of intention to retire effective at a future specified date is revocable - Whether further act needed to consummate retirement - Whether notice to retire amounts to waiver of right to dissolve a partnership at will under s 26 of the Partnership Act - Whether partner retired "during the continuation of the partnership" where there are only two partners - Meaning of "share of business" - Held that valuing "share of business" subsumes the taking of a general account - Held that notice to retire is irrevocable notwithstanding the future date at which retirement takes effect.

SENTENCE - PLEAS OF GUILTY TO MANSLAUGHTER ACCEPTED IN SATISFACTION OF INDICTMENT FOR MURDER - OFFENDERS AGED 20 AND 15 - DISADVANTAGED ABORIGINAL BACKGROUND

COSTS - Appeal partially successful - Order that each party pay their own costs - Whether respondent entitled to indemnity certificate under Suitor's Fund Act 1951 s 6

PRIVACY LAW - Privacy and Personal Information Act 1998 (NSW) - Scope of Information Protection Principles - Whether information held in the mind of an employee of a public sector agency is 'personal information' to which the Act applies - STATUTORY INTERPRETATION - Interpretation of definitions in statute - Relevance of other definitions of same words in unrelated Acts - WORDS & PHRASES: 'personal information', 'held', 'collected', 'possession or control'

Appeal - decision said to be unjust and unfair - claim of bias - harassment and intimidation by judicial officers - need for legislative changes.

Plaintiff not a party to Board of reference and reveiw proceedings - negligence of union in conduct of those proceedings - the possibility of damage - failure to address submissions - numerous errors - powers of the Court in determining an appeal.

TRUSTS AND TRUSTEES - Plaintiff son and wife and defendant mother and stepfather - Plaintiffs claim that property owned by defendants is held on trust - Property purchased by defendants leased to plaintiffs - Allegation by plaintiffs that monthly payments to defendants were on account of mortgage not rent - Whether evidence supports the existence of an express trust - Whether there was a constructive trust based on the common intention of the parties - Whether there was detrimental reliance by the plaintiffs on such a common intention - Whether plaintiffs' expenditure on the property gave rise to an equitable charge - Held that the claims are not made out by the evidence.

parens patriae jurisdiction of court - intellectually disabled adult proposed as donor of blood stem cells to his brother - whether any person legally capable of authorising the medical procedures - whether in best interests of donor to authorise transplant procedures for benefit of his brother

DAMAGES - cost of fund management - whether rates fixed by regulation in respect of the Protective Commissioner should be allowed - whether the amount allowed should itself be added to the capital sum so as to generate a further allowance for fund management on the increment so ascertained

CONTRACT - whether defendant failed correctly to calculate shortfall under Bailment Plan Agreements on 12 August and 2 September 1998 - whether any failure amounted to breach of agreements - whether defendant breached agreements by failing properly to calculate discounted wholesale value of stock on 2 September 1998 - whether defendant entitled to terminate agreements - whether defendant breached agreements by demanding about $650,000 - whether there was implied duty of good faith in agreements - what was the content of alleged duty of good faith - whether alleged duty of good faith breached - whether plaintiffs entitled to damages - TRADE PRACTICES - whether defendant breached s 51AC Trade Practices Act - whether defendant engaged in misleading or deceptive conduct - whether plaintiffs entitled to damages - TORT - whether defendant owed duty of care - what was the content of alleged duty - whether defendant breached alleged duty - whether Ford Credit made negligent misstatements on and after 2 September 1998 - whether plaintiffs entitled to damages

EVIDENCE [44] - Admissibility and relevancy - Similar facts - To prove fact in issue - Particular cases - Evidence admissible - To resolve conflict as to contractual conversations - Evidence of statements in another negotiation - Whether evidence of tendency within s 97 of the Evidence Act 1995 (Cth) - "Significant probative value".

CORPORATIONS - winding up - creditors' voluntary winding up - fixing remuneration of liquidators - where committee of inspection does not pass resolution fixing remuneration - whether court may order that remuneration be fixed by creditors or, in default, by court - powers of court under Corporations Act 2001 (Cth), s.511

Negligence - Assessment of damages.

Criminal Law - Sentencing - juvenile offender charged with serious sexual assault offence - whether sentencing discretion miscarried by failure to refer to s 6 of Children (Criminal Proceedings) Act - whether sentence manifestly excessive having regard to the age of the offender.

Criminal Law - Sentencing - Crimes (Sentencing Procedure) Act 1999 s21A - Special circumstances - Sentence manifestly excessive.

CRIMINAL LAW - sentence - importing prohibited imports - cocaine - whether the sentencing judge erred by failing to give sufficient weight to the applicant's mental state at the time of the offence - whether the sentencing judge erred in failing to give adequate weight to the evidence relevant to the applicant's character - whether the sentencing judge erred in determining that an appropriate range for the importation was a head sentence of six to nine years - whether the sentencing judge erred in adjusting the head sentence as a result of the repeal of s16G of the Crimes Act (Cth) - whether in all the circumstances the sentence was manifestly excessive

Criminal Law - Sentencing - issue of parity between co-offenders where different criminality and a finding of special circumstances in the case of the co-offender.

Criminal law - Sentencing - Crimes (Sentencing Procedure) Act 1999 s21A - Special circumstances - Sentence manifestly excessive.

CRIMINAL LAW - sentence - whether the sentencing judge erred by failing demonstrably to take into account the applicant's presentence custody

Criminal Law - appeal against conviction - aggravated break and enter and commit serious indictable offence - plea of not guilty - whether trial judge erred in admitting surveillance log book into evidence - whether trial judge erred by admitting voice identification evidence - admission of expert evidence.

Applications for licences to sink bores - statutory procedure for dealing with applications - opinion whether or not to advertise - whether opinion not to advertise could be changed - whether opinion not to advertise meant obliged to issue licences - construction of Water Act 1912 - forming opinion not the exercise of a power which, once exercised, was spent - could later form opinion to advertise - not obliged to issue licences. D

[TRADE PRACTICES] - Whether representations were made by the defendant - whether the person who made the representation had ostensible authority to make it - whether reliance placed on the representation - whether representation made in "trade or commerce" - whether continuing representations made - [CONTRACT] - Applicability of contractual principles to Development Application process of a Council or Consent Authority under the Environmental Planning and Assessment Act 1979 (NSW) - whether contract entered into between plaintiffs and defendant - [TRUSTS] - Nature of trust under s 94(3) of the Environmental Planning and Assessment Act 1979 - Whether resulting trust - Jurisdiction to deal with claim for return of money paid pursuant to s 94(3) of the Environmental Planning and Assessment Act 1979

MENTAL HEALTH [3]- Missing person- Appointment of Protective Manager- How case established- Parents appointed managers of missing person's estate- Security not needed where managers share close relationship with protected person and estate is small- Operation of Protected Estates Act 1983, s 21C.

CORPORATIONS - winding up - jurisdiction to order winding up of "Part 5.7 body" - unregistered foreign company - whether Part 5.7 body status dependent on business currently being carried on in Australia - whether winding up order may be made after business in Australia discontinued - what amounts to carrying on business in Australia

BUILDING AND CONSTRUCTION - PRACTICE - Stay of order - Judgment pursuant to s.25 of Building & Construction Industry Security of Payment Act - Separate proceedings for declaration that adjudication determination was void - Enforcement of judgment stayed on amount being paid into Court - Declaration made and order made for payment out of money - Appeal - Whether order for payment out should be stayed pending setting aside of judgment and/or determination of appeal.

Estoppel - Arbitral awards - Proper construction of ambit of arbitral provision - Issue estoppel - Anshun estoppel - Seeking to litigate anew a case already disposed of in an arbitration may amount to abuse of process if approach taken would be unjustifiably vexatious and oppressive - Practice and procedure - Application to strike out sections of defence

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Plaintiffs placed funds with defendant for investment in a fund dealing in futures - Defendant said funds were repayable at any time - Whether a personal gaurantee - Whether representations misleading or deceptive under Fair Trading Act 1987 - Whether plaintiffs entitled to refund of investments - No principles involved

PRACTICE AND PROCEDURE - FINALITY - Whether a party should be entitled to re-agitate an issue determined at a final hearing because its lawyers have thought of a point which could have been raised.

Strike out proceedings as against second defendant - ss 44 & 45 Safety Rehabilitation & Compensation Act 1988 (Cth) - cross claim

PROCEDURE [748] - Miscellaneous procedural matters - Declarations - Appropriate form of relief - Discretion of court - Other cases - Suit for damages for breach of contract for sale of land - Possible capital gains tax liability on judgment - Liability undetermined at date of hearing - Declaration sought that defendant indemnify plaintiff for any capital gains tax payable - No real possibility of capital gains tax liability demonstrated.

CRIMINAL LAW - sentence - Crown appeal - offence of robbery whilst armed with an offensive weapon - whether total sentence and non-parole period were manifestly inadequate - mental illness of chronic schizophrenia

Criminal Law - Sentencing - Aggravating factors Crimes (Sentencing Procedure) Act 1999 s 21A - Utilitarian value of plea.

FAMILY PROVISION – adult daughter – large estate – father died intestate aged 85 – share of estate passed to daughter aged 57 – daughter supported and housed by family rural enterprise principally owned by husband and conducted by family members including son and son-in-law – no pressing need for maintenance - $41,079 under intestacy to daughter, notional estate $5,345,661 on survivorship to widow (W2) who died after 16 months, thence under widow’s will to father’s niece – White J awarded $850,000 referable to advancement – niece appealed and contended for $150,000 – examination of reasoning leading to award and assessing amount – no error, appeal dismissed.

Motor cycle accident - uninsured motor cycle - pillion passenger injured - sues Nominal Defendant - rider and pillion passenger both heavily intoxicated - contributory negligence - statutory additions to common law - objective standard for contributory negligence - reduction according to what is just and equitable - role of pillion passenger's intoxication in what is just and equitable - depending on the circumstances, may ameliorate culpability.

PROCEDURE [516] - Judgments and orders - Enforcement of judgments and orders - Execution against property - Warrants of seizure and sale or writ of fieri facias - Practice - Other cases - New South Wales - Stay of execution - Judgment registered under Foreign Judgments Act 1991 (Cth) - Whether stay of judgment should be extended.

Dividing fences - appeal from Local Land Board - construction of s26 - need for legislative change so that small claims can be dealt with in more appropriate forum.

Tort- Negligence - Prisoner assaulted by another prisoner - Reasonable forseeability - Whether degree of observation, supervision and searching were inadequate - Shirt calculus - Way case conducted - Sufficiency of reasons.