Cases and authorities

MORTGAGES - sale under power - remedies of mortgagor - mortgagor sued Bank in District Court to settle mortgage accounts and charge Bank with liabilities for alleged sale at undervalue and conversion of goods left on premises - District Court settled accounts charging Bank with liabilities as claimed - on appeal, held that in substance District Court had applied negligence test not good faith test - Bank had not converted goods left on premises by mortgagor and still there on completion of Bank's sale - on complex facts, consideration of Bank's supposed obligation to carry out mortgagor's subdivision project before sale, interaction of interests of mortgagor with Bank's pursuit of its own interest as mortgagee - large charges against Bank set aside and Court of Appeal to settle mortgage accounts without them.

PRACTICE AND PROCEDURE - where solicitor for the respondent agreed that his firm would accept service on behalf of a non-party of plaintiff's subpoena - where subpoena and conduct money given to another partner in firm - where solicitor maintained that subpoena not properly served - where notice of motion brought seeking production of documents - where agreement reached for production of documents - whether solicitor for respondent ought pay applicant's costs - whether costs incurred improperly, without reasonable cause or wasted by undue delay or misconduct - no question of principle

Application by prohibited person to Tribunal - threshold requirements and discretionary power - appeal from Tribunal - question of law - onus - denial of natural justice.

VEXATIOUS LITIGANT - Administration of deceased estate frustrated - Principle in Cherry v Boultbee.

EVIDENCE - burden of proof, presumptions and weight and sufficiency of evidence - principles for deciding which party to litigation has the onus of proving that a contract has been validly terminated - onus of proof when a declaration is sought in relation to a negative fact - DECLARATIONS - onus of proof when a declaration is sought as to a negative fact - CONTRACTS - construction and interpretation of contract - principles in deciding whether parties have agreed to dispense with common law rights to terminate for repudiation - ESTOPPEL - general principles - estoppel in the face of a statute - as at what date does one look to see what statutory provisions are in existence for the purpose of deciding whether there has been an estoppel in the face of a statute - ESTOPPEL - general principles - types of statutory provision concerning which there cannot be an estoppel in the face of the statute - ABORIGINALS - Aboriginal land councils - powers and functions - application of doctrine of ultra vires to such corporations - whether such corporations have power to dispense with requirements imposed by Aboriginal Land Rights Act 1983 for keeping accounts and having them audited - whether action of office bearers of such a corporation can give rise to an estoppel whereby it cannot be asserted that the corporation has dispensed with a contractual provision requiring the keeping of accounts, in substantially similar terms to the statutory requirement to keep accounts - ABORIGINALS - Aboriginal land councils - scope of authority of chairman - scope of authority of treasurer - CORPORATIONS - statutory corporations - powers - extent of - Aboriginal land councils - whether such corporations have power to dispense with requirements for keeping accounts and having them audited imposed by Aboriginal Land Rights Act 1983 - CONTRACTS - discharge - repudiation - types of conduct which can be repudiation - LEGAL REASONING - role of ostensive definition

REAL PROPERTY - vendor and purchaser - requisitions on title - vendor makes inadequate reponse - notice to complete sent minutes after amended response - whether vendor in breach and whether purchaser in default

SUCCESSION- probate - informal wills - testamentary intention - alterations made to existing draft before deceased entered hospital - document signed but not witnessed - deceased instructed daughter to retain the original document - referred to it as his will. - LEGISLATION - Wills Probate and Administration Act 1898 - s 18A.

Reference to a case falling within the worst category of cases is relevant only where the maximum sentence is being considered - reference to a sentence at the very upper end of sentences imposed for offences of the relevant type is not a reference to the maximum sentence - sentence representing 80% of the maximum sentence is neither the maximum sentence nor a sentence appropriate for the worst category of case.

NEGLIGENCE - duty of care - nature and content of duty of care owed to psychiatric patient - Mental Health Act 1900 - ex turpi causa non actio - public policy - causation

Application to have orders set aside - Pt 40 r9(a) - offer of compromise

PROCEDURE - Double jeopardy - Autrefois acquit - Res judicata - Opponent charged with offences under Customs Act 1901 - Charges withdrawn before opponent called upon to plead - Charges recorded by Magistrate as "Withdrawn, dismissed" - No judicial determination of charges on merits - Proceedings subsequently instituted by way of statement of claim alleging same offences subject of original charges - Whether doctrine of autrefois acquit precluded subsequent proceedings - Justices Act 1902 s 80

Criminal law - plea of guilty - recklessly making to another person a threat to cause serious harm to a third person, being a Commonwealth public official, by reason of the status of that third person - sentencing principles - issues of personal and general deterrence.

Agent and disclosed principal - failure to enter judgment or dismiss cross-claim - failure to make necessary findings of fact - failure to give reasons - erroneous rejection of evidence - no error of law justifying a disturbing of the decision.

PROPERTY - hotelier's licence - where plaintiff licensee under hotelier's licence - where hotelier's licence can only be exercised while licensee entitled to possession of hotel - where plaintiff's lease about to expire - poker machine entitlements - where poker machine entitlements allocated in respect of hotelier's licence - where plaintiff claims interest in those entitlements - where any interest will be lost if plaintiff goes out of possession - whether plaintiff entitled to remain in possession under holding over provision - whether defendant's consent required to hold over - whether consent wrongly withheld - no question of principle

PROCEDURE [572], [574] - Costs - General rule: costs follow the event - What is the event when plaintiff obtains judgment for nominal damages only - Order for indemnity costs - Factors relevant to exercise of Court's discretion.

CRIMINAL LAW - sentence - aggravated indecent assault - using a child under fourteen years for pornographic purposes - principal in second degree to another doing something intending to hinder the investigation of a serious indictable offence - whether the sentencing judge took into account as an aggravating feature of the offence the complainant's vulnerability having regard to the complainant's age, when age was an element of the offence - whether insufficient weight given to pleas of guilty - whether mistake of fact in relation to criminal antecedents - whether findings of fact unsupported by any evidence - whether sentence was manifestly excessive

Criminal Law - Sentencing - Application of s 21A of Crimes (Sentencing Procedure) Act - vulnerability of victim - multiple victims and series of criminal acts - erroneously taking into account aggravating factors.

ENVIRONMENTAL LAW - PLANNING - validity of State environmental planning policy (SEPP) - gazetted SEPP different from earlier publicised draft SEPP - interpretation of ss37 and 39 Environmental Planning and Assessment Act 1979 - whether gazetted SEPP was invalid since not a new SEPP which the Minister caused to be prepared by the Director-General pursuant to s37(2) - onus of proof of compliance with s37 - whether gazetted SEPP invalid because different to earlier draft SEPP, and so not made in accordance with "that draft State environmental planning policy submitted to the Minister" under s39(1)(a) - whether differences between gazetted SEPP and earlier draft SEPP so substantial that it was not made in accordance with "that draft State environmental planning policy with such alterations as the Minister thinks fit" under s39(1)(b) - whether gazetted SEPP invalid because not exhibited for public submission, when earlier draft SEPP so exhibited - whether discretion pursuant to s39(2) not to publicise a draft SEPP constrained by course of conduct - whether plenary power to cause a draft SEPP to be prepared.

PROFESSIONAL CONDUCT - whether conduct of solicitors should be referred the Legal Services Commissioner

CHURCHES AND RELIGIOUS ASSOCIATIONS - constitution, management and powers - procedures in Roman Catholic Church Archdiocese of Sydney for entering a commercial lease - scope of authority of parish priest concerning entering of commercial lease - CHURCHES AND RELIGIOUS ASSOCIATIONS - church property and trusts - role of the statutory corporation which holds church real estate - CONTRACTS - PARTICULAR PARTIES - principal and agent - whether solicitor engaged by Roman Catholic priest to draw up a commercial lease has actual or ostensible authority to act for the corporation which holds church real property - LANDLORD AND TENNANT - termination of the tenancy - factors relevant to time allowed before execution of order for possession

Statutory trust for sale - Discretion of court - Principles - Joint Venture - Agreement making provision for dispute resolution such that in the event of any dispute arising out of or relating to Agreement a party may not commence court proceedings relating to dispute unless complying with the clause - Clause requires party claiming that dispute has arisen to give written notice to other parties specifying the nature of the dispute - Agreement making provision for termination of relationship by plaintiff requiring it to first offer to sell development to defendant by giving written offer notice entitling defendant to accept offer within 21 days - Plaintiff purports to give written offer notice but 4 days later purports to terminate Agreement - Plaintiff commences proceedings for the appointment of trustees for the sale of the property under Conveyancing Act 1919 s. 66G without giving notice of dispute - Contract - Proper construction - Joint Venture Agreement providing that each party to be just and faithful to other parties in all transactions relating to the objectives of the Development - Whether proper construction of later machinery provision dealing with the termination of the relevant relationship by Offer to Sell Notice provisions required that stipulated offer price be a fair market price or a genuine offer made in good faith

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - Construction and effect of testmentry dispositions - Gift over to children of the testator, the issue of any deceased child standing in loco parentis - Whether issue confined to grandchildren of the testator - whether division per capita or per stirpes

Appeal - decision as to a matter of law - misconceived proceedings involving extremely modest claim - absurdity of proceedings before this Court - disclosure of reasoning process.

EVIDENCE [24] - Admissibility and relevancy - Facts relevant to facts in issue - In general - Facts potentially relevant to discretionary considerations for consideration on interlocutory injunction application.

EQUITY [172] - Trusts and trustees - Powers, duties, rights and liabilities of trustees - Indemnity, lien and reimbursement- In respect of legal costs and commission - Trustee defending proceedings for removal proposes to resort to trust assets for costs - Application to extend and revise restraint of use of trust funds.

PRACTICE AND PROCEDURE - District Court proceedings for breach of contract - application to cross-vest proceedings to Supreme Court of Queensland - cross-vesting application refused - application under s.145(1) District Court Act 1973 to remove proceedings to Supreme Court - Cross Claim against foreign company - whether District Court has jurisdiction where proceedings against foreign company - whether voluntary submission to jurisdiction of District Court is open.

CORPORATIONS - receivers managers and controllers - receiver appointed under security out of court - receiver claims equitable lien for remuneration costs and expenses - whether principles applicable to court appointed receivers and other officials apply to receivers appointed out of court - MORTGAGES - priority of estates debts and encumbrances - whether equitable lien of receiver may attain priority over registered first mortgage of land - whether first mortgagee's interest postponed by agreement - EQUITY - unjust enrichment - whether incontrovertible benefit to land through receiver's expenditure may make unconscionable unqualified resort by legal mortgagee to power of sale

Criminal Law - Appeal against conviction after plea of guilty - appellant's legal representative misunderstood the elements of the offence charged - appellant pleaded guilty on advice that his version of events amounted to an admission of guilt - erroneous legal advice - plea of guilty not an admission of the elements of the offence - plea of guilty set aside and conviction quashed

CRIMINAL LAW AND PROCEDURE - SENTENCE - IMPORTATION OF PROHIBITED DRUG (MDMA) - IN EXCESS OF FOUR TIMES MINIMUM COMMERCIAL QUANTITY - YOUNG FEMALE COURIER - NO PRIOR CONVICTIONS - FOREIGN NATIONAL - OFFENDER ADDICTED TO DRUGS - MANIFEST INADEQUACY OF FIRST INSTANCE SENTENCE

Criminal Law - Sentencing - Crown appeal - sentence manifestly inadequate by reason of order for periodic detention - order quashed.

EMPLOYMENT LAW - Employment and conditions of service - Contract of employment - Implied terms - Terms concerning relationship of trust - Whether applies to disciplinary proceedings - Whether employer might have a duty of care relevant to such proceedings.

Prerequisites for the making of an order - deeming provision - error in the application of that provision - residency and party illegally within the State.

Criminal law - manslaughter - shooting - excessive self-defence - provocation - accumulation of provocative conduct - specific intent - issues of deterrence.

Criminal Practice & Procedure - Jury verdict - not guilty murder - guilty manslaughter - provocation not eliminated - strangulation - victim bound - gratuitous cruelty - sentence towards top range.

CRIMINAL LAW: Application for leave to appeal against sentence - Multiple charges of armed robbery - Whether adequate allowance for pleas of guilty, special circumstances - whether sentences, in the aggregate, manifestly excessive

TORT - Negligence - Appeal dismissed - Reasons in short form.

Criminal Law - Sentencing - redetermination - life sentences - non-release recommendation - effect of - amendments to legislation - whether application duly made - whether such application affected by subsequent amendments

Appeal against Law Society's disallowance of claims on Fidelity Fund - whether claims include an interest component - whether interest under Supreme Court Act may be allowed.

Power to amend plans and approve an alternative site: s 40(3) of Liquor Act 1982. - Nature of statutory appeal - the ambit of "question of Law"

Guilty of Manslaughter

Practice and procedure - costs - indemnity costs - special circumstances - where extension for caveat sought but could not be supported on either existing or amended claim - whether notice of motion subsequently withdrawn - whether indemnity costs ought

Agreement to obtain permanent resident visas - security bond - implied refund term - breach of implied term - misleading conduct - s.52 of the Trade Practices Act - restitution - total failure of consideration