Cases and authorities

LOCAL GOVERNMENT AND ENVIRONMENT - Development consent - Consent granted pursuant to delegation - Whether delegation was current - Whether conditions of exercise of delegation satisfied, namely, that development application "largely complied" with Council's codes and policies, and that development application not subject to "significant public objection" - ADMINISTRATIVE LAW - Failure to take into consideration relevant factor - Whether proposed development's impact on views taken into consideration by Council - ADMINISTRATIVE LAW - Whether opinion properly formed - Whether erroneous conclusion that proposed building was two storeys vitiated delegate's opinion that proposed development was compatible with zone objective that height of buildings "generally" not exceed two storeys - ADMINISTRATIVE LAW - Wednesbury unreasonableness - Initial development application rejected by Council - Altered development application approved - Whether decision to approve altered application manifestly unreasonable

Cross vesting

CORPORATIONS - winding up - application of assets - priority created by s.562A of Corporations Act 2001 (Cth) - interaction with prohibition imposed by s.116(3) of Insurance Act 1973 (Cth) - CORPORATIONS - arrangements and reconstructions - arrangement with creditors - whether scheme of arrangement may alter application of assets in existing winding up - whether particular scheme consistent with s.116(3) of Insurance Act 1973 (Cth) - whether scheme may achieve end which s.562A(7) of Corporations Act 2001 (Cth) does not allow to be achieved by agreement

CONTRACT - RECTIFICATION - Plaintiffs allege contract debt - clear error in drafting of agreements - rectification ordered - no question of principle.

ADMINISTRATIVE LAW - professional misconduct - Legal Profession Act 1987 s 127 - Legal Profession Regulation 2002 cl 94

CRIMINAL APPEAL - sentence - Crimes Act, s66A - offender aged 13/14 at time of offence - deterrence - rehabilitation (ND)

Sentencing - challenge to trial judge's finding as to basis upon which jury returned a verdict of manslaughter - aggravating factors which are also an element of the offence

CRIMINAL LAW - sentence - offence of breaking, entering and stealing - delay in prosecution

FAMILY LAW - adoption - non-citizen child - change of name - whether "special reasons" justifying change of name

Solicitor - offences of dishonesty in 1997 - not disclosed when applied for admission - further offences of dishonesty thereafter - offences described - findings of professional misconduct and that not of good fame and character and not a fit and proper person to remain on Roll - declarations and removal from Roll.

COSTS - court's discretion as to costs - mortgage agreement - entitlement to indemnity costs - whether provision in mortgage subject to court's discretion as to costs - whether provision in mortgage extends to costs of defending cross-claim

Costs assessment - appellant in person - no regard had to what may have been a costs agreement - respondent under misapprehension as to what was being assessed and did not make submissions on totality of bill - decision as to a matter of law arising in the costs assessment.

Appointment of trustees for sale - Possessory title

Practice and Procedure - Interlocutory relief - Principles

CONTRACT - offer and acceptance - whether contract entered to settle litigation - PROCEDURE - appropriateness of making declaration in terms parties have agreed to, to settle litigation, even if the declaration is not accurate

CORPORATIONS - voluntary administration - creditors' meeting to resolve that the company execute a deed of company arrangement - 14 companies in corporate group - concurrent meetings - whether creditors entitled to vote with respect to each company by virtue of deed of cross-guarantee - single resolution passed - whether effective in respect of each of the 14 group companies - effect of chairman's abstention from voting of proxies

Practice and Procedure - Service outside Australia of statement of claim for indemnity for workers compensation - application for leave to proceed - whether cause of action arising in the State - application to set aside statement of claim - whether insufficient prospect of success or abuse of process.

FAMILY LAW [105]- De facto relations- Whether building work done by man's father on woman's house to be considered as man's contribution to property.

PRACTICE and PROCEDURE - Court of Appeal - stay of proceedings pending application for prohibition - principles on which stay granted under inherent power and SC Act 1970 s.23 - refuse to stay proceedings in IRC on dispute notification pending hearing of application for prohibition based on lack of State jurisdiction and inconsistency between AWA under SR Act (Cth) and provisions of IR Act (NSW) - INDUSTRIAL LAW - employment under AWA under WR Act (Cth) - whether Constitution s.109 inconsistency excludes dispute resolution provisions of IR Act (NSW) - interlocutory stay of proceedings in IRC refused.

STAY OF PROCEEDINGS- APPEAL AND NEW TRIAL – stay of proceedings in Administrative Decisions Tribunal pending application for leave to appeal against interlocutory orders – principles – test of necessity – where ADT decided that there had been professional misconduct, solicitor sought leave to appeal and ADT proceeded towards hearing penalty phase, stay of proceedings was refused.

PROCEDURE - Stay of execution - Judgment for possession in favour of mortgagee - Proceedings by mortgagor against third party, from which mortgagor hopes to pay out mortgage.

Payment of judgment sum - s 25(4) BCISP Act - whether on appeal money is to be paid into court

[CORPORATIONS] - Applications for strike-out of those parts of the pleadings in which the plaintiff sought declarations of contravention under s 1317E of the Corporations Act - Lack of standing in plaintiff to make application under s 1317J - - [STATUTORY INTERPRETATION] - [CIVIL PENALTIES] - Whether the proceedings seeking a compensation order under s 1317H (and s 1317HA), and their predecessors, are proceedings for imposition of a penalty - Whether the defendants should be required to file evidence prior to trial - Proposed amendments to the Act to ensure fairness of trials - - [NOTES] - Status of "Note" in the statute - Whether in the category of marginal note, endnote or footnote - New category of Statutory Note.

Negligence - landlords' liability for burns to child - petrol spilt in laundry - exploded by contact with heater flame - pilot light cover defective and unattached - explosion inevitable - whether would have been delayed if cover attached allowing rescue - effect of non-attachment on time of ignition not foreseeable - nature of risk - nature of danger - whether danger foreseeable - landlords not liable

CRIMINAL LAW - remarks on sentence - murder - assault with a dangerous weapon - fire a firearm with disregard for safety - robbery whilst armed with a dangerous weapon

Appeal decision of Local Court Magistrate - s 588FG(2) Bankruptcy Act 1966 (Cth)

CRIMINAL LAW - Crown appeal against sentence - plea of guilty - one count escape lawful custody - whether sentencing Judge took into account that the respondent was subject to a deportation order - whether sentence manifestly inadequate - whether objective seriousness of offence, general deterrence and principle of totality taken into account.

FAMILY PROVISION - jurisdiction of District Court extends to notional estate. - DISTRICT COURT - jurisdiction under Family Proivsion Act extends to notional estate.

Claimant was franchisee of "Cake It Away" operation - operation failed - first to seventh opponents were effectively franchisors - eighth and ninth opponents provided finance - claimant brought proceedings in Industrial Commission - alleged the various arrangements were unfair because of misleading conduct - held no misleading conduct by eighth and ninth opponents - held misleading conduct by first to seventh opponents but nonetheless no unfairness - claimant then brought proceedings in District Court alleging misleading conduct under s 52 Trade Practices Act - proceedings struck out as attempts to relitigate matters decided against claimant - application for leave to appeal - as to eighth and ninth opponents decision correct and no basis for appeal - as to first to seventh defendants arguable error - but was also contended that proceedings brought outside the three years under s 82 - operation terminated more than three years before commencement of proceedings - loss suffered and cause of action accrued no later that that time - leave to appeal refused.

Relief against unconscionable dealings - elderly widow mortgages home to one son-in-law to secure a loan - arrangement for simple interest and no payment until sale or death - mortgage erroneously provides for compound interest and payment on demand - widow finds out and becomes distressed and concerned about "foreclosure" - son-in-law does not allay her concerns - adverse stance in correspondence - widow wished to be rid of the mortgage - transferred home to another daughter and son-in-law who paid out the mortgage - transaction improvident - widow died before trial - whether judge erred in not accepting her affidavit evidence where disputed unless corroborated - whether widow under special disadvantage because unaware that mortgage could be rectified - whether transferees took advantage of opportunity presented by the disadvantage - no error as to affidavit - on facts, not shown that under special disadvantage or that advantage taken. D

EVIDENCE - expert opinion evidence - expert's evidence of fact based on calculation - whether evidence involves judgment and opinion, founded on unstated assumed facts

CORPORATIONS [88]- Other interests- What orders to be made where scheme involves co-owners or co-mortgagees of undivided shares in land.

EVIDENCE - private hearing of New South Wales Crime Commission - refusal by plaintiff to answer questions - plaintiff directed by Commissioner to answer questions - application for review of decision under s.19(2) New South Wales Crime Commission Act 1985 - whether plaintiff had reasonable excuse under s.18(2) of Act - claim that disclosure would reveal the identity of an informer - claim of fear of reprisal - held that plaintiff did not have reasonable excuse for refusing to answer questions - decision of Commissioner affirmed

application for summary disposal - application for leave to amend originating process - circumstances of revocation of Deed - identical claims in contract and in tort - limitation period

Application to Magistrate for disqualification - alleged bias rejected - refusal to accept rulings and to co-operate so as to enable hearing of opponents' case to proceed - plaintiff cited for contempt and removed to cells - case proceeds in his absence - alleged denial of procedural fairness.

CRIMINAL LAW - appeal - verdict unsafe or unsatisfactory - verdict of guilty of sexual assault where complaint was delayed 7 or 8 weeks - evidence of time of offence indicated four possible dates and appellant denied offence in evidence - application of test approved in Jones 191 CLR 439 at 451 - review of facts and consideration of advantages of jury - by majority, appeal dismissed.

DAMAGES - Future economic loss - Buffer - Section 13(1) of the Civil Liability Act 2002 (NSW). ND

BUILDING CONTROL AND TOWN PLANNING - development application for subdivision - whether use permissible or prohibited - planning scheme ordinance - meaning of word "allotment" - whether technical or ordinary meaning - whether equivalent to word "lot".

CONTRACTS - PROCEDURE - Whether contractual right joint or several - Where breach of contractual duty to two persons jointly causes damage to only one of them - Necessary parties - LIMITATION OF ACTIONS - Cause of action founded on a deed - Cause of action founded on breach of duty for damages for personal injury - Whether in latter case personal injury must be caused by the breach of duty.

TRADE & COMMERCE - contract for sale of land - whether misleading representations as to purchaser's financial position and intentions were made

PROCEDURE [748]- Declaratory relief- Onus of proof of facts.

Extension of time to file ASC due to solicitor's failure - MAC Act 1999

NEGLIGENCE - Common law damages - Employer/employee relationship - Breach of duty of care - Insufficient evidence to establish breach. ND

EQUITY - allegation of equitable easement based on Walsh v Lonsdale - proprietary estoppel - allegations fail on facts

Appeal from Tribunal sitting on appeal from the Board of the Fund - ambit of appeal - distinguishable from appeal on a point of law - meaning of inter alia "travel arrangement".