Cases and authorities

Murder - provocation - whether trial judge's directions reduced the 'standard' for Crown to accused's disadvantage - Crimes Act 1900 s23(2)(b) - consciousness of guilt - propriety of and necessity for directions when manslaughter an available verdict - life sentence - second conviction for murder of spouse

LEGAL PRACTITIONERS - Professional misconduct - application to have legal practitioner struck off the Roll - practising without holding a practising certificate - whether done "wilfully and and without reasonable excuse" - whether fit and proper person to remain on the Roll - Legal Profession Act 1987 (NSW) ss 25(1), (2) and (4).

WORKERS' COMPENSATION - PRACTICE - Appeal - Award of damages - Primary judge not addressing credibility of appellant's sworn evidence, or extent of her depression, pain and exaggeration of symptoms - Reasons inadequate - New trial on damages

CORPORATIONS - Winding up - Insolvency - Prospective creditor - Whether leave required to make application to wind up on the ground of insolvency - Secured creditor - Secured creditor not required to surrender security before bringing application to wind up - Secured prospective creditor requires leave to bring application to wind up on ground of insolvency - s.459P(2). - STATUTORY CONSTRUCTION - Corporations Act 2001 (Cth), s.459P. - PRACTICE AND PROCEDURE - Failure of a party to obtain leave before applying for a winding up order - Whether court has power to cure defect by granting leave nunc pro tunc.

Contract - loan agreement - provision for release of two lots from security - request for release - whether in subsequent conversations lots allowed to remain as security until needed by borrower - finding of agreement to that effect - lender excused from performance - no breach of contract - whether finding correct - finding upheld - no question of principle - order that damages be tried separately - consideration of whether necessary to establish suffered some damage - under normal procedure would have been necessary - proposal for "boundary adjustment" - exchange of land over which lender held security - needed lender's endorsement of linen plan - request for endorsement - whether implied obligation that lender would act in good faith in relation to endorsement - whether breach of obligation in failing to consider whether or not to endorse - assuming obligation, breach not established - again no question of principle. D

COSTS - Additional orders - consideration of costs in relation to grounds of appeal ultimately not relied upon

LANDLORD AND TENANT - Lease of commercial premises - Construction of lease - Term exempting lessor from liability for damage to tenant's property - Exception where lessor fails to act after written notice from the tenant - Damage to tenant's property by fire caused by lessor's negligence - Whether within term - Notes previously made by lessor's agent of tenant's complaints - Whether within exception - PRINCIPAL AND AGENT - Lease of commercial premises - Fire caused by defects in roof and electrical wiring - Prior complaints by tenant to lessor's managing agent - Whether agent liable in negligence for failing to attend to repairs on own initiative - Whether agent liable in negligence for failing to pass on complaints to lessor - In latter case, whether causation fo loss proved - DAMAGES - Lack of evidence due to destruction of records by fire and also due to tenant's unbusiness-like practices - Proper approach to assessment of damages

Family Law. Application for adjustment of property interests under s 20 of the Property (Relationships) Act 1984. Orders for adjustment. No matter of principle.

Family Provision. Application by two sons where the deceased left estate to her daughter. Legacies ordered. No matter of principle.

Real Property. Co-ownership. Respective contributions to purchase price. Presumption of resulting trust. Incidents of co-ownership. Co-owner in occupation. Proceeds of sale. Equitable accounting between co-owners. Claim for improvements (including mortgage payments). Entitlement of co-owner not in occupation to rents and to notional occupation fee. He who seeks equity must do equity.

Motion to dismiss proceedings - issue estoppel created by admission - no privity of interest - Anshun estoppel - unreasonableness - whether conflicting judgments - application dismissed.

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - claim for adjustment of interests under Property (Relationships) Act 1984 - plaintiff performs work in renovating defendant's house - valuation of contributions - whether significance in attempt by defendant to have plaintiff enter cohabitation agreement - what significance lies in defendant making a Will, after conclusion of the relationship, leaving a legacy to plaintiff

CONTRACT - assignment - whether cause of action for damages for breach of contract assignable - distinction between liquidated and unliquidated claims - whether cause of action for misleading and deceptive conduct assignable - whether cause of action for damages for breach of duty of care assignable - Poulton v Commonwealth (1952-1953) 89 CLR 540 considered - Trendtex Trading Corporation v Credit Suisse [1982] AC 679 considered - whether plaintiff has sufficient interest to justify assignment - TORT - duty of care - pure economic loss - whether defendant owed plaintiff duty to avoid economic loss - whether plaintiff vulnerable - breach of duty - whether duty of care breached - whether damage suffered - TRADE PRACTICES - Trade Practices Act 1974 - s 52 - whether representation misleading or deceptive - whether assignee suffers loss "by" misleading or deceptive conduct - PRACTICE AND PROCEDURE - joinder - SCR Pt 8 r 8 - whether leave should be granted further to amend summons to join third party as a plaintiff - whether third party "ought to have been joined" within SCR Pt 8 r 8(1)(b) - whether third party "necessary" within SCR Pt 8 r 8(1)(b)

CORPORATIONS - winding up - voidable transactions - application for extension of limitation period - all identified potential defendants notified of application - none opposing - complex and intermingled administrations - continued difficulties in identifying cash flows and location of assets - greater progress likely if more time available

Criminal Law - sentencing - murder - plea of not guilty

Stay of proceedings - proceedings brought in New South Wales in respect of torts arising in the United Kingdom - questions of overseas witnesses and lack of indemnity - expiry of the relevant limitation period - discretionary power and onus.

Appeal from Local Court - claim against insurer for refusal of indemnity - grounds of appeal - findings on questions of theft and fraud - standard of proof - sufficiency of reasons - alleged need for separate reasons and alleged errors in one decision infecting another.

PRACTICE AND PROCEDURE - application for leave to further amend summons - whether costs orders on indemnity basis sufficient to compensate defendants for costs thrown away by amendment - whether defendants prejudiced by amendments alleging actual breaches of the law - whether refusal of leave to amend likely to occasion any significant prejudice to plaintiffs - no question of principle

Criminal law - sentencing - murder - plea of not guilty - offence occurring in hotel - issues pertaining to intention to cause grievous bodily harm and provocation - subjective circumstances - s 3A, s 21A, s 44, Division 1A of Part 4 Crimes (Sentencing Procedure) Act 1999.

Crown appeal - plea of guilty - single s66A offence - subjective circumstances - remarks on sentence - applicable sentencing regime - application of Part 4 Division 1A - whether the offence was in the mid range of objective seriousness - additional offence - plea of guilty to a more serious charge than originally faced - protective custody

CRIMINAL LAW: Sentencing - discount for assisting authorities and early plea - offences committed during adjournment of sentencing hearing for other offence - principle of parity.

Manslaughter - Sentence - Crown appeal - Deportation and loss of business may be punishment

interlocutory District Court judgment - application for separate trial of different counts - tendency evidence - coincidence evidence - prejudice - identification evidence

EVIDENCE - Burden of Proof - Weight and sufficiency of evidence - Proof by bailee that damage to bailed goods occurred without its fault - Cause of damage not established - whether sufficient for bailee to negative negligence for each of several possible causes considered individually.

MENTAL HEALTH - Procedure under Mental Health (Criminal Procedure) Act 1990 (NSW) where defendant unfit to be tried - Where unfitness is raised before arraignment - Where jury finds unfitness established - Where Mental Health Review Tribunal made a determination that the defendant was suffering from a mental illness and determined that the defendant will be fit to be tried within 12 months - Where bail granted - Where Attorney General determined that a second inquiry should be conducted - Whether question as to unfitness to stand trial raised by Attorney General in good faith - Whether trial judge erred in not ordering a further inquiry. ND

Criminal law - importation of heroin - appeal against sentence - whether discount for Applicant's assistance to authorities given adequate consideration - interpretation pertaining to sentencing discount under repealed s 16G Crimes Act 1914 - s 16A(1), s 16A(2), s 16A(3), s 16G, s 21E Crimes Act 1914 (Cth) - s 233B(1) Customs Act 1901 (Cth).

Power of attorney - duty of donee to act in accordance with the direction of the donor.

Proceedings concerning properties - plaintiff seeking order for possession -order for judicial sale - cross-claim for relief against forfeiture - mortgage - resale of mortgaged property - bridging loan - caveat - unjust or unconscionable transaction - misleading or deceptive conduct - clog on equity of redemption - Contracts Review Act 1980 NSW s7 - Consumer Credit Code (NSW) s 70 - Real Property Act 1900 (NSW) s 57(2)(b) - Trade Practices Act 1974 (Cth), s 51AA, s 51AB, s 51AC, s 52, s 53 - Australian Securities and Investments Commission Act 2001 (Cth) s 12CA, s 12CB, s 12CC - Fair Trading Act 1987 (NSW) s 42 and s 43.

CORPORATIONS - application for leave under section 444E Corporations Act 2001 (Cth) to commence proceedings against company subject to Deed of Company Arrangement - effect of moratorium provision in deed on whether court can grant leave to proceed against company - effect of bar provision in deed on whether court can grant leave to proceed against company - factors relevant to granting of leave

CONVEYANCING - Relationship of Vendor and Purchaser - Matters Arising between Contract and Conveyance - Special provisions for Council approval of subdivision within specified time - Either party entitled to rescind in absence of approval - Provision for transfer of two lots to vendor - Council approval not forthcoming - Notice of rescission - Whether parties had agreed that the special provisions would not be enforced - No principles involved

Setoff - Equitable setoff - Test

CONVEYENCING - leases - premises governed by Retail Leases Act 1994 - consent to assignment of lease - requirements of a disclosure statement - whether lessee entitled to request lessor, under section 41(c) Retail Leases Act 1994, to supply disclosure statement when lessee already has one - what types of requirements lessor can make under section 41(a) Retail Leases Act 1994 - whether requirement for provision of two years financial accounts and tax returns of proposed assignee is a reasonable requirement - requirements of a "notice in writing ... withholding consent" within meaning of section 41(d) Retail Leases Act 1994 - whether notice saying in substance "I will not consent unless you do the following things" is a notice withholding consent - whether breaches of lease by lessee can be relied upon as ground for withholding consent - whether breaches of another lease by proposed assignee may be relied upon as grounds for withholding consent

EQUITY [332] - Equitable remedies - Injunctions - Interlocutory injunctions - Jurisdiction and generally - Ex parte injunction - Circumstances in which granted for short time.

TAXES AND DUTIES - miscellaneous taxes - Goods and Services Tax (GST) - operation generally and in relation to contract for sale of land to developers - CONTRACT- construction of particular contract - no question of principle - EQUITY - rectification - question of fact about whether common intention established - VALUATION OF LAND - dictum concerning need to know whether a comparable sale was effected under the margin scheme

APPEAL: - Claim in relation to payment for fuel allegedly provided by one company to two other companies - system for ordering and receiving fuel - alleged novation of a debt - guarantee given by director of one company - whether guarantee extends to the debt - whether trial judge erred by reducing the claim to a dispute with respect to invoices, the majority of which were not in evidence - whether a procedural injustice occurred when the guarantee was executed - interest - costs

Orders - slip rule

DAMAGES - Past economic loss - Loss of earning capacity - Quantum - Onus - Plaintiff must first establish loss of earning capacity - A party with some loss of earning capacity who has not worked over a period up to trial is not necessarily entitled to damages for total wage loss. - DAMAGES - Superannuation - Assessment of loss of superannuation may be based on amount of employer's contribution. - COSTS - Offer of compromise - Amendment to Statement of Claim to join additional defendant - Offer of compromise not made to defendant - No order for indemnity costs may be made against a party to whom the offer of compromise was not made.

LEASE - GUARANTEE - Clause in lease whereby directors of lessee company guarantee performance of "all the terms and conditions hereof" - Whether applicable to tenancy arising in holding over - Whether applicable after change to rent payable following about 18 months of holding over.

ESTOPPEL - Consent judgment between employee and third party tortfeasor - Subsequent proceedings for indemnity brought by employer against third party tortfeasor - Whether employer a privy in interest to claim brought by employee against third party tortfeasor - Whether res judicata estoppel - Whether independent right. - STATUTORY CONSTRUCTION - Workers Compensation Act 1987 (NSW), s.151Z(1)(d) - Construction - Employer's indemnity for compensation paid to employee - Consent judgment - Whether third party tortfeasor was a person in whom a liability was created within the meaning of the section - Whether right to indemnity is an independent right.

CONSTITUTIONAL LAW - Constitution, s51 (xxiv) - Service and Execution of Process Act 1992, s76 - New South Wales Crime Commission - interstate service of summons - whether interstate service valid under federal law - whether s76 supported by s51(xxiv) - concept of "process" - whether "process" in s51(xxiv) confined to proceedings directly connected with the determination of legal rights or the enforcement of law - whether wide enough to encompass compulsory attendance at statutory authority investigating criminal activity. (D)

NEGLIGENCE - Duty of care - Foreseeable risk of injury - Breach - Amusement machine not inherently unsafe - Manner of operation of amusement ride - Failure to give appropriate warning and to supervise riders to ensure compliance with warning. - REASONS - Appellant's case based on need for both clear warning and strict supervision - Failure to determine case on basis advanced.

Incitement to murder - accused induced to speak to undercover police officer - whether officer guilty of offence by encouragbing offence - whether conversation inadmissible - discretionary considerations - applicability of Law Enforcement (Controlled Operations) Act 1997

Criminal law - sentencing - murder - aggravated sexual assault in company - robbery while armed with a dangerous weapon - specially aggravated robbery - aggravated car jacking - attempting to obtain money by deception - larceny of a motor vehicle - prior record and other offences - totality of criminality - drug use - deterrence - dangerousness to community - s 18, s 61JA(1)(c)(ii), s 86(3), s 97(2), s 154(c)(2), s 154(A), s 117, s 178BA, s 344A Crimes Act 1900 - s 3A, s 21A, s 44, s 61 Crimes (Sentencing Procedure) Act 1999 - s 128(2) Criminal Procedure Act 1986.

CORPORATIONS [183]- Administration under deed of company arrangement- Company in administration secured provisional judgment under Building and Construction Industry Security of Payment Act 1999- Judgment debtor seeking to prove in DOCA- Set-off under s 553C of Corporations Act claimed- How proof dealt with.

CONTRACT - consideration - whether illusory consideration for prospective borrower's agreement to give charge to cover lender's costs of considering application - agency - question of fact - PRACTICE - costs - payment of costs on solicitor/client basis when agreement exists to do so

CORPORATIONS [11]- Articles- Whether entrenched articles able to be replaced. CORPORATIONS [29]- Oppression- What constitutes conduct of affairs. WORDS & PHRASES- "Conduct".

REAL PROPERTY - Strata and related titles and occupancy - Home unit company with corporate title - Whether exclusive use and enjoyment of a top floor home unit prevented extension of a penthouse onto the roof above the home unit - Whether board of directors and company in general meeting acted oppressively or unfairly prejudicially in approving extensions - Whether an allotment of additional shares at par for extensions was contrary to the interests of the members as a whole - Whether the board of directors had power to raise a levy to defend proceedings brought by the shareholders of the top floor home unit - Whether the raising of the levy against such shareholders was oppressive or unfairly prejudicial