Cases and authorities

Criminal Law - Sentencing - No matter of principle

Criminal law - attack on victim by number of assailants - grievous bodily harm with intent: s 33 Crimes Act 1900 (NSW) - affray: s 93C Crimes Act 1900 - appeals against conviction and sentence - issue of whether cross-examination regarding visual identification was allowable - effect of alcohol consumption - whether proper exercise of legitimate sentencing discretion effected - weight given to favourable subjective circumstances -rehabilitative aspects including immaturity, youth and favourable circumstances - whether error in directions to jury - admissibility of evidence pertaining to s 13 of Children (Criminal Proceedings) Act 1987 - Crimes (Sentencing Procedure) Act 1997 ss 21A(3) and 44(2) - Criminal Appeal Act 1912 s 6(1) - Criminal Appeal Rules Rule 4 - Evidence Act 1995 s 114(1).

Pleading - No question of principle

INTERPRETATION - judgment and orders - ambiguity of orders - whether orders could be interpreted by reference to reasons for judgment

[CONTRACT] - Condition precedent / contingency - time stipulated - whether failure to comply - whether parties reached a binding agreement to settle the second cross-claim

CRIMINAL LAW - SENTENCING - appeal against severity of sentence - importation of trafficable quantity of ecstasy and passport offence - operation of parity principle - sentence of co-offender challenged as manifestly excessive - appropriate discount for assistance to authorities - requirement that sentence be of a severity appropriate in all the circumstances of the offence. (D)

CRIMINAL LAW - SENTENCING - malicious wounding with intent to do grievous bodily harm: s 33 Crimes Act 1900 (NSW) - APPEAL - appeal against severity of sentence - whether sentence manifestly excessive - whether sentencing judge treated as aggravating factors matters which were elements of the offence - whether leniency should be extended due to time spent in custody prior to sentence - CROWN APPEAL - principles concerning Crown appeals against sentence - whether sentence manifestly inadequate - determining objective criminality of offence - obligation to state reasons - deterrence - youth of offender - impact of offence on victim - RE-SENTENCING - principle of double jeopardy. (D)

LEASE - Agreement for lease - grant of lease required certain consents - existence of implied term that lessor would use reasonable efforts to procure consents - breach of implied term - as specific performance not available what order should be made

CORPORATIONS - take-over offers - compulsory acquisition of minority shareholdings - plaintiff seeks to have court approve acquisition pursuant to notice given under section 664C Corporations Act 2001 (Cth) - time at which evaluation under section 667C Corporations Act 2001 is required to take place for purpose of court deciding whether value offered is a fair valuation - whether time of notice pursuant to section 664C Corporations Act 2001 appropriate time - whether events occuring after date of notice capable of being used to determine what value was at date of notice

EVIDENCE [23]- Amending Bill before Parliament- Inadmissible as to meaning of current legislation. EVIDENCE [65]- Privilege- Communications within Department. PROCEDURE [429]- Discovery- Notice to party to produce documents- What specificity required- Supreme Court Rules Pt 23(2).

Building and Construction – Liquidated damages – Whether defendant entitled to liquidated damages under the contract in circumstances where plaintiff did not achieve practical completion - Whether leave should be allowed for claim for liquidated damages - Held - Entitlement to liquidated damages will only arise following upon some other facts which lead to a termination of the contract after the present time - Leave to plead any claim for liquidated damages refused - Whether plaintiff entitled to Variation 21 – Held - Plaintiff entitled to variation - Interest – Pursuant to clause 42.9 of the general conditions the plaintiff is entitled to interest on overdue moneys at “Commercial Bank Rates” - Interest to be calculated from 10 May 2002 - Defendant to be given credit for interest earned by the plaintiff on the sum of $702,678.45 paid to the plaintiff on 18 November 2002 - Costs – Held - No disentitling conduct. Cross-claimant to pay costs of the cross-defendants.

Family law - Property interests - Division of assets - Whether leave should be granted in application for adjustment of interests in property by de facto partners - Whether provision to be made for plaintiff's contribution to raising of child produced by relationship. - Held - Leave granted - Property at 27 Yirra Riad, Mount Colah be sold - Proceeds from sale should be split 40% to plaintiff and 60% to defendant.

PROCEDRUAL FAIRNESS - Conflicting methodology between experts - Court undertakes questioning of experts - Self-persuasion - Whether case taken out of hands of parties - Whether unfairness - Whether final opinion reached - s 38(2) Land and Environment Court Act 1979 - COURTS & JUDGES - Disqualification - Judge refuses to admit new material - Whether judge thereby expressing acceptance of contradicting opinion - Request to disqualify without foundation - EVIDENCE - Expert evidence - Conflict between parties' experts - Appointment of independent expert - Whether court appointed expert unfairly preferred - Whether judge weighed independent expert's evidence against parties' own experts - Claim without foundation

NEGLIGENCE - the appellant claimed damages for back injuries allegedly suffered in two separate incidents with successive employers - extent of duty of employer to provide a safe system of work and equipment - extent of duty of employer to make inquiries as to employee's health - extent of duty of employer which knows or ought to know of particular susceptibility of employee - breach of duty - whether system of work unreasonably exposed appellant to a reasonably foreseeable risk of injury - whether system of work inherently unsafe. - EVIDENCE - burden of proof - proof of negligence - sufficiency of evidence - whether common sense requires a finding of negligence - findings of fact based on credibility of appellant. - PROCEDURE - Appeal and new trial - Adequacy of reasons - extent of duty of trial judge to give reasons - circumstances in which new trial required.

INSURANCE - Directors and officers insurance policy - Claim against officers - Deed of settlement - Whether any loss to officers - Whether any legal liability under deed of settlement - Joint and several liability - "On behalf of itself and each of the other defendants in the proceedings" - INSURANCE - Loss by judgment or settlement - Reasonableness of settlement figure - INSURANCE - Defence costs indemnified - Another party besides insured benefited from defence - Whether all defence costs can be claimed

NEGLIGENCE - employer/employee versus independent contractor - incidents of each - liability of council for injury suffered by principal of private company engaged by Council to manage a swimming pool and its associated maintenance - damages.

CONTRACTS - General Contractual Principles - Harsh and Unconscionable Contracts and Statutory Remedies - Whether one or other document constituted the loan agreement between the parties- Whether interest at 20% was an unjust provision under the Contracts Review Act 1980, s 7(1) - Whether the loan was unconscionable - No principles involved

Corporations Law. Application to set aside demand under s 459G of the Corporations Act. Demand varied. No matter of principle.

CORPORATIONS - voluntary administration - application to extend convening period under section 439A(6) Corporations Act 2001 (Cth) - intervening creditor opposes application - all potential secured creditors and majority of unsecured creditor support application - whether appropriate to order extension where purpose of extension is to enable administrator to obtain valuation of company's assets - specialised nature of asset to be valued - adjournment would also enable company to generate positive cash flow and maximise possible return to creditors - CORPORATIONS - WINDING UP - where winding up application on foot - effect on application for extension of convening period by administrator of company

CORPORATIONS [293]- Winding up- Supervision of liquidators- Two man company- One shareholder seeks to restrain liquidator selling business to other shareholder.

EQUITY [205]- Trusts- Advice to trustees- Ambit of jurisdiction. PRACTICE [747] Declaratory orders- Hypothetical question- Future events relevant- When declaration as to future of trust may be made. SUCCESSION [214]- Acceleration- Whether constitution of class of remaindermen affected. WORDS & PHRASES- "Next of kin".

Appeal from Tribunal - ambit of appeal - where Tribunal decides a question with respect to a matter of law - arguments not raised in the Tribunal - "no evidence" grounds - questions of fact.

Criminal Law - Mental Health - accused unfit to be tried - special hearing - finding that accused committed the offence - fixing limiting term - principles - no non-parole period

Appeal - termination of contract - quantification of damages arising from breach - dismissal of cross-claims.

CRIMINAL LAW: murder convictions - jury question as to manslaughter - were particular accused aware of intention of person who did act to kill or cause grievous bodily harm - need for Stokes v Gifford direction - were separate trials required - incorrect submission by Crown - direction required - false alibi - consciousness of guilt.

Criminal Law - Sentencing - plea of guilty to manslaughter

Criminal Law - Proceedings before Magistrate - Mental Health - whether Magistrate erred in refusing to deal with a defendant under s 32 of Mental Health (Criminal Procedure) Act

- Equity. Trusts. House property purchased by Deceased in his name with money of Plaintiff. Whether Deceased held that property on a resulting trust for Plaintiff. No presumption of advancement. Undue influence. Unconscionable conduct. Relationship between Plaintiff and Deceased requiring intervention of a court of equity. - Succession. Family provision. Intestacy. Whether Plaintiff is an eligible person. Close personal relationship. Whether Deceased performed services for Plaintiff for fee or reward. Competing claim of estranged widow of Deceased.

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether adjudication determination void - where dispute as to date adjudication application served and received - natural justice - whether plaintiff denied natural justice in adjudicator taking into account material withheld from plaintiff - whether relief should be denied as matter of discretion when adjudicator considers payment schedule - whether adjudicator thereby taken to have considered whole of party's case

CONTRACTS [133] - General contractual principles - Discharge and breach - Repudiation and non performance - Repudiation - Application to leases - What constitutes acceptance of repudiation.

PARTNERSHIP [37]- Dissolution- Whether actions at law between partners may be combined with partnership suit- What is preferable procedure for dealing with combined issues of accounting, fact and law.

CORPORATIONS [212], [215] - Winding up - Grounds for winding up - Insolvency - Application to set aside demand - Genuine dispute as to indebtedness - Assessing genuineness - Test to be applied - Offsetting claims - Test applicable - Amount unable to be calculated.

CRIMINAL LAW - SENTENCING - appeal against severity of sentence - importation of trafficable quantity of ecstasy and passport offence - operation of parity principle - greater sentence imposed on applicant than on co-accused - whether sentencing judge failed to have regard to time spent in protective custody.

CRIMINAL LAW: - application for leave to appeal against sentence - supply methyl amphetamine - fresh evidence - applicant pregnant at time of sentence - administrative arrangements for care of new born child while in custody - change in circumstances of three existing children - whether pregnancy relevant to sentence - whether hardship to other children relevant to sentence

Criminal Law - Evidence - Tendency Evidence - failure to give notice - whether trial judge should have dispensed with notice requirementrs - whether evidence ought to be rejected in exercise of discretion.

NEGLIGENCE: motor vehicle accident - whether trial judge erred in failing to find contributory negligence - findings of fact by a trial judge - whether sum awarded for damages by trial judge excessive - whether trial judge erred in accepting the conclusion of the respondent's doctors in relation to the severity of his injury - consideration of the admissibility of a doctor's opinion and the weight to be afforded to it when the doctor may not have a full history of the plaintiff

CORPORATIONS - company limited by guarantee - winding up on just and equitable ground - relevant considerations - whether constitutional provision permitting distribution of surplus assets to a body having the same objects applies where the recipient body is also a member and the constitution prohibits distributions to members - related party benefits - exception for benefits on reasonable arm's length terms - circumstances in which direction to liquidator is appropriate - deficiencies of notice - relevant considerations for making of order under s 1322(4)

Application to seek leave to appeal from arbitrator - Question decided by arbitrator whether obligation placed on defendant to maintain one metre clearance of cables was an obligation imposed by law or by plaintiff - No manifest error of law by arbitrator - Resolution of issues not to add substantially to certainty of commercial law - Leave to appeal refused - No question of principle.

CORPORATIONS - winding up - application to set aside statutory demand - whether genuine dispute as to existence of debt - whether debt statute barred - debt acknowledged in agreement of 2000 to which creditor not a party and in one version of debtor's annual accounts - cogent argument that time bar nevertheless applies

[SUMMARY DISMISSAL] - Whether affidavit filed by solicitor complied with an order in the nature of a Guillotine Order - Whether matter should be summarily dismissed.

THREDBO LANDSLIDE - JOINT HEARING OF CLAIMS FOR "COMMERCIAL" LOSSES - DETERMINATION OF SEPARATE QUESTIONS RELATING TO THE CAUSES OF THE LANDSLIDE

CORPORATIONS - registered managed investment scheme - alteration of constitution by special resolution - alteration "cannot take effect until" lodgment with ASIC - whether resolution may be subject to condition to be satisfied after lodgment

TRUSTS AND TRUSTEES - Application to vary trust deed for charitable foundation to come within definition of prescribed private fund set out in Income Tax Assessment Act 1997. - JURISDICTION - Whether court has inherent power to vary charitable trust deed - No inherent power where it is possible to execute the trust - Whether proposed amendments are expedient in administration of trust property pursuant to s 81(1) Trustee Act.

BANKING [30]- Customer with series of fictitious accounts- Sale of properties with deficiency- Bank may combine accounts to cover deficiency. EQUITY [55]- Tracing- Mixed fund- Principles discussed.

CORPORATIONS - Winding up - Principles in removal of liquidators - Whether in interests of winding up to remove liquidator

Personal injuries - causation - disc injury to back - found not to have been caused by jumping from a desk at work but to have been caused in the course of a cycling event - whether failure to take into account evidence said to favour injury in jumping from a desk - whether failure to give sufficient weight to admission by payment of workers compensation - finding not shown to have been appealably erroneous. ND

Fraudulent misrepresentation - deceit - appeal from interlocutory orders - whether leave should be granted - limitation period - date at which appellant ought reasonably to have discovered relevant facts - res judicata. (ND)

Industrial Relations Act 1996, s 106 - unfair contract - administrative law relief - Industrial Relations Commission of New South Wales - whether Reich v Client Server Professionals of Australia Pty Ltd wrongly decided - scope of Commission's jurisdiction under s106 - whether s106 covers unfairness arising from conduct in breach of contract - whether contract itself must be found to be unfair - prohibition - whether jurisdictional error involved - declaratory relief (D)