Cases and authorities

Criminal Law - Sentencing - Failure to take into account pre-sentence custody - sentences backdated accordingly

SENTENCING - Leave to appeal against sentence for one count of aggravated dangerous driving causing death - Whether statutory proportion should be varied, with or without reference to special circumstances - Did the sentencing judge err in failing to consider and find special circumstances?

Criminal law - Sentence - Depression - Causal connection with offence - Proportionality of sentence to sentences imposed on other offenders - Assistance to authorities

INSURANCE - REINSURANCE - Construction of reinsurance policy relating to professional indemnity insurance "for limited aggregate loss protection" - method of calculating aggregate

Environmental planning instrument - clause that provision does not apply to determination of a development application made before the provision's commencement - development application lodged - amendment adds provision - having effect that consent can not be granted - also adds provision that the provision having that effect applies to a development application made before its commencement - Act provides that amendments do not affect vested rights - whether vested right acquired on lodgment of development application - held yes - new provisions do not affect its determination. D

CONVEYANCING - Fraudulent conveyances - Deed by husband acknowledging debt to wife, and associated mortgage over husband's property - Whether fraudulent as against prospective creditor - Whether wife a purchaser in good faith - Onus of proof

Appeal from Local Court - misdirection and error - statutory construction - discretionary power.

Whether authorised director of defendant corporations should be disqualified from continuing to appear for them in the proceedings pursuant to Pt 11 r 1A Supreme Court Rules 1970 (NSW)

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - S 7(2)(a) - whether tripartite deed a loan agreement within s 7(2)(a)(i) of Act - no question of principle

CHARITIES [54]- General gift to charity to be nominated by Government- Valid charitable trust.

whether procedural fairness was denied - jurisdiction - conviction of indictable offence - Felons (Civil Procedings) Act 1981 - abuse of process

Appeal from panel of costs assessors - order for payment of solicitor/client costs - not indemnity costs - ambit of appeal - not the same as error of law - does not include deficiency in statement of reasons.

CORPORATIONS - DIRECTORS - REMOVAL - INJUNCTIONS - Whether interlocutory order should be made restraining shareholders from voting at shareholders' meeting to remove a director in breach of shareholders agreement.

Civil Assessment of damages - work injury - cotton press crush injuries.

Workers Compensation - appeal against Medical panel - whether decision involved jurisdictional error and was beyond power.

INJUNCTIONS - ASSET PRESERVATION - ORDER - Alleged fraudulent transaction - no evidence of participation by one defendant - no evidence that second defendant sought to gain personally from transaction - no evidence of risk of dissipation of assets.

CORPORATIONS - LIQUIDATORS - Circumstances in which a liquidator appointed in a voluntary winding up may be appointed by the Court to wind up in insolvency.

S37A CONVEYANCING ACT 1919 - alienation of property - whether transfer of three properties from husband to former wife were not made in good faith and were made with the intention of defrauding creditors - whether appellant beneficial owner by way of resulting trust - effect of sequestration order - whether respondent 'person prejudiced' for the purposes of s37A - res judicata - whether s37A inconsistent with Bankruptcy Act - effect of open offer of settlement equalling amount of debt - costs

WORKERS COMEPNSATION ACT 1987 s11A - whether employment was a substantial cause of the psychological injury - meaning of 'substantial' - whether s11A(5) taken into account.

Appeal decision of Local Court Magistrate - "Dunnoon" the horse

PRINCIPAL AND AGENT - powers of attorney - transfer of land effected pursuant to power of attorney - no question of principle - TORRENS SYSTEM - indefeasibility of title - volunteer becomes registered proprietor

MORTGAGES AND CHARGES GENERALLY - agreement to give charge and permit caveat - enforcement by appointment of receiver - no question of principle

Pleas of guilty - conviction - appeal on ground pleas were entered in circumstances of miscarriage of justice - appellant's evidence that pleas entered because of representations that he would not be gaoled and would be released to be with his children, and under pressure from his barrister and solicitor's clerk that he had to plead guilty if he wanted to see his children again - evidence not accepted - made informed choice in order to avoid risk of lengthy imprisonment on many more serious charges - submissions that was improper pressure in barrister approaching Crown Prosecutor about a plea without instructions, in the manner of advising that the offer was in the appellant's interests and in seeking written instructions when the offer was initially rejected - submissions not supported by evidence the matters relied on affected appellant's conduct - in any event no improper pressure - pleas not because of the matters relied on - free choice made by appellant in his own interests - no miscarriage of justice - not necessary to consider whether there was a real question to be tried. D

Criminal Law - sentencing - No matter of principle.

ANIMALS - Liability of Owners and Keepers in respect of injuries by animals - Companion Animals Act 1998, s 25 - Indirect wounding caused by dog - DAMAGES - Non-economic loss at 30% of a most extreme case eroneous

DAMAGES - personal injury - contentions of error in findings re - causation of continuing disability where plaintiff's arm re-fractured by police while recovering from earlier fracture in motor accident - unsuccessful attacks on assessments for - non economic loss, domestic care past and future - economic loss past and future - appeal and cross-appeal dismissed - ND

Practice & Procedure - Standing of owners corporation to sue in negligence with respect to common property - Meaning of section 227 of the Strata Scheme Management Act 1996 - Nature of an owners corporation's statutory agency

NEGLIGENCE- Occupiers liability- Householders allowed their son aged 18 to hold barbecue party attended by guests aged from 17 (plaintiff respondent) to 25- parents did not supervise lighting or use of barbecue – mother specified light beer only and supplied light beer and food but guests brought champagne and spirits – methylated spirits used to start barbecue- after cooking finished about 8pm, bottle replaced in garage- householders present early, went to cinema, returned about midnight and thought everything in order, offered food which was declined and went to bed – about 2:00am attempts were made to reignite barbecue- guest took methylated spirits bottle from garage- several guests poured spirits from bottle onto smouldering barbecue - after several attempts, spirits exploded and fireball injured plaintiff sitting nearby and not participating in re-ignition: consideration of liability of householders - reasonable foreseeability of risk of injury- US and Canadian case law on Social Host Liability- HELD: no reasonably foreseeable risk of injury, householders had no duty of care- award of damages by District Court reversed.

LEGAL PROFESSION - Costs - solicitors Legal Profession Act 1987 s.192 requires Bill of Costs to be given to client at least 30 days before action to recover - solicitor made informal claims without complying bills against 2 clients, one a company and one who was principal of the company - after disputes and service of Statutory Demand on company, parties agreed that the company (not the individual) would pay all the costs by instalments and solicitor would not proceed with winding-up - later the solicitor sued the company for money payable under that agreement - HELD (by majority) the claim retained character of claim for costs and ws barred by s.192.

Family Provision Act - further provision - daughter of deceased - provision for unencumbered property - relation with the deceased - inadequate provision - assistance towards purchase of house - consideration of relationship of sister and deceased - assistance provided during her lifetime by the deceased to plaintiff - whether court should accept minors' offer to forego legacy.

CORPORATIONS - winding up - just and equitable ground - partnership in corporate form - irretrievable breakdown in parties' relationship

Family provision - claim by son - sole beneficiary granddaughter - large estate - spendthrift - nature of relationship with deceased - circumstances prior to will - intention of deceased - claim by daughter in law - dependency - whether rent free accommodation given because of relationship with deceased - absence of additional factors warranting provision.

Succession - Family provision - Joint tenancy - Notional estate. Application for family provision. - No estate but jointly owned property passed to defendant by survivorship. - Attempt to sever joint tenancy by executing transfer. - Whether agreement to sever joint tenancy. - Whether property designated as notional estate of deceased. - Whether plaintiff entitled to provision. - Held: Plaintiff receive legacy of $100,000.00.

Appeal against conviction - importation into Australia of not less that the commercial quantity of cannabis - perjury - whether any miscarriage of justice resulted from failure of the Crown to make available copies of documents - prosecution's duty of disclosure - Evidence Act 1995, s165 unreliable evidence - directions concerning cross-examination of prosecution witnesses

appeal against conviction - supply not less than the large commercial quantity of a prohibited drug - whether the Crown had established, beyond reasonable doubt, relevant knowledge in the appellant - directions to the jury - application of Criminal Appeal Act s6(1): the proviso - application of Criminal Appeal Rules, Rule 4

COSTS - indemnity costs - where new trial ordered - special circumstances justifying departure from general rule that costs of first trial should abide the event of the second trial - where respondent caused the miscarriage of the first trial.

MOTOR VEHICLE ACCIDENT - limitation period applicable to infants - mistake by solicitor led to proceeding being commenced out of time - meaning of a 'full and satisfactory explanation' within s40(2) Motor Vehicle Accidents Act 1988 - Diaz v Truong - whether explanation satisfactory when claimant had no knowledge of time limit

Interrogatories

Appeal from Tribunal in respect of small claim - no decision on a question with respect to a matter of law - need for legislative or other action to restrict the bringing of appeals to this court in respect of such claims.

Corporations Act. Building and construction, hearing of originating process seeking to set aside statutory demand, contested adjudication application, property developer, construction manager, construction management agreement. Offsetting claim, whether this was an appropriate supplementation of the initial affidavit or whether the initial affidavit should have provided estimates of the cost. Whether regard could be had to the rectification of Brook Street in the circumstances that Brook Street has now been sold by the developer. Is the offsetting claim genuine. Proceedings dismissed.

CONTRACT - INTERIM INJUNCTION - SPECIFIC PERFORMANCE - Whether specific performance of an alleged contract can be ordered by way of interlocutory mandatory injunction in terms which differ from the contract as alleged.

REAL PROPERTY - Crown lands - licence granted by Crown over site of jetty and slipway on bank of tidal river - nature of rights created - whether jetty and slipway are fixtures - effect of provisions of licence declaring them to be "property of" licensee but precluding alteration, removal and destruction while licence subsists - common law rights of public in relation to tidal foreshore - attenuation thereof by statute - TORTS - trespass to land - whether contractual licensee without right of exclusive possession may maintain action in trespass - Manchester Airport plc v Dutton considered - EQUITY - declaratory relief - whether court should at suit of A declare B's rights against C - lack of utility - postulated rights inconsistent with statutory provision

Legal practitioners - no question of principle

Criminal law - Verdict - Multiple offences - One complainant - Whether verdict unreasonable - Whether acquittal on one count is inconsistent with guilty findings on other counts - Whether jury considered complainant's evidence as reliable and accurate - Whether it is consistent to disbelieve the complainant with respect to one count and not another - Verdicts capable of being explained without conclusion that jury disbelieved complainant - s 6 Criminal Appeal Act 1912 (NSW) - Criminal law - Directions to jury - No Markuleski direction given - Whether direction necessary to give - No unfairness

appeal against sentences - armed robbery - armed robbery with wounding - assault with intent to rob whilst armed - Form 1 offences - juvenile offender - pleas of guilty - co-offender's sentence reduced by this Court - subjective circumstances - determination of sentences - re-sentencing

appeal against severity of sentence - aggravated dangerous driving causing grievous bodily harm - plea of guilty - subjective circumstances - remarks on sentence - application of guideline judgments - level of moral culpability

New South Wales Crime Commission Act 1985, s18B, s19 - review of decision of Crime Commission requiring lawyer to produce name and address of client - leave to appeal required - client legal privilege - whether power of Crime Commission to require name and address to be furnished extends to information that is or may be privileged - appellate determination not required in this case - whether Crime Commission's discretion miscarried. (D)

ADMINISTRATIVE LAW - judicial review - jurisdictional facts or conditions precedent - planning legislation - development applications - provisions for approval of development applications - where environmental planning instrument includes detailed zoning table - where environmental planning instrument provides certain nominate uses permissible with consent - whether classification of proposed development as permissible constitutes jurisdictional fact - nature of jurisdictional fact - Environmental Planning and Assessment Act 1979, Pt 3 and Pt 4, Div 2 - ADMINISTRATIVE LAW - privative clauses - statutory construction - effect of reference to "validity of a consent" in privative clause - where privative clause permits any form of challenge within specified time period - whether privative clause protects decisions from jurisdictional error - Environmental Planning and Assessment Act 1979 s101 - BUILDING CONTROL AND TOWN PLANNING - environmental planning instruments - development applications - zoning provisions - where flexibility in certain circumstances - effect of characterising use identified in development application as prohibited - Environmental Planning and Assessment Act 1979, Pt 3 and Pt 4, Div 2