Cases and authorities

DAMAGES - personal injury - assessment - claimant (plaintiff) sought leave to appeal to raise claim for additional $50,906 damages where $272,713 awarded: no showing of reasonable prospects of appellate intrevention - Leave refused - ND

Criminal law - sentencing - principles - Drug Court - competency of appeals - constitution of Court of Criminal Appeal

Practice and Procedure - costs - ownership of costs in Compensation Court proceedings - where solicitors claim proprietary right in judgment for costs in place of claimant - whether solicitors entitled to an equitable charge over judgment for costs - Practice and Procedure - costs - set off- entitlement of plaintiffs to set off amount of costs as assessed against judgment obtained against defendant in Local Court - whether entitlement to an equitable charge operates to defeat plaintiffs' right to set off - Statutory interpretation - Workplace Injury Management and Workers Compensation Act 1998 - ss 105(1), 112(2)(b) and 116

Criminal Law - Sentencing - murder - guilty plea - some degree of provocative conduct by victim - prisoner aged 64

TAXES AND DUTIES - Stamp duties - Land acquired on behalf of partnership by trustee - Trustee developed land at expense of partners - Land subdivided on registration of strata plan - Common property vested in owners corporation - Strata lots transferred to partners as tenants in common in equal shares - Commissioner assessed transfers to ad valorem duty - Whether transfers were exempt as additional instruments forming one dutiable transaction - Whether lots transferred were the same land acquired by the trustee - Nature of rights constituted on registration of a strata plan considered - Whether exempt as transfers from apparent purchaser to real purchaser - Whether exempt as transfers from trustee to beneficiaries and wholly or substantially same property subject of declaration of trust - Whether exempt as transfers back to transferors - Whether exempt as transfers on retirement of trustee - Whether exemption for corporate reconstruction applied where one partner not member of same corporate group - Whether duty assessed on value of bare legal title - Nature of property held on trust for another discussed - Whether value of improvements paid by partnership to be deducted - Whether value of lots to be discounted for sale of all lots in one parcel

BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - Building and Construction Industry Security of Payment Act 1999 - when payment claim may be served - time when "the construction work to which the claim relates was last carried out", within meaning of section 13(4)(b)

CORPORATIONS - interlocutory application for appointment of provisional liquidator - principal proceedings claiming winding up for oppression on just and equitable ground - COSTS - security for costs - plaintiffs outside Australia - limitations on order

Family Provision. Application for provision by former de facto partner of deceased. Although she was left nothing in the will, executor provides ex gratia payment of a substantial proportion of estate to plaintiff. No further provision made.

Costs - assessment by a panel under the Legal Profession Act 1987 - appeal on law to Supreme Court - party and party bill of litigant in person not being a legal practitioner - requirement that panel give reasons - distinction under Regulation 68 between reasons relating to costs and to disbursements - requirement of s.208KG as to reasons - meaning of "costs" in the Legal Profession Act - items disallowed as not fair and reasonable - whether that a sufficient reason - taxing officers' expertise and Court's reluctance to interfere with their view on quantum - whether evidence given as expert witness - time preparing his own affidavit not a disbursement allowable to a litigant in person - notes for cross-examination not allowable.

PROCEDURE - Orders - Amendment of order passed and entered - Slip rule - Obvious mistake - Where slip detected by legal advisers of the parties and significant, it should promptly be brought to the Court's attention.

Equity- Administration of estate- Rule in Cherry v Boultbee- Effect of NZ Statute of Limitations which barred remedy only- What interest must be paid on taking of accounts.

ARBITRATION - Security for costs - Whether for court or arbitrator - Order staying arbitration if security not given - Effect on cross-claim.

DAMAGES - Conversion - Value of memorabilia

PRACTICE AND PROCEDURE - Whether leave to appeal required - Measure of value of the appellant's right for the purposes of s 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW) - Where appeal would not settle any legal principle - Where litigation already consumed excessive proportion of estate - WILLS - Application under Family Provision Act 1982 (NSW) - Two stage process under Singer v Berghouse (1994) 181 CLR 201 - Whether appellant left without adequate provision for proper maintenance and advancement - Competing claim of second respondent - Where second respondent had lived in the property the subject of the claim all her life - Where whole of property had been left to the second respondent under the terms of the Will. D

BUILDING AND CONSTRUCTION - Progress payments - Judgment - Does not determine final rights of parties.

Criminal Law - jury trial - murder - admissibility of relationship evidence - discretion

Criminal Practice & Procedure - murder trial - application to exclude evidence under s138 Evidence Act 1995 - application for Detention Warrant - whether contained false statements - whether impropriety or illegality.

LANDLORD AND TENANT - option to renew - whether option exercised within time - notice given by post - delivery and receipt established but evidence does not show precise date - determining such date by statutory means

Criminal Practice & Procedure - murder trial - circumstantial case - relationship evidence - reveal criminal behaviour - discretion to exclude.

CORPORATIONS - winding up - statutory demand - whether proceedings to set aside commenced within time - whether "defect" in specification of address for service - whether "defect" productive of injustice if demand not set aside - whether "genuine dispute" as to existence of debt

PLEADING - Leave to amend - Proposed claim against directors of trustee company under Corporations Act, s 197 - Whether arguable that trust deed limited the trust assets to which trustee could have recourse to satisfy right of indemnity - Whether arguable that trustee not entitled to be fully indemnified out of trust assets if it acted in breach of trust - Construction of express indemnity of trustee acting in good faith - Court not to resolve arguable questions on application for leave to amend.

Courts/Jurisdictions - Supreme Court parens patriae jurisdiction - Application for order restraining hospital from terminating current treatment of patient

CORPORATIONS - voidable transactions - appeal from decision of Local Court - identification of relevant transaction - whether within statutory provisions

SUCCESSION- Family Provision Act 1982 - where deceased left modest annuities to claimants out of substantial estate - claimants inherited real estate in Lebanon under law of Lebanon - significance of financial assistance given by deceased to claimants during deceased's lifetime - whether provision under will adequate for proper maintenance and advancement of claimants - sufficient provision for ordinary needs not necessarily adequate - regard had to assets of spouse - COSTS - probate costs - where examination of the question of capacity was justified - where award of costs will bear on family provision claim.

PRACTICE AND PROCEDURE- Appeal against judgment for defendants in District Court - whether trial judge erred in failing to consider a matter addressed to him - NEGLIGENCE - Duty of care - Duty to protect against criminal acts of third party - one appellant assaulted by patron of hotel prior to entering - where complaint made to manager about original attack and assailant identified on hotel premises - appellants left to knowledge of manager but appellants re-entered and were assaulted and injured - whether failure to remove assailant when originally identified gave rise to foreseeable risk of injury to other hotel patrons such that there was a duty to protect such persons against that risk - application of Modbury principle of control / special relationship

DEFAMATION - application for discharge of jury unsuccessful - whether trial Judge should have discharged jury as a result of remarks made by counsel for the opponent in relation to challenges to the jury panel made by the claimant

Practice and Procedure: Crown holding confernce with expert witness prior to re-examination - Offer of records of interview to the accused: is the evidence relevant? - If so, there is a need for a direction to be given to the Jury

Private International Law - Choice of Law - Contracts - Proper law of contract.

EVIDENCE – expert opinion evidence – whether defendants should be permitted to cross-examine expert on voir dire – whether evidence adduced on proposed voir dire would be evidence in proceeding generally, or only when tendered and received after voir dire – whether discretions under ss 135 and 136 of Evidence Act 1995 (NSW) should be exercised in defendants’ favour before commencement of witness' evidence on voir dire

CORPORATIONS [248]- Winding up- Preferences- Payment to ATO- Whether Commissioner fixed with cumulative knowledge of each sub-unit of his office.

EVIDENCE - interlocutory application - legal professional privilege - waiver of privilege - whether privilege waived - application of common law test for waiver of privilege to statutory concept of consent in s 122(1) Evidence Act 1995 (NSW) - where affidavit deposes to state of mind formed after taking advice from counsel - whether state of mind so central to issue in dispute that reference to advice from counsel that contributed to formation of that state of mind amounts to consent to waiver of privilege

Appeal - point of law - procedural fairness - limitation of cross-examination - sufficiency of evidence - agency.

EVIDENCE - application to set aside notice to produce - where affidavit refers to "without prejudice" correspondence - where plaintiffs seek production of "without prejudice" correspondence - where correspondence relates to an attempted mediation - s 131(2)(g) Evidence Act 1995 - s 110P Supreme Court Act 1970 - whether situation governed by s 131(2)(g) or s 110P - where correspondence inadmissible under s 110P whether correspondence nonetheless has legitimate forensic use that would justify notice to produce - discretion to exclude evidence - s 135 Evidence Act

Issue estoppel - Privity as between predecessors and successors in title - Abuse of process - Proceedings staged so as to prevent possibility that one judgment will contradict another judgment

Administrative law - prerogative relief - Water Act 1912 - Water Management Act 2000 - non-formation of opinion to do an act - consequential accruing right - decision not to form opinion not revocable - aquifer licences - bores

Sentencing - make and use false instruments - significant dishonesty involving breach of trust - "fresh evidence" on appeal

CRIMINAL LAW - Appeal against conviction - Sexual assaults on minors - Evidence of assaults by appellant on mother of complainants - Whether relevant - Whether danger of prejudice outweighed probative value - Evidence of prior inconsistent statements led by Crown - Use of them in cross-examination to suggest incidents complained of did not occur - Leave then granted to Crown to lead evidence of prior consistent statement - Whether leave should have been granted - Crown appeal against sentence - Parity - Manifest inadequacy

DAMAGES - Economic loss - Adoption of global figure for future economic loss - Findings provided alternative basis of assessment - Whether appealable error.

CORPORATIONS - ASIC claims declaration of contravention and disqualification order - claim compromised - defendant proffers undertaking to the court not to be engaged in management of corporations for stated period - whether court should accept undertaking where no power to make order in like terms

PROCEDURE [113] - Supreme Court procedure - Practice under Supreme Court Rules - Judgments and orders - Self executing orders - Incidents of.

Easements - imposition under s.88K Conveyancing Act - reasonable attempt to reach agreement

[DEFAMATION] - [INJUNCTION] - Application for injunction to restrain the further publication of a book that has been on sale for about 2 months - subject matter of public interest and concern - plaintiff in political arena

WORKERS COMPENSATION - Error of law - Hurt on duty - Whether caused during course of employment - Irrelevant evidence - No evidence to support primary judge's finding on cause - Remit to District Court - ISSUE ESTOPPEL - Decision of IRC - Judicial determination - Whether Commissioner of Police a privy of the SAS Trustee Corporation - No common interest -

PRACTICE AND PROCEDURE - Leave to appeal against Miles AJ's dismissal of application for review of decision by Registrar to set aside two garnishment notices.

Agency agreement - for purchase of hotel - fee payable if principal procured another person to purchase - whether on construction of agreement procurement had to be the means by which the purchaser became the legal or beneficial owner - held no - whether on facts principal procured the other person to purchase - held yes. D

Defamation - whether imputation defamatory - imputation that specialist medical practitioner "provides treatment to his patients which is useless, dangerous and causes them harm" - powers of Court of Appeal - Supreme Court Act s108(3) allows Court of Appeal to enter verdict on s7A issue in plaintiff's favour in appropriate case. (D)

CORPORATIONS [135]- Meetings- Application to restrain- Policy- Whether appropriate to preserve status quo in a three person company in deep conflict.

ROADS AND TRAFFIC - STATUTORY CONSTRUCTION - LOCAL GOVERNMENT - Injunctions - whether RTA requires consent of Council under s.138(1) Roads Act 1993 to carry out proposed road work in connection with construction of M4 extension.

Federal Magistrates Court - NSW Sheriff - powers of the latter to act in aid of the former's processes