Cases and authorities

Appeal from the Consumer Trader and Tenancy Tribunal's determination as to validity of by-law - Factual issues - No error of law

SUCCESSION - wills - rectification - whether testatrix giving to husband "all my personal estate of whatsoever nature or kind and wheresoever situated etc" intended to include real estate as well as personal estate

CORPORATIONS - winding up - setting aside statutory demand - offsetting claim - need for offsetting claim to be one giving rise to a presently existing cause of action - whether possible to have offsetting claim against an obligation to pay an amount "without deduction for any reason" - EQUITY - construction of releases - relationship to rectification

CORPORATIONS - derivative action - application for leave to bring proceedings on behalf of company - statutory jurisdiction applicable to companies generally - inherent power of court in relation to companies in liquidation - relevant criteria discussed - position of liquidator qua costs - protection of insolvent company against costs consequences

INSURANCE - statutory workers' compensation policy - extent of liability - liability for contractual claims - Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd (1995) 8 ANZ Insurance Cases 61-235 followed - meaning of "becomes liable" in statutory policy - need to prove relevant loss for indemnity to operate. D

Criminal Law - Sentencing - murder - guilty plea - offender fires rifle at victim in foyer of cinema complex - other persons in area - additional charge of possess loaded firearm in public place taken into account

CORPORATIONS LAW - Insolvent trading - whether companies insolvent

Family Provision. Application by a former de facto parnter for provision. Eligibility in issue. Plaintiff found to be eligible and part of the household and partly dependent. Order for legacy.

Evidence - privilege - waiver - whether service of a medical report, as required by the rules and/or directions of a court waives privilege in respect of a document referred to in the report - voluntary disclosure, or disclosure under compulsion of law

CONVEYANCING [34]- Requisition- What is a requisition- Consequence of false answer.

JUDGMENTS - Error in orders - varying order

EVIDENCE - client legal privilege - issue waiver - plaintiff puts in issue its state of mind regarding the propriety and legality of use of materials obtained under search warrant - document masked for client legal privilege and provided to defendants - no basis for inference that masked portions are relevant to ASIC's state of mind in to search warrant issue - no waiver of client legal privilege

Review of decision by a registrar to set aside subpoenas and notices to produce - power to set aside - abuse of process - irrelevant material - oppressiveness and fishing expedition.

PROCEDURE [80] - Supreme Court procedure - Jurisdiction and generally - Other matters - Power to order mediation - Whether power should be exercised over opposition of a party - Whether second mediation should be ordered when first compulsory mediation has failed - Relevant considerations.

LEGAL AID [3] - Legal assistance schemes - New South Wales - Appeal to Legal Aid Review Committee not yet determined - Proceedings to be adjourned except where appeal intended to improperly hinder or improperly delay the conduct of the proceedings.

Defamation - whether issue of malice should go to the jury

Appeal - claim for assigned debt - misdirection - inadequacy of reasons - disproportionate costs of dispute over very modest sum.

Succession. Family Provision. Claim by brother. Whether Plaintiff is an eligible person. Whether Plaintiff was a member of the same household as Deceased. Whether Plaintiff was dependent upon Deceased. Proceedings not instituted within prescribed period. Whether discretion to bring proceedings out of time has been activated. Factors which warrant the making of the application. Substantive claim of Plaintiff.

Evidence: one witness swears affidavit and then becomes incapable of being cross examined - whether a second person can give hearsay evidence as to what the first witness said

CRIMINAL LAW - murder - plea of guilty - appeal against severity of sentence - whether special circumstances - whether discount to sentence should have been given due to offender's illness - whether appropriate discount given for guilty plea.

APPEAL - aggravated break enter and steal - offence committed in company - whether sentencing judge erred in failing to take into account or have proper regard to time spent by the applicant in custody - whether sentencing judge failed to properly apply the totality principle - whether sentencing judge erred by failing to backdate the sentence - whether sentence manifestly excessive in the circumstances

LANDLORD AND TENANT - Option for renewal - New lease to be on like terms and conditions of old lease - Whether clause required identical reproduction of covenant to contribute to increases in rates, taxes and outgoings from commencement of term. - CONTRACTS - Interpretation - Clause mistakenly included in new lease in identical terms to old lease - Clause having plain meaning - No absurdity or inconsistency - Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, [1998] 1 All ER 98 considered. - PRACTICE AND PROCEDURE - Jurisdiction to make supplementary order where parties mistakenly implemented order for specific performance - Where liberty to apply or reservation of cause for further consideration not reserved.

Inferior tribunal reversing dismissal of employee - Perogative relief refused - No error of law.

Appeal, alleged erroneous rejection of expert's report - alleged failure to deal with pleaded issues - alleged misunderstanding of evidence and misdirection - sufficiency of reasons.

Appeal decision of LCM - adequacy of reasons

PRACTICE - subpoenas - subpoena duces tecum addressed to stranger to proceedings - entitlement of recipient of subpoena to payment for its expense and loss - manner of calculation of amount to be paid

CONTRACTS - construction of particular contract concerning ownership of intellectual property - INTELLECTUAL PROPERTY - patents - where two or more patentees - rights of one of the patentees to deal in goods embodying the invention - TRUSTS - constructive trusts - attaching to intellectual property to ensure that agreement relating to ownership of intellectual property adhered to - appropriate conditions for grant of equitable relief

Appeal - option for renewal of lease - was it exercised - error of law or fact - leave - what must be shown for grant of leave.

CORPORATIONS - winding up - insolvent transactions - voidable preferences - application by liquidators for order that Commissioner of Taxation repay money said to be voidable preference - Commissioner's defence concedes central elements of liquidators' claim - claim by Commissioner for indemnity order against directors in liquidators' proceedings - whether directors entitled to defend claims conceded by Commissioner

Legal Professional privilege "Litigation privilege" - Expert witness: The need for the Crown to have expert assistance in the preparation of its case - Waiver of privilege - Prosecutor's duty of disclosure

Legal professional privilege - Waiver: when it may occur

Vicarious liability - principle in Soblusky v Egan (1960) 103 CLR 215 - whether confined to motor vehicles - whether dinghy with outboard motor is motor vehicle for the purposes of the principle - reference to agency as basis for vicarious liability - consideration of Scott v Davis (2001) 204 CLR 33 - held yes and no. D

CORPORATIONS - INSOLVENCY - UNFAIR PREFERENCE - whether reasonable person in ATO's position would have had grounds for suspecting insolvency - Proper interpretation of s588FG(2)(b) Corporations Act - whether test under s588FG(2)(b)(ii) is subjective or objective - Whether test under s588FG(2)(b)(ii) includes a duty to inquire - significance of various factors including late payments, preparedness to pay higher rate of interest, and false explanations for cash flow difficulties.

Criminal law - sentencing - murder.

Dividing fence - structure of the Act - jurisdiction to make orders - jurisdiction of this court on appeal - misconceived appeal.

Domestic murder - old bones - DNA - relationship evidence - prison informers.

PROCEDURE [26] - Courts - Concurrent jurisdiction of different Courts - Transfer of proceedings under cross vesting legislation - Where appropriate in interests of justice - Relevant considerations.

Criminal law - sentencing - enter dwelling house in circumstances of aggravation - effect of incarceration on third party

CRIMINAL LAW - wounding with intent to murder ex-wife - assault of son - plea of not guilty - whether trial Judge's summing up was unfairly balanced in favour of Prosecution.

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - applicant partially dependent on deceased - application by stepson

A claim by Linfox against Yates was compromised during the hearing. Yates brought a cross-claim against Linfox, essentially for breach of a contract to project manager a move from one Yates warehouse to another. The contract had been made informally. Several questions were litigated, and resolved in accordance with established principles, concerning the terms of the contract. - Illegality: Linfox said that Yates' claim for damages was defeated because it involved the occupation and use of a new building, without an occupation certificate, in breach of s109 M (i) of the Environmental Planning and Assessment Act 1979. Defence rejected. - Practice and Procedure: In an action in contract, as in an action in negligence, it may be appropriate to direct a party to amend its pleadings, so as to reflect the issues litigated. - Evidence: inferences to be drawn from the failure to call a witness - no inference if the evidence would go only to questions about credit. - Damages: held that certain claims in respect of lost sales to hypothetical questions, to be assessed not on the balance of probabilities, but upon an assessment of the probabilities. - Damages: it is not an essential ingredient to a claim for loss of profits on the sale of goods that the claimant owns the goods. - Legal Practitioners: Directions given about possible misconduct and possible costs orders.

REAL PROPERTY - Caveats - Application for withdrawal of caveat - s74MA(1) Real Property Act 1900 (NSW) - Whether material change in circumstances justifies discharge of order extending caveat - Whether purchaser should be denied claim for specific performance and confined to remedy in damages

EVIDENCE - client legal privilege - disclosure waiver - application in case alleging partial disclosure - no question of principle

Voluntary Associations - trust for use of land for religious purposes

PROCEDURE [32] - Courts and judges generally - Courts - Adjournment - Discretion of Court - Additional grounds recently brought forward to be relied on on hearing of receivership application.

CORPORATIONS [230] - Application under Corporations Act 2001 (Cth) s 440A(2) to adjourn hearing - Relevant considerations - Whether it is in the interests of creditors for company to continue under administration rather than be wound up - Evidence slight - Application granted.

DEFAMATION - Imputations - Conveyance of - Whether reasonably capable of being conveyed - Whether matter ought to have gone to jury - s7A(1) Defamation Act 1974

Conditional costs agreement - statute requires that it set out circumstances constituting successful outcome - misdirection by panel.

EQUITY - Equitable Charges and Liens - After-acquired properties of a bankrupt vested in his trustee in bankruptcy - Whether payments made in reduction of mortgage and discharge of expenses and outgoings after discharge from bankruptcy were sufficient to impose an equitable charge - Matter not raised at hearing - No evidence of unconscionability on the part of the trustee - No evidence of augmentation in value due to the payments