Cases and authorities

BANKRUPTCY - Proceedings in Connection with Sequestration - Whether trustee of bankrupt's estate entitled to the bankrupt's interests under contracts for the purchase of land exchanged before his discharge and whether entitled to be registered as proprietor of the properties - Whether the bankrupt held the interests as bare trustee for the cross claimant wife of the bankrupt - Whether there was a resulting trust in favour of the cross claimant due to her contributions to the purchase price of the properties - Whether in light of those contributions there was a constructive trust in favour of the cross claimant

Criminal law - appeal against conviction - where a person summoned to attend for jury service mistakenly attends court on an earlier date and is included in the jury - whether trial, verdicts and conviction a nullity - effect of non-compliance with mandatory provisions of the Jury Act 1977 - meaning and scope of the saving provisions, s73

CRIMINAL LAW - appeal against severity of sentence - malicious wounding with intent to inflict grievous bodily harm - plea of guilty - whether insufficient consideration was given to the extent of provocation involved - appeal allowed.

CRIMINAL LAW - assault - break and enter and commit serious indictable offence - sexual intercourse without consent - pleas of not guilty - appeal against conviction.

CRIMINAL LAW - Appeal against severity of sentence - robbery while armed with an offensive weapon - plea of guilty.

APPEALS - error of law - requirement that error of law be dispositive of appeal - COURTS - JUDGES - requirement that judicial power be exercised in resolution of "legal" controversy. (D)

Negligence - motor bike collides with car - car towing trailer making right-hand turn - whether judge correctly found that turning indicator working - no error established - whether failure of driver to check for wrongly overtaking motor bike before turning - judge did not deal with this but evidence all one way - no failure - no question of principle. ND

CRIMINAL LAW - appeal against severity of sentence - robbery - plea of guilty - whether sentencing Judge took into account material which was not in evidence.

[IMPOSITION OF PENALTIES] - Whether consequent upon declarations of contravention of the Corporations Act the defendants should be prohibited from managing a corporation for a period - whether pecuniary penalties should be imposed. - [COMPENSATION] - Whether compensation should be awarded for loss and damage to the corporation resulting from the contravening conduct.

That an order made by Local Court Magistrate was not available as a matter of law - That the order was to the effect that the defendant be discharged pursuant to s19B(1)(d) of the Crimes Act 1914 (Cth), upon entering into a recognizance in the sum of $1000 and to be of good behaviour for eighteen months - and, that the defendant should pay court costs. - Contravene Social Security Act 1991 (Cth) s1350 - Job Search Allowance - Newstart Allowance - Discharge of offenders without proceeding to conviction - Whether the magistrate erred in discharging the defendant despite an earlier conviction

INTEREST - where referee's report adopted - where no evidence that plaintiff has undertaken repairs quantified by referee in damages award - whether damages awarded by reference to cost of repair equivalent to diminution in value of premises - where allegation of delay - whether delay unreasonable - whether delay diminishes entitlement to interest - whether interest should be awarded at market rate or Schedule J rate - COSTS - where plaintiff did not entirely succeed on adoption application - whether partial success of plaintiff reason for departing from usual order for costs - PRACTICE AND PROCEDURE - where interlocutory orders made - where defendant seeks inquiry into whether defendant suffered loss from imposition of interlocutory orders - whether necessary for interlocutory relief to be granted

Succession. - Family Provision. - Claim by adult granddaughter. - Substantial legacy given to Plaintiff by will. - Whether Plaintiff is an eligible person. - Whether Plaintiff was dependent upon Deceased. - Relationship between Plaintiff and Deceased. - Statements by Deceased. - Factors warranting the making of the application. - Financial and material circumstances of Plaintiff. - Whether Plaintiff has been left without adequate provision for her proper maintenance.- Competing claim of Defendant.

PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally - Plaintiff generally successful - Defendant wins on some issues - Whether issues discrete.

EQUITY [36] - General principles - Fiduciary obligations - Particular cases - Employees - Contribution to employer's asset - Employee using information after termination of employment - Employer's loss of profits.

Dumping of illegal waste and illegal use of land - discretionary statutory powers of local council - common law duty of care - breach of duty and causation

Vexatious litigant - Local Court, District Court.

Murder of a police officer acting in the course of his duty - Crown appeal against sentence - Absence of planning and premeditation - Whether in the worst category of the offence of murder - Whether life sentence appropriate

Real property - forged mortgage - purported mortgagor told mortgagee prior to registration that it was forgery - made mortgagee anxious to register as soon as possible - mortgage registered - whether arguable case for fraud exception in s 42(1) Real Property Act - held arguable case. ND

Negligence - safe system of work - whether breach of duty - apportionment of liability amongst tortfeasors - psychiatric illness - quantum of damages - Calderbank offer. (D)

Stay of execution - whether judge's exercise of discretion miscarried - no error shown - no question of principle - leave to appeal refused. ND

Appeal from Local Court - lack of reasons and misdirection - competing views as to what was decided by the Court - no error in point of law.

Joint tenancy between husband and wife - Agreement to sever effective in equity but not at law - Death of husband - Probate of husband's estate granted to wife - Wife entitled to be registered as proprietor of whole estate and holds husband's half share on trusts of the will.

CORPORATIONS - winding up - proof of debt - appeal against rejection of proof of debt - matters which court can take into consideration in determining appeal - procedure to be followed on such appeal - CORPORATIONS - winding up - winding up by the Court - proper scope of interlocutory process filed in winding up proceedings - PROCEDURE - Supreme Court procedure - relationship between relief sought by an interlocutory process, and relief sought by principal proceedings - EQUITY - rectification - whether available against a company after company has been ordered to be wound up

TORT - Vicarious liability of employer - Circumstances in which an employer can be vicariously liable for an unauthorised and illegal act of its employee - Employer not liable for a wrongful act of an employee committed "on a frolic of his own" - TORT - Vicarious liability for acts of an independent contractor - the principal exercising control over independent contractor independent contractor acting as "representative" of the principal. - STATUTORY CONSTRUCTION - Liquor Act 1982 - Statutory obligation imposed upon licensee - Non-delegability of obligation under Act does not render it non-delegable for the purposes of tort law. - STATUTORY CONSTRUCTION - Liquor Act 1982, s.103 - Use of excessive force in tasks authorised by section - Section has nothing to say about liability of a licensee for use of excessive force by a third party not directly employed by it.

WORKERS COMPENSATION - recovery under s26 and s27 Workers Compensation Act 1987 - whether worker's membership of Bandidos Bikie Gang was a 'condition' for the purposes of s10(1D) - ejusden generis rule - casual relationship between injury and death in case of suicide - whether worker's suicide was the consequence of depressive illness rather than free will

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Whether option to extend contract could be exercised when party was in breach of terms as to payment of licence fees and outgoings - Whether contract void for uncertainty - Whether contract should be rectified to include provisions of earlier contract omitted from later one - Whether general damages available in addition to formula for compensation in the contract - Cross claim for outstanding licence fees and outgoings and possession of site - No priniciples involved

Deed of charge to secure loan - whether security limited in duration - whether operative clauses should be set aside - whether unconscionable to rely on deed - whether deed unjust in the circumstances

Part 72 - Adoption of Referee's report - Motions dealt with by separate question orders under Part 31 Supreme Court Rules

Family Law. - De facto relationship. - Whether or not such a relationship existed. - Marriage contracted by Plaintiff during the course of alleged de facto relationship. - Whether such marriage was a contrived marriage. - De facto relationship was of a short duration. - Respective contributions of parties.

CORPORATIONS - voluntary administration - pending winding up application - whether administrator has power to compromise pre-existing debt of applicant for winding up - whether power properly exercisable - company insolvent - direction refused - winding up order made

CRIMINAL LAW - Perverting the course of justice by police officer - Crown appeal against manifest inadequacy of non-custodial sentence - Offender being a police officer is a relevant consideration, when offence committed in a private capacity - Denunciation entitled to more weight when sentencing a police officer for offence involving interference with the administration of justice

CRIMINAL LAW - receive stolen goods - plea of guilty - appeal against severity of sentence - whether sentencing judge properly considered utilitarian value of plea - whether sentence manifestly excessive - appeal dismissed.

CRIMINAL LAW - appeal against severity of sentence - maliciously inflict grievous bodily harm - plea of guilty.

Exceptional circumstances - dependent children.

Costs - Indemnity costs - Whether indemnity costs order may be made in respect of the obtaining and executing of an Anton Pillar order - Principles - See paragraph 22 as to all orders

EVIDENCE - Burden of proof - Prof by direct evidence - Proof by other facts - Proof of someone's negligence - On probability, proof of respondent's evidence - EVIDENCE - Findings by trial judge - Credibility - Rejection of evidence due to lack of credibility - Evidence overwhelmingly supports uncreditable witness - Restoration of credit on appeal - APPEALS - Negligence - Defendant wins at first instance - Trial judge did not deal with damages - Limited new trial required - Trial judge ought to have dealt with all litigated issues

TRUSTS AND TRUSTEES - land held by trustees upon trust for testator's son for life with remainder to son's children - son childless and likely to remain so - trustees seek order under s.72 Trustee Act vesting land in son freed from contingent rights of unborn children - nature of s.72 order as "vesting order" - requirement for separately existing equitable entitlement in need of perfecting by vesting order - s.72 does not permit variation of trusts independently of such requirement

Strike out defence and cross-claim

DISCONTINUANCE OF PROCEEDINGS - Whether discontinuance of proceedings will lead to an incurable injustice or disadvantage - Whether conditions should be imposed before leave granted to plaintiff to discontinue proceedings

Dismiss statement of claim

Practice and procedure - Application to dissolve undertakings to the Court

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether adjudication determination should be quashed - jurisdictional error of law - s 14(5) of Act - reference date - final payment claim - whether more than one payment claim made in respect of the one reference date - whether payment claims could only be made during currency of contract - effect of termination or cessation of work - where no contractual provision for the occurrence of reference dates after termination or cessation of work - whether permissible to make a series of payment claims after termination but within relevant limitation period - discretion to withhold relief

Application to extend operation of caveat - Whether negative covenant not to encumber or dispose of land constituted or created an estate or interest in the land - Troncone v Aliperti considered.

Extension of time to commence proceedings - ss 60C & E Limitation Act 1969 (NSW)

Sentencing - Crown appeals - multiple offences of armed robbery - malicious wounding with intent to escape lawful apprehension