Cases and authorities

CORPORATIONS - voluntary administration - applicant for winding up in insolvency seeks termination of Part 5.3A administration effected 45 minutes before hearing of winding up application - significantly different "relation back days" according to whether or not administration in place immediately before winding up order made - administration initiated by sole director as self-protective measure - abuse of process

Criminal Law - Sentencing - cumulation of fixed term sentence on non-parole period of sentence first imposed resulted in non-parole period being 93 per cent of total sentence - sentence imposed inconsistent with stated intention - whether non-parole period should be reduced.

Criminal law - sentence - no question of principle

Apprehension of bias - judge alone trial - verdict on conviction - not unreasonable - claim of right

WORKERS' COMPENSATION - Common law damages - Appeal - Whether adequate reasons given for accepting plaintiff's evidence over contrary evidence on behalf of defendant - Whether adequate reasons for finding unsafe system of work - Whether thresholds for damages passed.

Criminal law - committal proceedings - application for leave to appeal against order for committal and against dismissal of application for costs - no question of principle

Committal - special reasons for calling witness - inappropriate condition attached - failure to publish reasons

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - where plaintiff moves for summary judgment - whether defendant has arguable defence to preclude plaintiff from obtaining summary judgment - where document alleged to be payment schedule did not indicate the payment defendant intended to make - whether defendant provided payment schedule for purposes of s 14 - requirements of payment schedules - whether question to be determined on final hearing and not by way of summary judgment - estoppel by representation - where alleged representation that parties take no further step in response to claim until negotiations take place - whether defendant relied upon representation to its detriment by taking no further steps under Act in respect of payment claim - whether estoppel defence prohibited by s 34 - whether question to be resolved on application for summary judgment

Practice and procedure - Abuse of process - Discovery - Principles generally - Limits and extent of jurisdiction to order discovery - Equitable discovery in aid of prospective third party costs applications - Supreme Court Rule Part 52A rule 4 (5) (d) - Whether funding as a commercial venture for reward by third parties of litigation who cloak their identity in order to avoid assuming liability for adverse costs orders is capable of amounting to an abuse of process of the court - Whether depending upon particular circumstances the degree of a funder's active participation, involvement or control of litigation is capable of amounting to an abuse of process of the court - Consideration of whether parties who use the courts process and funders who stand behind them should be at risk in relation to costs if the proceedings be successful - Companies - Piercing the corporate veil - Costs of proceedings - Applications for gross sum costs orders

CONTRACT - where plaintiff financed payment of insurance premium - where default is repayment - where deed of "settlement" negotiated - where defendant agreed to pay settlement sum - where defendant agreed to execute mortgage in favour of plaintiff - where plaintiff seeks specific performance of settlement agreement - where settlement agreement binding and enforceable - formation of contract - intention to be bound - whether settlement agreement binding only as a deed - subjective understanding of the parties - whether settlement agreement binding as a deed - whether documents "delivered" - whether intention of parties that documents binding upon execution and not only on formal exchange - whether plaintiff's threatened commencement of winding-up proceedings without further notice a repudiation of settlement agreement - whether deed of settlement not enforceable as mortgage where deed of settlement unstamped - Duties Act 1997

Appeal from Consumer, Trader & Tenancy Tribunal - limited avenue of appeal - denial of natural justice in refusing adjournment sought by facsimile - no appearance by plaintiff before the Tribunal - lack of evidence - futile appeal

Orders appropriate - Costs - Indemnity Costs

TRUSTS - subscription agreement - plaintiffs subscribers under subscription agreement - where subscription agreement created express trust of subscription price - whether change in nominated escrow account terminated express trust - trust and contract - where alleged that subscription price paid by cash and amounts set-off - whether amounts set-off part of subscription price - whether amount set-off held on trust for plaintiff - ESTOPPEL - estoppel by representation - where alleged that defendant represented that defendant held monies on trust for plaintiffs - whether defendant should be estopped from denying trusts - whether representation relied upon

Appeal from Tribunal - jurisdiction - error as to onus of proof on the question of mitigation of damages and in the assessment of compensation - denial of natural justice - extension of time

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - where defendant paid part of one progress claim and none of another - whether plaintiff entitled to recover amounts unpaid as a debt - where progress claims identified work by single line item references - whether progress claims identified the construction work to which they related - requirement in s 13(2)(a) that a payment claim identify the construction work to which the payment relates - where defendant did not object to form of payment claim on eleven prior occasions - where contractual clause requiring payment claim to be suported by evidence - whether progress claims suported by sufficient evidence - where defendant had not provided payment schedule or paid whole or part of claimed amount by due date - application of s 15(4)(b)(ii).

CORPORATIONS - winding up - liquidator causes company to bring proceedings to recover corporate assets - proceedings unsuccessful - personal costs order sought against liquidator - principles governing availability of such an order in Supreme Court - supervisory jurisdiction of Court over court-appointed liquidators - whether appropriate for liquidator to pay costs personally when Court directs him, pursuant to Ex parte James - In re Condon (1874) 9 Ch App 609, not to follow a particular course of conduct - PROCEDURE - costs - orders for costs against non-parties in the Supreme Court - construction of Supreme Court Rules 1970 Part 52A, rule 4 - circumstances where personal order for costs can be made against liquidator, in connection with proceedings which liquidator causes company of which he is liquidator to bring, under supervisory jurisdiction of court over court-appointed liquidators - PROCEDURE - costs - indemnity costs - whether awarded on basis of bad conduct of party prior to litigation

Criminal Law - Sentencing - murder - boyfriend/girlfriend - both young - both aboriginal

Evidence - Crown's entitlement to lead evidence as to the course of the uinvestigation - - Scope of evidence - accused offered opportunity to participate in interview - - Right to silence - - s 87(1)(b) admkissions within scope of authority

Leave to appeal decision of LCM - disposal of uncollected goods - s 8 Uncollected Goods Act 1995 (NSW)

Dust Diseases Tribunal Act 1989, s12A - Limitation Act 1969, s26 - Law Reform (Miscellaneous Provisions) Act 1946, s5(1)(c) - cross-claim for statutory contribution -- whether s26 of the Limitation Act applicable to claim for contribution in Tribunal - whether s12A of the Dust Diseases Tribunal Act applies to cross-claims for contribution such that no limitation period is applicable. (D)

Appeal from local court - alleged failure to take evidence in account - alleged error in rejecting tender of a document - denial of natural justice

Application for summary judgment - unsafe system of RTA - whether driver also arguably a concurrent tort feasor - application to amend cross claim to add contract count - whether amendment would be futile.

Appeal from Magistrate's decision - procedure for private prosecution - nature of Magistrate's function - whether application frivolous, vexatious, without substance or has no reasonable prospect of success - whether error on face of record or jurisdictional error - including constructive failure to exercise jurisdiction.

Criminal Law - Sentence for conviction of two counts of murder.

ADMINISTRATIVE LAW - Applicant was a registered migration agent between 9 June 1994 to 9 June 1999 - applicant had advertisements in El-Massry continuously since 1997 - cheques dishonoured - registration as migration agent lapses - charges of advertising when not registered migration agent - applicant seeks by summons judicial review to set aside, stay permanently or otherwise quash or dismiss conviction made in the Local Court, together with decision of District Court declining to set aside conviction on appeal - relief sought pursuant to s69 Supreme Court Act, 1970 - whether inconsistency of prior acquittal of charge under s283 Migration Act 1958 and conviction under charge pursuant to s284 of that Act, was an affront to logic and commonsense so that conviction should be quashed - appeal as of right to District Court - whether application incompetent and would have no merit in any event - jurisdictional error or error of law on the face of the record.

RES JUDICATA - issue estoppel - no estoppel in changing situation - WORKERS COMPENSATION - injury - disease - frank injury - workers compensation - causation - results from injury - WORKERS COMPENSATION - causation - results from two or more injuries - apportionment or contribution - D

PRACTICE AND PROCEDURE - Personal injury - accident on appellant's property - though respondent once worked for appellant, at time of accident was not employed by appellant - preliminary dismissal order under Pt 1 r2A DCR made following respondent's failure to appear at a show cause hearing - two and half year delay by respondent due to continuing drug addiction, rehabilitation and problems in domestic relationship - delay in making application to set aside preliminary dismissal order - preliminary dismissal order set aside - appeal against decision setting aside preliminary dismissal order - appellant seeks to reinstate that dismissal order and so dispose of respondent's legal action - leave to appeal granted - delay in taking further steps in proceedings - whether extension of time caused prejudice to the appellant - whether Pt 1 r7A(5) DCA appropriate source of power - whether proceedings were irregular (by majority) - whether appellate intervention warranted in discretionary decision on matter of practice and procedure - extension of time should not be exercised in favour of respondent.

Appeal from dismissal of information - certificate under s177 Evidence Act - application of Subdivision 6A of Justices Act - discretion to allow oral evidence

Leave to appeal interlocutory decision of Local Court Magistrate - substitute plaintiff - deed of assignment

Contract - Specific Performance - Oppression (Corporation Act s233) - Valuation of shares

Application for order that the winding-up of a company be terminated - Adequacy of evidence of the financial position of the company - Proposal to postpone debts owed to directors in event of later liquidation of company rather than inject funds as to capital - Failure to serve notice of application on ASIC - Service of notice of application on creditors whose debts would not be discharged by application.

DEFAMATION - Publication - Republication - Cross-claim for contribution - Pleading of - Particulars for inclusion - Supreme Court Rules Pt 16 r 1(1), Pt 67 r 12(1)

[PRACTICE AND PROCEDURE] - Application for summary dismissal pursuant to Part 13 Rule 5 of the Supreme Court Rules 1970 - [STATUTORY CONSTRUCTION] - Whether the Casino Control Act 1992 (NSW) reveals an intention to exclude the common law in relation to the exercise of the powers of the Casino Control Authority - Whether the Casino Control Authority owes a duty of care to patrons of the casino who are the subject of physical restraint by casino employees in circumstances where the type of restraint used is authorised by the Authority pursuant to the Act - Whether the Authority has a statutory obligation to investigate the Casino including its "operations" which include the security system in which the restraints are used

Contract - Misrepresentation

Criminal Law - Sentence for conviction of murder

Summary dismissal - Whether Equity Division proceedings comprise 'a trial of a common law claim' within the meaning of Part 34 rule 7 of Supreme Court Rules

PROCEDURE - Supreme Court Rules Pt 72 r 13 - Adoption of Referee's Report. - APPEALS - Nature of Appeal from a hearing under Pt 72 r 13 - An appeal from a judge's decision pursuant to this rule is limited to review of the judge's decision to adopt, vary or reject the referee's report - Failure to deal with party's case - Appealable error. - TRADE PRACTICES - Causation - Reliance - Whether information merely passed on - Loss or damage "by" conduct of another person - Causation is the common law practical or common-sense conception of causation - Reliance is an aspect of causation - Express negative statement that something does not exist - It is not necessary in order to prove reliance for there to be an evidentiary statement to the effect that the representation was relied on.

CORPORATIONS - Priorities in winding up - Meaning of "in any winding up" in s564 Corporations Act

FAMILY PROVISION -- widow -- long and happy marriage -- right to reside -- small pecunary legacy -- inadequate provision -- competing needs -- beneficiary with small income but valuable realty -- widow with no realty but large income -- no equilibrium

EQUITY - Equtiable Estates and Interests - Whether plaintiff contributed to purchase price of house registered in the names of her daughter and son in law or whether she lent the moneys to them.

[CONTRACT] - OFFER AND ACCEPTANCE - Twelve month contract for the supply of glass bottles by the defendant for use in the plaintiff's salad dressing filling line - breakages of bottles on line - 'battle of the forms' - whether contract contained implied terms as to merchantable quality and fitness for purpose - application of 'global' over 'last shot' approach - whether two forms inconsistent - IMPLIED TERMS - Implication of terms from trade usage and custom - whether parties under an implied obligation to cooperate in implementation of bottles onto filling line - EXCLUSION CLAUSES - Whether exclusion of all liability "imposed by law" sufficient to exclude liability in negligence - consideration of the status in Australia of the rules in Canada Steamship Lines Ltd v R [1952] AC 192. - [NEGLIGENCE] - Claims that defendant owed concurrent duties in contract and negligence - circumstances in which a duty of care in negligence can arise between two large commercial entities in detailed contractual relations. - [TRADE PRACTICES] - Misleading and deceptive conduct said to arise by defendant's failure to inform plaintiff of alleged defects in bottles - circumstances in which silence may constitute misleading and deceptive conduct. - [DAMAGES] - Whether defendant entitled to damages for 'loss of a chance'.

Stay of proceedings in Commercial List pending determination of related proceedings before Industrial Relations Commission - Principles

Conviction appeal - armed robbery - competence of counsel - directions to jury on identification evidence - assertions that conviction unreasonable

Criminal Law and Procedure - indecently assault female under 16 years - carnal knowledge - interlocutory appeal - application for permanent stay of proceedings - principles applicable - delay - uncertainty of dates - whether unfair prejudice to accused - illness of accused and his wife - prosecutions barred by statute if complainant over 14 years at time of alleged offences - whether evidence capable of satisfying jury complainant under 14 years at relevant time - whether prosecutions doomed to failure