Cases and authorities

CORPORATIONS- Directors- Intending to act in a way where personal liability might attach- Directors unable to obtain insurance- Whether Court can give protection for past and future "breaches" under s 1318 of the Corporations Act- Whether provisions of s 197 of that Act relevant. CORPORATIONS- Difference between (a) potential unliquidated claim and (b) prospective or contingent debt. CORPORATIONS- Construction of Corporations Act- Preferable approach. TRUSTS- Partly charitable trust- Trustees also directors of trading companies- Problems with possible solvency of companies- Whether Court should give judicial advice.

NEGLIGENCE - occupier's liability - plaintiff tripped and fell whilst taking a shortcut - whether breach established - reasonableness of response to foreseeable risk of injury - system of cleaning reasonable - no evidence of breakdown of system. (ND)

Negligence - claimant tripped on concrete cover in footpath whilst jogging - whether Telstra failed to take reasonable steps to inspect and repair - whether sufficient evidence to infer breach - whether hazard in the nature of a trap. (ND)

REAL PROPERTY - Valuation of land - Improvements - Deducing land value component of improved sale - Depreciation of improvements - Rate - Whether single or variable - Whether some evidence of value - Comparable sales - Of improved land - Adjusting - Which sales relevant - Multi-storey CBD commercial buildings

LEASES AND TENANCIES - commercial tenancies - negotiations to lease different premises - where series of offer documents "subject to ... approval ... contract and availability" - whether alleged oral acceptance of written offer document sufficient to create binding agreement - effect of s54A Conveyancing Act 1919. - TRADE PRACTICES - misleading and deceptive conduct - s52 Trade Practices Act 1974 (Cth) - dispute as to floor area to be leased - where defendants negotiating with third parties - representations alleged not supported by evidence. - TRADE PRACTICES - unconscionable conduct - s51AA Trade Practices Act 1974 (Cth) - whether manner of negotiations breached section.

Probate - Whether will made in contemplation of marriage. - Family Provision Act - Extension of time for the making of application under s 7 - Inadequate provision on intestacy - Bladwell v Davis applied. - Wills, Probate & Administration - Orders to be made depending on whether plaintiff exercises her election under s 61D - Designation of matrimonial home after s 61D election as notional estate.

CORPORATIONS [18]- Deeds- Document to be a deed needs to be sealed or expressed to be a deed. GUARANTEE & INDEMNITY [8]- Party added to joint guarantee after execution- Victorian law applicable- Rule in Pigot's case applicable. PRIVATE INTERNATIONAL LAW [82]- Proper law of contract- Guarantee- Principal contract governed by Victorian law.

criminal law - sentencing - accessory after the fact of murder

CRIMINAL LAW - aggravated break and enter with intent to steal - lack of parity of sentence with co-accused -sentence manifestly excessive - "at the crossroads."

Negligence - Semitrailer turned over at roundabout - Unidentified motor vehicle - Findings of the Master that there was no unidentified motor vehicle open on the evidence and adequate reasons given for rejecting the plaintiff's claim - Defective construction of the roundabout by the RTA not established and, in any event, no causal nexus was established between the construction of the roundabout and the accident.

WORKERS' COMPENSATION - Doctor contracted HIV and AIDS in the course of medical employment - Where precise date and occurrence of infection not identified - Where multiple employers - Causation - Where expert evidence given regarding the possible range of dates of infection - Whether any evidence supported finding of trial judge that employment by the appellants was a cause of injury - Whether evidence of arithmetic probability can sustain a finding on the balance of probabilities - Sufficiency of evidence - Whether question of fact or law - Whether absence of Reasons. D

Appeal decision of LCM - adjournment application - s 19(2) Sale of Goods Act

CONVEYANCING [155]- Torrens System- Allegedly forged mortgage registered without fraud of mortgagee- Indefeasible- However personal covenant in ancillary allegedly forged document not indefeasible. MORTGAGES [4]- Alleged forgery- Both registered mortgage and associated document containing covenant to repay allegedly forged- Former indefeasible, latter not.

EQUITY - Appeal under s 1321 Corporations Act 1990 (NSW) against decision of company administrator to disallow formal proofs of debt or claim - whether debt owed to claimant personally or to his company - claim for wrongful use of domain name, related property and computer hardware - whether claimant's ownership or entitlement established - whether change of trustee in accordance with trust deed - whether claimants discharged onus of proof - whether administrator's decision should be confirmed

Application for leave to appeal from determination of a costs assessor - costs payable under order made by the Local Court - only the court that made the order has jurisdiction to entertain the application

ADOPTION - consent dispense order - father does not want to be involved in adoption process - whether consent dispense order 'overrides' father's wishes for purposes of s 67(1)(c)

jointly committed offences - supply of not less than the commercial quantity of cannabis leaf - supply of not less than the traffickable quantity of methylamphetamine - whether each of the appellants knew of the existence of cannabis in the trailer - directions to jury as to appellants' knowledge of the cannabis - direction to jury on tendency or coincidence reasoning - direction to the jury concerning possession - unreasonable verdicts

Leave to appeal decision of Local Court Magistrate - award of indemnity orders

Criminal Practice & Procedure - appeal against sentence - whether excessive - bond - condition of bond that not enter Willicania except with Judge's permission - whether valid - test to be applied in determining validity of conditions of a bond.

Costs

CRIMINAL LAW - appeal against sentence - conspiracy to defraud (false report that vehicle stolen with intention of false insurance claim) - applicant took leading part in conspiracy - applicant F aged 37 with several prior convictions including one for dishonesty - District Court sentence 2 yrs, NP 1-1/2 years. Consideration of - early plea of guilty - special circumstances - procedural fairness - whether sentence excessive. Leave granted, appeal dismissed.

Severity appeal - reasons given for sentence - no reasons specifically given for non-parole period - effect of repeal of ss16G and 19AG Commonwealth Crimes Act 1914 - no error

PROCEDURE - COSTS - DISTRICT COURT - Defendant applies for rehearing after plaintiff successful in arbitration - Plaintiff recovers substantially smaller verdict in court hearing - Order that plaintiff pay defendant's costs - Whether that order correct.

FAMILY LAW - overseas adoption - change of name of infant child - relevant considerations

CORPORATIONS - schemes of arrangement - correct characterisation for Part 5.1 purposes of options to subscribe for shares - whether options with different expiry dates and different exercise prices indicate distinct classes where all valued on consistent basis for consideration purposes - reconstitution of board of acquiring company - whether company can covenant to procure particular composition of its own board

STATUTES - Interpretation - The Petroleum Retail Marketing Franchise Act 1980 (Cth) - Plaintiff seeking declaration that notices of termination of franchise agreements had no effect - Whether clear days are required in a notice of termination - Whether the description of a statutory holding over under a franchise agreement was adequate - Whether a renewed agreement may be terminated for events preceding the renewal - Whether a notice must contain all facts relied upon or reference may be made to extraneous documents - Whether the notices contained sufficient particularity - Whether it was just and equitable to declare the notices to have terminated the franchise agreements

CONTRACT - master and servant - unilateral reduction in salary - fundamental breach - MASTER AND SERVANT - contract for minimum term at fixed salary - unilateral reduction in agreed salary - fundamental breach - rescission

Motor vehicle accident - Amendment sought to Statement of Claim - Striking out Pt 33 r 8A particulars - Appeal from Master to a single Judge - Discretion.

FAMILY LAW -- de facto relationship -- lengthy relationship -- significant assets of defendant -- significant 20 (1)(b) role of plaintiff -- conduct post separation -- s 27 maintenance -- provision for re-training -- lack of sufficient evidence --post separation contributions -- relevance of welfare contribution and child support by defendant -- superannuation -- financial resource -- fund to be considered not just defendant's contribution -- s 20 (1)(a) and (b) relevant to any adjustment

Sentencing - offences of obtain benefit by deception - "special circumstances" - principle of totality.

Criminal law - ongoing supply of amphetamines - appeal against conviction following plea of guilty.

CRIMINAL LAW: Application for leave to appeal against sentence - importing trafficable quantity of heroin - repeal of s16G Crimes Act (Cth) - sentencing judge's approach to appropriate starting point - discount for plea of guilty, assistance to authorities - whether, in any event, sentence excessive.

Criminal law - conduct of counsel - cross examination of accused to suggest he has changed his story - care and directions needed.

PRACTICE - stay of proceedings for abuse of process - proceedings abusive as attempt to re-litigate question decided in earlier proceedings - no question of principle

Appeal - Extension of time - where five year delay - principles considered.

PRACTICE AND PROCEDURE - Costs - matter arose out of complex and exceptionally lengthy proceedings in relation to a motor vehicle accident in which plaintiff suffered severe brain damage - application for leave to appeal - submitting appearances filed by first and second opponents - costs incurred by plaintiff's solicitors in connection with those legal proceedings reviewed by trial judge of his own motion - whether appellate court should give leave to appeal when small sum involved - orders sought to be appealed from may affect reputation of plaintiff's solicitor, the claimant in this matter - dealt with only a small part of the costs which the claimant had charged the plaintiff, his tutor and the guardian of his protected estate regarding the conduct of the litigation - those orders concerned the cost of an expert's report and its copying, costs of copying exhibit and copying costs of solicitor's letter in relation to briefing a potential witness - trial judge made the orders at his own initiative and not on the motion of any party - trial judge did not lack power to make the orders - whether circumstances justify appellate intervention - whether the undoubted discretion to charge the legal adviser with costs incurred improperly or without reasonable cause, had been properly exercised.

TRADE PRACTICES - misleading and deceptive conduct - Corporations Act s995 - underwritten issue of new unlisted options offered under prospectus ("July 2003 options") - July 2003 options issued on very favourable terms - options offered to registered holders of options expiring 30 September 1999 ("September 1999 options") (and as far as the appellant was concerned after its September 1999 options expired) to those who 'lodged a valid transfer' - whether first respondent aware of appellant's beneficial ownership of September 1999 options - what necessary for assignment in equity of options - whether appellant was sent prospectus - whether first respondent acted in misleading and deceptive fashion when it failed to enable appellant to take up options when it assisted others in comparable position to do so - failure to provide a prospectus and/or failing to provide (as others in like situation were provided) a special personalised acceptance form enabling appellant to take up offer - appellant complains of loss at having missed out on offer - appellant was not a registered holder but claims to have been entitled to be - appellant at all times employed a stockbroker - Should claim for damages have been dismissed - misleading and deceptive conduct based on what first respondent failed to do rather than what it did - no contravention by either first or second respondent of either s52 Trade Practices Act were that applicable or s995 of the Corporations Act if it were applicable.

PRACTICE AND PROCEDURE - Application for stay of a winding up order pending an appeal - Application by directors of a company for leave to pursue an appeal under s 471A of the Corporations Act 2001 (Cth) - Whether appeal has a reasonable prospect of success - Whether prejudice if stay not granted - Whether the application is governed by s 482 of the Corporations Act 2001 (Cth) or Pt 44 r 5 and Pt 51 r 15 of the Supreme Court Rules 1970 (NSW) - Considerations relevant to a grant of approval under s 471A(1A)(d) of the Corporations Act 2001 (Cth) - Protection of the resources of an insolvent company. D

NEGLIGENCE - respondent/employee injured herself when glass shattered after she sat on glass table at used car premises occupied by appellant/quasi-employer - respondent employed by owner of the premises Auburn Services Trust - whether the appellant or Auburn Services Trust was liable in negligence either as, or with duties equivalent to, the employer of employee - at time of accident appellant accepted employee had worked at those premises under its direction, supervision and control - whether respondent was contributorily negligent - extent of duty of care to maintain safe system of work - distinction between maintaining safe system of work and simple uncomplicated operation within normal system of work involving obvious danger in ordinary commonsense. - CAUSATION - whether causation and breach of duty were before trial judge - whether warning sign or verbal warnings would have averted accident - Van der Sluice considered - whether unsafe practice had developed - provision of safe working environment.

CONTRACTS - release of cause of action by accord and satisfaction - construction of scope of release - INSURANCE - fire insurance - strata title home unit building - availability to individual lot proprietor of insurance of owners' corporation taken out pursuant to Strata Schemes (Freehold Development) Act 1973 to make good fire damage occurring within proprietor's lot - whether registered proprietor can sue tenant of home unit for damages when registered proprietor has had loss made good by insurer - whether insurer entitled to be subrogated to rights of registered proprietor against tenant - DAMAGES - general principles - whether receipt of indemnity from insurers precludes insured from suing person alleged to be wrongdoer who has caused damage

Part 72 reference - Adoption/rejection

Trade Practices - Alleged misleading and deceptive conduct by non-disclosure leading to failure of negotiations - interpretation of preliminary contract - no issue of principle - nominal damages for only breach found to exist.

DAMAGES -- measure of damages -- when assessed -- knowledge of purchaser's intention -- test of reasonableness and likelihood of loss - MITIGATION -- reasonable steps to mitigate -- ordinary course of business -- external factors -- would it have been prudent to accept vendor's offer

DEFAMATION - s7A trial - successful appeal - appeal to High Court - partial retrial ordered - consent judgment for defendant on retrial - application by defendant for indemnity costs and costs of first trial.

Criminal trial - Judge alone - murder - mental illness - defect of reason - M'Naghten's case - special verdict - s38 Mental Health (Criminal Procedure) Act 1990

Tort - Negligence - Employer's liability - Factual dispute as to liability.

Construction of a Deed