Cases and authorities

WORKERS' COMPENSATION - Hospital worker struck twice by a food trolley - Challenge to findings of fact. ND

CORPORATIONS - reinstatement of registration - where deregistration followed completion of creditors voluntary winding up - where plaintiff creditor willing to fund liquidator to investigate potential recoveries - question whether all creditors given notice of final meeting - whether liquidator under previous voluntary winding up will again be in office upon reinstatement of registration - whether order for winding up and order for appointment of new liquidator should be made

FAMILY LAW & CHILD WELFARE [108]- Interim custody- Determination recently made by Children's Court- Alleged errors of fact and undue weight- Insufficient to invoke urgent exercise of parens patriae jurisdiction.

INDECENT ASSAULT - stated case out of time - 13 month delay - s5B(2) Criminal Appeal Act 1912 - whether likelihood wrongful acquittal - s428D Crimes Act 1900 - delay largely unexplained - consideration of prejudice caused by delay - whether Attorney-General had standing to bring stated case

CRIMINAL LAW AND PROCEDURE - AGGRAVATED DANGEROUS DRIVING CAUSING DEATH - EVIDENCE - UNFAIRNESS TO ACCUSED - UNSOLICITED INCULPATORY REMARK TO HIGHWAY PATROL POLICEMAN - NO OBJECTION AT TRIAL - DISCUSSION OF APPROPRIATE TEST TO ATTRACT APPELLATE INTERVENTION

TORTS - Negligence - Hidden Danger - Mat in foyer - Obscured - Distractions - Whether mat ought to have been anticipated - Magnitude of risk - Probability of occurrence - TORTS - Contributory negligence - Whether foreseeable - EVIDENCE - Jones v Dunkel inference - Whether explanation warranted - No explanation provided - Witness available

PROCEDURE - Summary disposal - Whether reasonable cause of action - TORT - Detinue and conversion - Possession, use and/or disposal after withdrawal of owner's consent.

Corporations - Winding up - Voidable transactions - Alleged uncommercial transaction - Loan to brother or to brother's company - Proper characterisation of payment - Whether brother was the defendant's agent to receive repayment - No question of principle - s 588FG(2)(c) considered.

Children's Court - Children and Young Persons (Care and Protection) Act 1998 ss3, 69, 79, 81 - parental responsibility solely to Minister - limit of power of Children's Court

BUILDING AND CONSTRUCTION - where plaintiff claims sums due under building contract - where Court referred proceedings to referee - where plaintiff moves for adoption of referee's report - where defendant moves for rejection of substance of the report - Supreme Court Rules - Pt 72 r 13 - whether referee's report should be adopted, varied or rejected - obligation of referee to give reasons - whether referee gave adequate reasons - whether referee's findings of fact soundly based and explained - whether referee erred in construction of contract - whether interest should be calculated pursuant to contract or s 94 Supreme Court Act 1970

Criminal law - Sentencing - Car rebirthing - Severity of sentence - Totality - Reduction of non parole period.

Criminal law - Robbery in company - Sentence - Totality - Offence whilst on parole - Double punishment - Adjustment to commencement date of sentence.

CRIMINAL LAW AND PROCEDURE - TRIAL - CHARGES OF SEXUAL ASSAULT - MULTIPLE COMPLAINANTS - TENDENCY AND COINCIDENCE EVIDENCE - SEPARATE TRIALS - NEW EVIDENCE NOT CALLED AT TRIAL - CONDUCT OF TRIAL BY LEGAL REPRESENTATIVES - ERRONEOUS UNDERSTANDING OF INFORMATION CONVEYED BY CROWN PROSECUTOR - DECISIONS TO ADVISE AND ABOUT GIVING AND CALLING OF EVIDENCE - CUMULATING REASONS FOR TRIAL MISCARRYING

PLANNING LAW - approval of proposed signage - whether proposed signage is "business identification sign" pursuant to SEPP 64 - meaning of "business identification sign" - whether sign "indicates" matters nominated in definition - sign containing logo and "positioning statement" does not fall within definition

TAXATION AND REVENUE - payroll tax - where plaintiff provides temporary workers to clients - where triangular relationship consisting of contract between plaintiff and worker, and contract between plaintiff and clients - whether plaintiff liable to pay payroll tax in respect of workers - whether workers were employees of plaintiff at common law - whether at common law there was a contract of employment between worker and plaintiff - when contract of employment formed - employees and independent contractors - "dichotomy" between employees and independent contractors - "irreducible minimum of mutual obligation"

EQUITY - specific performance - agreement to compromise litigation - one party refuses to perform - allegation that solicitor exercised duress in causing client to agree to compromise

PROCEDURE - courts and judges generally - losing party seeks to raise issue not previously litigated on argument about form of orders - whether slip rule can be used to justify such a course - costs (no question of principle) - stay pending appeal (no question of principle)

CORPORATIONS - managed investment schemes - unregistered schemes - considerations relevant to winding up

rehabilitation - plea of guilty - finding of special circumstances - remorse and contrition - prior good character - serious objective circumstances - victim impact statements

TRUSTS - relief of trustee from liability for breach of trust - corporate trustee operates trading trust in apparent breach of trust instrument and Corporations Act - during initial period, directors of trustee rely on external accountant and do not obtain legal advice or acquaint themselves with the trust instrument - in subsequent period, after legal advice, the directors act assiduously to minimise breaches and restructure the trust - whether trustee should be relieved from liability in respect of breaches prior to receiving legal advice, and in respect of any breaches thereafter

Criminal law - sentencing - no question of principle

DUTY OF CARE - Council responsible for footpaths - whether tripping hazard - whether failure to carry out reasonable inspection - obligation of pedestrians to take care for their own safety

EMPLOYER - duty of care to employee - risk that employee would attempt to lift heavy weight - not reasonably foreseeable - employer not bound to warn employee against risk - NEGLIGENCE - employers' duty of care to employee - risk that employee would attempt to lift heavy weight - not reasonably foreseeable - employer not bound to warn employee against risk

SUCCESSION [335]- Family Provision- Relatively small estate- Duty of defendant- De facto widow- Testator's paramount duty.

Appeal against determination of costs assessor - no question of principle

TRUSTS - appointment of new trustee - whether corporate trustee in liquidation should be replaced as a matter of course - whether liquidator of corporate trustee has a conflict of duties to creditors and to beneficiaries - whether replacement of trustee should be declined if existing trustee's indemnity and lien is put at risk - other discretionary considerations - CORPORATIONS - corporate trustee - winding up - duty of liquidator to administer trust

PARTNERSHIP - rights and duties of partners inter se - one partner uses partnership money without consent of the other to partly finance purchase of property - right of non-consenting partner concerning that property - PARTNERSHIP - dissolution and winding up - one partner has used partnership assets to partly finance purchase of real estate held in his own name, without consent of his partner - rights of non-consenting partner to that property in the winding up

Extension of limitation period - no question of principle

On application for extension of stay - Gaming Machines Act 2001 ss19, 20(3)(b) and 21(1) - expedition

PROCEDURE - costs - successful application by plaintiff to withdraw accepted offer of compromise - offer and confirmation of it affected by mistake by plaintiff's solicitors - defendant properly putting plaintiff to proof of mistake - analogy with grant of indulgence

Severity appeal - material taken into account in addition to agreed facts - totality - parity with co-offenders in enterprise

LOCAL GOVERNMENT - Tribunal finding that, contrary to s 451 of the Local Government Act 1993 (NSW), a councillor had failed to declare a pecuniary interest in a matter before the council - Whether discrepancy between complaint and notice - Procedure under the Local Government Act 1993 (NSW) - Whether motion itself sufficiently disclosed pecuniary interest - Whether further requirement of oral disclosure - Where finding by Tribunal that notice of pecuniary interest had been given in the motion - Whether matter should be remitted for sentencing afresh. ND

CORPORATIONS - Liquidation - Estoppel - Rule in Ex parte James - Corporations Act s 477(6) - Property purchased with company funds - Property sold to fund director's legal costs - Liquidator knows of sale - Director defending company - Proceeds of sale - Liquidator attempts to recover - Whether benefit to company - Whether inducement by liquidator - Whether rule extends beyond money paid under mistake of law. - ESTOPPEL - Whether party needs to be 'innocent' - PRACTICE & PROCEDURE - Argument on appeal not run at trial - Prejudice

Limitation Act 1969 s60C and s60E - Advice given of common law claim and "election" to remain on workers compensation a relevant circumstance - Defendant's loss of public liability cover due to collapse of insurance company also a relevant circumstance.

Wills, Probate and Administration - Orders by consent - Grant of letters of administration a public act - Orders not to be made as a matter of course - Testamentary capacity - Circumstances surrounding suicide relevant to capacity.

Allegation of breach of duty of care - occupier's responsibility to invitee - duty to warn - no breach

Local Court (Civil Claims) Act 1970 s67(5) - stay pending appeal to Supreme Court - stay dissolved to extent of sum not in issue on appeal

PROTECTED ESTATES - Protective Commissioner - Powers - whether the Protective Commissioner has power under the Protected Estates Act 1983 (NSW) to make payment for past gratuitous care out of the estate of the protected person. (D)

Plaintiffs - harm to reputation and feelings - Concurrent claims in deceit not justiciable - Claim in injurious falsehood may extend to damage to business and not struck out..

CORPORATIONS - reinstatement of registration - deregistration for failiure to lodge returns - whether order may effect reinstatement for specified purpose only

WILLS - construction

Costs - Principles - Construction - Relocation - Expenses

Tort - Negligence - Employer's duty of care - Identification of employer - Construction site - Head contractor not liable - Contributory negligence - Damages.

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Standard condition for arbitration of disputes in building contract - Special conditions for resolution by expert - Whether standard condition limited to pe-completion claims and special conditions limited to post-completion claims - Plaintiff claimed special conditions should prevail over standard conditions - Defendant claimed no conflict

TORT - Negligence - Motor accidents - Unregistered vehicle - Claim against Nominal Defendant - Whether farm motor cycle capable of being registered, by reason of eligibility for issue of unregistered vehicles permit - Whether necessary that the use immediately before the accident be rendered lawful by such a permit.