Cases and authorities

Limitation period - s 151D of Workers Compensation Act - whether error in judge's discretion to extend - no error as to statement of discretion or explanation for delay - error in finding no presumptive prejudice - records not necessarily a panacea - widely based claim involving police department's acts and omissions in many respects over long period - prejudice remained of faded memories and evidence lost because forgotten - such that fair trial unlikely - extension should be refused. D

CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Compensation under the Real Property Act 1900, s 74P(1)(a) - Whether honest and reasonable belief that real estate agent had a caveatable interest in land for disputed commission - Whether loss of bargain for penalty interest attributable to lodgement of caveat - Whether a failure to mitigate loss

TRADE AND COMMERCE [28] - Trade and commerce generally - Restraint of trade - Restraint by agreement - Enforcement of agreement - Remedies for breach of agreement - Right to injunction - Interlocutory injunction - Agreement not to solicit customers - Whether injunction may be granted to restrain solicitation of one customer only.

CONTRACT - informal arrangements between parties in a romantic relationship - arrangement for parties to live together replaced by arrangement for them to separate and for him to pay her $5,000 per month for 18 months - whether parties intended to enter into legal relations - whether agreements sufficiently certain - whether valuable consideration given

CONTRACTS - Building, Engineering and Related Contracts - Other Matters - Home Building Act 1989 - Declaration sought that the successful plaintiffs in HIH v Jones [2000] NSWSC 359 were entitled to be indemnified by the State under s 103I(1) - Whether they were excluded from indemnity under s 103I(2)(b) as developers to which the policy related

CRIMINAL LAW - SENTENCING - application for leave to appeal against severity of sentence - whether sentencing judge failed to allow a discount in sentence having regard to alleged delay in prosecution and steps towards rehabilitation in the interim - where delay attributable to applicant's failure to volunteer his guilt - whether such circumstances attract the principle in R v Todd [1982] 2 NSWLR 517 and Mill v R (1988) 166 CLR 59.

CONTRACTS - Interpretation - Extrinsic evidence - Breach - Whether justifying termination - Recovery of money paid - Whether payment conditional or unconditional - Total failure of consideration.

CORPORATIONS - Winding Up - Unfair preferences - Reinsurance contracts - Bank issued letters of credit - Application to strike out statement of claim - Whether in pleading an unfair preference under the Corporations Act 2001 (Cth), s 588FA and affectation upon the company's assets must be identified - Whether in a multi-step transaction the date of entry upon the transaction must be identified - Whether all steps of the transaction must occur in the 6 month period ended on the relation-back day

Practice and Procedure - Re-examination

Former Member of the Fair Trading Tribunal - Whether adjudication was made - Appeal against decisions - Costs against the Tribunal

CORPORATIONS - external administration - replacement of applicant as liquidator, administrator or receiver in numerous administrations - procedures to be followed - PROCEDURE - rectification of court order - appointment as liquidator of person erroneously named in body of consent instead of person signing consent

Succession - Family provision - Claim by adult grandson - Whether Plaintiff is an eligible person - Plaintiff was full time carer of Deceased for a period of twelve months - Financial and material circumstances of Plaintiff - Nature of relationship between Plaintiff and Deceased - Competing claims of beneficiaries (two of whom are infants) - Nature of order for provision.

LIMITATION OF ACTIONS - Postponement of the Bar-extension of period - cause of action in respect of personal injuries - Limitation Act 1969 s 60G - medical negligence - appellant (plaintiff) severely disabled after neurosurgery in October 1982 - brought proceedings in 1995 against general practitioners - appellant claimed she had been under disability until 1990 and was able to sue until 1996 - in 2000 obtained expert opinions raising basis for alleging negligence in neurosurgery and hospital treatment, obtained leave to join respondents (neurosurgeon and hospital) as additional dependants and applied for extension of time - Studdert J refused extension as fair trial could not be had because of respondents' difficulties in establishing events in detail - decision affirmed - observations at [12] & [13] on lack of significance of difficulties respondents would have faced if proceedings had been brought late in the period available - "just and reasonable" test requires an address to what is now just and reasonable, not to what might have been the respondents' situation in events which did not happen - observation in Smith vNorton [2004] NSWCA 84 at [39] not applicable to s 60G. (D)

Arbitration - interim award in form of declarations - application for leave to enforce award - only by obtaining judgment in terms of award - no question of enforcement - have properly refused. ND

CORPORATIONS - winding up - liquidator seeks leave to enter into transaction for his personal benefit - source of power to grant leave - whether leave should be granted - whether winding up should be terminated

SUBPOENA - ABSENCE OF SPECIFICITY - DOCUMENT MAY OR MAY NOT BE AFFECTED BY FORM OF STATUTORY PRIVILEGE - STATUTORY INTERPRETATION - "FOLLOW-UP" OF MEDIATION - DOCUMENTS EVIDENCING AGREEMENT POST-MEDIATION SESSION

CORPORATIONS [178] - Voluntary administration - General power to make orders - Order permitting administrators to convene meeting prior to the period of five business days after the end of the convening period.

FAMILY PROVISION ACT - adult daughters' claim - no other eligible persons - no issue of principle

Criminal Practice & Procedure - serious children's indictable offence - sexual assault by child 14 years on child 9 years - sentencing a child - rehabilitation rather than deterrence and denunciation - release with supervision

Criminal Practice & Procedure - accessory before fact to break and enter - youth 18 years - no convictions - whether periodic detention 2 years excessive - need for non parole period.

PRACTICE - Appeals - Refusal of stay - No purpose in appeal - Default judgment - Remedy of application in division where order made.

Fitness to be tried

CONTRACT - construction - meaning of "hereafter" - RESTRAINT OF TRADE - whether agreement is in restraint of trade - whether sufficient connection with trade or commerce - whether public policy requires restraint agreement to compromise disputes be upheld - whether restraint reasonable

LANDLORD AND TENANT [43] - Agreements for lease - Creation of - Writing - Consent not to be unreasonably withheld - Whether unreasonable withholding of consent breach of covenant or obligation on part of landlord - Whether unreasonable withholding of consent can amount to a repudiation capable of acceptance by tenant - TORTS [22] - Negligence - Essentials of action for negligence - Duty of care - Relationship of proximity - Landlord and tenant and holding company of tenant - Landlord alleged to have unreasonably withheld consent to assignment of lease.

CRIMINAL APPEAL - bail pending appeal - sentence continues to run - express statutory power required for Court dismissing appeal to re-start sentence to allow for time spent on bail - D

Personal injuries in motor accident-damages under all heads inadequate-non-economic loss- economic loss- superannuation

Appellant injured by falling brick wall while unloading truck in adjacent street- Challenge to judicial findings of fact- whether patent defect in wall- whether wall had outward lean-Res ipsa loquitur

Costs - no question of principle

declaration of poll - election of councillors to the Snowy River Shire Council - extent of non-compliance with the Regulation - consequences of acknowledged irregularities - pre-poll voting procedures - exclusion of votes from poll - precedent

appeal against the judgment of a Magistrate - flawed summons - abuse of process - security for costs

TRUSTS AND TRUSTEES - breach of trust through failure to lend moneys on security directed by court order - only remaining issue question of costs

Family Law - De facto relationship - Adjustment of interests of parties in property - Respective contributions of parties - Both parties died before matter came on for hearing - Whether in such circusmtance the application may be continued by and against the respective legal personal representatives of the deceased parties - Trusts - Absence of writing - Oral statements attributed to deceased de facto partner - Whether sufficient to create a trust - Whether circumstances justify imposition of a constructive trust.

Default on mortgage - claim for possession by plaintiff bank - whether defendant can resist claim under principles in - Amadio - Yerkey v Jones - Contracts Review Act

Corporations law -- Application to set aside statutory demand under s 459G of the Corporations Act -- Demand reduced -- No matter of principle

Criminal Law - sentence after pleading guilty before the jury - no question of principle.

Leave to appeal - setting aside Order for Judgment by the filing of an Amended Notice of Grounds of Defence after the original notice had been struck out - error of law.

Subpoena for production and interrogatories - fishing expedition - relevance and necessary order.

Corporations law -- Application to set aside statutory demand -- Demand set aside -- No matter of principle

Imputations - capacity

EQUITY - undue influence - businesswoman acquires property in joint names with new friend after father's violent death - on facts, no ground for equitable intervention

Child falls from open window in bedroom - alleged defective flyscreen - duty of care of owner and body corporate - causation.

CORPORATIONS - Court's power to order that a meeting of members be called - meaning of "impracticable" - relevant considerations for exercise of Court's discretion

PRACTICE - Appeal - Stay - Extreme financial detriment - Where stay would effectively reverse decision below - Whether expedited final hearing appropriate.

CRIMINAL LAW - appeal against severity of sentence - plea of guilty to manslaughter - whether sentence manifestly excessive - whether sentencing judge failed to consider or take properly into account all of the relevant circumstances at the time the applicant committed the offence.

NEGLIGENCE - WRONGFUL LIFE - Whether respondents owed duty of care to appellants to provide appellants' mothers with necessary information to enable an informed choice to be made in regard to termination of pregnancy - Whether harm suffered by appellants is recoverable in law - Compensatory principle - Damages as the gist of the cause of action - Non-existence as a comparator - Whether policy considerations justify refashioning of compensatory principle - Whether the omissions of the respondents caused the appellants' disabilities - CONTRACTS - Whether appellant is beneficiary of a contract between mother and respective respondent. D

Traffic law - summons for declaration of entitlement under driver points suspension scheme - suspension automatic effect of loss of points - no acquired right of immunity preventing suspension effect - no power to stay suspension by consent or order of court.

Family Provision. Application by son of deceased who received a legacy of $20,000. Increased legacy given. Orders made for notional estate. No matter of principle.