Cases and authorities

Appeal from decision of Local Court Magistrate - res judicata

Appeal determination of Cost Review Panel - Appeal determination of Costs Assessor

EQUITY - Equitable Estates and Interests - Dwelling purchased in names of father and son as tenants in common - Portion of purchase price raised by mortgage - Whether father's interest held on trust for son - Whether presumption that interests held in trust as tenants in common in shares proportinate to contributions to the purchase price applies - Prior to purchase father was the lessee of the dwelling as prescribed premises under the Landlord and Tenant (Amendment) Act 1948 - Whether discount from market value in purchase price a contribution by the father - Father died intestate - Defendant administrator of the estate

FAMILY PROVISION ACT - widow's claim - no other eligible person - no question of principle

[Procedure] - Leave to proceed pursuant to s 500 of the Corporations Act 2001 to bring a cross claim against a company in liqudation.

CORPORATIONS [23] - Constitution and legal capacity - External litigation - Security for costs - Discretion of court - Personal guarantee by directions or shareholders - Lateness of application.

Trial by Jury - - Jury Act 1977 (NSW) - Do the provisions of the Act impair the fundamentals of a trial by jury (s 80) Australian Constitution)?

CORPORATIONS - administration under deeds of company arrangement - creditors bound by deeds seek leave to commence proceedings in Supreme Court of New South Wales against subject companies - deeds of company arrangement provide for proceedings to be commenced in Federal Court or Supreme Court of Victoria - defendants' application to transfer leave proceedings to Victoria denied - plaintiffs granted leave to commence substantive proceedings, on condition that they be commenced in Victorian court

Building and construction - Practice and procedure - Stay of judgment debt - Progress payments claimed under the Building and Construction Industry Security of Payment Act 1999 - Plaintiff obtains adjudication certificate pursuant to section 24 of Act and files adjudication certificate as a judgment for debt pursuant to section 25 of Act - Plaintiff placed under external administration-Defendants seek stay of proceedings - Evidence that defendants, if successful in final proceedings, would suffer irreparable prejudice as payment pursuant to the judgment debt could never be recouped - A failure to order the stay would in practice convert an amount which ought to be an interim payment into a final payment - Principles to be applied on application for stay of judgment debt - English authorities examined

Appeal - claim for indemnity not made in proceedings brought by creditor against debtor and guarantor but subsequently litigated by guarantor in other proceedings - res judicata, issue estoppel and Anshun third party procedure.

Crown appeal - perjury

Criminal Law - Sentencing - murder - Crown appeal

CRIMINAL LAW - appeal against severity of sentence - plea of guilty - break enter and steal - special aggravation (wounding) - whether sentence manifestly excessive - whether sufficient weight given to subjective factors.

CRIMINAL LAW - appeal against severity of sentence - break enter and steal - whether sufficient weight given to utilitarian value of pleas of guilty.

TORTS - negligence - contributory negligence - apportionment of liability - whether primary judge erred in assessment of contributory negligence - whether there ought to be separate findings of contributory negligence made in respect of each defendant - whether the original finding of apportionment ought to be disturbed - s74 Motor Accidents Act 1988 (NSW).

LIMITATION OF ACTIONS - extension of time - torts - where no prejudice would be suffered if extension granted - ss60C 60E Limitation Act 1969 (NSW) - whether all subparagraphs of s60E(1) must be satisfied when determining what is 'just and reasonable' in s60C(2)

Practice and Procedure - Cross Vesting - Motion to Cross Vest

INDUSTRIAL LAW - INSURANCE - employment practices liability policy - where former employee bringing proceedings against plaintiff under s 106 of the Industrial Relations Act 1996 - where plaintiff claims indemnity under the policy in respect of s 106 proceedings - whether defendant correct in denying indemnity under the policy - whether plaintiff entitled to declaration as to entitlement to indemnity - whether employee's summons in Industrial Relations Commission a "Claim" for a "Wrongful Employment Practice" as defined - whether plaintiff entitled to advancement of defence costs - whether any liability of the plaintiff for compensation for unfairness pursuant to s 106 is "assumed under" the employment contract

CORPORATIONS - winding up - failure to comply with statutory demand - whether presumption of insolvency rebutted - debt subject of statutory demand paid after contested hearing, and judgment reserved - PROCEDURE - costs - after judgment reserved one party submits completely to demand of other party - effect on appropriate cost order

Extension of limitation period - medical negligence - viable cause of action - delay and prejudice.

Negligence - employer's liability - occupier's liability - no question of principle

Negligence - Employer's Liability - Workplace Safety

Equity - Practice and procedure - Injunctions - Interlocutory proceedings in the nature of a Mareva injunction - Undertaking as to damages - Principles - Whether special circumstances shown for relieving plaintiff from obligation to proffer the usual undertaking as to damages

CORPORATIONS - Winding Up - Quasi-partnerships - Solvent company group owning properties put out on lease - Breakdown of mutual confidence - Whether compulsory acquisition of plaintiff's shares and alternative remedy to winding up on just and equitable ground - Whether plaintiff oppressed the majority - Unaudited accounts containing incorrect entries - Inability to audit loan accounts - Cash missing

Injunction restraining unauthorised use of property - change of circumstances - whether stay to allow consent to use to be obtained - no question of principle. ND

[Referees] - [ Bias] - Application to remove referee on grounds of actual and apprehended bias - allegation of "interference" in agreement between experts during a conclave said to evidence actual bias - allegation of friendship between counsel and referee - referee retained to provide an expert opinion for a client by firm of solicitors appearing for a different client in the reference.

Leave to commence action against insurer - onus of proof - arguable case and disputed questions of construction of insurance policy (cover and exclusions).

TRUSTS - beneficiaries - construction of deed of trust - meaning of word "issue" in the deed - whether meaning limited to "children" - significance of the term "per stirpes"

Family provision -- Application of adult daughter of deceased -- Estate left to long term friend of the deceased -- Limited relationship between the plaintiff and the deceased -- Legacy ordered for the plaintiff out of the estate of the deceased

CRIMINAL LAW - Appeal against conviction - 2 counts of robbery armed with offensive weapon - plea of not guilty - whether trial judge erred in directions to jury on circumstantial evidence - whether prejudice caused by trials being run together - whether miscarriage due to jury being made aware that appellant and his alibi witness had been in prison - whether Crown cross examination invited adverse inferences relating to onus of proof and right to silence of appellant.

NEGLIGENCE - Where plaintiff attacked by Rottweiler dog after patting the dog - Where the dog was tethered to a railing at the entrance to a club, on club premises - Where people using the entrance might have been under the influence of alcohol - Whether the dog was a "temporary hazard" - Whether the club had knowledge of the dog being present - Whether duty of the club to have the dog removed. D

Practice and Procedure - Part 72 References - Principles - Final hearing date vacated where seamless transition to appropriately qualified expert practicable - Nature of technical issues identified - Just, quick and cheap determination of proceedings - Evidence Act 1995 - Section 78 - Admissibility of lay opinion evidence - Principles

Tort - Negligence - Workplace Injury - Occupier's Liability - Damages Award

[INJUNCTIONS] - Application to discharge injunction - changed circumstances alleged - Service of final certificate under construction contract - Whether serious issue to be tried in relation to validity of final certificate - Balance of convenience - Applicant placed into liquidation after injunction granted.

PROCEDURE [516] - Judgments and orders - Enforcement of judgments and orders - Execution against property - Warrants of seizure and sale or writ of fieri facias - Practice - Other cases - New South Wales - Stay of execution - Judgment registered under Foreign Judgments Act 1991 (Cth) - Principles on which execution may be stayed.

Family Law - De facto relationship - Adjustment of interests of parties in property - Respective contributions of parties - Caution should be exercised in applying to a claim by a de facto partner under section 20 of the Property (Relationships) Act 1984 (NSW) the principles which the Family Court of Australia applies to applications under section 79 of the Family Law Act 1975 (Commonwealth) - The Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs.

CORPORATIONS - winding up in insolvency - recovery of unfair preferences - separate trial against first defendant - first defendant admits insolvency - whether admission is sufficient evidence of insolvency in unfair preference proceeding - whether directors of company should be notified before orders under s 588FF are made

Amendment power - mistake as to identity - mistake may be corrected.

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - s 7(2)(a) - construction of "forms part of" - whether construction contract formed part of loan agreement

UNJUST TRANSACTION/CONTRACT - Contracts Review Act 1980 - Avoidance of mortgage - parents guarantors of son's debts - unequal bargaining power - independent advice - standard of review for question of unjustness of a contact - whether constrained in same manner as discretionary orders (ND)

Tribunal - joinder of parties - costs - interlocutory decisions on matters of practice - jurisdiction in relation to building claims and consumer claims.

EQUITY - Equitable relief - Guarantees and mortgage for bank loans - claims for relief under s 52 Trade Practices Act 1974 (Cth) - whether Plaintiffs induced to provide securities for loan by bank's false and misleading conduct - whether transactions unconscionable - whether principle in Commercial Bank of Australia v Amadio (1983) 151 CLR 447 applies - whether variation of agreement discharged Plaintiffs from liability under the securities - whether principle in Ankar Pty Ltd v National Westminster Finance (Aust) Ltd (1987) 162 CLR 549 applies - whether guarantees and mortgage unjust under s 7(1) Contracts Review Act 1980 (NSW) - whether undue influence

Evidence - Practice and procedure - Expert evidence - Procedure of scheduling objections - Section 79 Evidence Act (1995) - Principles

Challenge to determination of adjudicator under the Building and Construction Industry Security of Payment Act 1999 - Statutory scheme dictates that the adjudication response be relevantly tied to the payment schedule [such that the adjudication response cannot include any reasons for withholding payment unless those reasons have already been included in the payment schedule - Section 20 (2B)] - Whether adjudication application should also be relevantly tied to the payment claim [such that the adjudication application cannot include reasons supporting the payment claim unless those reasons had been included in the payment claim] - Scheme of legislation - Adjudicator's powers - Adjudicator does not have the power to consider materials supplied by a claimant in its adjudication application which go outside [ie fall outside the ambit or scope of] the materials which were provided in the payment claim

Criminal Practice and Procedure - Sentencing - Application of Fernando principles - Commencement date of the sentence - Views of victim as to appropriate sentence

CRIMINAL LAW - manslaughter - sentence - offender sexually abused