Cases and authorities

Negligence alleged against a barister - Duty to the Court - Discretion of barrister as to which argument to advance - Not raised on appeal decided in earlier litigation. (ND)

TRUSTS - Creation - By declaration of trust - Intention to create trust - Onus of proof - Sufficiency of evidence - EVIDENCE - Intention to create trust - Evidence of making of declaration of trust - No evidence of circumstances and no direct evidence of intention - No relevant cross-examination - Whether primary judge in error in not finding intention proved.

DEFAMATION - Claims arising from interview and two subsequent television programmes - one in Victoria and one in New South Wales - Imputations found by jury - defences of truth and of comment raised to all three publications. Claims for damages by specialist opthalmologist - claims on imputations arising from interview and two later television programmes - assessment of damages - whether assessment should include aggravated damages - whether in case of Victorian programme exemplary damages should be awarded. Claims for damages by body corporate - claims on imputations arising from interview and two later television programmes. Assessment of damages - whether assessment should include aggravated damages - whether in case of Victorian programme exemplary damages should be awarded - whether assessment should make provision for capital gains tax - leave to apply for such provision reserved.

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Whether later variations of a finance facility were interim variations within an earlier conditional variation for a regular amount - Whether representations led to estoppel of the defendant arguing otherwise - Whether defendant in breach of contract for failure to release lots from security on request - Whether a variation to hold lots until required was agreed - Whether the defendant was obliged to endorse a linen plan of boundary adjustment which differed significantly from agreed earlier plan - No principles involved

PRACTICE AND PROCEDURE - application for extension of time to comply with mandatory injunction to remove rock anchors - evidence of difficulty and uncertainty in removal process - whether appropriate to impose conditions on extension of time to comply with orders - contents of conditions - (no question of general principle)

Fund management

Appeal against severity of sentence - Sexual assault - Conditions of imprisonment

UNDUE INFLUENCE - doctor-patient relationship - whether presumption of influence rebutted - whether de facto relationship existed - FAMILY PROVISION ACT 1982 - whether "eligible person" - whether extension of time should be granted - PROBATE - whether misconduct by administrator (ND)

CORPORATIONS - winding up - assessment of evidence as to insolvency, where company has some equity in real property - facts insufficient to support just and equitable ground - (no question of general principle)

Personal injury - liability - indemnity - assessment

PROCEDURE - costs - litigation concerning everything except costs settled - adversary litigation concerning administration of estate - whether appropriate to make no order as to costs - whether appropriate to make order for indemnity costs - SUCCESSION - EXECUTORS AND ADMINISTRATORS - administration - residuary estate, which includes certain land, to be divided equally between two people - estate without funds - whether power exists, or can be obtained, for executors to obtain development consent for the land

PROCEDURE - Costs - Security for costs - Appeal - Impecuniosity of appellant - Whether special circumstances - Whether security should be ordered.

Trustee - Removal - Fiduciary duties of a director

PRACTICE AND PROCEDURE - application for leave to file cross-claim - plaintiff's case ready for hearing - applicant has defaulted in compliance with previous directions - cross-claim does not substantially overlap with statement of claim - (no issue of general principle)

Interlocutory decision - Late evidence - Admissibility of affidavit

Police Officers - secondary employment - Commissioner's Policy - nature of appeal - requirement of procedural fairness

EQUITY - constructive trust upon breakdown of family relationship between mother and daughter-in-law on basis of which a house had been put (as to a one half interest) into the name of the mother - equitable estoppel - circumstances in which arrangement to "look after" the mother could no longer be performed - meaning of breakdown in relationship without attributable fault for the purposes of the principle in Muschinski v Dodds - flexibility of remedy - circumstances in which payments made in respect of the mortgage over the house were, exceptionally, taken into account in quantifying the payer's interest - admissibility of general evidence by a real estate agent about market price and the effect of improvements to the property carried out by one party.

COSTS - practice and procedure - leave to appeal - whether appeal court should disturb original costs order.

Sale of goods- Bird stock and aviary- Doubt as to title in seller or his company- Goods delivered- Purchaser bound to pay- Trial judge entitled to hold purchaser was individual not company.

PROCEDURE - Courts and judges generally - A judge's failure to mention insignificant evidence in reasons for judgment is not error - TORTS - Negligence - Employer subcontractor not in breach of non-delegable duty of care when employee injured by negligence of head contractor - CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Indemnity of head contractor by employer subcontractor against liability in respect of personal injury arising out of Works - Works defined as erection and dismantling of scaffolding - Injury sustained when stairs erected by head contractor collapsed - Injury not arising out of Works

Plaintiff not notified of listing date - orders made in her absence - denial of procedural fairness.

CORPORATIONS - corporate finance - amendment of particulars of charge - whether possible for charge to be completely removed from the Register - what is "a particular with respect to a registrable charge on property of a company"

Evidence Act (NSW) s 128(5) - witness required to give evidence - privilege in respect of self-incrimination - tax agents and disciplinary proceedings - Income Tax Regulations 1936 (Reg 168)

Indictiment - bad for duplicity - oppressive - Conspiracy to defraud - nature of charge - Deprivation or imperilment - two charges? - Crimes Act (Cth) s 29D and s 86(2)

WILLS PROBATE AND ADMINISTRATION- further consideration of transfer of shares considered in [2003] NSWSC 848 after appointment of new trustee - executors obliged to transfer shares directly to new trustee. - TRUSTS AND TRUSTEES- new trustee-new trustee entitled to transfer from executors of shares left in will to former trustee without first transferring shares to former trustee-equity regards as done that which ought to have been done.

appeal against conviction - leave to appeal against sentence - threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse - admission of evidence of flight - directions regarding consciousness of guilt - lies - the proviso to s6(1) of the Criminal Appeal Act 1912

CRIMINAL LAW - INTERLOCUTORY RULING REFUSING DISCHARGE OF JURY - TRIAL NEARING COMPLETION - POTENTIALLY PREJUDICIAL MATERIAL PUBLISHED IN NEWSPAPER OF LIMITED CIRCULATION IN PLACE OF TRIAL AND PRIOR TO ITS COMMENCEMENT - FURTHER MATERIAL IN LOCAL NEWSPAPER DURING TRIAL - CIRCUMSTANCES NOT WARRANTING INTERVENTION BY APPEAL COURT

appeal against severity of sentences - pleas of guilty - Form 1 offences - nine counts of break, enter and steal - enter land with intent to steal - using a weapon to resist arrest - subjective circumstances - remarks on sentence - fresh evidence - no error in sentencing process - administrative remedy

Crown appeal - asserted manifest inadequacy of sentence - robbery being armed with an offensive weapon - plea of guilty - subjective circumstances - error of fact or law or procedure - protective custody - planning as an aggravating factor - need not greed as the motivating factor - delay

WORDS and PHRASES - meaning of a dependant being "wholly dependent for support" on her mother in terms of s25 of Workers Compensation Act 1987 - history and UK antecedent of legislation - can be wholly dependent on both mother and father notwithstanding greater financial contribution by father - test to be applied based on dependence on the equal and co-ordinate obligation of both parents being discharged - relationship with s26 of Workers Compensation Act 1987. - PRACTICE and PROCEDURE - error of law for purpose of s32 of Compensation Court Act 1984.

Injuries suffered during successive courses of employment - failure to award weekly payments - application of s 40 of Workers Compensation Act 1987 - failure to give adequate reasons.

LEGAL PRACTITIONERS - Professional misconduct - Neglect, delay and incompetence in the administration of an estate - Misuse of trust account - Creation of contributory mortgage on title of property of the practitioner's sister as a device to obtain moneys - Money borrowed from clients of the firm of solicitors of which the practitioner was a partner - Misleading conduct towards beneficiary of the estate - Falsified documents placed on file - Misleading statements to the Law Society - Importance of trust moneys - Importance of integrity and candour in giving evidence - Use to be made of practitioner's credibility when testifying in disciplinary proceedings - Findings going outside the charge of misconduct - Importance of trust and confidence which clients place in their solicitors - Mitigating factors not sufficient to allow the practitioner to remain on the Roll - ADMINISTRATIVE LAW - Denial of natural justice by the Tribunal - Where the Tribunal made a finding adverse to the practitioner despite a concession made by the Law Society - Whether failure to give adequate reasons - Whether findings of Tribunal regarding credibility may be taken into account in determining the final order to be made - Findings going outside the charge of misconduct - Whether procedural unfairness means that decisions of the Tribunal and Appeal Panel should be set aside. D

APPEAL - COMPENSATION - PERSONAL INJURY - DAMAGES - LESSOR /LESSEE APPORTIONMENT - COSTS - Appeal against DCT award for personal injury damages, apportioned between lessor/lessee regarding public stairway. Held: Appeal allowed - first respondent to pay costs of each defendant of the proceedings below - first respondent to pay the costs of the appeal, and to have a Certificate under the Suitor's Fund Act for the costs of the appeal - second respondents to have an indemnity from the appellants in the event that the first respondent does not pay their costs, to the extent of such non-payment.

CONTRACT - INTERPRETATION - Context in form of interconnected agreements does not overrule primary text in absence of ambiguity or anomaly - context can be ambiguous or itself give rise to anomaly - effect of this on construction - text of contract the primary source and starting point for interpretation - construction of contract to avoid absurd or unreasonable result frustrating commercial purpose of contract - party bound in all its capacities and does not escape obligation by acting as a partner - meaning of sponsorship and exclusivity.

Vendor and purchaser - contractual right to terminate if default by purchaser - termination - question at trial whether time of the essence - held it was not so termination ineffective - question on appeal whether inquiry into time being of the essence excluded - appellant relied on Honner v Ashton (1979) 1 BPR 97049 - by majority, held inquiry not excluded - necessary to consider application of s 13 of Conveyancing Act 1919 - parties had not litigated application of s 13 - can not decide case on a basis not litigated.

REAL PROPERTY - Strata and related titles and occupancy - Whether an owners corporation was required to up-grade an exhaust ventilation system to service the needs of a lot owner - Whether an owners corporation could refuse a lot owner access to common property under its power of management and control on the basis that the exhaust ventilation system was overloaded - Whether the exercise of that power was a fraud on the minority, a breach of statutory duty or a breach of by-laws - Whether damages were available in negligence - Whether a representation of availability of access to the exhaust ventilation system constituted estoppel by promissory representation or estoppel by convention

Building and construction - progress payments claimed under the Building and Construction Industry Security of Payment Act 1999 (NSW) - determination made by adjudicator - Administrative law - whether, and if so to what extent, judicial review of adjudications made pursuant to the Act is available - scope of relief available in the nature of a writ of certiorari - grounds upon which judicial review is available - Natural justice in relation to costs - Proper construction of section 7(2)(c) of the Act - Whether the consideration payable for construction work carried out under the contract or for related goods and services supplied under the contract was to be calculated by reference to the value of the work carried out or the value of the goods and services supplied

EQUITY [207] - Trusts and trustees - Applications to the Court for advice and authority - Miscellaneous applications for authority not conferred by the trust instrument - Transaction expedient in management or administration - Meaning of transaction - Whether amendment of trust deed a transaction.

Security for costs

Appeal against Local Court decision - Suspension of Driver's licence

PRACTICE AND PROCEDURE - determination of separate questions under Part 31 - whether non-party may obtain determination of question of construction of contract - CORPORATIONS - deed of company arrangement - whether creditor may obtain relief outside Part 5.3A

CORPORATIONS - winding up - voidable transactions - extension of limitation period - application to extend in respect of transactions not yet identified - large and complex winding up - liquidators' investigations incomplete - need for liquidators to prioritise efforts - application for general order extending time appropriate

Corporations Law. Application to set aside statutory demand. No matter of principle.

PRACTICE & PROCEDURE, stated case, completion of proceedings, when a verdict of acquittal occurs, proposed order of acquittal, double jeopardy, Criminal Appeal Act s5AE(1), "any question of law arising at or in reference to the proceedings", abuse of process, delay in stating case until findings and indication of acquittal made, unfair oppression, jurisdictional error, certiorari. - STATUTES, interpretation, headings, ambiguity.

PROCEDURE- Costs- Indemnity costs- Offer of contribution with condition- How reasonableness of rejection to be viewed.

NEGLIGENCE - EVIDENCE - personal injuries suffered by respondent when she fell into an open drain from which grate had been removed - whether trial judge's conclusion that Council breached its duty of care "glaringly improbable" - failure to consider evidence - where case determined upon a basis not put to appellant's witness - failure to give proper reasons for rejecting evidence - whether respondent nevertheless established sufficient prima facie case - D

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - progress claim - adjudication determination - slip rule - judgment entered under incorrect case number - whether slip rule applicable - meaning of "forms part of" in s 7(2)(a) of Act - whether contract formed part of loan agreement ADMINISTRATIVE LAW - order in the nature of certiorari - jurisdictional error of law - procedural fairness - whether adjudicator permitted to consider statutory declaration attached to adjudication application - meaning of "submissions" in ss 17(3) and 20(2) of Act - whether adjudicator required to give notice of intention to rely upon statutory declaration - whether adjudicator required to give respondent opportunity to respond to statutory declaration