Cases and authorities

TORRENS SYSTEM - contract authorised lodging caveat but did not expressly or by implication create interest in land - ex parte application for leave to lodge further caveat (after lapse of earlier caveat) refused.

PRACTICE and PROCEDURE mediation - compulsory mediation under Supreme Court Act 1970 s.110K - mediation was ordered in claim under Property (Relationships) Act 1984 where property of large value was involved, relationship had been lengthy and characterisation as De Facto Relationship as defined was disputed on clear basis - proceedings fully prepared and ready to take appointment for hearing.

Appeal of local court registrar's decision - set aside default judgment

PRACTICE and PROCEDURE - Mareva Order - plaintiff obtained Mareva order in March 2002 and obtained Summary Judgment which the Court of Appeal set aside in November 2002 - thereafter the plaintiff took no step in the proceedings - plaintiff (incorporated in Norway) ceased to be represented by solicitors in NSW - orders for costs in favour of defendant were unpaid - defendant obtained orders dissolving Mareva orders, staying proceedings and dismissing proceedings in 2 months' time if plaintiff did not pay costs and obtain leave to proceed.

EVIDENCE - legal professional privilege with respect to documents produced on subpoena - documents produced by solicitor - whether solicitor's client was the director who instructed them, or the director's companies

Contract - Offer and acceptance - Claim for monies due on purported acceptance of public offer to purchase renounceable rights issued by publicly listed mining company- - Terms of offer document included provision that by completing, signing and returning acceptance form, offeree will have accepted the offer in respect of its acceptance rights and will have authorised offeror and each of its officers and agents to correct errors in, and to complete omissions from, the acceptance form necessary to make it an effective acceptance - Proper construction of offer document in terms of requirements for, and procedure in relation to, acceptance, including identification of documents to accompany acceptance - Whether communication of acceptance document [in purported compliance with offer document] which was incomplete or contained errors constituted an acceptance of the offer - Estoppel - Whether communications between putative offeree and offeror's agent in relation to documentation necessary to accompany acceptance was sufficient to ground an estoppel preventing offeror from departing from conventional state of affairs relied upon by offeree to its detriment

APPEAL - COMPENSATION - LEASE - DAMAGES ASSESSMENT - LEGISLATIVE AMENDMENTS - COSTS - Compensation determination made pursuant to loss of entitlements arising under variations to a lease - effects to a lease flowing from legislative amendments - appeal concerning: 1(a) the tribunal's choice of methodology regarding the assessment of damages - 1(b) quantum assessments made thereunder - and 2 the tribunal being bound to make a 'just and equitable' finding for compensation for the loss of particular entitlements under a lease - Held: Appeal allowed in part - lower tribunal's damages assessment methodology in part quashed - parties to agree to quantification assessment of factors "r" and "e" as set out in judgment, or submit supported written alternatives to the Court within 14 days - appeal otherwise dismissed - first respondent to pay the appellant's costs of instituting the appeal proceedings and preparing the appeal books, otherwise each party to bear its own costs.

Appeal decision of LCM - damage to ceiling - equitable adjustment - s 66M of Conveyanct Act 1919

PRACTICE AND PROCEDURE - summary dismissal - plaintiff defaulted in complying with directions of the Court - plaintiff did not prosecute the proceeding with due dispatch - no convincing explanation - (no issue of principle)

CORPORATIONS - liquidation - appeal against winding up order - unclear whether for review of registrar's decision or an application to set aside the winding up order - winding up order based on statutory demand - proof of solvency under s 459(S) - (no issue of principle)

PROCEDURE [101] - Supreme Court procedure - Procedure under SCR - Amendment - Whether amendment necessary for plaintiff to rely on particular item of subject matter.

Costs - discontinuance on basis that each party paid his or her own costs - whether error of principle in the exercise of discretion - no question of principle. ND

INFANTS - Parentage - registration of birth - Putative father (since deceased) joined in registration of birth but later participated in DNA parentage testing which resulted in report excluding him as father with 100% certainty - he died soon after testing - mother acknowledged that he was not the father - Public Trustee administering small estate applied for and obtained orders declaring that infant was not child of deceased and requiring correction of Births D & M Register under Birth Death and Marriages Registration Act 1995 s.45.

Manslaughter - Plea of Guilty - Sentencing - Extent of Discount - Reduction of Non-Parole Period

CRIMINAL LAW & PROCEDURE - CROWN APPEAL - DUAL EXERCISE BY JUDGE OF DRUG COURT AND DISTRICT COURT JURISDICTION - CONSTITUTION OF COURT TO HEAR CROWN APPEAL FROM DRUG COURT - OBSERVATIONS ON CONSTITUTION OF COURT DIFFERING ON APPEAL AGAINST FINAL SENTENCE IN DRUG COURT BROUGHT BY CROWN FROM APPEAL BROUGHT BY OFFENDER - "INITIAL" AND "FINAL" SENTENCES PURSUANT TO DRUG COURT ACT - STATUTORY LIMITATION ON INCREASE OF INITIAL SENTENCE WHEN IMPOSING FINAL SENTENCE - ALLEGED INADEQUACY OF SENTENCE - SOME IMPOSITION SUBJECT TO DRUG COURT ACT RESTRICTION OTHER NOT SO SUBJECT - APPROACH TO SENTENCE IN THOSE CIRCUMSTANCES DISCUSSED - CIRCUMSTANCES OF OFFENDER AND OFFENCES - DISCRETION TO DISMISS CROWN APPEAL

Criminal Law and Procedure - Separate trials - whether miscarriage arose from joint trial of charges - whether conduct of Crown caused a miscarriage - Failure to discharge jury - Summing up - adequacy of directions on uncharged criminal conduct.

PROCEDURE - COSTS - Substituted judgment to take effect as at date of original judgment - Offer of compromise by appellant/defendant - Appellant fails on some issues - No indemnity costs - No apportionment of costs.

SUCCESSION - WILLS, PROBATE & ADMINISTRATION - Admission of document to probate - Whether sufficient that document be capable of testamentary effect - Proof of testamentary intention - Extrinsic evidence - SUCCESSION - WILLS, PROBATE & ADMINISTRATION - Testamentary capacity - Onus of proof - Whether primary judge in error in holding testamentary capacity not proved

EVIDENCE - Expert report - Lack of congruence between assumed facts and proved facts - Whether report properly rejected - Whether rejection of evidence by GREAT was a question of law - POLICE - WORKERS' COMPENSATION - Anxiety symptoms - Whether an injury - Whether employment a substantial contributing factor - Whether deficiency of reasons or error of law by GREAT - APPEAL - First instance decision based on two grounds - Whether second ground hypothetical - Whether appeal should be dismissed because no error shown on second ground.

Appeal - misdirection - failure to give reasons.

Imputations - capacity - difference in substance

Appeal - avoidance of contract of insurance - no question of principle.

Appeal from decision of costs assessor - fee agreement - waiver

Trade Union - actionable defamation at suit of - no claim for actual loss - "injury to pocket" - pleading - judicial comity

CONVEYANCING - joint tenancy and tenancy in common - appointment of trustees for sale under section 66G Conveyancing Act 1919 - application for stay pending making and hearing of application for adjustment of property interests in that property under Property (Relationships) Act 1984 - factors relevant to grant of stay - FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - other matters - circumstances in which stay, pending determination of application for adjustment of property interests under Property (Relationships) Act 1984, of application for appointment of trustees for sale of property held in co-ownership by people formerly in de facto relationship, will be made

Criminal Law - Sentences for conviction of manslaughter and Accessory after the fact to manslaughter

Criminal law - firearms - whether proof of a charge that a loaded firearm was possessed "so as to" endanger life requires proof of an intent to endanger life - Criminal law - defence assertion that complainant lied - theory posited why complainant lied as asserted - whether direction like that suggested in R v Jovanovic necessary

Accomplices - when they should give evidence - Accomplices - warning - scope of re-examination - prior consistent statements - lies as consequences of guilt - directions - Henry guideline judgment - parity with co-offender.

Summons for judicial review by way of certiorari challenging a finding of the Medical Tribunal of New South Wales - whether First Opponent discharged his onus to show he has become a fit and proper person to practise medicine - whether jurisdictional error occurred below - whether non-jurisdictional error on the face of the record occurred below. - Held: dismissing the appeal - no jurisdictional error occurred below - no non-jurisdictional error on the face of the record occurred below - appeal dismissed with costs.

Travel Compensation Fund - accountant - auditor - misleading and deceptive conduct - s42 Fair Trading Act - whether breach of duty of care - whether fact that respondent continued unlicensed in business of travel agent severed chain of causation

SUMMARY DISMISSAL - evidentiary deficiency - whether commencement of proceedings an abuse of process or civil conspiracy - whether triable issue - whether evidentiary foundations required before allegations raised - relevance of position where fraud is alleged - one of several defendants seeking summary dismissal (ND)

NEGLIGENCE - appellate review - whether bound by trial judge's assessment of credibility - whether assessment of adverse credibility open on the facts - whether prior medical histories inconsistent with witness's evidence at trial - failure to confront plaintiff with alleged inconsistencies - principle in Brown v Dunn. (ND)

Crown appeal - offence of robbery - compelling subjective case - HIV sufferer - "Ellis discount".

Subpoena - application to set aside proper officer of corporation - separate legal identity of corporation - obligations on corporation where subpoena issued

Action for damages for personal injury - two defendants - cross-claims by each defendant against the other - settlement between plaintiff and first defendant, giving judgment to first defendant - whether entry of judgment should be deferred until second defendant's cross-claim determined.

Administrative Law - decision of adjudicator appointed under the Building & Construction Industry Security of Payment Act 1999 (NSW) - order in the nature of certiorari sought - held no jurisdictional error on part of adjudicator. - Trade Practices - misleading or deceptive conduct - whether attachment to payment claim constituted misleading or deceptive conduct - held no misleading or deceptive conduct.

EQUITY - superannuation trust for employees - contributory fund - discretion of trustee - duties of trustee - duty "to give properly informed consideration" to an application - permanent incapacity for suitable employment - whether part time work in a partnership with the worker's wife was suitable employment - decision such as no reasonable trustee could have reached - whether court could execute the trust - trustee ordered to consider afresh and report to the court - discussion of principles - CONSTRUCTION OF RULES - whether the expression "services are terminated" required termination unilaterally by employer or includes an acceptance of a redundancy offer by the employee - effect of nature of contributory superannuation scheme on construction of the Rules.

Lease for car parking purposes - proposed user as public car park - existing user rights - illegality.

LEGAL PRACTITIONERS - costs agreements - claim to recover unpaid costs - defence of collateral agreement that no payment to be made unless certain conditions fulfilled - cross claim of damages for breach of retainer/negligence - solicitor entitled to recover - cross claim denied

CRIMINAL LAW - Supply of methylamphetamine and ecstasy with knowledge - Intermediate fact that was an indispensable basis for an inference of guilt - Where trial judge did not give a direction that such fact must be proved beyond reasonable doubt - PRACTICE AND PROCEDURE - Whether a new trial should be ordered - Probability that Crown would run the case in a different manner - Whether a reasonable jury would be able to return a verdict of guilty.

Appeal - findings of fact - credit - no basis for appellate intervention - no question of principle

Lease - intention to assign - lessee goes out of possession and proposed assignee goes into possession - lessor to arrange assignment - does not do so - proposed assignee gives up possession - lessee does not take up possession - lessor places premises with agent for reletting - whether lease surrendered by operation of law because lessor decided to take up new relationship of lessor and lessee with proposed assignee - lessee unaware of this and still contemplated assignment - whether lease surrendered by operation of law when lessee did not take up possession and premises placed with agent - no surrender in either circumstances - guarantee in lease - deletion of a sub-clause in guarantee - whether regard could be had to the deletion - whether deletion showed guarantors not to be liable in the event of an assignment of the lease - no as to both.

ADMINISTRATIVE LAW - Whether the determination of an adjudicator under the Building and Construction Industry Security of Payment Act 1999 (NSW) is open to judicial review - Order in the nature of certiorari sought - discretionary considerations as to the granting of relief - relief refused on discretionary grounds. - CONTRACT LAW - Construction contract - progress claims issued pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) - Discussion as to whether an adjudictor can exercise the powers of a certifier under the construction contract.

CUSTOMS - customs prosecution - whether should be proceeded with in accordance with the usual practice and procedure of Court in civil cases, or in accordance with the directions of the Court or of a Judge - whether procedural fairness in applying civil procedure to case where the criminal onus and standard of proof apply

Summary dismissal - apprehension of bias and other matters - no question of principle.

CORPORATIONS - directors' duties - fraudulent breach of duty - whether actual knowledge required - whether acting as de facto directors - divestiture of assets - whether purpose of transactions to leave no asset to meet future claim - INSOLVENCY - whether reasonable grounds to expect insolvency - whether unliquidated damages are a debt due and payable - whether failure to have regard to interests of unsecured creditor - PRACTICE AND PROCEDURE - whether pleaded case extended to non-intentional breach of duty - case opened beyond pleadings - whether plaintiff should be held to pleaded case