Cases and authorities

EQUITY [379] - Equitable remedies - Specific performance - The jurisdiction in general - General principles - Enforcement by purchaser.

APPEAL AND NEW TRIAL [267] - Appeal - Practice and procedure - New South Wales - Suitors' fund - Power to grant indemnity certificate - General principles as to grant or refusal - Fixture vacated by Judge because of exigencies of Court's business - Vacation before commencement of trial - No fault on part of parties.

DEFAMATION - Assessment of damages.

Practice and Procedure - cross-vesting - applicable principles - jurisdiction clause in contract - -

Real Property - Caveats - Equity - Interlocutory Injunction - Principles

Negligence - duty of care - causation - circumstances in which duty of care owed in respect of psychiatric injury - obligation of employment agency to disclose criminal record - damages.

CRIMINAL LAW - sentence - manslaughter - plea of guilty - special circumstances.

Costs

ADMINISTRATIVE LAW [51] - Judicial review at common law and generally - Procedural fairness - In general - Duty to act fairly - Whether breached.

Family Provision. Application by adult son rejected by his mother at birth. Consideration of circumstances. Legacy in favour of plaintiff.

Strike out statement of claim - whether witness immunity applies to expert's reports

Practice and procedure - Contract - Agreement for referral of dispute to independent accountant - Defendant applicant seeks orders staying proceedings for the purpose of permitting the dispute to be referred to the independent expert-contractual construction - proper exercise of the discretion - Costs - application for security for costs

EQUITY - unconscionable dealings - requirement of special disadvantage - whether satisfied when elderly woman, frail but in possession of mental faculties, transfers of property to one child at an undervalue, removing it from her residuary estate

ENVIRONMENTAL LAW - sentence - strict liability offence - where guilty plea - discretion to dismiss a charge without proceeding to conviction - COSTS - jurisdiction of Court of Criminal Appeal to hear appeal from trial judge's refusal to order costs in summary jurisdiction of Land and Environment Court - where statute permitted appeal from "any order for the payment" of costs - meaning of "order".

CRIMINAL LAW: Crown appeal against inadequacy of sentence - robbery in company (2) - suspended sentence and s 9 bond - respondent's role limited - very favourable subjective case.

criminal law - joint trial - whether joint trial miscarried - whether outburst by one joint accused that all accused had criminal records and had been in gaol caused trial to miscarry - whether directions of trial judge adequate to remove danger of unfair trial - whether raising of good character was intentional - whether Crown entitled to respond by adducing evidence of bad character - whether miscarriage resulted - whether Crown address diverted jury from need to try cases separately - whether directions sufficient to secure separate trial of cases - whether trial judge's refusal to supply jury with transcript of counsel's closing address justified - whether miscarriage resulted - whether evidence of admissions unlawfully obtained - whether trial judge's discretion to admit it miscarried - whether evidence wrongly admitted - whether miscarriage resulted from admission of evidence that a co-offender had pleaded guilty and undertaken to assist the Crown - whether trial judge adequately put defence to jury - criminal law - sentencing - co-offender sentenced by different judge on different facts - whether resulting sentence "erroneous" - whether a justifiable sense of grievance resulted - co-offender received a discounted sentence following an undertaking to give evidence but Crown did not call him to give evidence - whether justifiable sense of grievance resulted.

CRIMINAL LAW - application for leave to appeal against severity of sentence - aggravated break and enter in company - detain for advantage and cause injury to victim - aggravated sexual assault in company with deprivation of liberty - whether sentencing judge took account of applicant's youth and prospects for rehabilitation as constituting special circumstances - whether sentences manifestly excessive.

CRIMINAL LAW - Application for leave to appeal against severity of sentence - supply not less than the commercial quantity methylamphetamine - supply not less than the large commercial quantiy of mehtylamphetamine - whether sentence imposed was disproportionate to those imposed on co-offender.

Criminal Law - evidence - illegally obtained evidence - discretion to admit - exercise of

CONVEYANCING [64]- Time- Vendor allegedly in breach of obligation to tenant when it issued notice to complete- Held not a disqualifying factor- Relevance of mutual requirement of readiness, willingness and ability.

Appellant struck his head upon the sandy bottom of shallow waters within the premises of the Middle Harbour Yacht Club after competing in a regatta at that club.

Corporations Law. Application to set aside statutory demand. Questions of jurisdiction and whether claim was for a debt. Demand set aside.

Evidence - Admissibility of evidence - whether offcial questioning - whether the accused should have been cautioned - whether unfair to admit the evidence

CORPORATIONS [176] - Voluntary administration - Jurisdiction and powers of court - General power to make orders - Application for directions - Principles on which discretion will be exercised.

Sentencing - murder - no matter of principle

INSOLVENCY - CORPORATIONS LAW - COSTS - Whether Plaintiffs entitled to indemnity costs - Whether loss or damage suffered includes costs and interest - Whether director liable to indemnify Deputy Commissioner of Taxation in respect of judgment and costs - Corporations Act ss588FF, 588FGA - HELD - Indemnity costs refused - Respondent liable pursuant to s588FGA(2) to indemnify Defendant in respect of the amount payable to the Plaintiffs including interest and costs, and the Defendant's costs incurred in defending the Plaintiff's claim.

EQUITY [204]- Trusts and trustees- Application to court by trustee for judicial advice- Discussion of history and development of remedy- Opinion, advice or direction sought by professional trustee in relation to a proposed demerger- Whether demerger constitutes an event of default according to the trust deed- Advice from counsel obtained by trustee- Whether declaration ought to be under s 63 of the Trustee Act 1925- Question premature.

Evidence - Admissibility of evidence - unrecorded conversation - whether official questioning - whether reasonable excuse for not recording - client legal privilige - where conversation between accused and solicitor overheard by police - whether conversation was confidential communication

CORPORATIONS - provision of financial services without a licence - application for interim injunction under s.1324(4) - relevance of balance of convenience - what is "desirable" - application for licence pending

Contract - building and construction - Building and Construction Industry Security of Payment Act 1999 (NSW) - Consideration of interrelationship of sundry provisions and analysis of principal's claimed entitlement to commence separate proceedings and/or to avoid summary judgment by invoking discretionary considerations - Progress claim submitted to Superintendent on same date as document purporting to be payment claim under the Act submitted to principal - Principal fails to serve payment schedule complying with sections 14(1) and (2) - Contractor commences proceedings and seeks summary judgment - Principal commences separate proceedings and seeks declaration that it does not owe any amount to contractor in respect of specific progress claim in excess of the amount specified in progress certificate issued by Superintendent and order that principal pay to the contractor such sum as it might recover against principal in the first proceedings - second proceedings held to be an abuse of process - Principal in first proceedings contends (as defendant) - That alleged payment claim was not a valid payment claim within s.13(2) of the Act because: (i) it did not identify construction work (or related goods and services) as required by s.13(2)(a) - (ii) there was no progress payment claimed as required by s.13(2)(b) - (iii) it did not bear the endorsement required by s. 13(2) (c) - - That contractor was and is not a person entitled or who claims to be entitled to a progress payment within s. 13(1) because: (i) it was not a person entitled to a progress payment under s. 8(1) - (ii) as at the date of the Alleged Payment Claim there was no reference date as and from which contractor was entitled to a progress payment within s. 8(1) and (2) - (iii) there was no amount calculated in accordance with the terms of the Contract which constituted a progress payment to which contractor was entitled under s. 9(a) - (iv) as at the date of the Alleged Payment Claim there was no progress payment under the Contract which had become due and payable within the meaning of s. 11(1) - - That Alleged Payment Claim was not a valid payment claim (in whole or in part) under s. 13 of the Act: (i) to the extent that it claimed for rock excavation, because it was not served within 12 months after such work was last carried out as required by s. 13(4)(b) - (ii) to the extent that it claimed for Delay Costs, because such claim was not permitted by the Act, the Delay Costs not being construction work to which the progress payment claimed by contractor related. - Alternatively, that if the Alleged Payment Claim were a valid payment claim, defendant was not liable to pay the amount claimed by contractor by reason that defendant served on plaintiff a payment schedule within the meaning of s. 14 of the Act, being the Certificate issued by Superintendent.

[CONCURRENT HEARINGS] - Applications by CGU for concurrent hearings of civil proceedings with civil penalty proceedings in which there is some overlap of issues of fact and law - Amendment to pleadings removing allegations of offences under the Corporations Act relied upon as a material change to circumstances - [STAY APPLICATIONS] - Plaintiffs' applications to stay civil proceedings pending conclusion of civil penalty proceedings in which they are the defendants - Further application for stay of proceedings by some of the defendants in which the liquidator seeks remedies in relation to alleged bonus payments in the amount of $14 million. Court's approach - Application of guidelines in McMahon v Gould - Balancing of respective rights - Whether just and convenient to stay proceedings

Evidence - whether opinion evidence of people in the professional soccer industry possess special knowledge based on experience - whether permissible to agree to be bound by the expert Code of Conduct after filing of statements

Appeal from Master - when must go to Court of Appeal

negligence - liability of " - duty of care - breach of duty - causation - "occupier" - "obvious risk"

Costs - Probate - Refusal of Defendant, an executor, to join with Plaintiffs, other executors, in an application for probate - Complaints by Defendant against conduct of First Plaintiff - Appointment of administrator - Conduct of First Plaintiff exonerated by administrator - Indemnity costs.

EVIDENCE [240] - Evidence on commission or letters of request - Jurisdiction and in general - Appointment of examiner - General rule - Power is discretionary - Ambit of discretion - EVIDENCE [252] - Affidavits - Use of affidavits - Cross examination of deponent - Deponent unable to be cross examined - Weight to be given to affidavit evidence.

CRIMINAL LAW [102] - General matters - Stay of civil proceedings pending criminal proceedings - Generally - Right to silence - Substantial prejudice.

SPECIFIC PERFORMANCE - vendor and purchaser - contractual date for completion waived - parties' obligation to settle in reasonable time - whether purchaser was guilty of unreasonable delay - purchaser's finance arrangements had become "de-activated" by reason of earlier delays on part of vendors - vendors held not entitled to serve their notice to complete - circumstances held appropriate, had it been necessary, to grant relief against forfeiture - Romanos v Pentagold Investments Pty Ltd distinguished.

NUISANCE - What constitutes - Whether water overflowing from an unlined stormwater channel onto the plaintiff's land constitutes actionable private nuisance - Whether the channel was the remnant of a watercourse the overflow from which should be borne by the plaintiff as riparian owner - Whether the plaintiff as reversioner had suffered a permanent reduction in the value of the reversion - Whether knowledge of the flood-prone nature of the land by the plaintiff upon acquisition was a defence - Whether the Statute of Limitations 1969, s 14 applied - Whether the defendant was entitled to immunity under the Local Government Act 1993, s 733 - Whether the defendant acted in good faith - Whether the defendant was protected from injunctive relief directed at future acts or omissions - Whether damage to the plaintiff was disproportionate to the cost to the defendant of abating the nuisance - Whether injunctive relief should be granted - PROCEDURE - Courts and judges generally - Whether the Supreme Court of a State is bound by a decision of the Privy Council given prior to the Australia Act 1986

Practice and Procedure - Commercial Contract - Claim for equitable set off - Summary dismissal - General Steel considerations - Practice and Procedure - Separate question determination - Overriding Purpose Rule

Cancellation of Periodic Detention Order in absence of offender undesirable - Fixing of non-parole period

CRIMINAL LAW - corporate fraud - alleged apprehension of bias where trial judge presided over separate trials of two accused where corporate victim of fraud identical - no impact on impartiality of trial judge - effect of delay in process of investigation - sentencing - where trial judge sentencing under distinct Commonwealth and State regimes - where interconnecting sets of sentences - application of principle of totality.

CRIMINAL LAW - appeal against severity of sentence - plea of guilty to receiving - possession of cannabis taken into account on a Form 1 - whether sentencing judge erred in not setting a non-parole period.

CRIMINAL LAW - application for leave to appeal against severity of sentence - aggravated dangerous driving occasioning grievous bodily harm.

CRIMINAL LAW - application for leave to appeal against severity of sentence - detain with intent to hold for advantage - assault with intent to rob in circumstances of aggravation - whether sentence manifestly excessive.

APPEALS - COSTS - Whether leave to appeal should be granted.

HEALTH LAW [47] - Definitions- Meat- s 25(1) Trade Measurement Act 1989- Defendants charged with selling meat otherwise than by weight- The items they sold included chicken filos and chicken fillet steaks flavoured with teriyaki- Were the defendants selling "meat" within the meaning of the Act? WORDS & PHRASES- "Meat"- "Process".

ADMINISTRATIVE LAW [52]- Investigation into allegations of sexual impropriety at school or church- Requirements of natural justice- Right of person affected to be informed of charge- Whether committee may merely adopt investigator's report- Whether one committee may investigate, charge and adjudicate- Whether certiorari lies to church tribunal performing role under Act supervised by Ombudsman. DISCRIMINATION LAW [1]- Alleged discrimination of residents in NSW because NSW law more stringent- No infringement of s 117 of Constitution. MEETINGS [6]- Quorum- Committee- No quorum specified- All members must participate in decision. PROCEDURE [750] Declaration- Report made criticising plaintiff but otherwise not affecting rights- Declaration made.

CONTRACT - construction - restraint of trade clause - whether, properly construed, clause contained two separate exceptions to prohibition, or one composite exception