Cases and authorities

COSTS - of application for leave to further amend summons, and, of and thrown away by the amendments - circumstances which give rise to the discretion to order indemnity costs - whether the discretion is enlivened in the present case - significance of delay, and lack of explanation for delay, in seeking amendments

Guilty of Murder

Criminal Practice & Procedure - Malicious wounding - whether a wounding - sufficiency of evidence - wounding amounting to a split lip caused by a punch - whether sentence excessive

Jurisdiction of Tribunal - notice of termination - particulars of ground - what is required - alternative accommodation - no power to make such an order - Tribunal is to consider circumstances of the case and decide if it is appropriate to make an order.

Imputations - form - capacity

Imputations - capacity

Review and fresh application - interrogatories and limitation extension application - necessary and the Boyle approach - fishing expedition - oppressiveness.

PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally - Plaintiff generally successful - Defendant wins on some issues - Issues intertwined.

CORPORATIONS - voluntary administration - second meeting of creditors' votes for execution of deed of company arrangement - company claiming to be creditor seeks interlocutory order restraining execution of deed of company arrangement - power to make order - whether order desirable in the circumstances

Building Contracts. Measure of damages for breach where building sold before rectification carried out. Whether there was substantial performance. Defendants liable notwithstanding that defects were not intended to be rectified. - Contracts. Construction of clauses restricting liability for claims. - Damages. Causation, forseeability of negligence by others in rectifying faulty workmanwork.

REAL PROPERTY - Valuation of land - Market value of residential improved site with water views - Whether sales indicative of land value in the locality are preferable - Whether sales of absolute water front properties are preferable - Whether sales in adjoining suburb showing higher values are preferable

TORRENS SYSTEM - the Friels (7&8D) owned house in Paddington - fraudsters impersonating the Friels obtained new Certificates of Title for many parcels of land owned by the Friels on false applications under s.111 RPAct 1900 - then borrowed $500,000 from RHC (5D) which registered its mortgage over Paddington house - plaintiffs advanced $816,000 on fraudulent application for loan by persons claiming authority from the Friels and paid $515,000 of advance to RHC for discharge of registered mortgage - RG (9D) refused to register mortgage to plaintiffs as it was forged: held, plaintiffs entitled to rely on RHC mortgage by subrogation for $515,000: Friels entitled to compensation from Torrens Assurance Fund under s.129 of RPAct 1900: consideration of effect of amendments to RPAct Pt 13 & 14 by Real Property Amendment (Compensation) Act 2000 - subsidiary claims to recover other parts of plaintiffs advance of $816,000 which were not paid towards discharge of any mortgage.

Damages for personal injury - plaintiff slipped on fibreglass sheeting - disputed evidence of how he came to fall and whether he was warned - judge made no findings - could not be satisfied that plaintiff fell as he said because of "discrepancies" between witnesses - failure in judicial function - failure to give reasons why was unable to decide how plaintiff came to fall - new trial - no question of principle.

TORTS - NEGLIGENCE - Verdict for defendant employer - Whether appealable error shown.

Application to dismiss proceedings - to dissolve injunction - injurious falsehood - s42 Fair Trading Act - s8A Defamation Act

Appeal - defence or answer to assessment under Statutory regime - construction of consent orders.

CORPORATIONS [176] - Voluntary administration - Jurisdiction and powers of Court - General power to make orders - Power to make such order as it thinks appropriate - Order that meeting may be held earlier than during the five day period immediately after the convening period - CORPORATIONS [180] - Voluntary administration - Creditors' meeting - Application to extend time to convene - Relevant considerations - Meeting date falling between Christmas and New Year.

Appeal - gratuitous bailment - negligence must be proved - error in respect of a question of law.

PROCEDURE [748] - Miscellaneous procedure - Declarations - Appropriate form of relief - Discretion of court - Other cases - Charitable trust - Form of declarations - Declarations should reflect issues in contention among the parties.

PRACTICE AND PROCEDURE - Discovery - Privilege against self-exposure to a penalty - Whether available in proceedings for declaration of contravention of civil penalty provision, disqualification from management of corporations and compensation orders - PRACTICE AND PROCEDURE - Pre-trial filing of witness statements - Privilege against self-exposure to a penalty - Corporations Act 2001 (Cth), ss 206C, 206E, 1317EA

NEGLIGENCE - Asbestos-related disease - Whether trial judge wrongly allowed Sullivan v Gordon damages - Whether appellants should be granted leave to reargue Sullivan v Gordon - Whether there is an overlap between damages under the Wrongs Act 1936 (SA) and Sullivan v Gordon damages - CONSEQUENTIAL MENTAL HARM - Whether respondent can claim damages for fear of suffering from a future disease - Parasitic claims - When is the cause of action complete for mental trauma. D

CONTRACT - Construction and interpretation - Whether "rights" referred to in a contract relating to a magazine were limited to the name of the magazine, or extended to the business of publishing the magazine and/or awards associated with the magazine. - TRUST - Trade marks - Application for registration - By reason of mistake, application made in name of entity different from that which had used mark and which was entitled to it - Whether intention to obtain registration for entity which had used mark and was entitled to it predominated over intention to obtain registration for named entity - Whether trust should be implied.

CONTRACTS - Building, Engineering and Related contracts - Other matters - Residential building works - Failure of contractor to take out insurance under the Home Building Act 1989 - Failure of original owner to attach insurance certificate to contract for sale of dwelling - Whether on-seller obliged to obtain alternative insurance cover - CONVEYANCING - Relationship of Vendor and Purchaser - Matters arising between Contract and Conveyance - Whether on-seller entitled to give notice to complete and terminate contract for sale - Whether failure to obtain alternative insurance cover a defect in title - Whether an order for repayment of deposit under the Conveyancing Act 1919, s 55(2A) should be made

STATUTES - operation and effect of statutes - provisions of State and Territory Acts purporting to alter incidents of company winding up under Commonwealth Act - interpretation of provisions of Commonwealth Act as to interaction with State and Territory Acts - INSURANCE - reinsurance - application of proceeds of reinsurance - statutory regulation of insurers - CORPORATIONS - winding up - application of property and priority of claims - territorial quality of winding up process under Commonwealth law - impact of State and Territory laws - EQUITY - subrogation - whether third party compelled by law to meet insured loss upon reinsured risk is subrogated to insurer's right under reinsurance - whether equitable right to subrogation displaced by statutory right

Damages for injuries sustained, disabilities and consequential losses allegedly occasioned to plaintiff whilst undergoing initial recruit training in the Army.

Appeal from Local Court - no error of law - no question of principle.

Appeal from Tribunal - notice of application - was the plaintiff a party to the proceedings - denial of procedural fairness - Tribunal procedures.

CORPORATIONS [176] - Voluntary administration - Jurisdiction and powers of Court - General power to make orders - Power to make such order as it thinks appropriate - Appointment of voluntary administrator void by reason of forged signature - Whether order should be made validating appointment.

PROCEDURE [489] - Judgments and orders - Amending varying and setting aside - Setting aside by consent.

EVIDENCE - expert opinion evidence - experts give opinions on what a reasonably competent chief financial officer and reinsurance manager would do in the defendants' positions in stated circumstances - opinions based on multiple assumptions - principles as to admissibility under s 79 - whether evidence should be excluded under s 135

CRIMINAL LAW - Appeal against conviction - Whether verdict unreasonable or illogical.

WORKERS' COMPENSATION - Discretion of the Court under s17 Compensation Court Act 1984 (NSW) to reconsider orders made pursuant to s15(1) Workers' Compensation Act 1926 (NSW) - February 1986 redemption of weekly payments by lump sum payment - CHANGED CIRCUMSTANCES - Major injuries to right leg suffered in 1980 - lump sum compensation for 50% loss of use of right leg awarded in 1983 - right leg amputated in 1998 curing problems of recurrent infection and septicaemia. Whether s17(4) incapable of application to an agreement between worker and employer where redemption amount has been determined by the court - Failure to re-consider specifically the lump sum determination as required by s17(4) - Whether trial judge applied a solely subjective test in consideration of the objective requirement for foreseeability of amputation - Whether trial judge's discretion miscarried, taking into account extensive delay.

PRACTICE - Appeal - Stay - Whether appeal has substance - Balance of convenience - Conditions of stay.

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

[REFERENCE] - [ADOPTION OR REJECTION OF REPORT] - Competing applications pursuant to Part 72 Rule 13 to adopt or reject Referee's Reports - Court's approach to such applications - References not to be constrained by the rigorous application of rules - [EVIDENCE & PROCEDURE] - Application of the "rule" in Browne v Dunn (1893) 6 R 67 - Competing expert's reports - No cross-examination of expert - Application of principles in Hull v Thompson [2001] NSWCA 359 - [AMENDMENT] - Courts power under Part 72 Rule 9 in circumstances where Referee has power to amend and refuses amendment.

application for discharge of jury - potential prejudice - issue of truth or falsity - reference to Macquarie Dictionary for purpose of definition of meaning - prohibited imputation

Application for leave - discretionary considerations - deliberate decisions and inadequate explanation for delay.

Striking out of Statement of Claim - no reasonable cause of action and abuse of process estoppel and lack of bona fides.

Practice and Procedure - strike out application - immunity of Crown in the right of the State of New South Wales from suit in respect of alleged contravention of Trade Practices Act Part V - Special Federal Matter for purposes of Jurisdiction of Courts (Cross Vesting) Act 1987 insofar as proceedings seek Part IV Trade Practices Act relief

TRUSTS - remedies of beneficiaries - mixing of money held on trust for several beneficiaries in bank account - insufficiency of account to meet claims on it - how insufficiency should be borne - whether Clayton's Case applicable to decide proprietary interests in money remaining in account - CORPORATIONS - winding up - liquidator of company which held money of several beneficiaries in trust account - liquidator's responsibility concerning distribution - whether Clayton's Case applies - BANKING AND FINANCIAL INSTITUTIONS - banker and customer and business of banking generally - present role of Clayton's Case - CORPORATIONS - winding up - liquidator's application for directions - application concerning one question in which representative of affected class appointed, and concerning other questions where no representative of affected persons appointed - who bound by decision - TRUSTS - money paid into trust account - whether trust created - PRECEDENT - effect of first instance decision altered on appeal - PRECEDENT - decisions of English Court of Appeal - PRECEDENT - effect of judge's decision about legal rights arising in a factual situation which he has held does not exist - CORPORATIONS - winding up - liquidator of company which is trustee of assets, and has other assets - when liquidator's costs paid from assets subject of security - when liquidator's costs payable from trust assets

SENTENCES: Inadequacy - attitude taken by Parliament - Accumulation of sentences - Previous sentence and current sentence - Principle of totality - Effect on applicant of accumulation of sentences - Special circumstances - Difference in allowance made in individual sentences and overall term - Direction of trial judge.

Appeal - Application for stay of final orders - Effect on interlocutory orders - ND

TAXES AND DUTIES - Income tax - Collection and recovery of tax - Collection by instalments - Obligation of company directors - To remit deductions from wages of employees by due date - Alternative of making an agreement with the Commissioner - Requirements for such an agreement - Penalties.

TAXES AND DUTIES - Income tax - Collection and recovery of tax - Collection by instalments - Obligation of company directors - To remit deductions from wages of employees by due date - Alternative of making an agreement with the Commissioner - Requirements for such an agreement - Penalties.

SUCCESSION - FAMILY PROVISION - Claim by adult daughter - Whether provision excessive

REAL PROPERTY - Option to purchase residential property granted to grantee or his nominee - No nomination of a nominee made at time counterparts exchanged - only grantee signing counterparts - Whether option was void pursuant to Conveyancing Act 1919, s 66ZG(1). ND