Cases and authorities

Appeal from Tribunal - questions of costs - jurisdiction of Tribunal - jurisdiction to award costs - costs not a subject of appeal to this Court.

Appeal decision of CTTT - preliminary issue - costs

CHARITIES - anomalous non-charitable "tomb trusts" - invalidity where the tomb is not part of a church and the trust is perpetual - rule against perpetuities - consequences for gift of surplus income to charity - exceptional rule where tomb trust is invalid - gift over to charity upon tomb falling into disrepair or where repair is in the opinion of the trustee "impracticable" - trustee bound to have that opinion if "tomb trust" invalid - whether trust to establish grave could be held valid though trust for its upkeep was void for perpetuity - whether gift to a charity (a hospital) took effect too remotely - whether gift to charity was a limitation on the failure or expectant on the determination of a limitation (the "tomb trust") that was void as a perpetuity- association with a prior invalid limitation distinguished from dependency or expectancy upon it - position where a gift is contingent upon alternative conditions some of which offend the rule against perpetuities but one does not - plaintiff's entitlement to charitable gift upon a cy-près order.

Imputations - capacity - costs

Summary dismissal - abuse of process - discretionary considerations - statutory certificate.

CONTRACT [135]- Rescission- Sale of land and deed of compromise- Special conditions- Purchase money fully paid- Effect of purported rescission if valid- Whether obligation on person rescinding to refund purchase money. CONVEYANCING [2]- Sale of land subject to registration of plan- Plan not registered- Plaintiff purported to rescind the contracts- Obligation on parties to do whatever reasonably necessary- Onus discussed- Held arguable case that rescission ineffective. EQUITY [338]- Interlocutory order- Balance of convenience- Construction of contracts permissible during an interlocutory application but not usually where construction may be affected by the factual matrix of the case- How far convenience of third parties material.

CRIMINAL LAW AND PROCEDURE - SENTENCE - MANIFEST INADEQUACY - CROWN APPEAL - AGGRAVATION - OFFENDER UNLAWFULLY AT LARGE WHEN OFFENDING - MULTIPLE OFFENCES - VALUABLE TOTAL OF PROPERTY UNRECOVERED - PARITY - CO-OFFENDERS DEALT WITH AT YOUTH DRUG COURT - COMMENT ON PURPOSES OF REMARKS ON SENTENCE

CORPORATIONS - Winding up insolvency - Preference - Letters of credit issued by bank to creditors at request of company - Administrator appointed - Creditors draw on letters of credit, and bank reimburses itself from company - Whether company and creditors were parties to a transaction - Whether an unfair preference given by the company to the creditors - PRACTICE - Application for summary dismissal - Leave to appeal sought from refusal of application - Discretionary considerations.

WORKERS COMPENSATION - Common law liability of employer - Damages - Appeal - Whether error of fact vitiated primary judge's conclusion as to causation of damages - Whether error affected particular heads of damages - Domestic assistance - Allowance for fair give and take of family life - Whether limitations in s.151K of Workers Compensation Act 1987 apply in respect of future care.

Whether arguable ground for challenging the decision - factual findings clearly correct - if so, other bases for challenge fell away - no arguable ground.

VENDOR and PURCHASER - recovery of deposit - discretion of Court to order repayment of deposit - purchaser bought after advertisement &c. notified "DA Approval" - purchaser sought compensation on ground that development as approved was not feasible - no contractual warranty - on review of extensive expert evidence it was found that development was feasible and difficulties were not abnormal for development project - on review of circumstances, the Court declined relief against forfeiture of the deposit under s.55(2A) CA 1919.

CRIMINAL PRACTICE & PROCEDURE - Manslaughter by Criminal Negligence - deceased died after fire - hardship on dependent - whether truly exceptional - offer of plea

Criminal law - murder - sentence - killing of spouse - in presence of child - early plea - aggravating and mitigating features - necessity for sentence and non-parole period not to be disproportionately short.

Manslaughter plea

VENDOR and PURCHASER - Option to Put and Call lots in proposed subdivision - Plan annexed to Option showed 41 lots of which 39 were residential lots - plan approved allowed 33 residential lots - whether options available for lots in approved subdivision at prices fixed for lots in annexed plan - held - it was not - decision on construction of Deed of Put and Call

CONVEYANCING [68]- Standard form contract for sale- Construction of cl 13- GST provisions- Whether contract price includes the GST payable by the vendor- Whether GST invoice must represent the amount actually paid in GST- What happens where some of the properties being sold under the contract are a taxable supply and some are not?- "CHOICES" section of contract- Whether warranties or mere information.

Plea to Manslaughter

CONTRACT - CONSTRUCTION - Dispute resolution clause - whether notice triggering dispute resolution mechanism validly given - what is meant by "dispute" - no point of principle involved.

CUSTOMS PROSECUTION: - Charges of smuggling, evading duty, omitting material matter in statement - standard of proof - mental element of each offence

Criminal law - sentencing - armed robbery

Criminal law - sentencing - ongoing supply of prohibited drugs

Jury - civil proceedings - application for directed verdict - relevant principles applicable

CONTRACT - rescission - unilateral mistake - obvious mistake in offer of compromise known to offeree accepting the mistaken offer

Plaintiff's application for expedition

Imputations - capacity - form

Criminal law - sentencing - no question of principle

CRIMINAL LAW AND PROCEDURE - DANGEROUS DRIVING CAUSING DEATH - SENTENCE - ERRORS DETECTABLE IN SENTENCING JUDGE'S REMARKS - NEED TO ACCOMMODATE "DISCOUNT" FOR UTILITARIAN VALUE AND OFFENDER'S SUBJECTIVE CASE - MANIFESTLY EXCESSIVE

CRIMINAL LAW AND PRACTICE - SENTENCE - ACCUMULATION - PROPORTIONALITY BETWEEN ULTIMATE EFFECTIVE HEAD SENTENCE AND NON-PAROLE PERIOD - (PER ADAMS J) DISAPPROVAL OF ADVERSE COMMENT DIRECTED AT A PERSON WHO IS NEITHER PARTY NOR WITNESS.

Appeal against two decisions made and declarations and orders made re stock available for sale in warehouse which was in breach of EPA Act.

BREACH OF STATUTORY DUTY - s27 Factories, Shops & Industries Act 1962 - failure to fence a dangerous machine. - NEGLIGENCE - duty of care of appellant occupier, to the extent it existed, to the first respondent employee was not breached - second respondent employer not liable in negligence to the first respondent employee. - DAMAGES - discretionary.

TRADE PRACTICES - Consumer Protection - Whether representation made that beef industry irrelevant to capital raising - Whether representation misleading or deceptive - Whether individuals involved in contravention - Whether plaintiff relied on representation in entering into contract with first defendant to cause shares to be listed on stock exchange - CONTRACTS - Discharge, Breach and Defence to Action for Breach - Whether first defendant had good reason not to achieve milestones - Whether anticipatory breach - CORPORATIONS - Supervision, Regulation and Correction - Whether obligation to obtain agreement in principle from an underwriter constituted a business of inducing persons to make an agreement for underwriting securities - Whether a dealing in securities without a licence - Whether the first defendant carried on a business of advising others about securities without a licence

Corporations - Application to set aside statutory demand under s 459G of the Corporations Act - Demand set aside - No matters of principle

CONTRACT [135]- Rescission- Contract to buy off the plan- Special conditions- Vendors to "take all reasonable steps to procure approval for the registration of the Plan, Instruments or Community Management Statement"- What is "reasonable"- What would a reasonable developer do?- Both parties had right to rescind under special condition 30- Vendors exercised the right of rescission- Whether rescission justified- Plaintiffs seeking specific performance of contract. CONVEYANCING [2]- Contract subject to registration of plan within certain period- Condition not fulfilled- Whether vendors could rescind.

Criminal law - sentence - appeal - whether sentence manifestly excessive - whether special circumstances should have been found - no question of principle.

CRIMINAL LAW - appeal against sentence for armed robbery - whether trial judge should have given a further discount due to assistance given by accused to authorities in relation to co-offender - ND

PRACTICE - Interlocutory decisions - Whether leave to appeal and extensions of time should be granted.

DEFAMATION - DAMAGES ASSESSED

INSURANCE - motion for separate question for determination where officer of insured claims indemnity for defence costs in proceedings brought against him by ASIC - construction of defence costs extension clause and exclusion clause - HELD Defendants free of any obligation to indemnify the Plaintiff for defence costs

EVIDENCE [56]- Expert evidence- Valuation- Minimum expertise required- Keeping database of local sale prices insufficient.

APPEAL - criminal law - sentencing - APPEAL - no question of principle

CRIMINAL LAW AND PROCEDURE - SENTENCE - ELDERLY AND VULNERABLE VICTIM - OFFENDER SUFFERING FROM BI-POLAR DISORDER AND DEPRESSION - RELEVANCE AND ASSESSMENT DISCUSSED - CONTENTION THAT CIRCUMSTANCE OF AGGRAVATION PROVABLE ONLY BY CONFESSION BY OFFENDER REJECTED - NO LESSER SENTENCE THAN THAT IMPOSED WARRANTED

Sentence - discount for plea - desirability of explicit statement of extent of discount applied

Crimes (Superannuation Benefits) Act 1989 (C'th) - loss of superannuation benefits if convicted of a "corruption offence" - relevantly meant that commission of offence involved an abuse of the offender's office as an employee - offender was employed by Australia Post at a parcel centre - stole articles in the course of post from the parcel centre - abuse did not mean a corrupt use - was abuse of office as employee.

PROCEDURE - Supreme Court Procedure - Appeal from a Master - Application to set aside a statutory demand - Litigant in person appearing for company - Whether leave should have been given to adduce oral evidence as to damages in an off-setting claim in the District Court - Whether additional affidavit setting out that evidence should be admitted on appeal - Whether claim to set aside, not raised in the affidavit supporting the orginating process is open - Whether a case in equitable estoppel had been made out - Whether conditions should be attached to the setting aside of the statutory demand

Objection taken to identification evidence - fresh application after further material made available - numerous factors taken into account in determining whether the unfair prejudice of the evidence outweighs its probative value - evidence excluded.

ADMINISTRATIVE LAW - whether, and on what grounds, prerogative relief is available against the determination of an adjudicator under the Building & Construction Industry Security of Payment Act - jurisdictional error - errors of law on the face of the record

PROFESSIONAL RESPONSIBILITY — whether Director of Public Prosecutions guilty of professional misconduct or unsatisfactory professional misconduct due to alleged 'misrepresentation' — whether advice given by Director of Public Prosecutions was misleading — whether decision by Legal Services Commissioner based on subject advice 'infected' by reviewable error

Criminal Law - Sentencing - Quasi-custody - Time spent in Drug Rehabilitation Programs

DAMAGES - Whether trial judge should have awarded interest on the capital value of chattels lost due to the negligence of the defendants in circumstances where the plaintiff had not paid for the chattels - Whether loss real or theoretical - Whether the fact that the plaintiffs had not paid the purchase price for the chattels relevant to award of interest - Supreme Court Act, s94 - D