Cases and authorities

Practice and procedure - application for security for costs - whether applicant insured of relevance - exercise of discretion.

CORPORATIONS - winding up - subject companies possibly have affairs intermingled with affairs of other companies already in liquidation or under administration - whether liquidator and administrator of those other companies should be appointed as liquidator of subject companies - CORPORATIONS - winding up - several applications concerning winding up - payment of costs of parties to the various application

Practice and procedure - Choice of law - whether decision of Master should be appealed to the Court of Appeal or a single judge - whether leave required

Criminal Law - Sentencing - no question of principle

Appeal - appeal from Local Court - procedural fairness - orders in the nature of certiorari - discretion - litigant in person as prosecutor

VENDOR and PURCHASER - sale of subdivided land - contract subject to registration of plan - land sold subject to subdivision of vendor's land into two lots and registration of deposited plan clause 28 of 2000 Standard Contract - vendor claimed to rescind when plan not registered within 6 months - whether condition precedent - "... the vendor must do everything reasonable ..." had been fulfilled: found in fact it had not - rescission ineffective.

Corporations Law. Application to set aside statutory demand. Demand based upon judgment pursuant to an adjudicator's determination under the Building & Construction Industry Security of Payment Act 1999. Whether a contractural ofsetting claim can be used to set aside the demand. Estoppel whether adjudicator's decision give rise to res judicata.

Criminal Law and Procedure - Judge's summing up - whether directions adequate to ensure a fair trial for the appellant - no request made for directions at trial - whether rule 4 should apply - undue waste of public money in preparation of appeal books and provision of legal aid for an unmeritorious appeal.

Criminal law - trial by jury - trial judge misdirected jury - whether case appropriate for application of proviso to s6 of Criminal Appeal Act.

NEGLIGENCE damages quantum - ND

SUPERANNUATION - Discretionary trust - challenge to opinion of trustee on Total and Permanent Disablement claim where some medical reports supported claim and some supported rejection - grounds on which Court may act - challenge to opinion of insurer on TPD where insurer's opinion was element in whether insurance was available to trustee - grounds on which the Court may act.

Evidence - the meaning & scope of business records in s69 of the Evidence Act 1995 - whether materials published at large for advertising and public relations purposes on a business's website qualify as business records

CORPORATIONS - winding up - application to set aside statutory demands - composite application by nine applicants in respect of nine demands relating to joint and several debt - whether application under s.459G

Evidence - scope of s82(1)(a) of the Supreme Court Act 1970

CORPORATIONS - winding up - application on grounds of insolvency - strong evidence of insolvency even apart from s.459C presumption - plaintiff seen by defendant as contingent or prospective creditor but claims to be direct creditor - plaintiff is trustee in bankruptcy - whether security for costs mandatory under s.462(4) - whether security for costs should be ordered

Incompetent appeal from Local Court - adjournment application made otherwise than by court appearance - alleged failure to read medical material on adjournment application - application to set aside - same Magistrate hears both applications - application to set aside not open to the plaintiffs in the circumstances of the case.

NEGLIGENCE: Occupier's liability - LIability of public authority - Duty of Care - Obvious risk.

Appeal decision of Local Court Magistrate - s 151Z Workers Compensation, indemnity

PROCEDURE [487]- Slip rule- Scope of rule- Construction of order not covered- Rule not to apply where the amendment is a matter of controversy.

TAXES AND DUTIES - Land tax - Whether reduction for flats under the Land Tax Management Act 1956, s 9C is available for non-mixed development land - Whether reduction for flats is available to a corporate trustee - Whether the Chief Commissioner should have remitted interest for moneys paid by a third party - Whether the Chief Commissioner should have extended the principal place of residence exemption beyond the statutory two years in s 10T(4) where construction of a residence was delayed - Whether acceptable delay was demonstrated - Whether reduction for unutilised value allowance under s 9A(2) is available in the absence of an entry of such allowance on the register - Whether interest is payable by the Chief Commissioner on the refund of land tax paid by a third party by mistake - Whether review of assessments with respect to different lands should be joined in the one proceeding - Whether applications for orders in the nature of mandamus should be joined in the one proceeding

Appeal decision of Local Court Magistrate - interest - indemnity costs

Evidence - expert opinion evidence - applicable principles

Review Registrar's decision - security for costs

CRIMINAL LAW - appeal - no question of principle

CRIMINAL LAW AND PROCEDURE - SENTENCE - AGGRAVATED SEXUAL ASSAULT BY HUSBAND ON WIFE - MULTIPLE SERIOUS MEDICAL CONDITIONS AFFLICTING OFFENDER - SPECIALLY ONEROUS CIRCUMSTANCES OF INCARCERATION - SENTENCE NEVERTHELESS MANIFESTLY INADEQUATE IN TERMS OF NON PAROLE PERIOD - DISCUSSION OF APPROACH TO AND APPLICATION OF SPECIAL CIRCUMSTANCES - DISCRETION OF APPELLATE COURT TO DISMISS CROWN APPEAL

CRIMINAL LAW - Accused convicted of murder - Appeal against conviction - Whether trial Judge erred in her directions to the jury on: lies as evidence of consciousness of guilt - circumstantial evidence - motive - accessorial liability - Whether trial Judge should have warned the jury with respect to particular evidence - Whether trial judge erred in permitting cross-examination of particular witness - Whether trial Judge erred in admitting particular evidence - Whether trial Judge erred in her directions to the jruy on the meaning of an unsworn statement - Appeal agaisnt sentencing - Whether trial judge should have imposed a lesser sentence on the basis that the accused's liberty had been affected over a length of time due to the circumstances of the case. - D

Criminal Law and Procedure - Sentence - Old sexual assault offences - discount for plea - tariff at time of commission of offence - relevence of lack of prospects of rehabilitation.

INSURANCE - definition of "liability" - definition of "Injury" - latent diseases - mesothelioma - "trigger" of cover - exposure theory - retrospective legislation

Employment - Removal from office as Deputy Commissioner of Police without notice or clear assignment of cause - s51 Police Service Act 1990 - Crown prerogative - Dismissal at pleasure - whether duty of procedural fairness - whether breach of contract - Damages - statutory compensation - whether respondent precluded from damages claim for wrongful dismissal (D)

Negligence - motor accident - damages - Motor Accidents Act 1988, s43A - late claim - whether full and satisfactory explanation - whether court satisfied that damages likely to be awarded did not pass threshold - "likely". (D)

MORTGAGES AND CHARGES: Clogs on the equity of redemption - Whether secured loan with option to purchase a clog - True nature of transaction - Unconscionability.

INSURANCE - exclusions under policy for damage to property owned by the insured - is the exclusion relevant where a subcontractor's property is damaged by another party covered under the same insurance contract - did the insurers make a binding election to indemnify the head contractor by way of correspondence

EVIDENCE [24] - Admissibility and relevancy - Facts relevant to facts in issue - In general - Facts relevant only to costs where costs not to be determined on current hearing.

Felony murder - elments - accused charged as accessory before fact - whether necessary to be present at time of offence - meaning of "with him" in s18(1)(1) of the Crimes Act 1900 - nature of foreseen possibility

[COSTS] - No matter of principle

post traumatic stress disorder - negligence - reliability of history

PROCEDURE - miscellaneous procedural matters - stay pending appeal - application for stay made to trial judge

PROCEDURE [111] - Procedure under Supreme Court Rules - Evidence - Subpoenas - To witness - Witness liquidator of company - Company and liquidator parties to proceedings - Liquidator out of funds - Cross examination to take three days - Tender of $100 conduct money only.

ADOPTION - Aboriginal Child Placement Principles s.35 - DOCS proposed to place child with H&W where H is Aboriginal and W is non-Aboriginal - on the facts, the Aboriginal Child Placement Principles have been complied with and the Court is satisfied of the matters in subs.35(3) - declaration accordingly.

LITIGANT IN PERSON: Dismissal of proceedings - CSR Pt 13 r 5 - appeal therefrom - Abuse of process.

Share subscriber agreement - venture capital company - company on brink of insolvency - agreement to subscribe for shares in the future by a funding programme - failed to subscribe - company went into liquidation - company in liquidation sued for subscription amounts - able and willing to issue shares - whether agreement frustrated - whether performance radically changed - whether common assumption that company would continue trading - ceasing trading and liquidation in contemplation, subscribers took the risk, and the agreement covered the situation - no frustration.

CORPORATIONS - external administration - termination of appointment of provisional liquidator - when appropriate

CRIMINAL LAW: - sentence - escape, aggravated robbery (2), deemed larceny motor vehicle (2) - Crown appeal in respect of robbery sentences - whether manifestly inadequate - whether justified by respondent's limited role - whether sentences should have been concurrent - whether Henry guideline applicable

EVIDENCE - unfavourable witness - whether leave should be granted pursuant to s 38 of the Evidence Act in a case in which the witness does not recall the circumstances of making a statement to the police. EVIDENCE - admissibility of solicitor's file note containing instructions from a client as a business record under s 69(2) of the Evidence Act - The exercise of the s 135 discretion to exclude evidence tendered on behalf of an accused in criminal proceedings. CRIMINAL LAW- when proceedings for an offence are instituted for the purposes of the Crimes Self-Defence Amendment Act 2001. Whether re-arraignment on an indictment in all material respects the same as an earlier indictment amounts to the substitution of an indictment for s 20 of the Criminal Procedure Act 1986

SPECIFIC PERFORMANCE - sale of land on condition relating to subdivision - inconsistent conditions - obligation of vendors not performed - right of rescission not available.

EXECUTORS and ADMINISTRATORS - rights powers and duties - burial - executor in disputed will claimed order establishing that he should arrange funeral and cremation - son of deceased disputed alleged will and contended that funeral should be Russian Orthodox with burial not cremation - on review of strength of plaintiff's claim based on will, alternatively recent marriage ceremony, the Court made an interlocutory direction for the son to make arrangements for funeral.

[INJUNCTIONS] - Whether the First Defendant should be restrained from taking any steps in relation to an adjudication determined by the Second Defendant in respect of a dispute between itself and the Plaintiffs - Whether adjudicator exceeded his jurisdiction in determining the dispute under the Building and Construction Industry Security of Payment Act 1999 (NSW)